1. In this case we do not know what were the contents of the letters which accompanied the remittances in May, July and September. But from Exhibit B 2 we find that all the remittances were held by Arbuthnot & Co. in suspense on the claimant's account. The question is whether they held them as bankers or not. I take it from the affidavit that negotiations were proceeding as to the final disposal by way of investment with Arbuthnot & Co. of all the remittances and from Exhibit A that the claimant's intention, if he could do so on his terms, was to place all the money on fixed deposit.
2. There is this difference between this case and Official Assignee of Madras v. Smith 32 Ma. 68 : 1 Ind. Cas. 712 : 5 M.L.T. 164 that in that case there was no question of settling terms. The money was to be placed in fixed deposit as soon as a second remittance was received.
3. But I think this makes no real difference. I cannot accept the argument for the respondent that the money was not held as money of the bankers because the terms on which they could place it on fixed deposit account were not finally settled. The contract as to the form of investment was, no doubt, not completed but it by no means follows that pending the completion of the, negotiations, the money did not belong-to the bankers.
4. I agree with what I conceive to be the decision in Official Assignee of Madras v. Smith 32 M. 68 : 1 Ind. Cas. : 5 M.L.T. 164 viz., that when a man pays money into a bank, whether he is a customer or not, the presumption in the absence of other evidence will be that he pays the money in to be held by the banker as bankers ordinarily hold the moneys of their customers.
5. Here it is clear that the money was intended to be held by Arbuthnot & Co. as bankers; whether the claimant could have withdrawn the money if he could not come to terms as to interest, period or minimum amount of fixed deposit, is really beside the question. There seems to me to be nothing to suggest that so long as Arbuthnot & Co. held the money they were not holding it as bankers. They held it in suspense, but what does that mean? I will take it that they did not give the claimant a cheque book or a pass book, and I will assume that had he drawn cheques against his remittance they would have dishonoured them so long as the money was 'in suspense.' Even so, I cannot see why they should not be held to have the ownership of the money.
6. If the claimant did not mean them to hold as bankers pending the negotiations, he need not have remitted the money or if he remitted it, he could have directed them what to do with it. 1 should draw from the evidence the conclusion that he did intend them to use it as bankers. And so far as they are concerned, I see no reason to suppose that their intention was different. They held the money in suspense; but in the circumstances seeing that they knew that the money was intended for investment with them, T take it that in suspense' means no more than that the exact terms as to interest and period of deposit were not fixed and that once those were fixed, the arrangement would take effect from that date or possibly--I do not think it material to the result--from the date of the remittances.
7. It was suggested that the decision of the Privy Council in Commercial Bank of Australia v. Official Assignee of the Estate of Wilson & Co. (1893) A.C. 181 : 68 L.T. 540 : 62 L.J. P.C. 61 shows that a suspense account is in the nature of an account of a trust fund but that case, it seems to me, does not decide anything which could affect the present case one way or the other. Whether the bankers in that case were or were not entitled to use the money for their own profit so long as it lay with them, was not a question in the case.
8. Respectfully agreeing as I do with the decision in Official Assignee of Madras v. Smith 32 Ma. 68 : 1 Ind. Cas. 712 : 5 M.L.T. 164 and finding here no evidence to. rebut the presumption arising from payment into a bank, I think this appeal ought to be allowed with costs throughout.
9. I adhere to my former judgment and agree to the proposed order.
Abdur Rahim, J.
10. I regret I am unable in this case to agree with Miller, J., and Munro, J., as to the principle which should govern its decision. It does not seem to me that there is any difficulty in ascertaining the facts and it does not lie in the mouth of the Official Assignee to ask us to assume that the letters written by the claimant to Arbuthnot & Co., if produced, would have shown that the circumstances in which the amounts in question were paid in were at all different from those to be gathered from Arbuthnot & Co.'s letters. The letters written to Arbuthnot & Co. would be in their custody and should have been produced by the Official Assignee if they were available and he wanted to rely on them. The gist of what is proved is that the Manager of the Nidhi and Arbuthnot & Co. could not agree as to the terms on which the latter was to hold the money in deposit and pending further instructions from the claimant they said they would hold the money in suspense'. I do not think that this case can Be distinguished from the case of Official Assignee of Madras v. Rajam Iyer 6 Ind. Cas, 383 : 7 M.L.T. 401 and I have heard nothing in the course of argument which should induce me to change my opinion as I expressed in that case on appeal from the order of the learned Commissioner. On the other hand, the case of Commercial Bank of Australia v. Official Assignee f the Estate of Wilson & Co. (1893) A.C. 181 : 68 L.T. 540 : 62 L.J. P.C. 61, which has now been brought to our notice, confirms me in the view I hold. That case lays down that money held by a banker to a special suspense account, even though under an agreement which entitles the banker to appropriate the money to his own use whenever he choses, does not amount to payment to the banker if the latter has not in fact appropriated the money to his own use.
11. I should, therefore, dismiss the appeal with costs.