BABOO LALL JAIN, J. ( 1 ) THIS application has been made by Bridge and Building Construction Co. , under section 41 of the Arbitration Act, 1940, inter alia for orders as follows: (a) An order of injunction be passed restraining the respondents and/ or their servants and/or agents from encashing the Bank Guarantee bearing No. 23/30 dated 25. 5. 1993 ; (b) Injunction restraining the respondent No. 1 from taking any step and/or any further step pursuant to the letter dated 5th January, 1994 addressed to the respondent No. 2 a copy whereof is already part of Annexure 'q' ; (c) Injunction restraining the respondent No. I from trying to invoke the Bank Guarantee bearing No. 19/93 dated 28th April, 1993 for Rs. 5,40,000/ ( 2 ) ORIGINALLY when the application under section 20 of the Arbitration Act, 1940 was moved, the Bank of Baroda and Oriental Bank of Commerce were also made as respondent Nos. 2 and 3. On 7. 1. 94 when the application was moved, the learned advocate on behalf of the petitioner inter alia submitted that tire said Bank of Baroda and Oriental Bank of Commerce were not parties to the arbitration agreement and as such he prayed that his client did not intend to prays the application as against the defendant Nos. 2 and 3 in the instant proceedings under the Arbitration Act. As prayed for on behalf of tire plaintiff in the said application under section 20, the petition as against the Bank of Beretta and Oriental Bank of Commerce made under section 20 of the Arbitration Act was dismissed. That was the order made in tire application under section 20 of the Arbitration Act. The petitioner thereafter moved the instant application under section 41 of the Arbitration Act, also on 7th January, 1994 and an order was made by this Court inter alia to the effect that if at all any payment has been made or is received by the defendant/respondent No. 1, Cemindia Co. Ltd. from the said banks or any of them pursuant to the bank guarantees as mentioned in the petition, then and in that event tire said respondent No. 1 will keep the said amount in a separate fixed Deposit Account with a Nationalised Bank without disbursing tire same or any portion of it in any manner whatsoever. Ltd. from the said banks or any of them pursuant to the bank guarantees as mentioned in the petition, then and in that event tire said respondent No. 1 will keep the said amount in a separate fixed Deposit Account with a Nationalised Bank without disbursing tire same or any portion of it in any manner whatsoever. ( 3 ) THE application under section 41 of the Arbitration Act appeared as New Motion on 11. 1. 94 and on that date it was, inter alia, submitted on behalf of Cemindia Co. Ltd. that they had already received payment for a sum of Rs. 13,46,000/- from Bank of Baroda and they had already kept the same in a Fixed deposit Account with the State Bank of India. It was also ordered on 11th January, 1994, that if at all any further payment is received by Cemindia Co. Ltd. pursuant to the other bank guarantee, the same will also be kept in a separate Fixed Deposit Account with the State Bank of India, Esplanade Branch, Calcutta and the same will be kept renewed until further orders of this Court. ( 4 ) SINCE thereafter affidavits have been filed and the application made under section 41 of the Arbitration Act has been heard after the filing of the affidavits. ( 5 ) THE case of the petitioner is that the respondent is liable to return the said bank guarantee for Rs. 13,46,000/- as also the bank guarantee for Rs. 5,40,000/ -. The further case of the petitioner is that if the bank guarantees are allowed to be invoked not only the suit filed by the petitioner would become infructuous but the same would cause irretrievable injustice to the petitioner. According to the petitioner in equity also the two bank guarantees which were given in good faith cannot be invoked and there is special equity in favour of the petitioner to restrain the respondent from encashing the two bank guarantees. According to the petitioner there is a serious dispute between the parties and that the respondent No. 1 is taking advantage of its own wrong and is trying to fraudulently enrich itself by encashing the two bank guarantees. No particulars of any fraud are given in the petition. According to the petitioner there is a serious dispute between the parties and that the respondent No. 1 is taking advantage of its own wrong and is trying to fraudulently enrich itself by encashing the two bank guarantees. No particulars of any fraud are given in the petition. The Learned Advocate appearing on behalf of the petitioner relied on a judgment of the Supreme Court reported in JT 1993 (6) SC 189 (Svenrka Handels banken v. Indian Charge Chrome and Ors. ). In the said judgment, the Supreme Court, while considering its earlier pronouncement in UP Co-operative Federation Ltd. v. Singh Consultants and Engineers (P ) Ltd. reported in (1988)1 SCR 1124 , cited with approval the following portions of the said earlier judgment :- ( 6 ) "the learned Judge at pages 1141 and 1142 held as under :"in order to restrain tire operation either of irrevocable letter of credit or of confirmed letter of credit or of bank guarantee, there should be serious dispute and a 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 operation would be jeopardised. The commitments of the banks must be honoured 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, in cases of fraud or in cases of irretrievable injustice brat the court should interfere. This is not a case where irretrievable injustice would be done by enforcement of the bank guarantee. This is also not a case where a strong prima facie case of fraud in entering into a transaction was made out. The High Court should not have interfered with the bank guarantee. The judgment and order of the High Court set aside. The order of the Civil Judge restored". ( 7 ) THE Supreme Court further held that in case of confirmed bank guarantee/irrevocable letters of credit, it cannot be interfered with unless there is fraud and irretrievable injustice. In paragraph 82 of the said judgment the Supreme Court held that mere irretrievable injustice without prima facie case of established fraud is of no consequences in restraining the encashment of bank guarantee. In paragraph 82 of the said judgment the Supreme Court held that mere irretrievable injustice without prima facie case of established fraud is of no consequences in restraining the encashment of bank guarantee. ( 8 ) THE parties also relied on another judgment of the Supreme Court in the case of General Electric Technical Service Co. Inc. v. M/s. Punt Sons Pvt. Ltd. and Another reported in IT 1991 (3) SC 360. ( 9 ) IN the said judgment, the Supreme Court referred to its aforesaid earlier judgment in the case of U. P. Co-operative Federation Ltd. v. Singh Consultants Engineers Pvt. Ltd. (supra) and observed that in order to restrain operation either of irrevocable letter of credit or of confirmed letter of credit or a bank guarantee there should be 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 guarantee would be negatived and the fabric of trading operation will get jeopardised. ( 10 ) IN the instant case, the parties have placed before me the correspondence which is annexed to the petition. The learned Counsel appearing on behalf of the petitioner, particularly relied on a letter dated 19. 7. 93 written by the respondent wherein it was stated as follows :-"please refer to the discussions had with us on 19. 7. 93. In this discussion we have discussed the situation of Jamshedpur in detail and have decided to withdraw our plant and personnel from the bridge site. Hence actions may please be taken accordingly". ( 11 ) IT was submitted that having requested the petitioner to withdraw the plant and personnel from the bridge site, the respondent could not take exception to the petitioner treating the contract as terminated. It is to be noted that by letter dated 16. 11. 93 the petitioner inter alia intimated the respondent that the petitioner formally determines the contract for the construction of bridge on river Subarnarekha at Jamshedpur with immediate effect and made claims for more than Rs. 30 lacs as against the respondent. Thereafter the respondent by letter dated 4. 1. 94 written about more than 45 days, in reply to the petitioner's letter dated 16. 11. 30 lacs as against the respondent. Thereafter the respondent by letter dated 4. 1. 94 written about more than 45 days, in reply to the petitioner's letter dated 16. 11. 93, inter alia stated that it was the petitioner who committed breach of contract and denied that the respondent committed any breaches of the agreement and further denied the claims made by the petitioners by the said letter dated 16. 11. 93. It was submitted that this said letter of the respondent was clearly as after thought and was written with mala fide and fraudulent objective. Immediately thereafter the respondent took steps for encashment of the two bank guarantees and the banks concerned have already paid the amounts of the bank guarantees to the petitioner. ( 12 ) THOUGH there are serious disputes between the parties with regard to the breaches as alleged by the parties and/or claims and/or counter claims made by the parties, yet I am not satisfied that there is any prima facie case of fraud or special equities in favour of the petitioner. Though the petitioner has stated that irretrievable injustice win be caused to the petitioner, yet it cannot be said that if the petitioner ultimately succeeds in the arbitration proceedings, the petitioner will not be able to recover the amount if any as may be awarded, in favour of petitioner by the arbitrator. ( 13 ) THIS is to be noted that the bank guarantees were unconditional in nature. Two bank guarantees were furnished by the two concerned banks to the respondent and same amount to contract as between the respondent and the concerned banks. The concerned banks have thought it fit and proper to pay the guarantee amounts and/or to honour the guarantees given by them. It may be a case of wrongful encashment of the guarantees by the respondent and the petitioner may be entitled to establish its case in the arbitration proceedings and obtain a suitable award in the arbitration proceedings. I am, however, not satisfied that the petitioner is entitled to get my order as against the respondent restraining the respondent from encashment of the bank guarantees. I am, however, not satisfied that the petitioner is entitled to get my order as against the respondent restraining the respondent from encashment of the bank guarantees. It was submitted that the mount which is held in the fixed Deposit Account pursuant to the interim order should be directed to be continued to be held in the Fixed Deposit Accounts, until the disputes between the parties me decided in the arbitration proceeding. However since I am not satisfied that there is any case of irretrievable injustice or of special equities or of fraud, I do not think that the petitioner is entitled to my order in this application under section 41 of the Arbitration Act. Whatever observations have been made in fins judgment and order with regard to the merits of the controversies between the patties me only on a prima facie view of the matter and the same are not to be understood as if this Court has decided any controversies as between the parties either way, in favour of any of the parties, and all questions and disputes as between the parties are left open. ( 14 ) THE application under section 41 of the Arbitration Act is therefore dismissed and all interim orders are vacated. ( 15 ) THE learned counsel appearing on behalf of the petitioner prays for stay of operation of this judgment and order. There will be stay of operation of this judgment and order for a period of 3 weeks from to-day. The parties will be at liberty to obtain a signed copy of the operative portion of this judgment and order on the usual undertaking. Application dismissed.