KERALA CO-OPERATIVE LAND MORTGAGE BANKS ACT, 1960 [1]THE KERALA CO-OPERATIVE LAND MORTGAGE BANKS ACT, 1960 [Act 1 of 1960] An Act to facilitate the working of co-operative land mortgage banks in the State of Kerala whereas it is expedient to facilitate the working of Co operative land mortgage banks in the State of Kerala: Be it enacted as follows:-] (1) This Act may be called the Kerala Co-operative Land Mortgage Banks Act, 1960. (2) It extends to the whole of the State of Kerala. (3) It shall come into force on such date as the Government may, by notification in the Gazette, appoint.[2] In this Act, unless the context otherwise requires,- (a) "Board".- "Board" means the Board of Directors of the Central Land Mortgage Bank; (b) "Central Mortgage Bank".- "Central Mortgage Bank" means the Kerala Co-operative Central Land Mortgage Bank Limited; (c) "Committee" - "Committee", in relation to a primary mortgage bank, means the Board of Directors or Board of Management or the Panchayat or the committee of management or the governing body to whom the management of its affairs is entrusted; (d) "Co-operative Society".- "Co-operative Society" means a Co-operative society registered or deemed to be registered under the Travancore-Cochin Co-operative Societies Act, 1951 or the Madras Co-operative Societies Act, 1932; (e) "Malabar".- "Malabar" means the Malabar District referred to in sub section (2) of section 5 of the States Reorganization Act, 1956 (37 of 1956); (f) "Notified Order". - "notified order" means ah order notified in the Gazette; (g) "Prescribed".- "prescribed" means prescribed by rules made by the Government under this Act; Notwithstanding anything contained in the Travancore -Cochin Co-operative Societies Act, 1951, it shall be lawful for the Central Land Mortgage Bank, to admit as its member a Co-operative land mortgage bank registered or deemed to be registered under the Madras Co-operative Societies Act. 1932; and any such admission made before the commencement of this Act shall be deemed to have been lawfully made. (1) (a) With the previous sanction of the Trustee, the Board may issue debentures of one or more denominations for such period as it may deem expedient on the security of the mortgages taken by the Central Mortgage Bank and its other assets and mortgages transferred or deemed under the provisions of section 23 to have been transferred by the primary mortgage banks to the Central Mortgage Bank. (b) Such debentures may contain a term fixing a period not exceeding twenty years from the date of issue during which they shall be irredeemable or reserving to the Board the right to call in, at any time, any of the debentures in advance of the date fixed for redemption after giving to the debenture-holder concerned not less than three months' notice in writing. (2) The total amount due on the debentures issued by the Board and outstanding, at any time, shall not exceed the aggregate of the amounts due on the mortgages and other assets referred to in clause (a) of subsection (1) and the amounts paid thereunder and remaining in the hands of the Board or of the Trustee at such time. [3][(1) Notwithstanding anything contained in S. 4, the Board may, with the previous sanction of the Trustee and the Government issue debentures of one or more denominations for such period as it may deem expedient without the security of the mortgages and assets mentioned in the said section for the purposes of providing loans to the Kerala State Electricity Board constituted under the Electricity Supply Act, 1948 (Central Act 54 of 1948), for energisation of pumpsets under the schemes approved by the Agricultural Refinance and Development Corporation established under the Agricultural Refinance and Development Corporation Act, 1963 (Central Act 10 of 1963): Provided that no such debentures shall be issued unless the repayment of the principal of, and the interest on, the debentures has been guaranteed by the Government either without any conditions or subject to such conditions as they may think fit to impose. (2) The debentures issued under sub section (1) may contain a term fixing a period not exceeding twenty years from the date of issue, during which they shall be irredeemable, or reserving to the Board the right to call in, at any time, any of the debentures in advance of the date fixed for redemption after giving to the debenture-holder concerned not less than three months' notice in writing.] [4][(1) Notwithstanding anything contained in S.4, the Board may with the previous sanction of the Trustee and subject to such conditions as the Government may think fit to impose, issue debentures of one or more denomination or denominations, without the security of the mortgages and assets mentioned in the said section, for such period as it may deem expedient, for the purpose of providing loans, the repayment of the principal of, and the interest on, which has been guaranteed by the Government, to any person or body of persons approved by the Government in this behalf: Provided that no such debentures shall be issued unless the repayment of the principal of, and the interest on, the debentures has been guaranteed by the Government either without any conditions or subject to such conditions as they may think fit to impose. (2) The debentures issued under sub-section (1) may contain a term fixing a period not exceeding twenty years from the date of issue, during which they shall be irredeemable, or reserving to the Board the right to call in, at any time, any of the debentures in advance of the date fixed for redemption after giving to the debenture-holder concerned not less than three months' notice in writing.] (1) The Registrar, or where the Government appoint any other person in this behalf, such person, shall be the Trustee for the purpose of securing the fulfillment of the obligations of the Central Mortgage Bank to the holders of debentures issued by the Board. The mortgages executed in favor of the Central Mortgage Bank and other mortgages and assets transferred or deemed under the provisions of section 23 to have been transferred to the Central Mortgage Bank shall vest in the Trustee from the date of execution or transfer. [5][The holders of the debentures issued under S.4 shall have a floating charge] on all such mortgages and assets, on the amounts paid under such mortgages and remaining in the hands of the Board or the Trustee and on the other properties of the Central Mortgage Bank. The powers and functions of the Trustee shall be governed by the instrument of trust executed between the Bank and the Trustee as modified from time to time by mutual agreement between the Board and the Trustee. (2) The Trustee appointed under sub-section (1) shall be a corporation sole by the name of the Trustee for the debentures and as such shall have perpetual succession and a common seal and in his corporate name shall sue and be sued. (1) The principal of and the interest on the debentures issued under section 4 to such maximum amount as may be fixed by the Government and subject to such conditions as they may think fit to impose, shall, subject to the provisions of sub-section (3), carry the guarantee of the Government. (2) The Government may, after consulting the State Legislative Assembly, increase the maximum amount of any guarantee given by them, (3) The Government may, after consulting the Board and the Trustee, (a) by notification in the Gazette, and (b) by notice for not less than 14 days in such of the principal newspapers in the State and in other States in India, as the Government may select in this behalf, discontinue any guarantee given by them or restrict the maximum amount thereof or modify the conditions subject to which it is given, with effect from a specified date, not being earlier than six months from the date of publication of the notification in the Gazette. In cases where the maximum amount of the guarantee is to be restricted or the conditions subject to which the guarantee is given are to be modified, the notification and notice aforesaid shall set forth, with sufficient clearness, the scope and effect of the restriction or modification. Explanation.- The withdrawal, restriction or modification of any guarantee under this sub-section shall not affect, in any way, the guarantee earned by any debentures issued prior to the date on which such withdrawal, restriction or modification takes effect. The Board may, subject to the approval of the Trustee, make regulations not inconsistent with the provisions of this Chapter,- (i) for fixing the period of debentures and the rate of interest payable thereon; (ii) for calling in debentures after giving notice to debenture-holders; (iii) for the issue of new debentures in place of debentures damaged or destroyed; (iv) for converting one class of debentures into another class of debentures bearing a different rate of interest; and (v) generally for carrying out the provisions of this Chapter. [6][Provided that such regulations in respect of debentures issued under S.4A [7][or S.4B] shall also be subject to the approval of the Government] (1) If any installment payable under a mortgage executed in favor of the Central Mortgage Bank or a primary mortgage bank or any part of such installment has remained unpaid for more than one month from the date on which it fell due, the Board or the Committee may, in addition to any other remedy available to them, apply to the Registrar or to any other person appointed by the Government under section 3 of the Travancore-Cochin Co-operative Societies Act, 1951, or under section 3 of the Madras Co-operative Societies Act, 1932, to assist the Registrar, for the recovery of such installment or part by distraint and sale of the produce of the mortgaged land including the standing crops thereon. On receipt of such application the Registrar or such other person may notwithstanding anything contained in the Transfer of Property Act, 1862 (4 of 1882), take such action as is necessary to distrain and sell such produce: Provided that no distraint shall be made after the expiry of twelve months from the date on which the installment fell due. (2) The distress shall not be excessive; the value of the property distrained shall be, as nearly as possible, equal to the amount due and the expenses of the distraint and the costs of the sale. (1) Before or at the time when a distraint is made under section 8, the distrainer shall serve or cause to be served upon the defaulter a written demand specifying the amount for which the distraint is made. (2) The demand shall be dated and signed by the distrainer and shall be served upon the defaulter by delivering a copy to him or to some adult male member of his family at his usual place of abode or to his authorized agent, or when such service cannot be affected, by affixing a copy of the demand on some conspicuous part of his abode and of the mortgage land. (1) If, within fifteen days from the date of service of the demand referred to in section 9, the defaulter does not pay the amount for which the distraint was effected, the distrainer may sell in auction the distrained property or such part thereof as may in his opinion be necessary to satisfy the demand together with the expenses of the distraint and the costs of the sale. (2) From the proceeds of such sale, a deduction shall be made at such rate as may be fixed by the Government from time to time on account of the costs of the sale. (3) From the balance shall be deducted the expenses incurred by the distrainer on account of the distraint. (4) The remainder, if any, shall be applied to the discharge of the amount for which the distraint was made. (5) The surplus, if any , shall be delivered to the person whose property has been sold and he shall be given a receipt for the amount discharged from the proceeds of the sale. The Government may make rules not inconsistent with the provisions of this Chapter,- (i) for the manner of effecting distraint; (ii) for the custody, preservation and sale of the distrained property; (iii) for the investigation of claims by persons other than the defaulter to any right or interest in the distrained property and for the postponement of the sale pending such investigation; (iv) for the immediate sale of perishable articles; (v) for fixing the rates of deduction on account of the costs of sale of distrained properties; and (vi) generally for the purpose of carrying out the provisions of this Chapter. (1) Notwithstanding anything contained in the Transfer of Property Act, 1882 (4 of 1882), where a power of sale without the intervention of the court is expressly conferred on the Central Mortgage Bank, or a primary mortgage bank, by the mortgage deed, the Board, or the Committee of such primary mortgage bank, or any person authorized by the Board or such Committee, as the case may be, shall, in case of default of payment of the mortgage money or any part thereof, have power, in addition to any other remedy available to them, to bring the mortgaged property to sale without the intervention of the court. (2) No such power shall be exercised unless- (a) the Board or such Committee has given an opportunity to the mortgagor, or mortgagors to show cause why the property may not be sold without the intervention of court; (b) notice in writing requiring payment of such mortgage money or part thereof has been served upon- (i) the mortgagor or each of the mortgagors; (ii) any person who has any interest in or charge upon the property mortgaged or in or upon the right to redeem the same; (iii) any surety for the payment of the mortgage debt or any part thereof; and (iv) any creditor of the mortgagor, who has in a suit for the administration of his estate obtained a decree for sale of the mortgaged property; and (c) default has been made in payment of such mortgage money or part thereof for three months after such service: Provided that, the obligation to give such notice under sub-clauses (ii) and (iv) of clause (b) shall be confined to cases where the Board or the Committee has notice of such claims: Provided further that where a mortgage has been executed by the members of a Marumakkathayam Tarward or Nambudiri Illom or Aliyasantana family, it shall be necessary to send notice under this sub-section only to the three senior most members thereof. (1) For exercising the power of sale conferred by section 12, the Board or the Committee or any other person duly authorized by the Board or such Committee, as the case may be, may apply to the sale officer appointed in that behalf under section 21 to sell the mortgaged property or any part thereof and such officer shall, after giving notice in writing to all the persons referred to in section 12, sell such property in the manner prescribed. (2) The sale shall be by public auction and shall be held in the village where the mortgaged properly is situate or at the nearest place of public resort if the sale officer is of opinion that the property is likely to sell to better advantage there. (1) When a mortgaged property has been sold under this Chapter, the mortgagor or any person having a right or interest there in affected by the sale, may, at any time within thirty days from the date of sale, apply to the Board or the Committee of the primary mortgage bank concerned, as the case may be, to have the sale set aside on his depositing at the office of the concerned bank- (a) for payment to the Central Mortgage Bank or the primary mortgage bank, as the case may be, the amount specified in the proclamation of sale together with subsequent interest and the costs, if any, incurred by the bank in bringing the property to sale; and (b) for payment to the purchaser a sum equal to live percent of the purchase money. (2) If such deposit is made, the Board or the Committee, as the case may be, may in its discretion, make an order setting aside the sale. (3) Where no application is made under sub-section (1) or where such application is made and disallowed, the Board or the Committee, as the case may be, shall apply to the Registrar or any other officer empowered by the Government in this regard to make an order confirming the sale and, on the Registrar or such officer confirming the sale, it shall become absolute and the property shall be deemed to have vested in the purchaser from the time when the property is sold. (1) The proceeds of every sale under this Chapter shall be applied by the sale officer, first in payment of all costs, charges and expenses properly incurred by him as incidental to the sale or any attempted sale; secondly, in payment of all interest due on account of the mortgage in consequence whereof the mortgaged property was sold, thirdly in payment of the principal money due on account of the mortgage; and lastly, the residue, if any, shall be paid to the person proving himself interested in the property sold or, if there are more such persons than one, then to such persons according to their respective interests therein or upon their joint receipt. (2) (a) Any person dissatisfied with the decision of the sale officer in regard to the distribution of such residue may, within thirty days of the communication to him of such decision, institute a suit in a court to establish the right he claims. (b) The sale officer shall not distribute such residue until thirty days have elapsed from the communication of his decision to all the persons concerned or, if a suit has been instituted within the said period of thirty days by any such person and due notice thereof is given to him before the payment, until the suit is disposed of or otherwise than in accordance with the decision of the court thereon. (3) Any deficit occurring after the sale of the mortgaged land may also be recovered in the manner provided in this Chapter from any other assets of the mortgagor. Explanation.- In this section and in section 17 "court" means the civil court having jurisdiction to entertain a suit to enforce the mortgage and within the limits of whose jurisdiction the property sold is situate. Where a sale of mortgaged property has become absolute the sale officer shall grant a certificate specifying the property sold and the name of the person who at the time of the sale is declared to be the purchaser. Such certificate shall bear the date on which the sale became absolute. (1) Where the mortgaged property sold is in the occupancy of the mortgagor or of some person on his behalf or of some person claiming under a title, other than a lease, created by the mortgagor subsequent to the mortgage in favor of the Central Mortgage Bank or primary mortgage bank, as the case may be, and a certificate in respect thereof has been granted under section 16, the court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf, in possession of the property. (2) Where the property sold is in the occupancy of a tenant or other person entitled to occupy the same and a certificate in respect thereof has been granted under section 16, the court shall, on the application of the purchaser, and after giving notice to such tenant or other person, order delivery to be made by affixing a copy of the certificate of sale in some conspicuous place on the property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place that the interest of the mortgagor has been transferred to the purchaser. (3) The provisions of rules 97 to 103 of Order XXI of the First Schedule to the Code of Civil Procedure, 1908 (5 of 190B), shall mutatis mutandis, apply to the cases dealt with in sub-sections (1) and (2). It shall be competent to the Central Mortgage Bank or a primary mortgage bank to purchase the mortgaged property sold under this Chapter, but the property so purchased shall be disposed of by such bank by sale within such period as may be fixed by the Trustee. (1) The Board may on its own motion or on the application of any branch of the Central Mortgage Bank or the Committee of a primary mortgage bank under circumstances in which the power of sale conferred by section 12 may be exercised, appoint in writing a receiver of the produce and income of the mortgaged property or any part thereof and such receiver shall be entitled either to take possession of the property or collect its produce and income, as the case may be, to retain out of any money realized by him, his expenses of management including his remuneration, if any, as may be fixed by the Board and to apply the balance in accordance with the provisions of sub-section (8) of section 69-A of the Transfer of Property Act, 1882 (4 of 1882). (2) A receiver appointed under sub-section (1) may for sufficient cause and on application made by the mortgagor, be removed by the Board. (3) A vacancy in the office of the receiver may be filled up by the Board. (4) Nothing in this section shall empower the Board to appoint a receiver where the mortgaged property is already in the possession of a receiver appointed by a civil court; but the Board or the Committee of a primary mortgage bank, as the case may be, may, through the Secretary of the Central Mortgage Bank or the primary mortgage bank, as the case may be, petition to such court to direct the receiver of such court to apply any part or the whole of the surplus remaining in this hands after meeting the expenses of his management to the discharge of the mortgage amount or part thereof, as the case may be. When a sale has been made in the professed exercise of a power of sale under section 12 and has been confirmed under sub-section (3) of section 14, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorize the sale or that due notice was not given or that the power was otherwise improperly or Irregularly exercised, but any person damnified by an unauthorized or improper or irregular exercise of the power shall have his remedy in damages against the Central Mortgage Bank or the concerned primary mortgage bank, as the case may be. The Registrar may appoint sale officers for the purpose of conducting sales under this Chapter. The Government may make rules not inconsistent with this Chapter- (1) for the due proclamation and conduct of the sale; (2) for the recovery of the expenses of proclamation and sale; (3) for the deposit of the purchase money; (4) for the re-sale of the property, if the purchase money is not deposited; (5) for the registration of claims in respect of properties mortgaged to the Central Mortgage Bank or a primary mortgage bank; and (6) generally for carrying out the provisions of this Chapter. The mortgages executed in favor of, and all other assets transferred to a primary mortgage bank by the members thereof shall, with effect from the date of such execution or transfer, be deemed to have been transferred by such primary mortgage bank to the Central Mortgage Bank. Where any property mortgaged to the Central Mortgage Bank or a primary mortgage bank is rendered insufficient and the mortgagor, having been given a reasonable opportunity by the Board or the Committee of the primary mortgage bank of providing further security enough to render the whole security sufficient or of repaying such portion of the loan as may be determined by the Board or the Committee, has failed to provide such security or to repay such portion of the loan, the whole of the loan shall be deemed to fall due at once and the Board or the Committee, as the case may be shall be entitled to take action against the mortgagor under section 8 or section 12 for the recovery thereof. Explanation.- A security is insufficient within the meaning of this section unless the value of the mortgaged property exceeds the amount for the time being due on the mortgage by such proportion as may specified in the bye-laws of the Central Mortgage Bank or the concerned primary mortgage bank, as the case may be. (1) The Board or the Trustee may direct the Committee of a primary mortgage bank to take action against a defaulter under section 8, section 12 or section 24 and if the Committee neglects or fails to do so, the Board or the Trustee may take such action. (2) (a) Where such action is taken by the Board, the provisions of this Act and of any rules or regulations made thereunder shall apply in respect thereto as if all references to the primary mortgage bank and to its Committee in the said provisions were references to the Central Mortgage Bank and the Board, respectively. (b) Where such action is taken by the Trustee, the provisions of this Act and of any rules or regulations made thereunder shall apply in respect thereto as if all references to the primary mortgage bank or to its Committee in the said provisions were references to the Trustee. Notwithstanding anything contained in the Kerala Compensation for Tenants Improvements Act, 1958, the improvements, if any, made subsequent to the date of the mortgage by a lessee of property mortgaged to the Central Mortgage Bank, or a primary mortgage bank, as the case may be, shall be treated as accession to the mortgaged property and shall be available to such bank for the realization of the mortgaged amounts. Notwithstanding anything contained in the Insolvency Act, 1955, a mortgage executed in favor of the Central Mortgage Bank or a primary mortgage banks as the case may be, shall not be called in question on the ground that it was not executed in good faith for valuable consideration or on the ground that it was executed in order to give such mortgage bank a preference over the other creditors of the mortgagor. (1) A mortgage executed in favor of the Central Mortgage Bank or a primary mortgage bank, as the case may be, after the commencement, of this Act, shall have priority over any claim of the Government arising from a loan under the Land Improvement Loans Act, 1883 (19 of 1883), or the Agriculturists' Loans Act 1884 (12 of 1884), or the Cochin Agricultural Improvement Loans Act IV of 1093 or the Travancore Land Improvements and Agricultural Loans Act (Travancore Act IX of 1094), granted after the execution of the mortgage. (2) Notwithstanding any enactment or rule of law, the mortgage executed in favor of the Central Mortgage Bank or a primary mortgage bank, as the case may be, shall take precedence over any attachment or oral mortgage over the properties, where after publication of a notice in the prescribed form, such claim of interest has not been notified to such bank within the time prescribed in the said notice. (3) The Government may make rules prescribing the form of the notice under this section and the manner of its publication. Where a mortgage is executed in favor of the Central Mortgage Bank or a primary mortgage bank, as the case may be, for payment of prior debts of the mortgagor, such bank may, notwithstanding the provisions of sections 83 and 84 of the Transfer of Property Act, 1882 (4 of 1882), by notice in writing, require any person to whom any such debt is due to receive payment of such debt or part thereof from the Bank at its registered office within such period as may be specified in the notice. If any such person fails to receive such notice or such payment, such debt or part thereof, as the case may be, shall cease to carry interest from the expiration of the period specified in the notice, except in cases where such persons proves to the satisfaction of the Board or the Committee of the primary mortgage bank, as the case may be, that the failure to receive notice or payment was due to causes beyond his control: Provided that where there is a dispute as regards the amount of any such debt, the person to whom such debt is due shall be bound to receive payment of the amount offered by the bank towards the debt, but such receipt shall not prejudice the right, if any, of such person to recover the balance claimed by him. (1) Subject to such restrictions, limitations and conditions as may be prescribed, the Registrar and officers subordinate to the Registrar who are authorized by him in this behalf by general or special order in writing, and such other officials engaged in the relief of rural indebtedness or officers of Co-operative banks which are registered or deemed to be registered under the Travancore-Cochin Co-operative Societies Act, 1951 or the Madras Co-operative Societies Act, 1982, as the Government may, by notification in the Gazette, authorize in this behalf, shall have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit, in respect of the following matters, namely:- (a) enforcing the attendance of any person and examining him on oath or affirmation; (b) compelling the production of documents; and (c) issuing commissions for the examination of witnesses. (2) Any of the officers authorized by or under sub-section (1) may require any person present before him to furnish any information or to produce any document then and there in his possession or power, relevant to the inquiry. (3) Any officer before whom any document is produced under sub- section (1) or sub-section (2) shall have power to take or to authorize the taking of, such copies of the document or of any entries therein as such officer or person may consider necessary. Copies so taken shall, when certified in such manner as may be prescribed, be admissible in evidence for any purpose in the same manner and to the same extent as the original document or the entries therein, as the case may be. (4) (a) Any person who willfully or without reasonable excuse disobeys any summons, requisition or order issued under sub-section (1) or sub-section(2), shall be punishable with fine which may extend to fifty rupees, and in the case of a continuing disobedience with an additional fine which may extend to five rupees for every day during which such disobedience continues after conviction for the last such disobedience. (b) No court inferior to that a Magistrate of the first class shall try any offence under clause (a). (c) Every offence under clause (a) shall, for the purposes of the Code of Criminal Procedure, 1898 (5 of 1898), be deemed to be non-cognizable. (d) No prosecution shall be instituted under clause (a) without the previous sanction- (i) of the Registrar in case the summons, requisitions or order alleged to have been disobeyed was issued by the Registrar or any person subordinate to him or by any officer of a Co-operative bank; and (ii) of the Collector of the district in other cases Such sanction shall not be given without giving the party concerned an opportunity to be heard. (5) The Government shall have power to make rules for giving effect to the provisions of this section. (1) Notwithstanding anything contained in the Indian Registration Act, 1908 (16 of 1908), it shall not be necessary for any Director, Secretary or other officer of the Central Mortgage Bank or of a primary mortgage bank to appear in person or by agent at any registration office in any proceedings connected with the registration of any instrument executed by him in his official capacity or to sign as provided in section 58 of that Act. (2) Where any instrument is so executed, the registering officer to whom such instrument is presented for registration may, if he thinks fit, refer to such Director, Secretary or Officer for information respecting the same, and, on being satisfied of the execution thereof, shall register the instrument. Notwithstanding that a mortgage executed in favor of a primary mortgage bank has been transferred, or is deemed under the provisions of section 23 to have been transferred, to the Central Mortgage Bank- (a) all moneys due under the mortgage shall, in the absence of any specific direction to the contrary issued by the Board or the Trustee and communicated to the mortgagor, be payable to the primary mortgage bank and such payment shall be as valid as if the mortgage had not been so transferred; and (b) the primary mortgage bank shall, in the absence of any specific direction to the contrary issued by the Board or the Trustee and communicated to the primary mortgage bank be entitled to sue on the mortgage or take any other proceedings for the recovery of the moneys due under the mortgage. (1) Where a mortgage executed in favor of the Central Mortgage Bank or a primary mortgage bank, either before or after the commencement of this Act, is called in question on the ground that it was executed by the manager of a joint Hindu family or the karnavan of a Marumakkathayam tarwad or tavazhi or of a Nambudiri Illom, or the manager of a Thiyya or Ezhava family, or the ejaman or ejamanathi of an Aliyasantana family, for a purpose not binding on the members thereof, whether majors or minors, the burden of proving the same shall, notwithstanding any law to the contrary, be on the party raising it. (2) A mortgage executed in favor of the Central Mortgage Bank or a primary mortgage bank by the manager of a joint Hindu family or the Kamavan of a Marumakkathayam tarward or tavazhi or of a Nambudiri Illom or the manager of a Thiyya or Bzhava family or the ejaman or ejamanathi of an Aliyasantana family shall be binding on the members thereof, whether majors or minors, if the loan secured by the mortgage was granted for any of the following purposes, namely:- (a) the improvement of agricultural land or of the methods of cultivation; and (b) the purchase of land. Where a tenant mortgages his holding in favor of a primary mortgage bank, the following provisions shall apply so long as the mortgage subsists, notwithstanding anything to the contrary contained in any law relating to tenancy or in any custom or contract- (i) both before and after granting the loan secured by the mortgage, the primary mortgage bank shall give notice in writing to the landlord of the tenant, and if such landlord is himself the tenant of another land lord, also that landlord, and likewise to every superior landlord from whom interest in the holding is derived, up to and including the land owner; (ii) every landlord to whom notice is given under clause (i) shall give not less than fifteen day's notice in writing to the primary mortgage bank before instituting a suit or bringing the holding of his tenant (whether such tenant be the mortgagor or a superior landlord) to sale for default in payment of rent or michavaram or jenmikaram or for evicting such tenant from the holding; (iii) the tenant who has mortgaged the holding to the primary mortgage bank shall not except with the previous permission of the bank, surrender his holding or any part thereof to his landlord or deal with it in any other manner, and no such transaction entered into by the tenant without such permission shall affect in any way the interest of the Bank in the holding; (iv) in a suit for eviction instituted against the tenant who has mortgaged the holding to the primary mortgage bank, the Bank shall, on application to the court in which the suit is instituted, be entitled to be paid out of the amount of compensation, if any, deposited in court under section 5 of the Kerala Compensation for tenants Improvements Act, 1958, the moneys due to the Bank under the mortgage; (v) if, on the expiry of the tenancy of the tenant who has mortgaged the holding to the primary mortgage bank, the tenant does not renew the tenancy, the bank shall be entitled to obtain a renewal of the tenancy on behalf of the tenant and any renewal fee paid by the bank shall be added to the principal money due under the mortgage; (vi) If the tenant who has mortgaged the holding to the primary mortgage bank makes default in the payment of any rent or michavaram or jenmikaram due to his landlord or the Government, as the case may be, the Bank shall be entitled to pay the same to the landlord or the Government and the amount so paid shall be added to the principal money due under the mortgage. Explanation.- In so far as the rent or michavaram is payable in kind, the primary mortgage bank shall have the right to pay the value thereof calculated at the rate or rates notified by the Government from time to time in the Gazette; (vii) Where the primary mortgage bank pays any renewal fee, rent, michavaram or jenmikaram under clause (v) or clause (vi), it shall be entitled to regard the whole of the mortgage money as having become payable and, after giving a reasonable opportunity to the tenant to repay the whole of the said money or such portion thereof as may be determined by the bank, to bring the holding to sale under the provisions of Chapter IV of this Act. The Central Mortgage Bank or any primary mortgage bank may grant copies of any document obtained and kept by it in the course of its business or of any entries in such documents; and any copy so granted shall, when certified in such manner as may be prescribed, be admissible in evidence for any purpose in the same manner and to the same extent as the original document, or the entries therein, as the case may be. The provisions of Chapters III and IV shall apply also to loans advanced by primary mortgage banks from funds which have not been borrowed from the Central Mortgage Bank and loans taken over by the Central Mortgage bank from the Travancore Credit Bank. Whenever under the provisions of this Act, notice is required to be given to any person in writing, it shall be sufficient to send such notice by registered post, The provisions of sections 102 and 103 of the Transfer of Property Act, 1882 (4 of 1882), and of any rules made by the High Court under section 104 of that Act, for carrying out the purposes of the said sections, shall apply, so far as may be, in respect of all notices to be served under this Act. At any sale of the movable or immovable property held under the provisions of this Act in order to recover any money due to the Central Mortgage bank or any primary mortgage bank, no Director, Secretary or other officer of the Central Mortgage Bank or such primary mortgage bank, as the case may be (except on behalf of the bank of which he is a Director, Secretary or other officer), and no sale officer or other person having any duty to perform in connection with such sale, shall either directly or indirectly bid for or acquire or attempt to acquire any interest in such property. The Board may, if it thinks fit, delegate all or any of its powers under sections 12, 19, and 25 of any executive-committee constituted by it and consisting of two or more of its members. The Board may, from time to time, with the previous sanction of the Registrar, start branches of the Central Mortgage Bank at such convenient centers as may be decided upon and carry on operations through them. Notwithstanding anything contained in the Travancore-Cochin Co-operative Societies Act, 1951 or the Madras Co-operative Societies Act, 1932 or the rules made under said Acts, the Board shall have general power of supervision over the primary mortgage banks and may make regulations not inconsistent with this Act or the rules made thereunder- (a) for the inspection of the account books and proceedings of primary mortgage banks; (b) for the submission of returns and reports by primary mortgage banks in respect of their transactions; (c) for the periodical settlement of accounts between primary mortgage banks and the Central Mortgage Bank and for the payment of the amounts recovered by primary mortgage banks on mortgages transferred, or deemed under the provisions of section 23 to have been transferred, to the Central Mortgage Bank; (d) prescribing the form in which applications to primary mortgage banks for loans should be made and for the valuation of the properties offered as security for such loans; (e) for the investment of moneys realized from the mortgagors; and (f) generally for the purpose of safeguarding the interests of the parties concerned and for carrying out the purposes of this Act. Notwithstanding anything contained in this Act, all assets, rights and liabilities of the Cochin Co-operative Land Mortgage Bank, Limited, subsisting at the commencement of this Act shall continue to be the assets, rights and liabilities of the said bank and the provisions of the Cochin Co-operative land Mortgage Bank Act, XXV of 1111, shall apply with respect to such assets, rights and liabilities. The Madras Co operative Land Mortgage Banks Act, 1934 as in force in Malabar and, subject to the provisions of section 43 the Cochin Cooperative Land Mortgage Bank Act, XXV of 1111 are hereby repealed. [1] Published in K.G. Ex-dt. 29-1-1960. [2] Date of Commencement: 20-2-1960 by Notn. No. 36428/58/A.D.(C-3), dt. 15-2-1960 pub. in the Gazette dt. 6-2-1960. [3] Inserted by Act 8 of 1978. [4] Inserted by Act 8 of 1983. [5] Substituted by Act 8 of 1978. [6] Inserted by Act 8 of 1978. [7] Inserted by Act 8 of 1983.
Preamble - THE KERALA CO-OPERATIVE LAND MORTGAGE BANKS ACT, 1960PREAMBLE
Section 26 - Bank's right to improvements effected by lessee
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