Actionable claim means a debt or a claim on which action can be
started in a Court of law for comfort or relief.
The civil Courts recognized as giving the grounds for relief whether
such claims are conditional, accruing and other. In general terms, an
actionable claim is a debt or claim for which the person can take an
action and also approach the Court for recovery his debt or claim.
Tangible or touchable movables such as chairs or bikes and many
have physical existence and can be possessed. Some movable
property is an actionable claim. It is also a claim for unsecured debt
and any beneficial interest in the moveable property and the property
is not in any kind of possession.
Like example- X is a person who needs a loan or money from Y.
Then X takes loan 50,000/- from Y. And Y does not take any security.
It means X takes loan 50,000/- from Y without any security. So the
debt or claim given by Y is an actionable claim. And if the X failure
on his part or not repay the money then Y can approach the Court.
Definition
As per section 3 of transfer of property Act 1882, “Actionable
claim” means a claim to any debt, other than
• a debt secured by mortgage of immoveable property or
• by hypothecation or
• by 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,
accruing, conditional or contingent.
Actionable claim means a claim for any debt which is related to any
benefit arising out from any movable property which is not in
possession and for which relief can be claimed in civil court.
Further It means that for which action is necessary to take the claim of
it and if any action for its realisation being not taken then it can’t be
said as actionable claim.
√ It means that Claim of secured debt is not actionable claim.
√ “Beneficial interest in moveable property” is a right or expectancy
in movable property
Some examples of actionable claim, these following claims are the
actionable claim-:
1. Claim for arrear rent.
2. Claim for rent to fall due in future.
3. A choice offered to repurchase the property once again.
4. Book debts or claims
5. The right to claims maintenance.
6. Claim the benefit of the contract.
7. Deposit receipt.
The following claims are not the actionable claim-:
1. A claim which is decreed.
2. “Right to sue”, it is a right but it is not an actionable claim.
3. The claim for the mesne profits.
In the case of the Jugalkishore Saraf Vs Raw Cotton Co. Ltd, the
Supreme Court held that a judgment debt or decree is not an
actionable claim for action is necessary.
In the leading case Lachmi Koeri Vs the State of Bihar, the Court has
been pointed out the transfer of arrears of rent is a type of a transfer of
actionable claim. And the transfer of arrears of rent could be
transferred in accordance with the provisions of the Transfer of
Property Act.
In the case of Rekhath Koeri, where the Court said that the transfer of
arrears of rent is really a transfer of actionable claim and it could be
transferred in accordance with the rules and regulations of Transfer of
Property Act.
Important Provisions Dealing With Actionable Claim Under
Transfer Of Property Act
Under Section 130 of the Transfer of Property
Act, the mode of transfer of actionable claim is
described. According to Section 130,
· The transfer can be done by only a written instrument;
· And signed by the transferor or his legal agent; and
· The transfer will be complete.
Exceptions of the Sec 130-Sec 130 does not apply on the transfer
of marine and insurance of fire policy.
In the case of Simon Thomas vs. State Bank of Travancore, in this
case, there should be an intention to transfer the debt represented by
the written receipts.
Under Section 132 of the Transfer of Property Act, defines the
liability of the transferee of actionable claim. The liabilities and
equities of the transferor are transferred to the transferee.
Section 133 of the Transfer of Property Act described the
warranty of solvency of the debtor. In this section when a claim is
transferred the transferee may run the chance or risk of losing the
debt, in this case, the debtor is insolvent. So as a precautionary
measure, the transferee should be assured that the debtor is solvent.
Section 134 of the Transfer of Property Act is deals with the
mortgaged debt.
section 135 of the Transfer of Property Act deals with the
assignment of rights under the policy of insurance against fire.
Section 136 deals with the incapacity of officers connected with
the Court of justice. The person who includes in section 136 are:-
· Legal practitioner;
· Judges of the Court; and
· The legal or officer who concerned with the justice of the Court.
And the last Section 137 describes the saving of negotiable
instruments and etc.
In the case, State of Kerala and Ors. Vs. Mini Shamsudin and Ors.,
the Court said that actionable claims are ‘goods’ and movable
property but it is not for the purpose of the sales tax acts.
