Venkataramana Rao, J.
1. This is an application by the Nayar Modern Bank for payment of a sum of Rs. 6500 standing to its credit in the Travancore National and Quilon Bank under three fixed deposits for Rs. 1000, Rs. 5000 and Rs. 500 respectively in preference to the ordinary creditors of the Bank. The basis of the claim is thus put in para. 2 of the affidavit of the Managing Director:
Under the mandatory provisions of Section 282-B, Companies Act, the Nayar Modern Bank Ltd. has deposited with the Travancore National and Quilon Bank Ltd. a total amount of Rs. 6500 under three deposits (R. No. 96, dated 30th July 1937 for Rs. 1000, R. No. 6 of 1938 for Rs. 5000, date 15th January 1938 and R. No. 24-38 for Rs. 500, dated 21st February 1938) and in a separate account earmarked as Employees' Cash Security. The Travancore National and Quilon Bank Ltd. has-accepted the deposit as the Nayar Modern Bank Ltd., Employee's Gash Security Deposit and such, acceptance is evidenced by the endorsements on the receipts themselves in red ink and the correspondence in relation to the transactions.
2. One of the Official Liquidators of the Travancore Bank in his counter-affidavit stated that the said amount of Rs. 6500' was deposited with the Bank for the purpose of earning interest thereon and that the Bank was requested to earmark the-said deposit as Employees' Cash Security 'which clearly meant (and could only mean) that the deposit receipts, were to be headed 'Employees' Cash Security' to distinguish them from the other several deposits or loans made by the same Bank against which the depositor arranged to obtain overdrafts.' In para. 3 of his affidavit he further submitted as follows:
The depositee Bank appears to have accepted all the said deposits as loans merely as banker for its customer in the ordinary course of its banking. business and issued the usual and ordinary customer's deposit receipts showing the sums therein acknowledged were debts due and payable to its customer twelve months after the respective dates-of deposit, carrying ordinary deposit interest at the rate of 4 per cent, per annum in the meanwhile. It does not appear that the depositee Bank, was asked to accept and it does not appear to have accepted the said sums or any of them as a trustee and none, of the three transactions are impressed with any trust.
3. The letters written by the Nayar Modern Bank at the time of the several deposits merely indicate that it was sending the moneys for a deposit and that they should be earmarked as Employees Cash Security. It is enough if I refer only to one such letter. On 30th July 1937 the Nayar Modern Bank sent a sum of Rs. 1000 for being placed as a fixed deposit and the letter which accompanied it ran thus:
We are sending herewith the sum of Rs. 1000 which is to be placed as a fixed deposit for one year in our name and we request you to kindly grant us your usual receipt. The deposit is to be treated as one earmarked as our Employees' Gash Security Deposit as per Section 282-B, Companies Act.
4. The contention now advanced on behalf of the Nayar Modern Bank is that as the amount representing the Employees' Cash Security was held by the Nayar Modern Bank, as trustees in trust for its employees and the said money having been received by the Travancore National and Quilon Bank with notice of the said trust the latter Bank must be held to be trustees and held the said property also as trustees for the employees of the Nayar Modern Bank. It seems to me that this contention s untenable. The fact that the depositor is a trustee and that the money deposited is trust money does not affect the relation which the law creates between a bank and an ordinary customer, namely the relation of a debtor and creditor. The legal effect of a notice to the Bank that the money deposited is trust money is only to cast a duty on the bank not to participate in a breach of trust by the trustee. The principle applicable is stated by Hart on 'Law of Banking' at page 199 thus:
A banker who received into his possession moneys of which his customer has, to his knowledge, become the owner in a fiduciary character contracts the duty not to part with them even at the mandate of his customer, for purposes which he knows are inconsistent with the customer's fiduciary character and duty.
5. He must not be a party to an appropriation of these funds which is inconsistent with the character in which the customer holds them; for example, he must not allow those moneys to be applied in payment of his own overdrawn private accounts. Under Section 282-B, Companies Act, the Nayar Modern Bank is entitled to keep or deposit the said moneys deposited with it by its employees in pursuance of their contracts of service in any scheduled Bank as defined in Clause (e) of Section 2, Reserve Bank of India Act, 1934. The Travancore National and Quilon Bank is a scheduled Bank within the meaning of the said Section. The Nayar Modern Bank was within its rights and not acting improperly when it deposited the moneys in the Travancore National and Quilon Bank with a request to earmark them as Employees' Cash Security. The disability which the statute imposes on the Nayar Modern Bank is that no portion of the said moneys shall be utilized by it except for purposes agreed to under the contract of service. When the Travancore National and Quilon Bank accepted the deposits with notice of the fact that the said moneys represented cash security on the employees of the Nayar Modern Bank, the Travancore National and Quilon Bank must also be deemed to have been aware on the limitation or the powers of the Nayai; Modern Bank in regard to the said moneys and it should not permit any dealing by the Nayar Modern Bank with those moneys in violation of the duty which the statute imposes. It is not suggested that the Travancore National and Quilon Bank has been a party to the misapplication of the said moneys by the Nayar Modern Bank in violation of the said duty imposed by the statute. The claim for preferential payment cannot therefore be sustained and the application is therefore dismissed with costs of the Official Liquidators, Rs. 35.