Iqbal Ahmad, J.
1. This is a defendant's appeal arising out of a suit for recovery of Rs. 1000 principal and Rs. 375 interest. The plaintiff's case was that he had deposited a sum of Rs. 1000 with firm Hazari Lal Banwari Lal on 4th September 1930, and at the time of the deposit a memorandum evidencing the deposit was executed by Gulzari Lal, defendant-appellant. The suit was filed more than three years after the date of the alleged deposit, viz. on 30th October 1934. The suit was contested by the defendant-appellant inter alia on the ground that it was barred by limitation. This contention of the defendant has been overruled by both the Courts below and in my judgment rightly. The memorandum mentioned above is addressed to the plaintiff-respondent and is as follows:
The sum of Rs. 1000 that you have deposited (jama kiya hai) with me will be handed over to you whenever you demand the same and I will pay you interest at the rate of 12 annas per cent, per mensem.
2. It is contended by the learned Counsel for the defendant-appellant that the transaction evidenced by this memorandum was one of loan and accordingly the suit was governed by Article 59 and not by Article 60 of Schedule 1, Limitation Act. In support of this contention reliance has been placed by the learned Counsel on the decisions in Ichha Dhanji v. Natha (1889) 13 Bom. 338, Ram Sukh Bhunjo v. Brohmoyi Dasi (1880) 6 C.L.R. 470, Govind Chintaman v. Kachubhai Gulabchand (1924) 11 A.I.R. Bom. 28 and Dharam Das v. Ganga Devi (1907) 29 All 773. In my judgment the cases relied upon by the learned Counsel for the defendant, appellant do not lend support to the contention advanced by him. In Ichha Dhanji v. Natha (1889) 13 Bom. 338 it was held by the Bombay High Court that the relationship between a native banker and the person depositing money with him in the ordinary way of business is that of borrower and lender, and the money lodged can be recovered as money lent and that to such a suit Article 59, Limitation Act, applies. To the same effect is the decision of this Court in Dharam Das v. Ganga Devi (1907) 29 All 773. These decisions are of no value since the amendment of Article 60 by the Legislature in the year 1908. Before 1908, Article 60 provided for suits 'for money deposited under an agreement that it shall be payable on demand.' But by the amendment the words 'including money of a customer in the hands of his banker so payable' were added. By virtue of this amendment, the two decisions last mentioned can no longer be regarded as good law. In Ram Sukh Bhunjo v. Brohmoyi Dasi (1880) 6 C.L.R. 470 it was held that the word 'deposit' in the Limitation Act as distinguished from a 'loan,' refers to cases where money is lodged with another under an express trust, or under circumstances from which a trust can be implied, and in Govind Chintaman v. Kachubhai Gulabchand (1924) 11 A.I.R. Bom. 28 it was observed that '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.'
3. In the case before me the memorandum clearly shows that the money was entrusted to the defendant to be kept as a deposit. There are no words in the memorandum suggesting the relationship of a debtor and a creditor between the parties. The mere undertaking to pay interest cannot convert a transaction which is in terms 'a deposit' into a transaction of loan. In view of the amendment made by the Legislature in Article 60 in the year 1908, it is clear that money deposited with bank is a deposit and not a loan to the bank even though the bank may be liable to pay interest on the amount deposited. It is clear that Articles 59 and 60 deal with transactions of two different natures. The former applies to a transaction of loan whereas the latter Article is applicable only to deposits. The burden of proving that a particular transaction was one of deposit is undoubtedly on the person alleging the same but the answer to the question whether that burden has or has not been discharged must depend on the facts and circumstances of each case. The true test to determine whether a particular transaction is one of loan or one of deposit is to ascertain whether the money paid or deposited was in the nature of an advance of loan so as to create the relationship of creditor and debtor between the parties or was merely a deposit without bringing into existence such a relationship. In the case before mo the memorandum clearly shows that the sum of Rs. 1000 was deposited with the defendant and was not advanced as a loan. The Courts below were therefore right in holding that the suit was governed by Article 60 of Schedule 1, Limitation Act, and was not barred by limitation. Accordingly 'I dismiss this appeal with costs. Leave to appeal under the Letters Patent is granted.