Judgment RAMASWAMI, J. 1. This appeal is presented by deft. 4 Lachmi Narayan Beriwala against the decree of the Subordinate Judge of Arrahdated 23-9-1946. 2. The pltf., Bharat Bank Ltd. brought the suit on the allegation that Ramballabh Das, deft 1, & Motilal, deft. 2, carried on a partnership in the name of Ramballabh Motilal for dealing in grain, that the two partners opened on 11-7-1945 a current account in the name of the firm with the pltf., that on 2-9-1945 deft. 4 drew a cheque Ex. 6 for a sum of Rs. 50,000 on the Commilla Union Bank to be paid to the firm Ramballabh Motilal, that on 4-9-1945 Motilal on behalf of the firm tendered the cheque to the pltf. after endorsing it in blank. The pltf. purchased the cheque from Motilal for its face value after deducting the bank charge & credited the amount to the current account of the firm Ramballabh Motilal. On the same date, Moti-lal drew a cheque, Ex. 18, for a sum of Rs. 50,000 & obtained the amount in the form of a draft payable to the regional grain supply officer. Shortly after, the pltf. sent the cheque, Ex. 6, to the Commilla Union Bank for collection through its Patna branch but the cheque was returned unpaid on the 7th September with a note "effects not cleared". The cheque was again presented to the Commilla Union Bank on 21st September on which date the cheque was dishonoured with the intimation that the drawer had countermanded the payment. The pltf. thereupon sent a notice of dishonour to Ramballabh Motilal. On 26th September Ramballabh & Motilal appeared before the manager of the Bank & promised to pay the amount or to make arrangement with Lachhmi-narain Beriwala for its payment. On the same date Motilal filed an appln. in the court of the Dist. Judge for being declared insolvent. As the defts. made no payment in spite of demand, the pltf., brought the suit on the negotiable instrument for recovery of the sum of Rs. 50,375 inclusive of interest. Deft. 1 contested the suit on the ground that he had no knowledge of the cheque issued by Lachmi Narain Beriwala, that he did not present the cheque to the bank nor did he authorise Motilal to encash it. He alleged that Motilal, alone managed the affairs of the partnership. Motilal, deft. 50,375 inclusive of interest. Deft. 1 contested the suit on the ground that he had no knowledge of the cheque issued by Lachmi Narain Beriwala, that he did not present the cheque to the bank nor did he authorise Motilal to encash it. He alleged that Motilal, alone managed the affairs of the partnership. Motilal, deft. 2, admitted that he had presented the cheque to the bank & received the sum of Rs. 50,000 in the shape of a draft payable to the regional grain supply officer. But he denied that he had notice of dishonour. Deft. 4 alleged that he had drawn the cheque on condition that defts. 1 & 2 sent his railway receipt along with the permit for transport of 6,500 maunds of rice to his nominees, that the cheque would not be negotiated or presented to the drawee for payment till then. He contended that the cheque was issued not in the name of the firm but jointly in the name of defts., 1 & 2 & the cheque could not be cashed by either of them alone. 3. The learned Subordinate Judge held that the cheque was issued in the name of the firm & Motilal alone could validly negotiate & endorse the cheque on the firms behalf; that the encashment of the cheque was not conditional upon delivery of the railway receipt & the Govt. permit for despatch of 6,500 maunds of rice; that notice of dishonour was given to defts. 1 & 2 and that no such notice was necessary in the case of deft. 4 who had expressly countermanded the payment. The Subordinate Judge further held that the pltf. had become the possessor of the cheque for consideration & was "a holder in due course". The Subordinate Judge therefore granted a decree in favour of the pltf. against all the defts. who were made jointly & severally liable for the amount. 4. Two questions were debated in this appeal, viz., (1) whether the pltf. was a holder in due course of the negotiable instrument, (2) whether the liability on the negotiable instrument was discharged when the pltf. debited the amount in question in the account of the firm Ramballabh Motilal on 19-9-1945. 5. It is undisputed that the cheque, Ex. 4. Two questions were debated in this appeal, viz., (1) whether the pltf. was a holder in due course of the negotiable instrument, (2) whether the liability on the negotiable instrument was discharged when the pltf. debited the amount in question in the account of the firm Ramballabh Motilal on 19-9-1945. 5. It is undisputed that the cheque, Ex. 6, was expressed as payable to Ramballabhdas Motilal & so was a cheque payable to order as stated in explanation (1) S. 13, Cl. 1, Negotiable Instruments Act. When Motilal endorsed the cheque in blank, it became payable to bearer according to explanation (2) of the same sub-section. S. 9 of the Act defines a holder in due course to mean "any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer." The question, therefore is whether the pltf. acquired the cheque for consideration in this case. In my opinion the evidence conclusively establishes that on 4-9-1945 the pltf. purchased the cheque from Motilal for cash & made credit entry in the account of the firm Ramballabh Motilal. (After discussion of the evidence the judgment proceeds:) 6. On the first question, I hold upon the evidence that the Bank had obtained the disputed cheque for consideration, that the Bank became holder in due course & that it did not act as a collecting agent. 7. This conclusion is supported by a catena of authorities. In Ex parte Richdale; In re Palmer, (1882) 19 Ch D 409, it was held by the Ct. of Appeal that when a customer pays a cheque to his bankers with the intention that the amount of it shall be at once placed to his credit, & the bankers carry the amount to his credit accordingly they become immediately holders of the cheque for value, even though the customers account is not overdrawn. At page 417 Jessel, M. R. states: "Alfred Palmer paid the cheque to his bankers, & they placed the amount of it to the credit of his current account. The bankers were holders of the cheque for value; the moment they credited the amount of it to Alfred Palmer it became their property. At page 417 Jessel, M. R. states: "Alfred Palmer paid the cheque to his bankers, & they placed the amount of it to the credit of his current account. The bankers were holders of the cheque for value; the moment they credited the amount of it to Alfred Palmer it became their property. Therefore, if the drawers had stopped the payment of the cheque on the 28th of April, still they could not have avoided payment of the amount to Alfred Palmers bankers." To the same effect is Maclean V/s. Clydesdale Banking Co. (1884), 9 A C 95 in which it was held upon the evidence that the Bank took the cheque as holders for value. Lord Blackburn said: "Now in the present case did the bank get the cheque in that way as a mere agent, & nothing else, or did they get it in order that they might have the property in it transferred to them & that they might become holders of it? The condescendence makes this averment: The said draft or cheque was indorsed by the said W. B. Cotton, & was by him delivered to the pursuers on or about 14-1-1882, on their paying to him the said sum of £265 2s. 6d., or placing the same to the credit of his account which was then overdrawn to an amount in excess of the said sum, & thereby extinguishing the said account to that extent." The case was followed in National Bank V/s. Silke, (1891) 1 Q. B. 435, in which the question arose whether the pltfs. were holders of a cheque in c.ue course & for value. At p. 439 Bowen, L. J. states: "The case of Maclean V/s. Clydesdale Banking Co. (1884) 9 App C. 95 makes that clear which to a mercantile man would have appeared clear without any decision that if a cheque is paid to a bank on (the footing that the amount may at once be drawn upon, & it is drawn upon accordingly, the bank is a holder for value in due course." The principle was reaffirmed in the important case Capital & Counties, Bank, Ltd. V/s. Gordon (1903) A C. 240 in which bankers credited a customer with the amounts of cheques as they were handed in by him to his account, & allowed him to draw against the amount so credited before the cheques were cleared. The House of Lords held that the Bank did not receive payment as against for collection but received payment as holder of the cheque on their own account & so was not protected by S. 82, Bills of Exchange Act. At p. 244 Lord Macnaghten states: "But the protection conferred by S. 82 is conferred only on a banker who receives payment for a customer that is, who receives payment as a mere agent for collection. It follows, I think, that if bankers do more than act as such agents they are not within the protection of the section. It is well settled that if a banker before collection credits & customer with the face value of a cheque paid into his account the banker becomes holder for value of the cheque. It is impossible, I think, to say that a banker is merely receiving payment for his customer & a mere agent for collection when he receives payment of a cheque of which he is the holder for value." At p. 248 Lord Lindley states; "It was said by the applts counsel, with some confidence that any jury of businessmen would find, as a fact, that the bank received payment of these cheques for Jones, & nothing more. All I can say is that I think it very likely they would do so if left to themselves without proper directions from the Judge, but that if proper directions were given then they would not be likely to go wrong. It must never be forgotten that the moment a bank places money to its customers credit the customer is entitled to draw upon it, unless something occurs to deprive him of that right. Nothing occurred in this case to the knowledge of the bank which had any such effect. It appears to me impossible to say that under these circumstances the bank received payment of the cheques in question for their customer Jones." 8. Applying the ratio of these authorities it is manifest in the present case that the pltf., Bharat Bank Ltd. was a holder in due course of the cheque for Rs. 50,000 presented by Motila. 9. Learned counsel for the appellant referred to two cases: Akrokerri (Ashanti) Mines Ltd. V. Economic Bank, (1904) 2 K B 465, & A. L. Underwood Ltd. V/s. Bank of Liverpool, (1924) 1 KB 775. 50,000 presented by Motila. 9. Learned counsel for the appellant referred to two cases: Akrokerri (Ashanti) Mines Ltd. V. Economic Bank, (1904) 2 K B 465, & A. L. Underwood Ltd. V/s. Bank of Liverpool, (1924) 1 KB 775. But these authorities are not of any avail to the appellant. In (1904) 2KB465 it was proved as a fact that the customer was not allowed to draw against the cheques until they were cleared. There was also evidence that when the customer opened the account he read & signed an application from which contained a notice that no bills would be discounted & that cheques would not be paid against until cleared. Inthe other case (1924) 1 K B 775 a customer of the Bank paid into his account some cheques to which he had no title. Immediately on his so paying them in, the bank credited him with the amounts of the cheques in their ledger, but there was no agreement between the Bank & the customer that he should draw against the cheques before they were cleared, nor did the customer in fact draw against the cheques until the Bank had received the proceeds. It was held by the Ct. of Appeal that apart from any question whether the bank had notice of any defect in the customers title, they were not holders in due course, there being no evidence that they took the cheques for value. The mere fact that bankers credit a customer with the amounts of cheques before they are cleared does not make them holders for value; in order to entitle them to that character there must have been an agreement, express or implied that the customer should be allowed to draw -against the cheques before clearance, & that agreement must have been acted upon. The material facts of the present case are manifestly different. (9a) Learned Advocate General then concentrated his argument on the point that the obligation on the negotiable instrument was discharged by the debit entry which the Bharat Bank made on 19th of September on account of the dishonoured cheque. It was argued by the learned counsel that there was discharge by merger, that the cause of action on the negotiable instrument was extinguished by a merger by operation of law. In my opinion it is impossible to accept this argument. It was argued by the learned counsel that there was discharge by merger, that the cause of action on the negotiable instrument was extinguished by a merger by operation of law. In my opinion it is impossible to accept this argument. For the doctrine of merger only applies where a higher security is accepted in place of a security of lower operative power. For example, it two parties to a simple contract embody its contents in a deed which they both execute, the simple contract is thereby discharged. But the doctrine is not applicable if the securities are of equal degree; as a bond taken for a bond or covenant; or a bond or covenant taken for payment of rent which is a speciality debt (Cresswell J. in Price V/s. Moulton, (1851) 20 L JCP 102). In the present case, there is no evidence that any grain of the firm of Ramballabh Motilal was retained in security to the Bank on the 19th September on which date the debit entry was made. No statement to this effect is made in the written statements. There is also another difficulty involved in the appellants argument. Under S. 37, Negotiable Instruments Act, the maker of a cheque or promissory note is liable as a principal debtor & the other parties thereto including endorser are liable thereon as sureties for the maker. It is a well settled rule that the doctrine of merger will not be applicable unless the new security is between the same parties a superior security given by a surety for the debt does not merge the debt as against the principal. It has been held for instance that a mortgage with covenant to pay the debt given by one of the makers of a joint & several promissory note will not merge the note as against the other maker Ansell V/s. Baker, (1850) 15 QB 20 & Boaler V/s. Mayor, (1865) 34 L J C P 230. The argument of the learned Advocate General in this respect must therefore fail. 10. It was then contended on behalf of the applt. that there was a discharge by accord & satisfaction as soon as the pltf. made a debit entry in the account after the cheque was dishonoured. This argument is groundless. The argument of the learned Advocate General in this respect must therefore fail. 10. It was then contended on behalf of the applt. that there was a discharge by accord & satisfaction as soon as the pltf. made a debit entry in the account after the cheque was dishonoured. This argument is groundless. It is established by modern authorities that not only the performance of a new promise but a new promise of itself, that is to say, a promise of something different from that which the debtor was bound to perform by the original contract will discharge the original cause of action (see for instance Morris V/s. Baron, (1918) A C 1). But there will be no accord & satisfaction unless there is proof that there was clear intention on the part of the creditor that he had accepted in satisfaction merely his debtors promise. In the present case the defts. have not given evidence of such intention. No such allegation is made in the pleadings. On the other hand, it is clear from the evidence that when the cheque was returned the bank as an account transaction showed in the ledger that the firm was liable to the exent of the dishonoured cheque. This cannot mean that the bank gave up its rights in the cheque as against the firm or against the other three defts. The evidence on the contrary unmistakably indicates that the pltf. never intended to discharge the defts. from the liability upon the cheque. Even after the debit entry was made the pltf. was presenting the cheque to Commilla Bank for payment on 21st September (vide Exs. 4 to 4d). The letter, Ex. 9, also shows that the Arrah Bank was instructing the Patna branch to present the I. B. P. to the Commilla Bank & continue presenting it "till the latter definitely refused payment on some tangible ground". These facts establish that the bank did not give up its right on the negotiable instrument as against any of the defts. It is impossible to hold that the Bank gave up a good cause of action on the negotiable instrument exchanging it for the unsecured liability of the firm Ramballabh Motilal. 11. These facts establish that the bank did not give up its right on the negotiable instrument as against any of the defts. It is impossible to hold that the Bank gave up a good cause of action on the negotiable instrument exchanging it for the unsecured liability of the firm Ramballabh Motilal. 11. There are authorities to the effect that a banker may sue upon a crossed cheque in his own name as a holder in due course though he has debited the customer in the account after the cheque was dishonoured. In Ryder V/s. Willet (1836) 173 ER 267 . A drew a bill on B & indorsed it to a Bank where he had an account. B accepted the bill but did not pay it. The Bank then entered it on the debit side of As account. The state of As account at the time of the entry & up to the action was against A. It was proved that the Bank had, on former occasions, allowed A to overdraw his account, though there was no agreement to this effect. It was held by Lord Denman C. J. that the facts did not prove a plea that the bank had received from A £ 100-6 s in satisfaction of the bill. 12. To a similar effect is the decision in Royal Bank of Scotland V/s. Tottenham, (1894) 2 Q. B. 715, in which an action was brought against the deft. as drawer of a cheque drawn by the deft. to the order of Cecil Hambrough & indorsed by him, of which the pltfs. were holders, & which was dishonoured. The cheque was handed by Hambrough to Mrs. Monson, & sent by her to the pltfs. on August 7; & on the 8th it was received by the plffs. & placed, according to instructions, to her credit. The deft. gave notice to his bankers on August 10 to stop the cheque, & on August 11 the plffs. received notice from their London office reporting non-payment of the cheque on presentation. Upon receipt of letter, the manager debited Mrs. Monsons account with £250. It was held by the Court of Appeal that directly the bank had entered the cheque to Mrs. received notice from their London office reporting non-payment of the cheque on presentation. Upon receipt of letter, the manager debited Mrs. Monsons account with £250. It was held by the Court of Appeal that directly the bank had entered the cheque to Mrs. Monsons credit, & communicated the fact to her, they acquired a good title to the cheque & that the bank was entitled to recover full amount of the cheque from the defts. 13. In the present case, I hold tha the plff. was a holder in due course of the disputed cheque, that the right of suit was not extinguished by merger or accord & satisfaction, that the liability was also not discharged under S. 82, Negotiable Instruments Act. In my opinion, the learned Subordinate Judge rightly granted a decree in favour of the plff. & this appeal must be dismissed with costs with plff. resp. SARJOO PROSAD, J. 14 I agree. My learned brother has fully discussed the facts & the law involved in the appeal, & I have nothing to add usefully to that discussion. The only point which impressed me in the argument of the learned Advocate General was whether the liability of the maker under the cheque was discharged within the provisions of S. 82, Negotiable Instruments Act, by the debit entry made by the Bank in the accounts of Ramballabh Motilal, & whether the original liability under the cheque had been thereby innovated. It must be conceded that a debit entry is as much a payment from accounts as a credit entry is a payment in an account of the constituent of the Bank. If there had been sufficient amount in the bank-balance of Ramballabh Motilal, the cheque would have been satisfied by the debit entry & the liability thereunder extinguished. That, however, is not the case here. But it is contended by the learned Advocate General that there was sufficient stock of grains in the possession of the Bank to support the credit of Ramballabh Motlial. The onus to prove accord & satisfaction of the liability under the cheque was on the defts. & this they have not done. Our attention has been drawn to the admission of the manager of the Bank to show that on the date of payment of Rs. 50,000.00 the Bank had certain quantity of grains of deft. 3 in stock. The onus to prove accord & satisfaction of the liability under the cheque was on the defts. & this they have not done. Our attention has been drawn to the admission of the manager of the Bank to show that on the date of payment of Rs. 50,000.00 the Bank had certain quantity of grains of deft. 3 in stock. The manager, however, says that this was not sufficient to cover the value of the cheque. The defts. have not been able to prove to the contrary. Therefore, it is impossible to hold that the liability under the cheque was extinguished within the meaning of S. 82, Negotiable Instruments Act. Nor do I think that any question of contract arises in the case. 15. The appeal must, therefore, fail, & I agree with my learned brother that it should be dismissed with costs.