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Messrs. Sadasook Ramprotap Vs. Hoare Miller and Co. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal719,80Ind.Cas.632
AppellantMessrs. Sadasook Ramprotap
RespondentHoare Miller and Co.
Cases ReferredGopalakrishna Iyer v. Gopalaknahna Iyer
Excerpt:
transfer of property act (iv of 1882), section 130, 131 - transfer of actionable claim--defective notice to debtor--debtor, whether bound--waiver. - .....transfer. the provision as to notice is contained in section 131 which is in these terms: 'every notice of transfer of an actionable claim shall be in writing signed by the transferor or his agent duly authorised 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.'3. in the present case a notice of transfer in writing was given; but it has subsequently been discovered that the notice, while stating the name of the transferee, did not specify the address of the transferee, consequently the position is that the notice contemplated by the statute has not been given: in other words, the exception mentioned in the proviso to section 130 has not come into operation; for the debtor has not received.....
Judgment:

Mookerjee, J.

1. This is an appeal from the judgment of Mr. Justice Buckland in a suit for damages for breach of contract. On the 4th May 1921, and 9th June 1921, the defendants entered into two contracts with a firm of the Dame of Balfour & Co., for the sale of corasacks. On the 15th July 1921, Balfour & Co. assigned their interest in the contract to the plaintiffs, Sadasook Ramprotap, a firm carrying on business as commission agents and bankers. On the 11th November 1921, the plaintiffs instituted this suit as assignees of the contracts to enforce their rights thereunder. Mr. Justice Buckland has dismissed the suit on the ground that the plaintiffs had not complied with the terms of Section 131 of the Transfer of Property Act. No oral evidence has been adduced in the case; and it appears to have been taken as common ground' before Mr. Justice Buck-land that if notice was not given under Section 131, though the transfer might have been valid, the suit against the defendant Company must fail. In these circumstances, Mr. Justice Buckland proceeded with the trial on the footing that if the plaintiffs failed on this point, nothing else would require consideration. He decided this point first, and adopted that course with the concurrence of Counsel on both sides.

2. Section 130 of the Transfer of Property Act provides that the transfer of an actionable claim shall be effected only by the execution of an instrument in writing, signed by the transferor or his duly authorised agent, and shall be complete and effectual upon the execution of such instrument 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. The provision as to notice is contained in Section 131 which is in these terms: 'Every notice of transfer of an actionable claim shall be in writing signed by the transferor or his agent duly authorised 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.'

3. In the present case a notice of transfer in writing was given; but it has subsequently been discovered that the notice, while stating the name of the transferee, did not specify the address of the transferee, Consequently the position is that the notice contemplated by the statute has not been given: in other words, the exception mentioned in the proviso to Section 130 has not come into operation; for the debtor has not received express notice of the transfer as prescribed in Section 131. On these facts, Mr. Justice Buckland has held that such dealing with the debt by the debtor as has taken place between the debtor and the original creditor is valid as against the transferee. In support of this proposition, reference has been made to the decision of Sir Lawrence Jenkins, C.J., in Hunsraj Mararji v. Nathoo Gangaram 9 Bom. L.R. 838 where it was ruled that in order that the exception mentioned in the proviso to Section 130 may be operative, there must be a strict compliance with the requirements of Section 131. This view was also adopted by Sir Charles Fox, C.J., in Basant Singh v. Burmah Railways Co. Ltd. 30 Ind. Cas. 278 : 8 Bur. L.T. 266 : 8 L.B.R. 388. I am in agreement with the opinion expressed by Sir Lawrence Jenkins and by Sir Charles Fox and I do not consider it right to whittle away the unambiguous provisions of the statute. In this connection, reference may be made to the observations of Lord Moulten in Mulraj v. Viswanath Prabhuram Vaidya 17 Ind. Cas. 627 : 40 I.A. 24 : 17 C.W.N. 209 : (1919) M.W.N. 1247 : 12 M.L.T. 652 : 11 A.L.J. 7 : 24 M.L.J. 60 : 15 Bom. L.R. 9 : 17 C.L.J. 162 : 37 B. 198 (P.C.), where an attempt was made to modify the effect of Sections 130 and 131 of the Transfer of Property Act by reference to general principles of law. The Judicial Committee reversed the decision of the Bombay High Court as erroneous because the Judges had failed to appreciate that the positive language of the section precluded the application in India of the principles of the English law on which they based their judgment.

4. I may incidentally mention that the appellants urged that the requirements of Section 131 were substantially fulfilled because the address of the attorney of the transferee was given. The contention is futile. The section requires the name and address of the transferee, and the name and address of the solicitor of the transferee manifestly cannot be taken as a substitute therefor. It has further been urged that the omission of the defendants to take exception to the validity of the notice operates as a bar to the maintenance of the objection. There is clearly no foundation for this argument. There was no duty imposed on the debtor to speak or to rectify the error. It is further immaterial that the debtor asserted that he would deal with no third party. This also does not disentitle him to insist upon strict compliance with the requirements of Section 131.

5. We observe that Mr. Justice Buckland has ruled that the provisions of Section 131 could not be waived under any circumstance. Sir Benode Mitter has controverted this view, which I am not prepared to accept as well-founded. Our attention has been drawn to the cases of Asutosh Sikdar v. Beharilal Kirtunia 35 C. 61 : 11 C.W.N. 1011 : 6 C.L.J. 320. (F.B.); Manindra Chandra Nandi v. Secretary of State for India 34 C. 267 : 5. C.L.J. 148 and Bholanath Ray v. Secretary of State for India 16 Ind. Cas. 849 : 40 C. 503 : 17 C.W.N. 64, to establish the position that even though a statutory provision may be expressed in a mandatory form, non-compliance therewith does not necessarily invalidate a transaction. This position is incontestable, and the answer to the question whether it is permissible to waive a particular provision depends upon its true nature. If the object of the Legislature is to protect or benefit an individual litigant, it is open to him to waive the positive provisions of the statute. On the other hand, if the provision has been enacted from reasons of public policy, he cannot be permitted to waive it. The provisions of Section 131 fall, in my judgment, within the latter category, but I am not prepared to maintain, as an abstract proposition of law, that under no conceiveable circumstance can the provisions of Section 131 be waived by the debtor. This harmonises with the view adopted in Venkata Subbiah Chetty v. Subba Naidu 31 Ind. Cas. 152 : 18 M.L.T. 538 : (1915) M.W.N. 822 : 2 L.W. 977 as to the applicability of the principles of estoppel and waiver be assignments of actionable claims under Sections 130 and 131 of the Transfer of Property Act. Reference may be made to the decisions in Griffin v. Weatherby (1868 ) 9 B. and S. 726 : 37 L.J.Q.B. 280 : 3 Q.B. 758 : 18 L.T. 881 : 17 W.R. 8; Walker v. Rostron (1842) 9 M.L.W. 411 : 60 R.S. 770 : 11 L.J. Ex. 178 : 152 E.R. 174 : 60 R.R. 770; Maafarlane v. Lister (1887) 87 Ch. D. 88 : 57 L.J. Ch. 92 : 58 L.T. 201 and Liversidge v. Broadbent (1859) 4 H. and. N. 603 : 28 L.J. Ex. 232 : 7 W.R. 615 : 118 R.R. 643 : 157 E.R. 978: sea also Gopalakrishna Iyer v. Gopalaknahna Iyer 4 Ind. Cas. 420 : 88 M. 123 : 7 M.L.T. 97.

6. The real difficulty of the appellants is that no foundation was laid for a case of waiver or estoppel in the trial Court. The pleadings do nob state facts which might justify a plea of waiver. The question also does not appear to have been raised in the issues. The correspondence makes it abundantly clear that there is no foundation for the plea of waiver. Even in this Court Sir Benode Mitter has not been able to furnish the slightest indication that there are facts capable of proof which may support a plea of waiver. In such circumstances, I shall not explore the attractive problem, whether a plea of waiver may not be analysed and distributed into one or other of the four heads, election, estoppel, contract and release. To my mind, the course which the trial took before Mr. Justice Buckland has in no way prejudiced the plaintiffs who have no enforceable claim as against the defendants. The decree made by Mr. Justice Buckland must be affirmed, although I am not prepared to accept all the reasons assigned by him for his decision. The appeal is dismissed with costs.

Rankin, J.

7. I also think that this appeal fails and that it would be vain and unreasonable to direct a remand. In view of the issues, the learned Judge, with the consent of the Counsel, was very reasonably desirous of settling first the question whether due notice of assignment had been given to the debtor. It is plain from the facts, from the judgment, and even from the memorandum of appeal that if the defendant Company were entitled to deal with their original contractee, then the plaintiffs' suit must fail. The case, however, illustrates the difficulty and danger of short cuts because, while it was reasonable and proper to dispose first of the question of the notice, it was also very necessary to dispose of that question as a whole. On the question of notice it was not disputed that Sections 130 and 131 of the Transfer of Property Act governed the case. The plaintiffs by their Counsel appear to have contended first that the address of the attorney was sufficient under Section 131 and also that the mention of any address was not imperatively required by the section. In my opinion, the word 'shall' in the section means the same thing in each of the two places where it occurs and the attorney's address is not the address of the transferee any more than the attorney's name is the name of the transferee for purposes of the section. Whether because the learned Judge showed that the plaintiffs on this point were not persuading him or because some further matter occurred to learned Counsel in the course of his argument, it soems that, on this point, the plaintiff's Counsel had recourse, during the argument to a suggestion of which there is no mention in the issues previously settled a suggestion that the statute left it open to them to make a case of waiver--what case of waiver and waiver of what, being at that stage none too clear. If the plaintiffs had any such case they would have acted more intelligibly if they had refused to assent to the question of notice being tried as a preliminary point on the correspondence. If they had asked to have an issue framed and for leave to adduce evidence thereon if. they had such evidence, I think for the reasons to be stated in a moment that the learned Judge at this stage might very well have told the plaintiffs' Counsel that, while he was prepared on the face of the issues settled to deal with the question of notice as a preliminary point, he was not prepared so to deal with it if the plaintiffs were to introduce a new issue as to waiver. In this Court learned Counsel for the plaintiffs was asked to indicate what was the case of waiver he desired to have an opportunity to raise. He informed us quite frankly that he was not able to say whether it was a case to be raised by oral evidence, but that, in any case, he would contend on the correspondence and pleadings that as the defendant Company repudiated the assignment altogether and made no point at all as to the absence of the plaintiffs' address from the written notice, their conduct amounted to a waiver of this requirement of Section 131. Apart from this last mentioned contention on the correspondence which is before us and which we can deai with, 1 do not collect any further fact save that the plaintiffs are willing to make a further case of waiver it they can find one. It would be quite impossible, on the materials before us, even to frame an issue at this late stage except as regards questions on the correspondence. In my opinion, the fact that the defendant Company from the first refused to recognise any assignment or to deal with any third party is no waiver of any defect in the notice, and the fact that the defendant Company at no time tutored the plaintiffs as to the proper form of the notice or took express objection to anything in particular in the notice is no waiver either. I do not doubt that a debtor may by parol or by conduct represent that ho will be responsible to an assignee whoso notice is defective and that the statute would in such a case be no answer to a claim based on or re-inforced by contract or estoppel. Again, if it were suggested that the assignor bad offered to let a debtor have the transferee's address in writing and that the debtor had replied that there was no need to trouble as ho would make no point of the omission that would raise a different case. I am not prepared to hold that such a case as that properly pleaded and proved would not succeed. It might amount to a conditional promise to the assignee. The truth is that the statute, is not concerned to prevent any one who is willing to incur a liability from so doing. It merely states the conditions on which the law imposes liability under an assignment. Nevertheless, I incline to think that thy plaintiffs' case, if not within the statute, is demurrable unless it has an independent basis. In construing Sections 130 and 131 of the Transfer of Property Act, it has to be remembered that they contain a very special scheme which must be regarded as a whole in itself. At common law a chose in action was not assignable, in equity it was freely assignable upon certain principles as to notice. The Indian Legislature in 1900 has composed a new scheme which has some of the features of both, and, as I read Section 130 it says this that the law, while regarding the transfer of an actionable claim as valid if effected in a certain manner, will not undertake to enforce against a debtor the assignment except upon the terms that the debtor may arrange with his original creditor unless and until he has received in writing a particular kind of notice. If, therefore, the plaintiff's claim is entirely on the basis of an assignment and if this claim is wholly without any other juristic basis, it seems to me that the section which enacts certain conditions must be rigidly complied with. I do not assent to all the learned Judge has said with regard to the general impossibility of making any case of waiver. It is difficult to distinguish between waiver and estoppel. Under the name of waiver, it may be said that liability or responsibility to an assignee has been incurred by a debtor independently of Section 130 by conduct or by representation. In this case, however, there is no reality at all in that suggestion. I do not complain that no such case was pleaded, but no issue as to such a case was taken; and, even at this stage, it does not appear that there is anything capable of being stated apart from the argument on the first point. For these reasons, it seems to me that it is impossible to direct a remand and that the present appeal fails and must be dismissed.


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