JUDGMENT - S.M.JHUNJHUNUWALA, J.:---In the suit for declaration that the contract entered into by and between the plaintiffs and the 1st defendants is valid, subsisting and continues to bind the parties thereto and that under the terms thereof, the 1st defendants are not entitled to unilaterally reduce the quantity agreed to be taken delivery of by the 1st defendants thereunder and for other reliefs prayed for in the plaint filed. The plaintiffs have taken out the present Notice of Motion for an order of injunction to restrain the 1st defendant from invoking the Bank guarantee dated 28th September, 1989 issued by the 2nd defendants and furnished by the plaintiffs to the 1st defendants and also to restrain the 2nd defendants from making payment of any amount thereunder to the 1st defendants, as also for directions to the 1st defendants to place further orders, accept delivery and pay for the gland packings of contracted quantity and quality agreed to be supplied by the plaintiffs under and in accordance with the terms of the said contract. 2. On 27th September, 1989, a contract was entered into by and between the plaintiffs on the one hand and the 1st defendants on the other hand on the terms and conditions mentioned therein under which the plaintiffs agreed to manufacture and supply to the 1st defendants three types of gland packings viz., (i) OMC Liquigraf Style 800, (ii) OMC Liquigraf Style 8000 E and (iii) High Temperature pure graphite fibre with stainless steel wire (for short, referred to as `the said goods') for a period of 3 years from the date thereof. The rates of the different types of the said goods were agreed to be as mentioned in the said contract. The said goods were agreed to be supplied at the said fixed prices for a period of three years with no escalation in prices thereof. The plaintiffs were required to keep three months inventory at their workshop in their own account for all the three types of the said goods. The 1st defendants agreed to give to the plaintiffs interest free advance of 25% of the value of the said goods and the plaintiffs agreed to furnish Bank guarantee to the 1st defendants of any nationalised scheduled Bank valid for a period of three years. The 1st defendants agreed to give to the plaintiffs interest free advance of 25% of the value of the said goods and the plaintiffs agreed to furnish Bank guarantee to the 1st defendants of any nationalised scheduled Bank valid for a period of three years. 25% of the amount of the bills of the plaintiffs to be submitted from time to time was agreed to be recovered against this amount agreed to be paid by the 1st defendants as advance. In terms of the said contract, the 1st defendants made payment of Rs. 1,15,81,596/- to the plaintiffs as advance and the plaintiffs furnished to the 1st defendants the Bank - guarantee dated 28th September, 1989 issued by the 2nd defendants for the said sum of Rs. 1,15,81,596/- containing terms and conditions mentioned therein, a copy whereof is annexed and marked as part of Exhibit `B' (collectively) to the plaint filed. Clauses 1 and 4 of the said Bank guarantee read as under: "1. That in consideration of the RCF having agreed to make the above advance payment, the Bank hereby agrees that in case of any default in repayment of the advance and/or the interest by the Contractor or if the RCF fees that the same cannot be recovered from the future running bills or in case of a dispute and stopping of work for any reason whatsoever, the amount under the Bank Guarantee or any lesser amount that may be remaining unpaid to the RCF on that date, shall become payable to the RCF forthwith on demand. 4. We undertake to pay to the RCF any money so demanded notwithstanding dispute or disputes raised by the Contractor(s)/Supplier(s) in any suit or proceedings pending before any Court or Tribunal relating these to our liability under this present being absolute and unequivocal. The payment so made by us under this Bond shall be valid discharge of our liability for payment thereunder and the Contractor(s)/Supplier(s) shall have no claim against us for making such payment". 3. As per directions and requirements of the 1st defendants, 2361 Kgs. of the said goods were supplied by the plaintiffs to the 1st defendants upto the month of March, 1991 under the said contract and against payment of the bills of each supply made, the 1st defendants deducted 25% of the value towards recovery of advance paid in this manner, recovered a total sum of Rs. of the said goods were supplied by the plaintiffs to the 1st defendants upto the month of March, 1991 under the said contract and against payment of the bills of each supply made, the 1st defendants deducted 25% of the value towards recovery of advance paid in this manner, recovered a total sum of Rs. 23,05,596/- from the plaintiffs from the advance paid. The validity of the said bank guarantee was initially extended to 27th September, 1991 and thereafter to 27th September, 1992 and the liability of the 2nd defendants thereunder was ultimately restricted to Rs. 92,76,000/-. 4. In the month of April 1991, the 1st defendants reviewed their requirements of the said goods and by their letter dated 10th April, 1991 addressed to the plaintiffs, the 1st defendants informed the plaintiffs that the consumption of the said goods by the 1st defendants was around 150 Kgs. per month instead of 300 Kgs. per month and demanded refund of Rs. 60,00,000/- from the amount paid as advance in view of reduction of quantity. By their further letter dated 7th October, 1991 addressed to the plaintiffs, the 1st defendants informed the plaintiffs that their consumption of the said goods was around 110 Kgs. per month and demanded refund of Rs. 78,30,810/- from the amount paid as advance in view of further reduction in quantity. By the said letter, the 1st defendants intimated to the plaintiffs that if the said sum of Rs. 78,30,810/- was not refunded by the plaintiffs to the 1st defendants. Since the 1st defendants intend to invoke the said Bank guarantee, the plaintiffs have filed the suit and taken out the present Notice of Motion therein as aforesaid. 5. Mr. Zaiwalla, the learned Counsel appearing for the plaintiffs, has submitted that the 1st defendants being a `State' is bound to act reasonably and since the 1st defendants are acting arbitrarily, the conduct of the 1st defendants is fraudulent and the decision of the 1st defendants in reducing the quantity to 110 Kgs. per month is subject to review by this Court. He has further submitted that under the terms of the said contract, the 1st defendants have agreed to take delivery of 300 Kgs. approximately of the said goods per month from the plaintiffs and by intimating to the plaintiffs their requirement of only 110 Kgs. per month in place and stead of 300 Kgs. He has further submitted that under the terms of the said contract, the 1st defendants have agreed to take delivery of 300 Kgs. approximately of the said goods per month from the plaintiffs and by intimating to the plaintiffs their requirement of only 110 Kgs. per month in place and stead of 300 Kgs. per month, the 1st defendants are unilaterally rewriting the entire contract and in effect, changing it into a fundamentally different contract, which is legally impermissible and tantamounts to fraud on the plaintiffs. In his submission, the said contract is valid, subsisting and binding on the parties thereto and the 1st defendants, in breach of the terms thereof, are attempting to prepetrate fraud by taking advantage of their fraudulent and wrongful conduct. Mr. Zaiwalla has further submitted that there has been no failure on the part of the plaintiffs to carry out their obligations under the said contract and as such, the 1st defendants are not entitled to invoke the said bank guarantee. In support of his submission, Mr. Zaiwala has put reliance on the case of (Kumari Shrilekha Vidyarthi etc. v. State of U.P. and others)1, reported in A.I.R. 1991 S.C. 537 and on the case of (Louis Dreypus CIE v. Parnaso CIA Naviera S.A.)2, reported in (1962)2 QB 49. 6. Mr. Tulzapurkar, the learned Counsel appearing for the 1st defendants has submitted that since the plaintiffs have not sought for any relief consequential to prayer (c) in the plaint, the suit as framed and filed is not maintainable under the provisions of the Specific Relief Act. He has further submitted that the 1st defendants have acted fairly not only in entering into the said contract with the plaintiffs but even in performance thereof and strict follow up of the terms of the said contract by the 1st defendants can not amount to unreasonable or wrongful conduct on the part of the 1st defendants in performance thereof. Mr. Tulzapurkar has further submitted that the 1st defendants have neither acted fraudulently nor their act of communication requirement at 110 Kgs. of the said goods per month amounts to fraud on the plaintiffs. He has further submitted that under the terms of the said contract, the emphasis is not on the quantity but on the period of the said contract and by intimating to the plaintiff about their requirements of the said goods at 110 Kgs. of the said goods per month amounts to fraud on the plaintiffs. He has further submitted that under the terms of the said contract, the emphasis is not on the quantity but on the period of the said contract and by intimating to the plaintiff about their requirements of the said goods at 110 Kgs. per month, the 1st defendants have neither rewritten the said contract nor changed it fundamentally to a different contract. In the submission of Mr. Tulzapurkar, neither the conduct nor act of the 1st defendants is arbitrary or unreasonable and in view of reduction in the requirements of the 1st defendants since it is not possible to adjust the amount paid to the plaintiffs as and by way of advance, as per the terms of the said Bank guarantee, the 1st defendants are justly, properly, legally and validly entitled to invoke the some to recover the sum of Rs. 78,30,810/- refundable by the plaintiffs. Mr. Tulzapurkar has lastly submitted that on facts of the present case, the case of Louis Dreyfus CIE (supra) relied upon by Mr. Zaiwala has no applicability and no case of any special enquities in favour of the plaintiffs having been made out, the plaintiffs are not entitled to any relief in the Notice of Motion. The term pertaining to quantity as agreed between the plaintiffs and the 1st defendants and incorporated in the said contract, reads as under: "The approximate quantity required per month for different styles packings is as under:- OMC Liquigraf style 8000 Qty. 80kgs. OMC Liquigraf style 8000(E) Qty. 70Kgs. High temperature pure graphite fibre with stainless steel wire Qty. 150Kgs. This is very tentative figure and the quantity may vary. The quantity mentioned above of different styles of packing will actually depend on the requirement of the plant" It is apparent from the aforesaid terms read as a whole that `approximate quantity' of 300 Kgs. per month mentioned therein has been subjected to further agreement between the parties thereto which states that the figure of `approximate quantity' is very tentative and quantity may vary and further that the quantity will actually depend on the requirement of the plant. (emphasis supplied). To find out as to whether the conduct of the 1st defendants in intimating to the plaintiffs about their requirements of only 110 Kgs. (emphasis supplied). To find out as to whether the conduct of the 1st defendants in intimating to the plaintiffs about their requirements of only 110 Kgs. of the said goods per month amounts to arbitrary or unreasonable , it is essential that all the terms of the said contact are to be read together. The said contract has been awarded to the palintiffs for a period of three years from the date thereof, i.e. 27th September, 1989. However, as agreed between the plaintiffs and the 1st defendants and incorporated in the said contract the 1st defendants are to give their requirements of the types and sizes of the said goods to the plaintiffs on the basis of their monthly requirements. Although approximate quantity required per month by the 1st defendants has been mentioned at 300 Kgs. as agreed between the plaintiffs and the 1st defendants and incorporated in the said contract, the said figure of 300 Kgs. is very tentative. Actually, the quantity is agreed to depend on the requirement of the plant of the 1st defendants and when as per the requirement of the plant of the 1st defendants, the quantity of the said goods required is only 110 Kgs. per month and not 300 Kgs. per month, it cannot be said that the 1st defendants are unilaterally rewriting the entire contract or in breach of the terms thereof, attempting to perpetrate a fraud on the plaintiffs or that their act or conduct is fraudulent or arbitrary subject to judicial review. As held by the Supreme Court in the case of Shrilekha Vidyarthi (supra), it is not well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution an basic of the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. However, in the long term contract of the nature in question, as agreed by the plaintiffs and the 1st defendants and incorporated therein, it is implicit that the quantity of requirements by the 1st defendants may vary depending upon the requirement of the 1st defendants' plant and merely because the variation is substantial, it can not be said that there is arbitrariess in the action of the 1st defendants. Following the ratio of the judgment of Queen's Bench Division in the case of Louis Dreyfus CIE (supra), it is correct that "approximate" must be given its natural meaning of "about" or "more or less" and that whatever tolerance is appropriate to that expression becomes no less part of the contract than the reference to 300 Kgs. per month. If terminology of "approximate" used in the said contract is to be considered in isolation, the deficiency in requirement to the extent of 190 Kgs. per month would not leave the quantity within the tolerance indicated and the difference would be so great as alters the obligation so substantially as to make it a different bargain. However, the term "approximate" used in the said contract is to be read conjunctively with other terms agreed by and between the plaintiffs and the 1st defendants and incorporated therein, viz., "this is very tentative figure" and "the quantity mentioned above of different styles of packing will actually depend on the requirement of the plant" (emphasis supplied). Hence, in the facts and circumstances of the case, it can not be said to be a case where quantity of requirement by the 1st defendants per month was agreed at 300 Kgs. or `about 300 Kgs.' or `300 Kgs. more or less". The figure of 300 Kgs. per month mentioned in the said contract is very tentative and the requirement of the 1st defendants actually depends on the requirement of the plant. of the 1st defendants which has been reviewed by the 1st defendants at 110 Kgs. per month. Purchase by the 1st defendants of a very small quantity of less than even 50 Kgs. per month mentioned in the said contract is very tentative and the requirement of the 1st defendants actually depends on the requirement of the plant. of the 1st defendants which has been reviewed by the 1st defendants at 110 Kgs. per month. Purchase by the 1st defendants of a very small quantity of less than even 50 Kgs. of gland packing of different quality from third party over a period of more than two years can not be subscribed as a cause for reduction of requirement of the said goods by the 1st defendants. Prima facie, in any view, the 1st defendants have acted fairly in performance of the said contract and that there is no breach of the said contract on the part of the 1st defendants. Strict follow up of the terms of the said contract by the 1st defendants can not tanamount to `acting unreasonably' on the part of the 1st defendants. 7. The said bank guarantee was furnished to the 1st defendants to secure the amount advanced by the 1st defendants to the plaintiffs. The said Bank guarantee is `on demand' guarantee, the liability of the 2nd defendants thereunder being absolute and unequivocal notwithstanding any dispute or disputes even raised by the plaintiffs in any suit or proceedings pending before any Court or Tribunal. In the said guarantee the 2nd defendants Bank has undertaken to pay the amount guaranteed without any demur merely on demand. In view of reduction in quantity of the said goods required by the 1st defendants, the 1st defendants reasonably feel that it would not be possible for them to adjust the entire amount of advance by deduction at the rate of 25% of the value of the said goods to be supplied by the plaintiffs from the running bills. The plaintiffs have become liable to refund to the 1st defendants the sum of Rs. 78,30,810/- from the advance paid by the 1st defendants which amount, the plaintiffs have defaulted in repayment and as such, the 1st defendants have justifiably become entitled to invoke the said Bank guarantee to recover the said sum of Rs.78,30,810/-. The 2nd defendants have undertaken to pay this sum of money and it is a commitment of the 2nd defendants. The 2nd defendants must honour its commitment when demand is made. 8. The 2nd defendants have undertaken to pay this sum of money and it is a commitment of the 2nd defendants. The 2nd defendants must honour its commitment when demand is made. 8. The law as to the contractual obligation under Bank guarantee has been well settled in a catena of cases. Almost all such cases have been considered in the judgment of the Supreme Court in (U.P. Co-operative Ltd. v. Singh Consultants and Engineers (P.)Ltd.)3, reported in (1988)1 S.S.C.174, wherein Sabyasachi Mukherji, J., (as he then was) observed that in order to restrain the operation either of irrevocable letter of credit or of confirmed letter of credit or of Bank guarantee, there should be a serious dispute and there should be good prima facie case of fraud and special equities in the form of preventing irretrievable injustice between the parties. Otherwise, the very purpose of Bank guarantees would be negatived and the fabric of trading operations will get jeopardised. It was further observed that the Bank must honour the Bank guarantee free from interference by the courts. Otherwise, trust in commerce internal and international would be irreparably damaged. It is only in exceptional cases that is to say in case of fraud or in case of irretrievable injustice, the Court should interfere. 9. The nature of fraud that the courts talk about is fraud of an egregious nature as to vitatiate the entire underlying transaction. It is fraud of the beneficiary, not the fraud of somebody else. No such case of fraud or special equities has been made out by the plaintiffs. The 2nd defendants Bank has to pay. The 2nd defendants Bank cannot be interdicted by this Court at the instance of the plaintiffs in the absence of fraud or special equities in the form of preventing irritrievable injustice between the parties. 10. Since no arguments have been advanced on behalf of the plaintiffs in support of prayer (c) of the Notice of Motion. Mr. Tulzapurkar has justifiably submitted that the relief claimed therein can not be granted and that it was necessary for the 1st defendants to make any submission to oppose the grant thereof. 11. Mr. Shekhar, the learned Counsel appearing for the 2nd defendants Bank, submits to the order of this Court. 12. In the result, the Notice of Motion is dismissed. Tulzapurkar has justifiably submitted that the relief claimed therein can not be granted and that it was necessary for the 1st defendants to make any submission to oppose the grant thereof. 11. Mr. Shekhar, the learned Counsel appearing for the 2nd defendants Bank, submits to the order of this Court. 12. In the result, the Notice of Motion is dismissed. However, in the circumstances of the case, there shall be no order as to costs of the Notice of Motion. 13. On the application of Mr. Zaiwala, ad-interim injunction granted on 31st October, 1991 shall continue till 13th January, 1992. 14. Prothonotary is directed to issue certified copy of this order expeditiously to all parties concerned. Order accordingly, -----