SANTHA Vs. THUSHARA V

JUDGEMENT

(1.) Heard the learned counsel for the appellant/defendant and the respondent/plaintiff.

(2.) Appellant is the defendant in O.S.No.73 of 1996 on the file of the Court of Munsiff, Vatakara. Suit is one for specific performance of Ext.A1 agreement executed by the appellant in favour of the respondent. From the pleadings, it will be evident that there is no denial of execution of Ext.A1 raised by the appellant. However, the appellant raised a contention that the real transaction between the appellant and respondent was not an agreement to assign property belonging to the former, but only a monitory transaction. In fact, the appellant had borrowed Rs.40, 000/- from the respondent for effecting repairs to her son's lorry. To secure the amount of Rs.40, 000/- borrowed by the appellant from the respondent, Ext.A1 was executed, is the contention raised by the appellant. Per contra, learned counsel for the respondent would contend that Ext.A1 is an agreement to assign the property and no debtor-creditor relationship existed between the parties.

(3.) The trial court, after considering the testimony of DW-1 & DW-2 and Exts.A1 to A5 & B1, dismissed the suit. The respondent went in appeal before the Additional District Judge, Vatakara with A.S.No.41 of 2002. The Additional District Judge, after considering the rival contentions and re-appreciating the evidence, allowed the appeal partly. The appellant was directed to return Rs.40, 000/- with 12% interest to the respondent and also the cost of the proceedings. Felt aggrieved, the appellant has come up in appeal.