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Present: Schneider and Garvin JJ.
THE IMPERIAL BANK OF INDIA, LTD. v.PERERA ct al.29—D. C. (Inly.) Colombo, 3,404.
Bank—Testamentary case—Money tying to the credit of deceased-O rder of District Judge to deposit money in Court—Ultra vires. .
It is not competent -for a District Court in the course of testa-'mentary proceedings to compel a Bank to' deposit in Court moneylying to the credit of the deceased customer, whose estate is beingadministered.
^^PPEAL from an order of the District Judge of Colombo.
H. V. Perera, for appellant.
March 28, 1928. Schneider J.—
Admittedly the sum of Rs. 9,755 had been deposited by thedeceased testator and was lying in the Imperial Bank of Indiato the credit of his account current at the date of his death. Inthis action in which his estate is being administered an applicationwas made to the District Judge for an order directing the Bank“ to bring into Court the sum lying to the credit of the deceasedtestator.” The Bank resisted the demand that the money shouldbe brought into Court. Its reasons for doing so are not apparentfrom the record. After hearing argument the learned District
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The ImperialBank ojIndia, Ltd. v.
“ The legal relation of Banker and oustomer in their ordinarydealings in money is simply that of debtor and creditor.If the Banker makes advances or grants an overdraftthe Banker is creditor. On the other hand, if the onstomer .opens an account and deposits money the customer iscreditor and the amount deposited or advanced canbe recovered in an action for money lent, the depositor advance creating a common law debt. So moneypaid into a Bank ceases altogether to be money of theperson who paid it in. It is the money of the Bankerwho is bound to return an equivalent by paying a sumequal to that deposited by him when he asks for it.”
A number of cases are cited by the author in support of thisstatement. The appellant Bank is in the position of a debtor of thedeceased testator, and, in my opinion, it was not competent for theDistrict Judge to make an order in the course of this case to compelthe Bank to deposit in Court the money lying to the credit of thedeceased testator. If the Bank had been an ordinary debtor and hadrefused payment of a debt the proper procedure for recoveringit would be a properly constituted action. I am not aware why theBank has refused in this instance to bring the money into Court,but it is possible that it might have been advised that if it did bringmoney into Court upon an order of the District Judge, whichwas ultra vires it might be regarded as a voluntary payment and nota payment made upon compulsion in pursuance of a valid order ofCourt. If that view were taken, then the defence would not beopen to the Bank, if sued by any person lawfully entitled to themoney, that it had paid the money into Court upon an order ofthe Court. But whatever may have been the reasons whichactuated the Bank, in my opinion, the Bank was within its rightsin objecting to deposit the money in Court upon an order madeby the Judge in this testamentary action. If the executors of thedeceased testator had perfected their title by obtaining probatethe situation might have been different, but I express no opinionthereon. I set aside the order of the District Judge, and directthat the respondents do pay to the appellant Bank the costs ofthe argument in the lower Court and of this appeal.
Judge made order directing the Bank to deposit in Court on orbefore a given' date the sum of Rs. 3,766. This appeal is againstthat order.
On reading the order of the learned District Judge it is apparentthat he had .not considered or appreciated the relation of a Bankto its customer. Grant in his Law of Banking, 7th ed., p. 2, statesthe law as follows :—
Garyrtf J.—I agree.
THE IMPERIAL BANK OF INDIA, LTD. v. PERERA et al