Sep
1
2017


The Supreme Court in the matter of Vithal Tukaram Kadam vs Vamanrao Sawalaram Bhosale decided on 9 August, 2017 Civil Appeal Nos. 7245-7246 OF 2011 summarised the essentials of an agreement, to qualify as a mortgage by conditional sale. An ostensible sale with transfer of possession and ownership, but containing a clause for re-conveyance in accordance with Section 58 (c ) of the Act, will clothe the agreement as a mortgage by conditional sale. The execution of a separate agreement for re-conveyance, either contemporaneously or subsequently, shall militate against the agreement being mortgage by conditional sale. There must exist a debtor and creditor relationship. The valuation of the property, and the transaction value, along with the duration of time for re-conveyance, are important considerations to decide the nature of the agreement. There will have to be a cumulative consideration of these factors, along with the recitals in the agreement, intention of the parties, coupled with other attendant circumstances, considered in a holistic manner.








© 2010-15