OURNAL OF BUSINESS POLICY OLICY AND ECONOMICS INTERNATIONAL JOURNAL Vol. 4, No. 2, (2011) (2011) : 409-415 409-415
ACTIO IONABLECLAIM Anju Harbansh Student, Student, Fourth Year, Hidayatullah Hidayatullah National Law University, University, Raipur, Raipur, Chhattisgar Chhattisgarh h
INTRODUCTION
The term actionable claim is that every kind of claim in a movable property which would be enforced through the courts. But such a wide meaning created confusion. For example, under this meaning all debts whether secured or unsecured were actionable claims whereas a debt secured by mortgage of immovable property is, strictly speaking, an ‘interest in land’. Similarly, under this meaning any claim of money whether the amount was fixed amount or uncertain, was an actionable claim. Because of such confusions there used to be conflicting decisions and the law was neither clear nor uniform. Actionabl Actionable e claim is a claim to any debt, other than a debt secured secured by mortgage mortgage of immovable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in possession either actual or constructive, of the claimant, which the civil courts recognize as affording grounds of relief whether such debt or beneficial interest be existent, accruing or conditional or contingent. ACTIONABLE CLAIM
As Per Section 3 of the Transfer of Property Act, 1882
Actionable Claim1 is a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in possession either actual or constructive, of the claimant, which the civil courts recognize 2 as affording grounds of relief whether such debt or beneficial interest be existent, accruing or conditional or contingent”. “A person is said said to have notice” notice”3 of a fact when he actually knows that fact, or when, but for willful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation I: Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of
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registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated: PROVIDED that(1) The instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made there under, (2) The instrument of memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and (3) The particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 554 of that Act. Explanation II: Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. Explanation III: A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material: PROVIDED that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud. Actionable claim means a claim to any debt other than a debt secured under a mortgage or hypothecation or pledge on any immovable or moveable property 5, possession of which is given to person or institution which gave the loan. An Actionable Claim is a plain unsecured debt which can be claimed by a person against another person and which can be enforced in civil courts according to law. Right to benefit of a contract falls within the definition of Actionable Claim. An Actionable Claim is transferable and inheritable and it is deemed to be a property in the hands of the person who has the claim. Actionable claim,6 a claim to a debt, whether existent, accruing, contingent or conditional (the latter two types being future debt), are capable of being transferred in present. It is recommended that this position be clarified by virtue of an amendment to the Transfer of Property Act. Simply stated7, an actionable claim means a claim to any unsecured debt or a claim to any beneficial interest in movable property, not in the possession of the claimant. The debt or beneficial interest may exist, accruing, conditional or contingent. For example, A borrows Rs. 5000/- from B at 12% per annum interest on 1st April, 2006 and promises to pay back the amount with interest on 1st July, 2006. Till 1st July, 2006, the debt is an accruing debt and is an actionable claim.
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It may be noted that a person can have a actionable claim, even without consideration. Further such person’s claim will not be affected by claim of a subsequent transferee with consideration. CONDITIONS OF ACTIONABLE CLAIM
Two conditions of actionable claim is that— (1)Unsecured Money Debt: A debt is an obligation8 to pay a liquidated or definite sum of money. Such debt may me: (1) existent, (2) conditional, (3) contingent. If it is now due and owing it is existent. If it is a present debt but payable in the future it is accruing. A debt which will be due only if a condition be fulfilled or if a certain specified thing happens is a conditional debt 9. Contingent debts are debt which are payable on a certain contingency, e.g., an amount due under a policy of insurance. Types of Debts Existent Debt: Where a debt or sum of money 10 has already become due and is payable (enforceable) at present, the debt is existent. For example, claim of arrears of maintenance allowance or the claim of arrears of salary is existent debt because a definition sum of money has already become due in the past and now it is payable. Accruing debt: Where a debt or sum of money is at present due but it is payable not now but on a future date, the debt is accruing. Accruing debt is due at present but becomes payable only on a future date. For example if A promises to pay Rs. 100 to B as maintance allowance on fifth of every month, the claim for salary to fall due in the next month is an accruing debt and such an actionable claim. Conditional or Contingent debt: Where the claim for a sum of money exists but the payment depends upon the fulfillment of any condition, the debt is condition. If A promises to give Rs. 1000 to B provided he marries within one year, than B’s claim for Rs. 1000 is conditional because it is subject to a condition to be fulfilled by him in future. Similarly, where the claim of money is subject to some uncertain future event which may or may not happen, the claim is contingent, For example, Where A promises to give Rs. 1000 to B provided B’s first child is a son, the claim of B for Rs. 1000 is contingent claim (debt). Debts secured11 by a mortgage of immovable property or by a pledge of movable property are excluded from the definition of actionable claim. Actionable claim therefore under the section means a claim to unsecured debt. A claim for damages, i.e. for an unascertained sum of money or a claim for mesne profits does not come within the definition of actionable claim. Illustrations
(1) A owes Rs. 1000 to B. B’s claim is an actionable claim. (2) A borrows Rs. 1000 from B and mortgages his house to him. The mortgage debt is not actionable claim. (3) A contracted to buy goods from B. On the due date, a fails to take delivery and B sells the goods in the open market at a loss Rs. 10000. B has a right to claim the damages from A but this claim is not an actionable claim.
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(2) Claim to Benificial Interest not in Possession of the Claimant
Right of a person to take the possession of a movable property from the possession of the another, is the actionable claim of that person provided claimant has beneficial interest(i.e. right of possession) in that property. Following condition are necessary for an actionable claim: (a) The claim is in some movable property. (b) The movable property is in possession of another person. (c) The beneficial inters or the right of the possession of the claimant is recognized by the court. A person can claim possession of a movable property of which he has right to possess but it is not in his possession. If a property is already in his actual or constructive possession there is no question of claiming its possession, Therefore, if a movable property is proved to be in actual or constructive possession of the claimant, there is no actionable claim. Moreover, the claimant must also have right of possession i. e. the law recognizes that he has beneficial interest in that movable property. If he has no legal right of possession, the claim is not actionable claim. Beneficial interest of movable property: A claim12 to any beneficial interest in movable property, not in possession of the claimant, is included in the present definition. Thus, a right to claim the benefit of a contract for the purchase of goods is a beneficial interest in movable property. Illustration
1. A agrees to sell to B bales of cotton deliverable on a future day. B has a beneficial interest in the goods and it is an actionable claim. 2. A has sold fifty bags of wheat to B. The bags of wheat are in the godown of A. B’s right to take possession of the bags of wheat from the godown of A is his (B’s) Actionable claim. 3. A has fifty bags of wheat in his godown. A has not sold these bags to B or the contract of sale is not valid. B has not beneficial interest in those bags of wheat. Claim of B, if made by him, is not his actionable claim. Transfer of Actionable Claim
Beneficial interest in movable property is intangible movable property. Therefore, actionable claim is regarded as property. Some instance of actionable claim: (1) The right to claim benefit of the contract for the purchase of goods13. (2) A claim to money under an insurance policy14. (3) A share in partnership.15 (4) A claim for arrears of rent 16. (5) A claim for return of earnest money17. (6) Right to get back the purchase-money when the sale is set aside. 18 (7) Muslim women claim for her unpaid dower. 19 (8) Right to get the proceeds of a business. 20
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Instances of claims which are not actionable claim: (1) A debt is an actionable claim, but a debt which has passed into a decree is not an actionable claim.21 (2) The right to recover damages for breach of contract. 22 (3) A claim to mesne profits. 23 (4) A copyright.24 (5) Where a decree provides for a future decree, this future decree is also not actionable claim.25 JUDICIAL PRONOUNCEMENTS
Sadasook Ramprotap v Hoare Miller & Corporatio 26 in this case contains a very special scheme which has some of the features of both the English common law, and of equity. Thus, in equity, debts were assignable, and also contingents interest and future property when the assignable was for valuable consideration. Chowne v Bayliss Corporation Bank 27 in the case the procedure adopted for reducing them into possession. Legal chose, in action were those enforceable by action at law, such as promissory notes, bills of exchange or policies of insurance. Re Bainbridge, Ex parte Fletcher 28 in this case editable closes in action, sometime called chose in equity, were enforced by action in equity, e.g. a beneficial interest in a partnership. Hammond v Stewar 29 in this case remedy of the assignee was imperfect at law, he had to sue in the name of the assignor on giving him and indemnity against costs. In equity he could sue in his own name, but there had to be consideration for the assignment, and the assignee could not sue the debtor in equity, but had to sue in law in the name of the assignor, unless the assignor had refused to allow the assignee to sue in his name. Loknarayan Sethia v state Bank of jaipur 30 in this case the Supreme Court was called upon to decide whether an irrevocable power of attorney in favor of a creditor to execute a decree on behalf of the debtor - decree-holder constituted an equitable assignment. The court held that it did, as it was an e ngagement to pay out of a specific fund, viz the decrial amount. Bharat Nidhi Ltd v Takhatma 31 in this case held that an irrevocable power of attorney authorizing the creditor-Bank to receive moneys due or that may become due to the borrows, coupled with a bill endorsed in favor of the bank for collection, constitution an equitable assignment. Anraj vs Government of Tamil Nadu 32 was overruled prospectively with effect from the date of the judgment (see ‘A draw without a chance to win is meaningless,’ in Business Line , May 6). A three-judge Bench had agreed with the decision in the Anraj case, when deciding the Vikas Sales Corpn case. There, it was held that REP licenses/Exim scrips are not actionable claims and, therefore, sale of such licence/scrip was not liable to sales tax. The Constitution Bench has now overruled the Anraj case and held that a sale of a lottery ticket amounts to the transfer of an actionable claim. The court, however, clarified that the order of reference in Sunrise vs NCT, Delhi was limited to the question whether lottery tickets are ‘goods’ and that
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the court had not been called upon to answer the question whether REP licenses (or the DEPB which has replaced the REP licenses) are ‘goods’ and having regard to the limited nature of the reference, the court did not decide the issue. Even while clarifying as above, the Bench held that the assumption in the Vikas Sales case that actionable claims are not transferable for value and that that was the difference between ‘actionable claims’ and those other goods which are covered by the definition of ‘goods’ in the Sale of Goods Act, 1930 and the sales tax law was fallacious and the conclusion insofar as it was based on this erroneous perception was held equally wrong. The apex court has, however, clarified in its judgment that the Anraj case is overruled only prospectively with effect from April 28, 2006. However, nothing has been specifically mentioned about the pending cases, levies already made but not collected. CONCLUSION
Actionable claim is a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in possession either actual or constructive, of the claimant, which the civil courts recognize as affording grounds of relief whether such debt or beneficial interest be existent, accruing or conditional or contingent. Actionable claim is a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in possession either actual or constructive, of the claimant, which the civil courts recognize as affording grounds of relief whether such debt or beneficial interest be existent, accruing or conditional or contingent. So the actionable claim is a very important for the transfer of property act. Notes
1.
http://www.lawzonline.com/legalencyclopedia/a/Actionable-Claim.h tml
2.
Subharao’s G.C.V. “Transfer of Propert Act” 15th Edition 2006.
3.
http://dolr.nic.in/A cts & Rules %5C Transfer of Property Act (1882).htm
4.
Section 55 Rights and Liabilities of Buyer and Seller of “Transfer of Property Act”.
5.
http://www.hindu.com/pp/2006/05/20/stories/2006052001250300.h tm viewed on
6.
http://www.rbi.org.in/scripts/PublicationReportDetails.a spx?UrlPage=&ID=166
7.
http://www.xomba.com/gift_and_actionable_cla im.
8.
Sukla S. N., “The Transfer of Property Act”, 26th Edition 2007.
9.
Supra.
10. Sinha R. K., “The Transfer of Property Act”, 9 th Edition 2006. 11. Ibid. 12. Ibid. 13. Zaffar Mehar Ali v. Budge-Budge Jute Mills, (1907), 34, Cal. 289. 14. Varjivan Das v. Magan Lal, A. I. R., (1937), Bom. 382. 15. Bharat Prasad v. Pras Sibgh Jute Mills, (1907), 34, Cal. 289.
Actionable Claim 16. Daya Debi v. Chapla Debi, A.I.R. (1960), Cal. 378. 17. Lalchand v. Hussainio, (1927), 97, I.C. 257. 18. Chinnappareddi v. Venkataramanappa, A.I.R. (1942), Mad. 209. 19. Amir Hasan Khan v. Muhammad Nazir Hussain, A.I.R. (1932), All. 345. 20. Alkash Ali v. Nath Bank, A.I.R. (1951), Assam 56. 21. Gvindarajulu v. Ranga Rao, A.I.R. (1921), Mad. 113. 22. Moti Lal v. Radhey Lal, (1933), ALL, 642. 23. Jai Narayan v. Kishun Dutta, A.I.R. (1924), Pat. 551. 24. Savitri Devi v. Dwarka Prasad, (1939), A.L.J. 71. 25. Jugalkishor Saraf v. Raw Collon Co. Ltd. A.I.R. (1955), S.C. 376. 26. 1923, (27), Cal WN, 733. 27. 1862, (31), Beav, 351. 28. 1878, (8), Ch D 218. 29. 1838, (9), Sim 327, p. 332. 30. 1969, (1), SCR 122. 31. 1969, (1), SCR 595. 32. 1986, (61), STC, 165 SC.
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