Prachurya Sahu | Symbiosis Law School, Pune.
Transfer of Property Act, 1882
Actionable claim is defined in Section 3 of the Transfer of Property Act, 1882 which was included by the Amending Act II of 1990. It is an intangible movable property, and its transfer is discussed in Chapter VIII of the Act. It has been laid down in the following words:
“actionable claim means a claim to any debt, other than a debt secured by mortgage of immoveable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accuring, conditional or contingent”
Therefore, essentially an actionable claim may be:
- A claim to a debt which is unsecured, excluding that of mortgage, hypothecation or pledge of immovable property
- Beneficial interest in movable property
The reason debts secured by means of mortgage, pledge or hypothecation are not included within the purview of “actionable claims” is because they do not manifest as claims to property, but of property itself. All claims under a contract are also excluded, except claims to payment of a sum of money or debt or price. Similarly, a right to sue by virtue of it being non-transferable in isolation is not considered to be actionable claim.[1]
However, the definition extends to include beneficial interests in movable property irrespective of whether they are existent, accruing, conditional or contingent.
Unsecured Debt
A debt may be succinctly defined as an obligation to pay a liquidated sum of money.[2] An unsecured debt refers to a monetary obligation which is not secured in any form by way of mortgage, pledge or hypothecation. Therefore, three conditions need to be fulfilled for a transaction to be qualified as unsecured debt: (1) Monetary obligation, (2) Lack of any security (3) Certainty of the money so obligated.
In Sunrise Associates v. Govt. of NCT of Delhi,[3] the Supreme Court held that a debt can be a present, future or accruing and conditional or contingent in nature. A present debt is one which exists and is due now. A future debt is one which is existent but accruing in the future. Present and future debts are attachable and considered actionable claims.[4] Contingent or conditional debts are those that become due on the fulfilment of some condition or contingency. The slight difference between contingent and conditional debts are the former is within human control while the latter isn’t. Examples of such debts are future rents,[5] letter of credit,[6] amount due under a policy of insurance[7] etc; these though unattachable, are also considered actionable claims.
Beneficial Interest in Movable Property
A person is said to have beneficial interest in a movable property if such person has the right to possess such property but the same is not in constructive or actual possession of such person.[8] Therefore, the essential ingredients are: (1) the property must be movable, (2) the property is not in possession of the claimant, and (3) the claimant has the legal right to possess such a property.
Examples of such interest in movable property include right to the recovery of insurance money after an assured person expires[9], right to recover back purchase money on invalidation of sale, [10] right to the proceeds of a business[11] or dividends of a share in a company[12] etc. All such interests figure within the purview of actionable claims and can be transferred.
Claims uncovered under Actionable Claims
- Right to claim damages– Such right to claim damages whether arising from tortuous liability or contractual liability are not considered actionable claims.[13] This is so mainly because of the uncertainty of the amount of money which may be deemed to be payable. Furthermore, given that this right is based out of a personal infringement or injury, the redressal of such injury cannot be transferred.
- Mesne profits– These money for possession of immovable property which is received by a tenant, who themselves do not have the permission to allow for possession of such property. In the case of Jai Narayan v. Kishun Dutta,[14] it was held that a claim for mesne profits is not an actionable claim as they are essentially unliquidated damages; they are not considered as any claim to beneficial interest in property or in possession of such a claimant. It is simply a right to sue.
- Decree or judgement of debt- Any decree or judgement of debt cannot be transferred under actionable claim.[15] This is so because once such a judgement has been pronounced, no action subsists which can be transferred.
- Intellectual Property- Intellectual properties such as patents, copyrights etc. do not operate as claims but are special rights which already vest in a person. They have exclusive governing legislations and cannot be transferred as actionable claims.
Transfer of Actionable Claims
Section 130 of the Transfer of Property Act lays down how such actionable claims can be transferred as:
“Transfer of actionable claim—(1) The transfer of an actionable claim shall be effected only by the execution of an instrument in writing signed by the transferor or his duly authorised agent, shall be complete and effectual upon the execution of such instrument, and thereupon all the rights and remedies of the transferor, whether by way of damages or otherwise, shall vest in the transferee, whether such notice of the transfer as is hereinafter provided be given or not: Provided that every dealing with the debt or other actionable claim by the debtor or other person from or against whom the transferor would, but for such instrument of transfer as aforesaid, have been entitled to recover or enforce such debt or other actionable claim, shall (save where the debtor or other person is a party to the transfer or has received express notice thereof as hereinafter provided) be valid as against such transfer.”
Therefore, the essential elements of such a transfer are:
- The instrument of transfer must be in writing
- The transferor or a duly appointed agent must have signed such an instrument.
- Consideration may or may not be extended.
- Such a transfer will be complete and deemed effective only when it has been executed.
Written Instrument
The obligation of having a written instrument is an important but significant altercation of law.[16] However, in Bharat Nidhi Ltd v. Takhatmal[17], it was observed by the Supreme Court that a document can amount to equitable assignment independent of Section 130. Therefore, transfer for actionable claims, in certain circumstances may be recognised even if it is in violation of Section 130. However, if such a transfer is effected by virtue of Section 130, an oral transfer is invalid.[18]
Mode of Assignment
For the assignment to be effected, no rigid wording is necessary as long as the intention of such assignment is clear from the language used.[19] This intention should be extremely evident by the receipt which represents the transfer of claim.[20] In Hunsraj v. Nathoo, [21] even an endorsement written on the back of a contract for the purchase of goods which stipulated that the purchaser sold his rights and interest in the contract was held to be a valid transfer of actionable claim.
Consideration
Act 20 of 1929 inserted the words “whether with or without consideration.” This was done to bring cases of gifts within its purview. The whole question of payment of consideration is exclusive to the assignor and assignee; non-payment of the consideration for an assignment is not ground to take advantage of by a debtor to invalidate transfers.[22]
Effective when Executed
The assignment or transfer of claims is effectual only from the date of the assignment. This is a deviation from the English Law where such assignment manifests from the date of notice, except in cases of equitable assignment.[23]
Without the notice of an assignment such assignment is invalid against the debtor.[24] A transfer involving a registered document can be the only exception to this principle.[25] The effect of such notice is the protection of the debtor’s dealings with the original creditor rather than perfecting the title to the assignee of a debt.[26]
Exceptions to Section 130
- Negotiable instruments such as checks, money orders etc, as well as financial market items such as stocks, shares and debentures.
- Marine insurance policies.
- Fire insurance policies.
- All cases falling under Section 38 of the Insurance Act, 1938.
[1] Abu Mahomed v S C Chunder, (1909) ILR 36 Cal 345
[2] Sabju Sahib v Noordin, (1899) ILR 22 Mad 139.
[3] Sunrise Associates v. Govt. of NCT of Delhi, AIR 2006 SC 1908
[4] Gorakhpur Steels and Metals Pvt Ltd v Presiding Officer, DRT, AIR 2017 All 224
[5] Poothekka Nachiar v Annamalai Chetty, AIR 1926 Mad. 1173
[6] Joseph Pyke & Sons (Liverpool) Ltd v Kedarnath, AIR 1959 Cal 328
[7] Varjivandas v Maganlal, (1937) 39 Bom LR 493 : AIR 1937 Bom 382
[8] mulla, Transfer of Property Act, 1882, 13th ed.
[9] Somashekarrao v K S Mishra, AIR 1944 Ngp 185
[10] Chinnapareddi v Venkataramanappa, AIR 1942 Mad. 209
[11] Alkash Ali v Nath Bank, AIR 1951 Assam 56
[12] Daya Bai v Ambalal, AIR 1981 SC 156
[13] Moti Lal v. Radhey Lal, (1933) All 642; Inder v. Raghubir Singh, (1930) 5 Luck 547.
[14] Jai Narayan v. Kishun Dutta, AIR 1924 Pat 551.
[15] Govindarajulu v. Ranga Rao, AIR 1921 Mad 113.
[16] Velayuthan v Pillaiyar Chetti, (1911) 9 Mad LT 102
[17] Bharat Nidhi Ltd v Takhatmal, AIR 1969 SC 313
[18] Raman Chetty v Nagarathana Naicker, (1912) 11 Mad LT 246
[19] Mohanlal v Loan Co of Assam, AIR 1960 Assam 191
[20] Simon Thomas v State Bank of Travancore, (1976) KLT 554.
[21] Hunsraj v Nathoo, (1907) 9 Bom LR 838
[22] Narain Food Products Ltd v Tikam Chand, AIR 1973 All 573
[23] Gorringe v Irwell, (1886) 34 ChD 128 (CA).
[24] Tata Iron & Steel Co Ltd v Baidyanath, AIR 1924 Pat. 118.
[25] Prem Chand v Onkar Dutt, AIR 1972 All 415
[26] Balthazar v Official Assignee, AIR 1938 Rang 426
Leave a Reply