Sunday, 23 January 2022

Actionable Claim

 Actionable Claim

By Nemi Bhavsar:

Actionable claim is defined under section 3 of the Transfer of Property Act 1882. According to section 3 of the transfer of property Act, actionable claim means, 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 movable property not in the possession, either actual or constructive, of the claimant, which the civil courts recognize as affording grounds for relief, whether such debt or beneficial interest be existent, accruing confidential or contingent. Actionable claims are recognised by the court of law in order to provide with relief in reference to unsecured debt or beneficial interest in movable property. Debt: A debt is a liquidated or certain sum of money which debtor is under the obligation to pay. It can vary from being in present and in future. Debts can be secure and unsecured. When the debt is due in present it becomes and existing debt and when it is due in future it is called accruing debt.

Unsecured money debts:

  • When in a security of an immovable property, the debt is secured by a mortgage.

  • When the security is some movable property and that property is pledge and hypothecation.

When the security is debt secured by a mortgage, hypothecation, pledge it can not be claimed under actionable claim. Secured debts: The debtor can have debts under certain payable conditions, which refer as conditional debt. In a similar way there is contingency and the debts payable on the happening of a contingency it is called contingent debts.

Actionable claims include:

  • A maintainer allowance payable at a future date

  • A right to the proceed of a business

  • A partners right to sue for an account of a dissolved partnership

  • Annuities payable under deed of wakf

  • The price payable by a purchaser of immovable property before the execution of the conveyance

  • The right to recover the money left in the hands of vendee

  • An amount due under a policy of insurance

  • An amount due under letter of credit

  • Right to recover back the purchase money on the sale of being set aside

  • Arrears of rent

  • Future rents

  • A decretal debt or

  • Interest of purchaser of the lottery in the prize money

Non actionable claims

  • A judgement debt or decree

  • A claim to compensation for a canal constructed by the government on a part of mining site before the transfer of the mining lease and

  • A claim to mesne profits as they are unliquidated damages.

Actionable Claim can be transferred under Section 130 of Transfer of Property Act, 1882

The transfer of an actionable claim whether with or without consideration shall be effected only by the execution of an instrument in writing signed by the transferor or his duly authorized agent, shall be complete and effectual upon the execution of such instruments, 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.

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