1. This appeal which I find difficult to decide is concerned with the claim of the plaintiff appellant for interest and costs. He is a forest contractor of Chanda, and entered into a contract with the Zamindar of Aheri in the Chanda district, Shrimant Dharamrao Bhujangrao, the respondent. He took a license to take wood from the respondent's jungle at certain rates for the period 1st February 1935 to 30th June 1936, and deposited Rs. 700 as security out of which the respondent could make deductions for any damage caused by the appellant. The clauses in the contract signed by the appellant relating to this deposit are as follows:

Clause 7.— “Out of the amount of this deposit I have paid Rs. 500, five hundred rupees, under the Challan No. … dated…. 1935 and the remaining Rs. 200, two hundred rupees, I will pay as soon as the agreement deed is written on the stamp and will take the Challan.”

Clause 8.— “I have deposited seven hundred rupees by way of security. Out of it I will be paid the amount which will remain after deduction is made on account of damage etc. at the end of the contract.”

2. The appellant applied in January 1936, prematurely, for the return of part of this deposit, and in January 1938 had a letter sent by his pleader in the following terms:

The Zamindar Sahib, Aheri Estate,

Aheri.

My dear Eajasahib,

I have been asked by my client Sk. Mehtab son of Shekh Farid to make you the following request:

That my client had taken some contracts in your estate and in lieu of those transactions he had deposited Rs. 500 and Rs. 200, total Rs. 700 with you. The term of the contract expired on 30th June 1936. May I now request you to kindly remit the amount of Rs. 700 within 15 days from the receipt of this letter, otherwise my client has instructed me to take necessary legal steps.”

3. To this the respondent replied in February 1938:

“Your client Mr. Seikh Mehtab contractor may be informed that he should come down in office and see his account in the month of March 1938, when his accounts will be cleared.”

4. In January 1939 another letter was sent by the appellant's pleader, asking for payment within eight days, and the respondent replied in February 1939 asking the pleader of the appellant to send the appellant or his agent to withdraw his deposit amount from the Estate treasury in March 1939 when the amount would be “refunded to him positively.” Interest and costs have been refused by the Courts below. The learned Judge of the first appellate Court has on a point of law decided that as the money was a deposit it was the duty of the appellant to go for the money to the deposited and to make a demand for it.

5. The learned Judge applies a decision in A.I.R 1937 Lah. 81.1 There it is said that in the case of a deposit it is the duty of the depositor to go for the money to the banker or the deposited and to make a demand for it and not the duty of the deposited to seek out his creditor. The question was one of limitation. The money had been deposited with a banker. In I.L.R (1940) ALL. 2072 it was said that in the case of money kept in fixed deposit with a Bank the place of repayment depends upon the terms of the contract which is generally contained in the fixed deposit receipt, and that any general rule that the debtor must seek the creditor which may be applicable to the case of a private money-lender and a borrower, has no application to the case of a fixed depositor in a Bank which is a limited company. I respectively agree with the Allahabad decision. It would, I think, be going a long way beyond these decisions to say that as a matter of law when a security deposit is to be refunded that deposit must always be fetched by the depositor from the very place at which he deposited it by himself or by his agent, and to say that if the person who has deposited the money writes to the person who owes him the money and asks the latter to remit it, the latter can insist on personal attendance by the depositor. This proposition, expressed as a proposition of law, appears to me to be quite untenable, and I cannot regard the Lahore decision regarding a banker as concluding the point before me here. The question whether a demand must be made by the creditor for the money has, in my judgment, little to do with the question whether the person who owes money can insist that the money should be paid by him at his own place of business only. In order to reach this position, there must surely be a contract between the parties the effect of which is that the money will be paid at the deposited's place of business and nowhere else.

6. I think the first appellate Court is wrong in law when it decides that as the money was a deposit therefore the plaintiff had to go to Aheri to fetch it. When the manner and place of repayment of the money are not the subject of express contract, it is the duty of the Court to gather what, by necessary implication having regard to the nature of the contract and the circumstances under which it was entered into, the parties must have meant. It is true that a limited company entitled to receive money is not on the same footing as an ordinary individual who may at any moment change his residence, and there may be a good reason to infer that money due to a company is to be paid by a debtor in another country at the offices of the company: vide, (1904) 2 K.B 685.3 But the mere fact that the Aheri estate carries on business at Aheri, though it may support an inference in a particular contract that money payable under the contract is payable at Aheri, can hardly support an inference that debts owed by the estate are to be paid there and nowhere else. The Aheri estate however has a treasury and the money was paid in by challan as appears from the contract itself, and I think the first appellate Court is right in saying that the Aheri estate would not have to seek its creditor and carry a bag of rupees or a wallet of notes to Chanda, or for the matter of that, to Peshawar or Shillong, or any place which the creditor might require.

7. But even though it may be conceded that the debtor in this case need not seek the creditor, I do not consider that it follows that the money is only payable at Aheri and the creditor must go there and fetch it. That would of course be the case if there was an express stipulation to that effect. But Sections 48 and 49 of the Contract Act, clearly indicate in my opinion that the mode of performance is a question of fact in a particular case, and I think it is open to the Court, without applying the principle that a debtor must seek his creditor to say that remittance from Aheri was a performance at a proper place which the creditor who applied for performance could rightly require unless one could decide from the nature of the contract that a term should be annexed that the creditor should go in person or by agent. This is, I consider, a question of fact which has not been decided by the Courts below. The evidence is that the defendant adopts a system of accounts according to the Court of Wards rules though the estate is not under the Court of Wards, and that money orders are not sent. It is, however, nowhere suggested that any rules regarding refund were brought to the notice of the plaintiff 1. The question is not easy to decide, but I do not consider that the evidence is sufficient to warrant a finding that personal attendance to receive repayments of the deposit was an implied term of the contract or annexed to the contract by bureaucratic custom or usage. The first reply which the defendant sent to the plaintiff suggested that personal presence was necessary in order that accounts should be adjusted. It was suggested in the written statement that a small sum by way of damages had to be recovered from the plaintiff, and there is thus reason to suppose that the first letter asking for personal attendance was written in order to enable a claim to be set off, a claim in support of which no evidence whatever has been adduced. There is nothing in the defendant's letter of February 1938 to suggest that a deposit could not be repaid without personal attendance. If a receipt of a particular kind was needed, it could have been asked for, and if an application of a particular kind was required it could have been asked for. On the whole I do not think it has been established by the defendant that; personal attendance by the plaintiff was a term to be annexed to the contract to refund. It appears to me that though the matter may not be governed directly by Section 48 of the Contract Act, the creditor who applied for performance applied for it at a proper place in circumstances where performance could be made within usual hours of business. In my judgment, the litigation is due to the fault of the respondent, and the appellant is entitled to costs.

8. As regards interest, after considering cl. (8) of the contract I do not consider that it could be said that the amount was repayable at a certain time. For one thing it would take a reasonable time if damages had been caused to adjust claims, and for another I consider that a demand for the refund would have to be made. On the whole I think that the sum of Rs. 700 should be regarded even at the time of the contract as a sum certain, in spite of the fact that its repayment was subject to deductions if damages had been paused. The sum of Rs. 700 was not a sum ascertainable on a future contingency, but was an ascertained sum which might be subject to reduction in certain circumstances. But, on this view of the case, the Interest Act will not help the appellant because no demand was made giving notice that interest would be claimed.

9. The next question is whether interest is recoverable in equity. In view of the Privy Council decision in I.L.R (1938) 2 Cal. 72,4 the appellant cannot rely on illustration (n) to Section 73 of the Contract Act, and it would appear that the head-note in I.L.R (1937) Nag. 615 that interest cannot be allowed on a debt payable on demand unless it is pleaded and proved that a demand was made, and is then claimable as damages for the breach of the contract—a head-note apparently based on an older Privy Council decision—expresses the law too widely. The latter proposition in the head-note is not the point expressly decided in the judgment and in the earlier Privy Council case 17 ALL. 6116 their Lordships were dealing with a mortgage bond. The question then is whether interest is recoverable in equity, and no cases have been cited to me on the point and in spite of considerable research I have not been able to find a case directly bearing on the point. It is well known that Courts of Equity allowed interest in certain cases where there was a fiduciary relation between the parties, and this is referred to in Halsbury's Laws of England, vol. 23, Hailsham Edition, p. 176, para. 255. It is also referred to in (1922) 2 K.B 1327 at p. 143. But the cases cited there and cited by Lord Halsbury in a note to the proposition stated do not actually cover a case of this nature. It is not necessary that they should as is evident from the decision which I have cited above. In that decision it is said that if an agent or other person be in a fiduciary relation, he may have to pay interest, and that the phrase ‘fiduciary relation’ is a somewhat broad one. In that case it was held that the defendants were upon the balance of authority in the position of quasi-trustees of the £500 excess which they had received owing to the steamship, of which the plaintiffs had taken a charter, having been requisitioned by Government who paid a larger sum than the plaintiffs had to pay. But defendants had actually received interest on this £500. In A.I.R 1937 Lah. 6728 the Court rejected a contention that when stolen property was kept in a Government office it was held by Government on its recovery from the thief on a certain implied trust for the owner and rejected the contention that Section 94 of the Trusts Act, applied to a case of that nature.

10. But in the present case I think that although the refund of the deposit was governed by contract to return it, nevertheless when the deposit which the defendant had to pay became recoverable, the obligation to repay the money did not merely arise from the terms of the contract but also arose from the fact that the defendant was bound to return the money and would indeed be guilty of breach of an implied trust if he made away with it. The matter is by no means easy to decide. The money had been credited into the treasury as a condition of the plaintiff's obtaining the contract by way of security, and it may well be that a fiduciary relationship came into existence as opposed to a mere obligation to pay a debt. But I have not been able to find any case in which a Court of Equity has granted interest in such circumstances, and although Judges are expected to know the law it is also the duty of counsel who wish to reverse a decision of the lower Court to satisfy the Court of appeal that the decision of the Court below is wrong. This type of deposit is quite different from a deposit paid in pursuance of a contract of sale which is broken and I cannot but feel that if Courts of Equity allow interest on deposits of this nature when they are demanded cases would be easily traceable in works on the Contract Act. I have failed to find anything to help me in Chitty on Contracts or Addison or Leake on Contract or in Works on Interest, and I am not satisfied that a Court of Equity granted interest in a case of this kind. I have already said that if a demand for interest had been made I consider that interest would have been recoverable under the Interest Act, and when the matter falls under that Act it is not unnatural to find that there is no authority for payment of interest in such a case in equity. The result is that the appellant will be allowed his costs on Rs. 700 in the first Court while the defendant will bear his own costs. In first appeal and in second appeal the costs will be apportioned between the parties, according to success or failure. Pleader's fee, appellant Rs. 25 and respondent Rs. 20.

11. Order accordingly.