Question
Under Section 2(1)(n) of the SARFAESI Act,
'hypothecation' is defined as a charge on movable property created WITHOUT delivery of possession. Which feature is also expressly included in the statutory definition of 'hypothecation'?Solution
Section 2(1)(n) defines 'hypothecation' as a charge in or upon any movable property, existing or future, created by a borrower in favour of a secured creditor without delivery of possession of the movable property to such creditor, as a security for financial assistance. The definition also expressly includes floating charge and crystallisation of such charge into fixed charge on movable property. This comprehensive definition ensures that both fixed and floating charges on movables fall within the SARFAESI enforcement framework. It also covers future movable property, making it broader than a simple pledge. This is frequently tested to distinguish hypothecation from pledge (where delivery of possession occurs).
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