KUNHIRAMAN, J.

The Official Assignee of Madras who was impleaded as the 17th defendant in O.S. No. 64 of 1935 on the file of the Subordinate Judges Court of Trichinopoly is the appellant. He was brought on record as representing the estate of the defendants 1 to 7 who were adjudicated insolvents in I.P. No. 345 of 1935 on 6th September 193

5. They were members of a joint Hindu family which was carrying on a Banking business under the name and style of the S. N. Firm which suspended business on 30th April 193

5. Between 25th March 1935 and 17th April 1935 the plaintiff respondent had paid this firm a total sum of Rs. 6, 950 at Trichinopoly in the following circumstances. The plaintiff had arranged to purchase certain lands in the village of Thiruvarambur from one S. V. Nallaperumal Pillai of Tuticorin. When the plaintiff told the third defendant of this plan the latter suggested that the transaction could be arranged through the defendants branch at Tuticorin which he said was close to Nallaperumal Pillais shop of that place. The plaintiffs case was that the payment referred to above was made by him under an arrangement that the firm of defendants 1 to 7 should keep the total amount in trust for him until he decided how it should be disposed of. The plaintiff had no prior banking transactions with the defendants firm. The plaintiffs case was that the amount was not deposited by him with the firm and that when he made the payment, no relationship of Banker and Customer arose between him and the firm. On the other hand, the defendants firm received the amount in a fiduciary capacity. He therefore wanted to recover the full amount from the assets of the firm and not merely in the shape of dividends declared from time to time by the Official AssigneeThe claim was resisted in the Court below on the ground that the plaintiff was not entitled to pay preferential treatment in respect of the total amount paid by him because it was paid by hem as a deposit which was to carry interest at 5 annas per cent. per annum in the ordinary course of the banking business of the firm. This contention of the defendants was negatived by the trial Court which has found on the evidence that the amount was paid by plaintiff on anamath account on the understanding that the total amount should be paid back to him when he intended to go to Tuticorin or that a draft should be given to him for the total amount to be paid at Tuticorin by the defendants branch there. The defendants suspended payment before the plaintiff had made up his mind as to the what course he should adopt. The learned Subordinate Judge states in his judgment and quite correctly too, that had the plaintiff adopted the second course and had he taken a draft on the defendants branch at Tuticorin the position taken up by the plaintiff at the trial might have been untenable. It might then have been assumed that the transaction was an ordinary banking transaction between the plaintiff and the firm which would have relegated the plaintiff to the position of an ordinary customer of the Bank who would have had to take his turn with the other customers of the Bank for the obtaining satisfaction. On the ground therefore that the Bank held the plaintiffs money in a fiduciary capacity as the result to which the property in the amount did not vest in the Official Assignee, the Court below has recognized the plaintiffs claim to preferential treatment along with such other persons as may be similarly situated. The plaintiffs suit has accordingly been decreed and it is against this decree that the present appeal is preferredThe learned Advocate for the appellant contends that the moneys was paid to the Bank to be held "at call, " that is to say, to be paid back to plaintiff whenever he demanded payment. He points out that this shows that in fact it was paid into a current account to the credit of the plaintiff and that therefore the plaintiff must be regarded as an ordinary customer of the Bank and not as a person who had entrusted money to the Bank to be held in a fiduciary capacity

The learned Advocate for the respondent, on the other hand, stresses that fact that the plaintiff did not at any time have a banking account with the firm. The amount was paid by the plaintiff at the invitation of the third defendant. No cheque book or pass book was given to the plaintiff by the firm. No entry was made of the payment in the current account or Fixed Deposit register of the Bank. The firm did not produce its fair day book at the trial. No ledger was opened crediting plaintiff with the amount until at any rate the 30th April 1935 by which time the Bank had already suspended payment. He therefore argues that the payment was made to the firm a bailee or agent and that consequently the view taken by the lower Court is correct

It must be stated at the outset that the appellants case that the amount was paid into plaintiffs current account and that it was to carry interest at 5 annas per cent. has not been substantiated. It seems to us that the test for ascertaining whether there was any fiduciary relationship or only the relationship of Banker and Customer between the parties is put succinctly in Hart on Banking, Volume I (Fourth Edition) at page 582, where the decision in Re : Brown Ex parte Plitt (60 Law Times 397 (6 Mor. 81), is considered. In that case Julius Plitt handed a cheque to Alexander Brown a Banker with whom he had no banking account and obtained a receipt to the effect that the cheque was given for collection. Brown was adjudicated bankrupt after he had collected the amount of the cheque and before he had paid the whole of it to Plitt. The trustee claimed the balance of the proceeds of the cheque. CAVE, J., observed in the course of the argument"Where the debtor is to collect and remit, there is confidence and trust. Where the debtor is to use and repay on demand, there is no trust."

It was held in that case that the relation between the parties was not the ordinary relation of Banker and Customer. Plitt had handed the cheque to Brown "for Brown to receive and hold it for him. If so it is not the ordinary case of Banker and Customer."

In Burdick v. Garrick (5 Ch.Ap. 233 at 240). LORD HATHERLY, L.C., says as follows

"I apprehend that the true rule applicable to these cases is to the found in the case of Foley v. Hall (2 H.L.C. 35), where it is clearly stated by LORD COTTENHAM who distinguishes between the confidence reposed in a factor or agent and the confidence reposed in a person who is merely in the position of the Banker. A mere Banker who takes charge of his Customers money is not in any fiduciary relation whatever to him with respect to the particular coins or notes deposited because it is the ordinary course of trade to make use of them for his own profit. He does make use of the them and he invests money deposited with him, and his customer does not require from him those very coins or Exchange bills which he deposited with him. But in the present case we have an agent who is intrusted with those funds, not for the purpose of being remitted when received to the principal but for the purpose of being employed in a particular manner in the purchase of land or stock, and which moneys the factor or agent is bound to keep totally distinct and separate from his own money; and in no way whatever to deal with or make use of them. How a person who is intrusted with funds under such circumstances differs from one in an ordinary fiduciary position I am unable to see." *

The mere fact that the plaintiff had no prior banking transaction with the defendants firm will not of course by itself be sufficient to exclude the possibility of the plaintiff having become customer of the Bank when he paid in the amounts. This is made clear in the judgment of the Privy Council in Commissioners of Taxation v. English, Scottish and Australian Bank Ltd. 1920 AC 683); On page 687, occur the following sentence;

"Their Lordships are of opinion that the word Customer signifies a relationship in which the duration is not of essence. A person whose money has been accepted by a Bank on the footing that they undertake to honour cheques up to the amount standing to his credit is, in the view of their Lordships, a customer of the Bank in the sense of the statute, irrespective of whether his connection is of short or long standing. The contrast is not between an habitue and a newcomer, but between a person for whom the Bank performs a casual service, such as for instance, cashing a cheque for a person introduced by one of their customers, and a person who has no account of his own at the Bank" *

See also the opinion of LORD DAVEY in Great Western Railway Co. v. London and County Banking Co. Ltd. 1901 AC 414 at 420

Again the mere fact that a customer gives directions to a Banker to apply in a particular manner moneys standing to his credit will not necessarily make the relationship between the parties fiduciary. This was made clear in the decision reported in Dharmambal Ammal v. Offl. Liquidators, T. N. & Q. Bank Ltd. (50 L.W. 939), where money was invested in a Banks Savings Bank account and a standing order was given that out of this account payment must be made towards certain recurring chit subscriptions payable by the depositor. The scope of the decision in Farley v. Turner, 1857 (26) LJCh 710; is explained in the judgment in that case, and it was held that the depositor was a customer of the Bank and not a person entitled to preferential treatment since no trust was created

The decisions of this Court reported in Official Assignee of Madras v. Rajam Iyer, 36 Mad 499 [LQ/MadHC/1910/178] , F.B.) Official Assignee of the Madras v. Melapparangavur Sarvajana Sahaya Nidhi 34 Mad 125) [LQ/MadHC/1910/173] and Official Assignee of Madras v. Smith 32 Mad 68) [LQ/MadHC/1908/75] do not lay down any principles opposed to the rulings quoted aboveThe account book of the parties in the present case show that the amounts were credited in anamath or suspense account to await the instructions of the plaintiff as regards their disposal. The defendants oral evidence shows that when amounts were paid to the bank in current account or fixed deposit generally pass books and cheque books used to be given and usually agreements used to be entered into regarding the interest payable on the deposit. This procedure was not followed when the plaintiffs moneys were received. Applying the principles of law laid down in the authorities quoted above, we hold that the amounts were received by the Bank in fiduciary capacity and not as between a Bank and its customer and that consequently the view taken by the lower Court is correct. The appeal therefore fails and must be dismissed with costs payable out of the estate

Appeal dismissed.