MESSRS SADASOOK RAMPROTAP Vs. HOARE MILLER AND CO

JUDGEMENT

(1.) This is an appeal from the judgment of Mr. Justice Buckland in a suit for damages for breach of contract. On the 4 May 1921, and 9 June 1921, the defendants entered into two contracts with a firm of the Dame of Balfour & Co., for the sale of corasacks. On the 15 July 1921, Balfour & Co. assigned their interest in the contract to the plaintiffs, Sadasook Ramprotap, a firm carrying on business as commission agents and bankers. On the 11th November 1921, the plaintiffs instituted this suit as assignees of the contracts to enforce their rights thereunder. Mr. Justice Buckland has dismissed the suit on the ground that the plaintiffs had not complied with the terms of Section 131 of the Transfer of Property Act. No oral evidence has been adduced in the case; and it appears to have been taken as common ground before Mr. Justice Buck-land that if notice was not given under Section 131, though the transfer might have been valid, the suit against the defendant Company must fail. In these circumstances, Mr. Justice Buckland proceeded with the trial on the footing that if the plaintiffs failed on this point, nothing else would require consideration. He decided this point first, and adopted that course with the concurrence of Counsel on both sides.

(2.) Section 130 of the Transfer of Property Act provides that 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, and 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. The provision as to notice is contained in Section 131 which is in these terms: "Every notice of transfer of an actionable claim shall be in writing signed by the transferor or his agent duly authorised in this behalf, or, in case the transferor refuses to sign, by the transferee or his agent and shall state the name and address of the transferee."

(3.) In the present case a notice of transfer in writing was given; but it has subsequently been discovered that the notice, while stating the name of the transferee, did not specify the address of the transferee, Consequently the position is that the notice contemplated by the statute has not been given: in other words, the exception mentioned in the proviso to Section 130 has not come into operation; for the debtor has not received express notice of the transfer as prescribed in Section 131. On these facts, Mr. Justice Buckland has held that such dealing with the debt by the debtor as has taken place between the debtor and the original creditor is valid as against the transferee. In support of this proposition, reference has been made to the decision of Sir Lawrence Jenkins, C.J., in Hunsraj Mararji V/s. Nathoo Gangaram 9 Bom. L.R. 838 where it was ruled that in order that the exception mentioned in the proviso to Section 130 may be operative, there must be a strict compliance with the requirements of Section 131. This view was also adopted by Sir Charles Fox, C.J., in Basant Singh V/s. Burmah Railways Co. Ltd. 30 Ind. Cas. 278 : 8 Bur. L.T. 266 : 8 L.B.R. 388. I am in agreement with the opinion expressed by Sir Lawrence Jenkins and by Sir Charles Fox and I do not consider it right to whittle away the unambiguous provisions of the statute. In this connection, reference may be made to the observations of Lord Moulten in Mulraj V/s. Viswanath Prabhuram Vaidya 17 Ind. Cas. 627 : 40 I.A. 24 : 17 C.W.N. 209 : (1919) M.W.N. 1247 : 12 M.L.T. 652 : 11 A.L.J. 7 : 24 M.L.J. 60 : 15 Bom. L.R. 9 : 17 C.L.J. 162 : 37 B. 198 (P.C.), where an attempt was made to modify the effect of Secs.130 and 131 of the Transfer of Property Act by reference to general principles of law. The Judicial Committee reversed the decision of the Bombay High Court as erroneous because the Judges had failed to appreciate that the positive language of the section precluded the application in India of the principles of the English law on which they based their judgment.