Judgment RAMASWAMI, J. ( 1 ) THIS appeal by certificate is brought on behalf of the 3rd defendant against the judgment and decree of the High Court of Kerala dated 18/07/1962 in A. S. No. 561 of 1961 which affirmed the judgment and decree of the Court of the Subordinate Judge of Alleppey in O. S. No. 114 of 1957. ( 2 ) BY a resolution Ex. BD dated 25/11/1946 the Board of Directors of the 1st defendant Company authorised the 2nd defendant to obtain financial accommodation from the plaintiff-bank to the extent of Rs. 15 lakhs under different kinds of loans. Pursuant to this resolution the Company by its letter Ex. DE dated 26/11/1946 asked for accommodation for Rs. 1 lakh under clean overdraft, for Rs. 4 lakhs under open loan and for S. 10 lakhs under out agency and key loans. On 26/11/1946 all the three defendants executed a promissory note Ex. B in favour of the plaintiff-bank for a sum of Rs. 4 lakhs. The promissory note was sent to the plaintiff-bank along with a letter Ex. A styled letter of continuity dated 26/11/1946. Ex. A reads as follows :"alleppey, 26/11/1946. THE Agent,the Central Bank of India Limited, Alleppey. DEAR Sir,we beg to enclose an on demand pro note p. Rs. 4,00,000/ - (Rupees Four lacs only) singed by us which is given to you as security for the repayment of any overdraft which is at present outstanding in our name and also for the repayment of any overdraft to the extent of Rs. 4,00,000 / - (Rupees four lacs only) which we may avail of hereafter and the said Pro-Note is to be a security to you for the repayment of the ultimate balance of sum remaining unpaid on the overdraft and we are to remain liable to the Pro-Note notwithstanding the fact that by payments made into the account of the over-draft from time to time the overdraft may from time to time be reduced or extinguished or even that the balance of the said accounts may be at credit. YOURS faithfully,for CASHEW Products Corporation Ltd. FOR General Agencies Ltd. , (Respondent 2)SD/- P. S. Georgemanaging Director,managing Agentssd/- P. S. George, (RESPONDENT 3)SD / - S. Chattanatha Karayalar ( 3 ) THE first question presented for determination in this case is whether the status of the 3rd defendant in regard to the transaction of overdraft account is that of a surety or of a co-obligant. It was argued by Mr. Desai on behalf of the appellant that the High Court has misconstrued the contents of Exs. A and B in holding that the 3rd defendant has undertaken the liability as a co-obligant. It was submitted that there was an integrated transaction constituted by the various documents-Ext. A, B and G executed between the parties on the same day and the legal effect of the documents was to confer on the 3rd defendant the status of a surety and not of a co-obligant. In our opinion, the argument put forward on behalf of the appellant is well founded and must be accepted as correct. It is true that in the promissory note-Ex. B all the three defendants have "jointly and severally promised to pay the Central Bank of India Ltd. or order a sum of Rs. 4 lakhs only together with interest on such sum from this date", but the transaction between the parties is contained not merely in the promissory note-Ex. B.- but also in the the letter of continuity dated 26/11/1946-Ex. A which was sent by the defendants to the plaintiff-bank along with promissory note- Ex. B on the same date. There is another document executed by defendant No. 1/11/1946-Ex. G-Hypothecation agreement. The principle is well established that if the transaction is contained in more than one document between the same parties they must be read and interpreted together and they have the same legal effect for all purposes as if they are one document. In Manks v. Whiteley, 1912-1 Ch 735 at p. 754, Moulton, L. J. stated :where several deeds form part of one transaction and are contemporaneously executed they have the same effect for all purposes such as are relevant to this case as if they were one deed. In Manks v. Whiteley, 1912-1 Ch 735 at p. 754, Moulton, L. J. stated :where several deeds form part of one transaction and are contemporaneously executed they have the same effect for all purposes such as are relevant to this case as if they were one deed. Each is executed on the faith of all the other being executed also and is intended to speak only as part of the one transaction, and if one is seeking to make equities apply to the parties they must be equities arising out of the transaction as a whole. "it should be noted in the present case that the promissory note-Ex. B- was enclosed by the defendants along with the letter of continuity -Ex. A before sending it to the plaintiff-bank. In the letter-Ex. A it is clearly stated that the promissory note Ex. B was given to the plaintiff-bank "as security for the repayment of any overdraft to the extent of Rs. 4,00,000/ -". It is further stated in Ex. A, that "the said promissory note is to be a security to you for the repayment of the ultimate balance or sum remaining unpaid on the overdraft. " In the hypothecation agreement-Ex. G it is stated that the plaintiff-bank has agreed to open a Cash Credit account to the extent of Rs. 4 lakhs at the request of the Cashew Products Corporation ltd. , Quilon. According to para 18 of the hypothecation agreement it operates as a security for the balance due to the plaintiff-bank on the Cash Credit account. Para 12 of the hypothecation agreement states that if the net sum realised be insufficient to cover the balance due to the plaintiff-bank, defendant No. 1 should pay the balance of the account on production of a statement of account made out from the books of the bank as provided in the 14th Clause. Under this Clause defendant No. 1 agreed to accept as conclusive proof of the correctness of any sum claimed to be due from it to the bank a statement of account made out from the books of the Bank and signed by the Accountant or other duly authorised officer of the Bank without the production of any other document. If the language of the promissory note-Ex. If the language of the promissory note-Ex. B it is manifest that the status of the 3rd defendant with regard to the transaction was that of a surety and not of a co-obligant. This conclusion is supported by letters - Exs . AF dated 27/11/1947. AM dated 17/12/1947 in which the Chief Agent of the plaintiff-bank has addressed defendant No. 3 as the "guarantor". There are similar letters of the plaintiff-bank, namely, Exs. CE dated 28/12/1947, GG dated 13/01/1948, AS dated 23/02/1949, V dated Octob 21/10/1949, III dated 16/12/1949, IV dated 12/01/1950 and o dated 29/03/1950 in which defendant No. 3 is REFERRED TO to either as a "guarantor" or as having furnished a guarantee for the loan. Our concluded opinion, therefore, is that the status of the 3rd defendant with regard to the overdraft account was that of a surety and not of co-obligant and the finding of the High Court on this issue is not correct. ( 4 ) ON behalf of respondent No. 1 Mr. Pathak stressed the argument that there is no contract of suretyship in the present case in terms of S. 126 of the Contract Act and the plaintiff-bank is not legally bound to treat the 3rd defendant merely in the character of a surety. Mr. Pathak relied upon the decision of the Madras High Court in Vyravan Chettiar v. Official Assignee of Madras AIR 1933 Mad 39 in which it is pointed out that persons who are jointly and severally liable on promissory notes are not sureties under S. 126 of the Contract Act, do such persons occupy a position analogous to that of a surety strictly so called to attract the provisions of S. 141 of the Contract Act. Reference was made, in this connection to the decision of the House of Lords to Duncan Fox and Co. Reference was made, in this connection to the decision of the House of Lords to Duncan Fox and Co. v. North and South Wales Bank (1880) 6 AC 1 in which Lord Selbourne, L. C. distinguished between three kinds of cases : (1) those in which there is an agreement to constitute, for a particular purpose, the relation of principal and surety, to which agreement to creditor thereby secured is a party; (2) those in which there is a similar agreement between the principal and surety only, to which the creditor is a stranger, and (3) those in which, without any such contract of suretyship, there is a primary and a secondary liability of two persons for one and the same debt, the debt being as between the two that of one of those persons only, and not equally of both, so that the other if he should be compelled to pay it, would be entitled to reimbursement from the persons by whom (as between the two) it ought to have been paid. It is pointed out by the learned Lord Chancellor that in all these kinds of cases the person who discharged the liability due to the creditor, would be entitled to the benefit of the security held by the creditor though a case of suretyship strictly speaking would fall only under class 1, as a contract of guarantee is confined to agreements where the surety agrees with the creditor that he would discharge the liability of the principal debtor in cast of his default. It is manifest that classes 2 and 3 are not cases of suretyship stricly so called. Lord Selbourne observed that the case before him did not fall within the first or the second class but it fell within the 3rd class in which stricly speaking there was no contract of suretyship. But the Lord Chancell held in that case that even in the second and third class of cases the surety has some right to be placed in the shoes of the creditor where he paid the amount. The argument of Mr. Pathak was that the position in Indian Law Lord Selbourne, L. C. in (1880) 6 AC 1 did not apply to the present case. Mr. Pathak REFERRED TO, in this connection, to the illustration to S. 132 of the Contract Act in support of his argument. The argument of Mr. Pathak was that the position in Indian Law Lord Selbourne, L. C. in (1880) 6 AC 1 did not apply to the present case. Mr. Pathak REFERRED TO, in this connection, to the illustration to S. 132 of the Contract Act in support of his argument. We consider that the legal proposition for which Mr. Pathak is contending, is correct, but the argument has not much relevance in the present case. It is true that S. 126 of the Contract Act requires that the creditor must be a party to the contract of guarantee. It is also true that under S. 132 of the Contract Act the creditor is not bound by any contract between the co-debtors that one of them shall be liable only on the default of the other even though the creditor may have been aware of the existence of the contract between the two co-debtors. In the present case, however, the legal position is different, because the plaintiff-bank was a party to the contract of guarantee - Ex. A which is contemporaneous with the promissory note - Ex. B. The plaintiff-bank was also a party to the contract of hypothecation executed by defendant No. 1 in which it is stated that the plaintiff-bank had agreed to open a Cash Credit Account to the extent of Rs. 4 lakhs in favour of defendant No. 1. It is manifest, therefore, in the present case that the requirements of S. 126 of the Contract Act are satisfied and defendant No. 3 has the status of a surety and not of a co-obligant in the transaction of overdraft account opened in the name of defendant No. 1. by the plaintiff-bank. On behalf of the respondent No. I Mr. Pathak also REFERRED TO to the decision in Venkata Krishnayya v. Karnedan Kothari AIR 1935 Mad 643 and submitted that defendant No. 3 cannot be permitted to give evidence in regard to a collateral transaction in view of the bar imposed by S. 92 of the Evidence Act and his position is as a co-obligant and that the terms of the promissory note cannot be altered by any other transaction. We are unable to accept this argument as correct. We are unable to accept this argument as correct. The provisions of S. 92 of the Evidence Act do not apply in the present case, because defendant No. 3 is not attempting to furnish evidence of any oral agreement in derogation of the promissory note but relying on the existence of a collateral agreement in writing--- Exs. A and G which form parts of the same transaction as the promissory note-Ex. B. The decision of the Madras High Court in AIR 1935 Mad 643 is, therefore, not applicable and Mr. Pathak is not able to make good his submission on this aspect of the case. ( 5 ) IT was also contended by Mr. Pathak on behalf of respondent No. 1 that the suit is based on the promissory note--Ex. B against all the three defendants and not on the overdraft account. We do not think there is any substance in this argument. In this connection Mr. Pathak took us through the various clauses of the plaint but there is no mention about the promissory note dated 21/12/1949 that the defendant executed a promissory note "as security for the repayment of the balance outstanding under the overdraft". We are satisfied, on examination of the language of the plaint, that the suit is based not upon the promissory note but upon the balance of the overdraft account in the book of the plaintiff-bank. In para 11 of the plaint the plaintiff-bank asked for a decree against the defendants jointly and severally "for the recover of Rs. 2,86,292/11/11 as per accounts annexed". In the plaint it is stated that the plaintiff had given two notices to the defendantsex. odated 1/01/1950 and Ex. L dated 26/04/1950 but in neither of these notices has the plaintiff REFERRED TO to the promissory note executed by the defendants or that the suit was based upon the promissory note. On the contrary, the plaintiff bank REFERRED TO in Ex. oto the open loan accounts and asked the defendants to pay the amounts due to the bank under these accounts. It is therefore, not possible for us to accept the contention of Mr. Pathak that the suit is based upon the promissory note and not upon the amount due on the overdraft account. oto the open loan accounts and asked the defendants to pay the amounts due to the bank under these accounts. It is therefore, not possible for us to accept the contention of Mr. Pathak that the suit is based upon the promissory note and not upon the amount due on the overdraft account. In this connection, we may incidentally refer to the fact that in its statement of the case before this Court, respondent No. I has clearly stated that the claim on the overdraft account against the appellant was valid "because the overdraft was treated as in favour of all the defendants. (appellant and respondents 2 and 3 herein) and that respondent No. 2 was only authorised to operate independently on that amount and that the limit under the overdraft was placed at the disposal of respondent No. 2 by an express authority given by all the defendants (the appellant and respondents 2 and 3", This shows that respondent No. 1s case is that a suit is based on an overdraft, and since the overdraft was treated as in. favour of all the defendants the appellant is liable for the balance due on it. ( 6 ) WE shall then consider the question whether defendant No. 2 is discharged of his liability as a surety by reason of the alleged conduct of the plaintiff-bank is violating the terms of the agreement - Ex. G or by the alleged fraudulent or negligent conduct of the plaintiff-bank in other ways. It was submitted on behalf of the appellant that the plaintiff-bank had made adjustments in the open loan account and in the clean overdraft account with the 1st defendant by debiting and correspondingly credting in other accounts without the consent of the appellant. It was further alleged that the plaintiff-bank had granted loans to the lst defendant against goods covered by open loan agreement and that it had converted secured loans into simple loans by releasing goods covered by the Bills of Lading against trust receipts and had thereby deliberately frittered away such securities. The question at issue is a mixed question of law and fact and it is unfortunate that the High Court has not properly dealt with this question or given a finding whether the appellant would be discharged from the liability as a surety for the overdraft account because of the alleged conduct of the plaintiff-bank. The question at issue is a mixed question of law and fact and it is unfortunate that the High Court has not properly dealt with this question or given a finding whether the appellant would be discharged from the liability as a surety for the overdraft account because of the alleged conduct of the plaintiff-bank. We consider it necessary that this case should go back on remand to the High Court of Kerala for deciding the issue and to give proper relief to the parties. In this connection, it is necessary to point out that after the High Court delivered its judgment on 12/07/1962, an application was made by the learned Advocate appearing for the appellant that some grounds which had been urged by him before the High Court had not been considered by it. The High Court, therefore, adopted the somewhat unusual course of delivering a supplemental judgment. Mr. Desai contends that even the supplemental judgment has failed to consider the appellants contention that he had been discharged by reason of the fact that adjustments were made by respondent. No. 1 indiscriminately in respect of its dealings in three or four different accounts with respondent No. 2 to the prejudice of the appellant. We have broadly indicated the nature of the contention raised by Mr. Desai. ( 7 ) ORDINARILY, we do not permit parties to urge that points raised on their behalf in the High Court had not been considered, unless it is established to our satisfaction that the points in question had in fact been urged before the High Court and the High Court, through inadvertence, has failed to consider them. In the presem case, we are not prepared to take the view that the grievance made by Mr. Desai is not well-founded. It does appear that after the first judgment was delivered, an application was made by the learned Advocate who argued the appeal himself before the High Court in which he set out his complaint that some of the points which he had argued before the High Court had not been considered by it. That is why the High Court delivered a supplemental judgment. That is why the High Court delivered a supplemental judgment. Aggrieved by the said judgment, the appellant filed an application for certificate before the High Court, and in this application again he has taken specific grounds, e. g. under paragraph 6 (k) and paragraph 8 that even the supplemental judgment has failed to consider some of the points, urged by him. While granting the certificate, the High Court has made no comment on these grounds. It is to be regretted that when these grounds appear to have been urged before the High Court, the High Court should have failed to deal with them even in its supplemental judgment. That is the reason why we think it is necessary that the matter must go back to the High Court for disposal of the appeal in the light of this judgment. ( 8 ) MR. Pathak, no doubt, seriously contested the validity of Mr. Desais argument. He urged that the adjustments on which Mr. Desai has founded his claim for discharge do not really support his case. We propose to express no opinion on this point. As we have just observed, the contention thus raised amounts to a mixed question of fact and law and we do not think it would be expedient for us to deal with it ourselves when the High Court has omitted to consider it. ( 9 ) FOR these reasons we allow this appeal, set aside the judgment and decree of the High Court of Kerala dated 18/07/1962 in A. S. 561 of 1961and order that the case should go back for being reheard and redetermined by the High Court in accordance with the observations made in our judgment. The parties will bear their own costs up to this stage. Case remanded.