Norman Macleod, Kt., C.J.
1. On September 16, 1900, Rs. 10,000 passed from the firm of Chhaganlal Vakhatchand to the firm of Kachubhai Gulabchand ; and in the accounts of Chhaganlal Vakhatchand it is shown that Rs. 10,000 were credited to Kachubhai. Interest at three per cent, was credited up to the 3rd of Aso Vad of the Samvat year 1957, and the total of principal and interest was carried on into the account of the year 1958, and it would appear that the account continued, interest at three per cent, being added at the end of each year, till 1908. Nothing further happened until in November 1918 in execution of a decree against Nagindas, the only son of the original depositor Chhaganlal Vakhatchand, the debt due by the firm of Kachubhai Gulabchand was put up for sale and bought by one Krishnaji Bhat for Rs. 120. In October 1919, Krishnaji assigned his right to the debt to one Narain Krishna for Rs. 1,000 and the present plaintiff bought it from Narain Krishna for Rs, 1,100 on November 4, 1919. On November 7, he gave notice to Kachubhai Gulabchand to pay the amount. Certain other defendants besides the shop of Kachubhai Gulabchand were added on the ground that they were bhau-bands of Kachubhai Gulabchand. But there does not appear any reason why these defendants should have been added as parties.
2. The first defendant alleged in his written statement that he had borrowed Rs. 10,000 at three per cent, from the alleged depositor, that it was not a deposit, and that the alleged claim was time-barred. He also alleged payment.
3. The trial Judge dismissed the plaintiff's suit on the ground that the suit was for money lent, therefore, time began to run from the date of the loan.
4. It has been urged before us in appeal that the suit was one for money deposited on an agreement that it should be payable on demand, and therefore, the suit came within Article 60 of the Second Schedule of the Indian Limitation Act, and time began to run against the plaintiff from November 7, 1919, When the demand was made. No oral evidence was adduced at the trial, nor has it been suggested before us that there was any evidence available as to the circumstances in which the money was first handed over to the first defendant's firm in 1900. There is, therefore, a good deal of difficulty in ascertaining whether the suit comes within Article 60. It is not clear what the Legislature meant by the word ''deposited' in Article 60 but there must be some difference between 'money lent', and 'money deposited,' and one can only assume that a plaintiff relying upon Article 60 must prove that something took place between the parties at the time the money passed which would constitute the handing over of the money 'a deposit,' and not 'a loan.' It has been suggested that the difference in 'a loan' and 'a deposit' is that the borrower who takes money on deposit stands in a fiduciary relationship to the lender. That might either arise from a direct agreement, or might be implied from the circumstances in which the money came to the hands of the borrower. Ordinarily when A hands over money to B on the understanding that it is not a gift, but has to be repaid when demanded, that would be considered in law 'a loan' ; and when the plaintiff seeks to prove that the money so handed over was 'a deposit,' the onus would lie upon him to prove that there were additional circumstances which turned the 'loan' into a 'deposit.'
5. The case of Muncherji Bomanji Panthaki v. Dorabji Jehangir Randiva I.L.R. (1895) 19 Bom. 775 has been relied upon by the appellant. The learned Chief Justice said (p. 776):
This case raises the question as to the distinction between a loan and a deposit which has frequently come before this Court, und which is generally difficult to decide. Ordinarily money paid into a banking account is regarded as a loan...it is pretty clear that the sum of Rs. 650, which was the foundation of the account between the defendant and Virbaiji, wag really paid to him by her as belonging to her son. The child was only a year old, and it is difficult to believe that the defendant did not know that this money paid over to him in the child's name was the child's property and paid over to him (the defendant) as a deposit. When a mother pays her son's money into his grandfather's firm, as wan done in this case, the intention must be that it is to be kept as a deposit for her son and to be ultimately given to him when he demands it, unless indeed in the meantime it has already been applied in some way or ether for his use and profit.
6. Mr. Justice Tyabji said:
There are several circumstances which show that the transaction was of a fiduciary character.
7. That case, however, must stand on its own facts and can be of little use in solving the problem whether any general principles can be laid down to enable the Courts to distinguish between 'a loan' and 'a deposit.
8. In Subrahmanian Chettiar v. Kadiresan Chettiar I.L.R (1916) Mad. 1081 it was held that money left in the hands of a trader who was not a, banker would be a deposit in circumstances such as would make it money of a customer where the depositee is a banker.
9. But it seems to us that any reference now to the relationship between a banker and a customer would be of little assistance in answering the question we have to decide. Previous to the amendment of Article 60 by adding the words 'including money of a customer in the hands of his banker so payable', it would have been considered that money paid in the ordinary course by a customer to his bank was not money deposited, and it is only by virtue of that amendment that a customer's money in the hands of a banker is now treated as a deposit. But that amendment only defines a particular instance as coming within the class of deposits. It cannot be suggested that there is anything in common between a loan taken by a trader for the purposes of his business, and money taken by the bank from its customers to be held either on deposit or on current account. If whenever money is left in the hands of a trader, who is not a banker, it is to be considered that there is a deposit of such money then it is difficult to see what distinction there is between 'a loan' and 'a deposit.
10. It seems to us, so far as this case is concerned, that the plaintiff would have to show that when these Rs. 10,000 were paid to the first defendant's firm, some arrangement was made by which the first defendant's firm agreed to hold it as a deposit instead of as a loan. It will be seen that there is no distinction in the Act between money lent and money deposited with regard to the agreement to repay. So that it is not the agreement that the money should be payable on demand that distinguishes a deposit, from a loan. There must be something further proved, and it is not possible to define exactly what that something further must be. It has sometimes been suggested that facts must be proved which create a sort of fiduciary relationship between the lender and the borrower, but we are not prepared to say that is always necessary. However in this case we cannot see that the plaintiff has proved anything to distinguish the debt which was incurred by the first defendant's firm in 1900 as a debt for money deposited and not for money lent. As the onus clearly lay upon him to satisfy the Court that there was that distinction, and he did not discharge it, then he is bound to fail, as the suit then comes within Article 59 or 57, and is clearly barred. The appeal, therefore, must be dismissed.
11. In the trial Court the first defendant had been ordered to pay plaintiff's costs, although the suit was dismissed. The first defendant has appealed against that order (F.A. No. 218 of 1921). The learned Judge seems to have been impressed by the fact that although the first defendant had notice under the Civil Procedure Code when the claim was attached and sold by the Court, he did not appear and plead time-bar and satisfaction, and did not reply to the plaintiff's notice. We do not know that the first defendant was under any obligation to appear when he had received notice that the claim had been attached. He was entitled to stand upon his rights and wait until he was sued to plead that the suit brought against him was time-barred. But certainly he should have replied to the notice and it is also against him that he pleaded payment. That would be a ground for depriving him of his coats, even although he succeeded in getting the plaintiff's suit dismissed. But that is no ground for making him pay the costs of the unsuccessful plaintiff. So the orders will be that First Appeal No. 211 of 1921 is dismissed with costs. Two sets of costs; and First Appeal No. 2L8 of 1921 is allowed with costs in favour of defendant No. 1.