hvn IN THE HIGH COURT OF JUDICUATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 1225 OF 2001 M. Kapitam Kud and Ors. ... Appellants Versus Chemox International Limited ... Respondents Mr.Rahul Narichaniya with Ms. Preeti Shah i/by Motiwala & Co. for Appellants. None for Respondents. CORAM : F.I. REBELLO & A. A. SAYED, JJ. DATED : APRIL 06, 2010 P. C.: 1. This is an appeal against the order of the learned Single Judge of this Court dated 10.10.2001. The learned Judge by the impugned order has directed the impleadment of M/s. Cluster Finance Private Limited as Co- plaintiff. The appellant herein/original defendants are aggrieved by the said order. 2. A Chamber summons was moved on behalf of the applicant M/s. Cluster Finance Private Limited that they be added as Co-plaintiffs based on the deed of assignment in their favour by the Plaintiffs M/s. Chemox International Limited. A reply was filed by Defendant No. 4 who were subsequently added. Defendant No. 4 were agents of Defendant No. 2. Chamber summons was opposed by original defendant No. 4. It is the case of the original defendant No. 4 that the Deed of Assignment is illegal, null, void and nonest. It is submitted that the suit is for recovery of damages against defendants and has not yet been crystalized into a debt and in these circumstances the claim for damages would not have been the subject matter of the Deed of assignment. It is submitted that the learned Judge has misdirected himself in law by holding that on the facts of the present case what has been assigned is a decree to be passed in future as also right to execute the decree. On that basis the learned Judge was pleased to allow the Chamber summons and directed the applicants to be added as co-plaintiffs. 3. On behalf of the appellants the learned counsel has drawn our attention to the meaning of “book debt” from the Law Lexicon by Mr. P. Ramanatha Aiyar, Second Edition, Reprint of 2002 where it is set out that book debt means a debt which is in some way connected with the trade of the person concerned. It should be one arising out of the transactions in the ordinary course of business and usually finds its way as an entry in his book of accounts. Relying upon that it is submitted that in the instant case, what has been assigned is not the book debt. Our attention was also invited to the judgment of the Supreme Court in Jugalkishore Saraf Vs. M/s. Raw Cotton Co. Ltd. AIR 1955 SC 376. The learned counsel sought to point out that the Supreme Court therein observed that a decree be passed in future also does not fall within the definition of an actionable claim and assigning or transfer thereof needs to be affected in the manner prescribed by section 130 of the Transfer of Property Act. Our attention was also invited to the judgment in Union of India Vs. Raman AIR 34 SC 1265 to point out that it is only on decree being passed that the damages becomes crystalized into a debt. The learned counsel has submitted that the attention of the learned Single Judge was not invited to the judgment of the Division Bench of this Court in Hiarchand Amichand Gujjar Vs. Nemchand Fulchand Marwadi, 1923 BLR 445 where the learned Bench held that the right to sue for damages consequent upon the alleged breach of contract cannot be assigned under section 6(e) of the Transfer of Property Act. To that effect also reliance is placed in the judgment of the learned Single Judge in ICICI Lombard General Insurance Vs. Parasmani Roadlines Pvt. Ltd. 2007 (4) Bom.C.R. 311 under the Carriers Act where the learned Judge held that a winding petition would not be maintainable unless there is debt due or ascertained and that in so far as the liability of the courier for damages was not a debt due or the liability is yet to be ascertained and untill there be decree. None appears for the contesting respondents though served. 4. The main grievance of the appellant is that if the judgment is allowed to stand that would be the judgment to be considered as if it is the correct position in law and will be considered as the law laid down and in these circumstances, this court should interfere with the impugned order. Ordinarily we would have, but considering that the respondents/original defendants are not present and the matter is proceeding exparte, and further as it is against an interim order, in our opinion, the ends of justice will be met if we choose not to interfere and leave the questions open for consideration in appeal to be filed if the appellants are ultimately aggrieved by that oder with some prima facie observations. 5. At this stage, what the learned Judge has done is to proceed to pass an order based on prima facie material on record. The deed of assignment is yet to be proved. We have perused the Deed of Assignment. Prima facie on the consideration of the Deed of Assignment, we do not find that the assignment is for assigning claim/due of Rs.13,86,320/-. The suit itself is a suit prima facie for damages. However, the deed of assignment also confers power on the assignee to act as power of attorney and prosecute and defend the suit and all the legal proceedings. 6. In that light of the matter, in our opinion, though there is some merit in what has been argued on behalf of the appellant that claim for damages cannot be assigned, that issue can be considered at the stage of hearing and disposal of the suit and after the deed of assignment is proved. The Judgment of the learned Judge to that extent only prima facie records the opinion based on prima facie facts. It will be open to the Appellants to file additional written statement wherein they can raise these issues, including joinder of M/s. Cluster Finance Pvt. Limited on the ground that the deed of assignment is null and void. With the above observations appeal disposed of. 7. All questions are left open for consideration at the trial of the suit. Appeal disposed of accordingly. (A.A. SAYED,J.) (F.I. REBELLO,J.)