Norman Macleod, Kt., C.J.
1. The firm of Jivraj Amichand entered into contracts for the purchase of specified goods at various rates as evidenced by the sale-notes from the Laxmi Mills. Then the same firm contracted to sell the goods bought under the aforesaid agreements to the defendant firm, Nemchand Gulabchand, at a profit. Jivraj Amichand complained that the defendant would not take delivery and purported to sell the goods against the defendant. The result vas that owing to the refusal of the defendant to take delivery there appeared to be a loss of Rs. 13,000 odd to Jivraj Amichand. It was open then to Jivraj Amichand to file a suit against the defendant for damages for breach of the contract, Instead of so doing, Hemchand, one of the partners of the said firm, purported to transfer to the plaintiff the right to recover damages.
2. The suit was dismissed in the trial Court on the ground that the defendant did not break the contract. When it came before us in appeal it seems to us obvious that the right to claim damages against the defendant's firm could not be transferred under Section 6(e) of the Transfer of Property Act. It was merely a right to sue, and it was not a transfer of an 'actionable claim' as defined in Section 3 of the Act, being neither a debt nor a beneficial interest in moveable property.
3. The same point had to be decided by the High Court of Calcutta in Abu Mahomed v. S.C. Chunder I.L.R. (1909) Cal. 345. Maclean C.J. said (p. 351):
I do not think that we can properly bring a mere claim for damages for breach of contract within those words (actionable claim). 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 leas than that; and if so, that cannot be transferred.
4. With due respect that reasoning seems obviously right. Therefore this appeal must be dismissed. The appellant's counsel urges upon us that he ought not to be made to pay respondents' costs, as this point was not taken in the Court below. But it was open to the respondents' counsel to dispute the plaintiff's case in this Court on any point which was open to him, and as the plaintiff was not satisfied with the decision of the trial Court, but wished to take his chance of obtaining a decision in his favour in this Court, he must pay the costs of the appeal.