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TMI Blog1906 (5) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer and assign over to the assignee the contracts in the schedule thereto set forth as also the benefits and advantages thereunder as also the right, title, interest, estate, claim and demand whatsoever of the assignor into or upon the said contracts. The schedule to the assignment sets out nine different contracts entered into by the Delta Jute Mills Company, Ld., and by the Budge-Budge Jute Mills Company, Ld., and also by the Bombay Company, Ld., by Messrs. Kahn and Kahn, Messrs. D. Sassoon Co. and other sellers. The contract in suit is marked 3 in the schedule annexed to the deed of assignment. In pursuance of the deed of assignment the plaintiff gave notice of the assignment to the Budge-Budge Jute Mills Co. and subsequently called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leged that the plaintiff was not ready and willing to carry out the contract. Now I am inclined to think that the plaintiff has succeeded in showing that the rule as regards the assignability of contracts in this country is that the benefit of a contract for the purchaser of goods as distinguished from the liability thereunder may be assigned, understanding by the term benefit the beneficial right or interest of a party under the contract and the right to sue to recover the benefits created thereby. This rule is however subject to two qualifications: first, that the benefit sought to be assigned is not coupled with any liability or obligation that the assignor is bound to fulfil, and next that the contract is not one which has been induced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. It is necessary to look at the circumstances under which this assignment was made, which is the basis of the claim in suit. Cassim Karim at or about the date of the assignment was in insolvent circumstances. He was then and had been for some time previously contemplating an application to the Court to be declared an insolvent. At that time the hearing of a suit was proceeding, in which a heavy claim was made against him, and he openly expressed to his Attorney, who was engaged to draw this and other similar assignments, that in the event of the suit being decided against him it would be necessary for him to file his petition in insolvency. It is clear also that within a few days of the date of the present assignment Cassim Karim began t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iture. Neither the plaintiff nor the assignor Casssim Karim are called to explain these transactions, which strongly suggest a fraudulent design on the part of those concerned therewith. That being the position of affairs, ten days after the assignment in question Cassim Karim filed his petition in insolvency, and having with the assistance of his attorney and the plaintiff got rid of all his property there was nothing in the shape of assets to make over to the Official Assignee for the benefit of his creditors. Now an assignment of property made under these circumstances is clearly an assign-Kent in fraud of the Bankruptcy Law. That is the language of the Courts in England. In this country a similar assignment falls clearly within Clause ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creditors, that was not the object of the agreement of transfer within the meaning of Section 23 of the Contract Act, as the object or consideration of the assignment was the sum of ₹ 100, which is and was a good and lawful consideration. It is pointed out in Gour's Law of Transfer (Vol. I, p. 130 and see foot-note), an authority upon which much reliance was placed in the course of the argument for the plaintiff, that this view of the meaning of the words consideration and object is not correct and that object is intended to mean something very different from consideration. In my opinion the word object in Section 23 of the Contract Act was not used in the same sense as '' consideration, but was used as distinguishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition was not however dismissed without giving time to the Official Assignee to take steps to enforce his rights under the Contract in suit. The Official Assignee failed to take steps within the time limited and the petition was accordingly-dismissed. I am informed that an appeal has been filed against the order dismissing the petition in insolvency, and the question which I have to consider is whether it would he desirable to stay making a final order in this suit, until the result of the insolvency appeal is known; but it seems to me undesirable that I should take this course, having regard to the fact that the appellant is the insolvent, and it is his case that the beneficial interest in the contract in suit did not pass to the Official ..... X X X X Extracts X X X X X X X X Extracts X X X X
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