ABU MAHOMED Vs. SCCHUNDER

JUDGEMENT

(1.) The facts of this case lie within a very narrow compass: It appears that by a contract dated the 2 December, 1904, Messrs. Ebrahim Hajee Sulaiman & Co. purchased from the defendant a ascertain quantity of B. twills,-so many hundred bags; delivery from January 1905, so many bags a month. Certain of those bags were delivered in pursuance of the terms of the contract, but in March 1905 the defendant did not deliver the bags deliverable for that month, and loss, as the plaintiff says, resulted to the purchasers from that default on the part of the vendor. The purchasers, Messrs. Ebrahim Hajee Sulaiman & Co., eventually became insolvent, and the Official Assignee of Bombay conveyed the outstanding assets and their interests in the executory contracts to one Sulaiman Cassim Peroo Mahomed, who again assigned his interest in those contracts to the plaintiff by an assignment deed, dated the 5th of July 1906. The Official Assignee by his assignment, which is dated the 6 of June 1906, assigned "all actionable claims arising from the transactions of the Bombay and Calcutta firms, whether entered in the books or not, and the benefits of all contracts entered into by the Bombay and Calcutta firms of Ebrahim Hajee Sulaiman and Company," to Sulaiman Cassim Peroo Mahomed; and he assigned the same over to the plaintiff. The plaintiff then brought this action: and the first point taken and successfully taken by the defendant is that the plaintiff cannot maintain the suit: and Mr. Justice Stephen held that, as the plaintiff was a transferee merely of a right to sue, he could not maintain the action.

(2.) The question we have to decide depends upon two or three short considerations. As I have noticed the contract had been broken and the right to damages had accrued before anything was vested in the Official Assignee under the insolvency: that of course is a very material feature in the case. The first question is whether, as regards the particular case we are dealing with, that which the plaintiff purchased was a mere right to sue, or if it were not that, what it was. Under Section 6 of the Transfer of Property Act, the Statute enacts that "a mere right to sue cannot be transferred "and, it is noticeable that the language of that section is much wider than was the language of the corresponding section in the Transfer of Property Act, which was thereby repealed. If this was a mere right to sue, it cannot be transferred. Now what can be transferred under the Act ? Any actionable claim can be transferred and Section 130 points out how it may be transferred. What is an actionable claim ? If we look at Section 3 an actionable claim "means a claim to any debt but this is not a claim to any debt this is a claim? to damages of an unascertained amount resulting from a breach of contract on the part of one of the parties to that contract. Is it then a" claim 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, accruing, conditional, or contingent ? I do not think that we can properly bring a mere claim for damages for breach of contract within those words. Now, if it does not fall within the definition of actionable claim," what is it except a mere right to sue, a mere right to sue for damages resulting from an alleged breach of contract. It seems to me that it is not anything more or less than that and if so, that cannot be transferred.

(3.) It is clear, whatever the principle may be underlying it, that according to the English law an assignment of damages for an alleged breach of contract would not entitle the assignee to sue; and, if one may speculate, the words, a mere right to sue cannot be transferred" in the Transfer of Property Act are based upon the same principle. However in these cases we must ascertain what the law in India and not in England here enjoins. I have referred to the sections of the Transfer of Property Act, which deal with the matter. In this view it does not seem necessary to discuss the English authorities, which have been cited, though several of them appear to be in accord with the view I have stated.