Know about debts – Transfer of actionable claims

Transfer of Property Act – CHAPTER VIII
OF TRANSFERS OF ACTIONABLE CLAIMS

Section 130. Transfer of actionable claim.
(1)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 transfer or or his duly authorized agent, shall be complete and effectual upon the execution of such instrument,and there upon all the rights and remedies of the transfer or, whether by way of damages or otherwise, shall vest in the transferee, whether such notice of the transfer as is herein after provided be given or not:
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1.Ins. by Act 20 of 1929, s. 60.
2.The words and figures “or, save as provided by section 123, any rule of Hindu or Buddhist law” omitted by s. 61, ibid.
3.Subs. by Act 2 of 1900, s. 4, for the original Chapter.
4.Ins. by Act 20 of 1929, s. 62.
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Provided that every dealing with the debt or other actionable claim by the debt or other person from or against whom the transfer or 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 transferor has received express notice there of as here in after provided) be valid as against such transfer.
(2)The transferee of an actionable claim may, upon the execution of such instrument of transfer as aforesaid,sue or institute proceedings for the same in his own name without obtaining the transferor’s consent to such suit or proceedings and without making him a party thereto.
Exception.–Nothing in this section applies to the transfer of a marine or fire policy of insurance 2*[or affects the provisions of section 38 of the Insurance Act, 1938 (4 of 1938)].
Illustrations
(i)A owes money to B, who transfers the debt to C.B then demands the debt from A, who, not having received notice of the transfer, as prescribed in section 131, pays B. The payment is valid, and C cannot sue A for the debt.
(ii)A effects a policy on his own life with an Insurance Company and assigns it to a Bank for securing the payment of an existing or future debt.If A dies, the Bank is entitled to receive the amount of the policy and to sue on it without the concurrence of A’s executor, subject to the proviso in sub-section (1) of section 130 and to the provisions of section 132.

Section 130A. Transfer of policy of marine insurance.
Rep. by the Marine Insurance Act, 1963 (11 of 1963), s. 92 (w.e.f. 1-8-1963).
Notice to be in writing, signed

Section 131. Every notice of transfer of an actionable claim shall be in writing, signed by the transferor or his agent duly authorized 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.
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1.The words and figures “and notwithstanding anything contained in s. 123″ins. byAct 38of 1925, s. 2, omitted by Act 20 of 1929, s. 62.
2.Added by Act 4 of 1938, s. 121 (with effect from 1-7-1939).
3.Ins. by Act 6 of 1944, s. 2.
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Section 132. Liability of transferee of actionable claim.
The transferee of an actionable claim shall take it subject to all the liabilities and equities to which the transferor was subject in respect thereof at the date of the transfer.
Illustrations
(i)A transfers to C a debt due to him by B, a being then indebted to B. C sues B for the debt due by B to A. In such suit B is entitled to set off the debt due by A to him; although C was unaware of it at the date of such transfer.
(ii)A executed a bond in favour of B under circumstances entitling the former to have it delivered up and cancelled. B assigns the bond to C for value and without notice of such circumstances. C cannot enforce the bond against A.

Section 133. Warranty of solvency of debtor.
Where the transferor of a debt warrants the solvency of the debtor, the warranty, in the absence of a contract to the contrary, applies only to his solvency at the time of the transfer, and is limited, where the transfer is made for consideration, to the amount or value of such consideration.

Section 134. Mortgaged debt.
Where a debt is transferred for the purpose of securing an existing or future debt, the debt so transferred, if received by the transferor or recovered by the transferee, is applicable, first, in payment of the costs of such recovery: secondly, in or towards satisfaction of the amount for the time being secured by the transfer; and the residue, if any, belongs to the transferor or other person entitled to receive the same.
Assignment of rights under policy of insurance against fire

135.Every assignee, by endorsement or other writing, of a policy of insurance against fire, in whom the property in the subject insured shall be absolutely vested at the date of the assignment, shall have transferred and vested in him all rights of suit as if the contract contained in the policy had been made with himself.

Section 135A. Assignment of rights under policy of marine insurance.
Rep. by the Marine Insurance Act, 1963 (11 of 1963), s. 92 (w.e.f. 1-8-1963).

Section 136. Incapacity of officers connected with Courts of Justice.
No Judge, legal practitioner or officer connected with any Court of Justice shall buy or traffic in, or stipulate for, or agree to receive any share of, or interest in, any actionable claim, and no Court of Justice shall enforce, at his instance, or at the instance of any person claiming by or through him, any actionable claim so dealt with by him as aforesaid.
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1.Subs. by Act 6 of 1944, s. 3, for the original section.
2.Ins. by s. 4, ibid.
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Section 137. Saving of negotiable instruments, etc.
Nothing in the foregoing sections of this Chapter applies to stocks, shares or debentures, or to instruments which are for the time being, by law or custom, negotiable, or to any mercantile document of title to goods.
Explanation.–The expression”mercantile document of title to goods” includes a bill of lading,dock-warrant,ware housekeeper’s certificate, railway receipt, warrant or order for the delivery of goods, and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize, either by endorsement or by delivery, the possessor of the document to transferor receive goods thereby represented.

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