The burden of proof lies with the creditor to establish the validity of signatures on mortgage documents in equitable mortgage cases.

Reportable / not reportable IN THE DEBT RECOVERY APPELLATE TRIBUNAL - KOLKATA HON'BLE Justice Anil Kumar Srivastava, Chairperson REGULAR APPEAL No. 55 of 2018 (Arising out of O.A. No. 63 of 2012 – DRT- Guwahati)

07.08.2025 Housing & Urban Development Corporation Ltd. (HUDCO), Guwahati Regional Office, at Housefed Complex, Rukminigaon, G.S. Road, Guwahati – 781 022.

... Appellant --Vs--

1. M/s Landmark Establishments Pvt. Ltd. registered office at M.G.Road, Machkhowa, Guwahati – 781009.

2. Sri Praban Kumar Sharma residing at 306, Anubhav Apartment, Basisthapur, Lane No.3, Beltola, Guwahati 781028.

3. Smt. Rita Sharma, residing at 306, Anubhav Apartment, Basisthapur, Lane No.3, Beltola, Guwahati – 7810028.

4. Md. Masrur Hussain, residing at Lakhtokia, Guwahati –

781001.

... Respondents For Appellant : Ms. Poetry Dutta, Ld. Adv.

For Respondent:

The Appellate Tribunal Instant appeal no. 55 of 2018 has arisen against the judgement and order dated 28.06.2017 passed by the learned DRT Guwahati in O.A. No. 63 of 2012 (Housing & Urban Development Corporation Ltd Vs. M/s Landmark Establishment Pvt. Ltd. & Ors.) whereby learned DRT allowed the O.A. and issued recovery certificate to the extent of Rs.2,67,19,810/- against defendants no. 1, 2 and 3 jointly and severally with pendente lite and future interest @ 13.50% quarterly rest till the realization of the amounts in full. However, respondent no.4, Md. Massur Hussain, was not held liable for any liability of defendant no.1. The charge against the property of defendant no.4 mentioned at schedule ‘A’ was also vacated.

2. As per pleadings of the parties, O.A. u/s 19 of the Recovery of Debts and Bankruptcy Act, 1993 was filed by the appellant against defendant no.1 M/s Landmark Establishment Pvt. Ltd. through its Managing Director, Sri Pranab Kumar Sharma, and his wife, Ms. Rita Sharma, who are defendant no. 2 and 3 respectively, and defendant no.4 Md. Mastur Hussain with the assertion that defendant no.1 was the main borrower while defendant no.2 and 3 are the Managing Director and authorised signatories of defendant no.1. Defendant no.4 was the land owner and co-borrower of the loan. Defendants approached the appellant, Housing & Urban Development Corporation (hereinafter referred to as HUDCO), for a loan of Rs.2.00 crore for construction of residential building on 02.03.2005. After scrutinizing the documents, Rs.1.80 crore was sanctioned on 12.09.2005 with certain conditions, which were accepted by the defendants. Necessary documents were executed by the defendants no. 2 and 3. Defendant no.2, 3 and 4 on 22.12.2005 has submitted a letter evidencing deposit of deeds with intent to create equitable mortgage in respect of the project land described as schedule-A. Defendant no.2 and 3 has also deposited registered sale deed as collateral security to secure the loan on their personal capacity which are at schedule ‘B’.

3. On 09.03.2006 and 30.07.2007 HUDCO amended the loan agreement dated 25.10.2005 deferring the loan drawal and repayment schedule. It was duly accepted by defendant no.1. On 10.04.2007 HUDCO also amended the loan agreement by including the names of land owner, namely Md. Mastur Hussain, defendant no.4, which was inadvertently not mentioned in the loan agreement, but duly accepted and admitted by them. Loan amount was curtailed from Rs.1.80 crore to Rs.1.53 crore. Loan amount was not paid in time. Time was sought by defendant no.2 vide letter dated 26.09.2008. Post dated cheques were deposited to repay the loan, but the same were returned with endorsement “insufficient fund”. The loan amount became irregular. A recall notic