D. C. SRIVASTAVA, J. This revision is directed against the order dated 18th November, 1995 of Shri Shiv Sharma, III A. C. J. M. /civil Judge, Senior Division, Muzaffarnagar, rejecting the two applications moved under Section 41-B of the Arbitration Act. 2. The brief facts are that an application under Section 20 of the Ar bitration Act was moved by the revisionist in the court below seeking prayer that an Arbitrator be appointed and reference of dispute between the parties be made to him for adjudication. In brief the factual allegations are that a modernisation plant of Rohana Kalan Sugar Mill in district Muzaffarnagar was undertaken and the revisionist, to be called as seller, entered into an agree ment with the opposite-party, U. P. State Sugar Corporation, to be called as purchaser, on 20th August, 1989 for a sum of Rs. 17 crores, 80 lacs 1780 lacs. According to the terms of the agreement the purchaser was to advance the amount. As per agreement three instalments of advance of Rs. 89 lacs, 178 lacs and 89 lacs were advanced. The work was to be completed by 15th November, 1990. The first bank guarantee No. 9/47 dated 10th August, 1989 was executed in favour of the purchaser and the first advance of Rs. 89 lacs was given in two instalments, one Rs. 39 lacs on 10th August, 1989 and Rs. 50 lacs on 19th August, 1989. Under the terms of the agreement utilisation certificate with proof thereof was to be submitted by the seller to the pur chaser and only thereafter the second instalment was to be advanced. After submitting the utilisation certificate the seller obtained the second advance through bank guarantee No. 9/64 dated 20th November, 1989 for Rs. 178 lacs in two instalments of Rs. 50 lacs on 23rd November, 1989 and Rs. 128 lacs on 4th December, 1989. The utilisation certificate of this advance was also submitted by the seller to the purchaser whereafter third advance of Rs. 89 lacs was given through bank guarantee No. 9/70 dated 6th January, 1990. In addition to this a third guarantee known as delivery guarantee was also ob tained and the fourth guarantee known as performance guarantee was also obtained. Delivery guarantee No. 12/28, dated 13th November, 1990 was for Rs. 29 lacs and Performance guarantee No. 9/32, dated 26th November, 1990 was for Rs. 89 lacs. In addition to this a third guarantee known as delivery guarantee was also ob tained and the fourth guarantee known as performance guarantee was also obtained. Delivery guarantee No. 12/28, dated 13th November, 1990 was for Rs. 29 lacs and Performance guarantee No. 9/32, dated 26th November, 1990 was for Rs. 89 lacs. It was alleged that for various reasons the plant could not be completed in time for which the purchaser was at fault because there was delay in acquisition of land, etc. The seller supplied the machinery and as per agreement and Rs. 46 lacs of advance was adjusted. Subsequently under the policy of the State Government the modernisation plan was abandoned and the seller was informed to stop the work forthwith. Thereafter three ad vance guarantees and delivery guarantee were invoked. This was done during the pendency of petition under Section 20 of the Arbitration Act. The conten tion of the revisionist has been that there was no breack on the part of the seller and that the time was not the essence of the contract and that since the contract was abandoned by the purchaser there was fraud in invoking the bank guarantee which has caused irretrievable injustice to the seller. It was also the case of the seller that delivery guarantee could not be invoked be cause the agreement was abandoned by the purchaser. This was also one of the allegation of fraud. 3. The petition was contested in the court below. Initially prayer was made for maintaining status quo regarding supply of machineries and construc tion made at the site, which was granted ex parte by the court below vide its order dated 11th October, 1995. In the meantime since the bank guarantees numbering four were invoked, the revisionist again applied to the court below for restraint order restraining the purchaser from invoking the four guarantees. 4. Both the applications were contested by the opposite party on various grounds and ultimately the two applications were rejected by the lower court through the impugned order. It is, therefore, this revision. 5. I have heard learned Counsel for the revisionist Sri K. N. Tripathi, as sisted by Sri Pramod Kumar Jain and also the Additional Advocate General, Shri Rakesh Dwivedi and Sri R. D. Khare, representing the opposite-party. 6. It is, therefore, this revision. 5. I have heard learned Counsel for the revisionist Sri K. N. Tripathi, as sisted by Sri Pramod Kumar Jain and also the Additional Advocate General, Shri Rakesh Dwivedi and Sri R. D. Khare, representing the opposite-party. 6. In the opening argument, preliminary objection was raised by the learned Additional Advocate General that the revision is not maintainable in asmuch as the concerned Bank, namely, the Bank of India has not been made party to the revision. I feel this objection need not detain me long in-as-much as it has no legs to stand. Three cases were cited by the learned Additional Advocate General reported in A. I. R. 1982 Delhi 78, A. I. R. 1982 Delhi 357 and A. I. R. 1986 Orissa, 238. In my view the revision cannot be rejected having not maintainable in case the Bank of India was not made party for the following reasons : Firstly in the petition under Section 20 of the Arbitration Act, Bank of India was not a party, hence it could not be made party in this revision: Secondly when the relief of injunction is sought against certain persons or party only that party is necessary against whom the relief is sought and not any other party ; i Thirdly from the very nature of the arbitration proceeding and the ar bitration agreement, the petition under Section 20 could be moved against the opposite party and not against the Bank because the Bank is not party to the agreement nor any relief has been sought by the revisionist against the bank. The relief has been sought in the instant revision and in the petition against the opposite-party not to invoke and encash the bank guarantee. Consequently the revision is maintainable and this objection is overruled. 7. Coming to the question whether revisional jurisdiction is to be exer cised in the instant case or not, in my view an order under Section 41-B is a final order deciding the case between the parties regarding injunction applica tion finally and such application was moved in the proceeding for reference to Arbitrator, hence jurisdiction under Section 115 of the Code of Civil Proce dure can be exercised. After examining the impugned order I find that the im pugned order suffers from jurisdictional error inasmuch as proper jurisdiction was not exercised rather it is a case of failure to exercise jurisdiction vested in law. The court is said to have failed to exercise proper jurisdiction in case it passes an order without reference to entire material on the record and on surmises and conjectures drawing adverse inference which no reasonable man can draw in the circumstances of the case. The revisional interference as such is called for in the instant case. 8. Before coming to the factual controversy involved in this case, it is necessary to consider various cases cited by the learned Counsel for the par ties to see whether in a case like this injunction can be granted restraining the purchaser from invoking and encashing the bank guarantees. Several decisions of apex court were cited by the two sides and also the decisions reported and unreported of this court and of other High Courts. 9. Learned Additional Advocate General after referring to various decisions of the Supreme Court, which will be referred in the following por tion of this judgment, vehemently contended that the trend of judicial decisions of the apex court is not to interfere in such matter and not to grant injunction. I am afraid this contention can be wholly accepted. Even in those cases which were cited by the learned Additional Advocate General it was no where laid down that there is absolute prohibition in granting injunction. No statuts specifically prohibits grant of injunction in such cases. Trend of judicial decisions of various High Courts and Supreme Court has been that injunction in such cases can be granted provided strong prima facie case, balance of con venience, irreparable loss and injury is made out by the petitioner. Likewise it has been laid down in those decisions that a prima facie strong case of fraud in execution or invoking guarantee should be made out by the petitioner and he should further establish that in case injunction is refused irretrievable in justice will be caused to him and that special equities exist in his favour. In no case undue-enrichment by the other party cannot be permitted to be made by the courts. In no case undue-enrichment by the other party cannot be permitted to be made by the courts. The latest pronouncement of the Supreme Court is to be found in Larsen & Toubro Limited v. Maharashtra State Electricity Board & others, 1995 (III) Apex Decision S. C. (C) 706 : 1996 (1) JCLR 1 (SC ). In this case injunction was sought against Maharashtra State Electricity Board and the Bombay High Court rejected the injunction application citing various decisions of the Supreme Court. The contention in this case was that the bank guaran tees have been fraudulently and dishonestly invoked. This contention was not repelled by the Supreme Court. Part of the relief claimed was granted by the Supreme Court wherein it was held "that if in terms of the guarantee it could not be invoked, injunction can be granted, it was held at pages 712 and 713 that the bank guarantee of Rs. 2. 72 crores was not encashable on its terms and in order to prevent irretrievable injustice, an injunction prayed for to respondent Nos. 1 and 4 deserves to be issued on that score. The court below was in error in not doing so. We hereby restrain respondent Nos. 1 and 4 from invoking the bank guarantee aforesaid. " It is, therefore, clear from this decision that if there is prima facie case of fraud in invoking the bank guaran tee, in that case also injunction can be granted. Likewise if under the terms of the agreement it could not be invoked then also injunction can be granted. Various decisions of the Supreme Court were cited in this case in para graph 5 which are: "united Commercial Bank v. Bank of India and others, 1981 (2) SCC 766 ; U. P. Co-operative Federation Ltd. v. Singh Consultants and Engineers (P) Ltd. , 1988 (1) SCC 174 ; General Electric Technical Services Company Inc. v. Punj. Sons (P) Ltd. and Am:, 1991 (4) SCC 230 and the decision of the Court of Appeal in England in Elian and Rabbath v. Matsan and Mastas, 1966 (2) Lloyds Report 495 and a few American decisions, and of the Supreme Court in Svenska Handelsbanken v. M/s In dian Charge Chrome and others, 1994 (1) SCC 502 . v. Punj. Sons (P) Ltd. and Am:, 1991 (4) SCC 230 and the decision of the Court of Appeal in England in Elian and Rabbath v. Matsan and Mastas, 1966 (2) Lloyds Report 495 and a few American decisions, and of the Supreme Court in Svenska Handelsbanken v. M/s In dian Charge Chrome and others, 1994 (1) SCC 502 . The ratio in these cases has been that in case of confirmed bank guarantees/irrevocable letters of credit, it cannot be interferred with unless there is fraud and irretrievable injustice involved in the case and fraud has to be an established fraud. Further besides prima facie case of fraud, special equities in the form of preventing irretrievable injustice between the parties should also exist in favour of the petitioner. Mere irretrievable injustice without prima facie case of established fraud is of no consequence in restraining the encashment of bank guarantee. 10. Now coming to the cases cited by the parties the learned Additional Advocate General cited the case of State Trading Corporation of India Ltd. v. Jainsons Clothing Corporation, 1995 (1) Bank CLR 175. Even this case lays down that the High Court erred in issuing such injunction which could be is sued only in case of specific plea of fraud in execution of contract of guaran tee or irretrievable injustice likely to be suffered. The plea of fraud in execu tion of contract of guarantee was the consideration in this case which was expanded in the case of Larsen and Toubro Limited, (supra) JT 1995 (7) SC 18: 1996 (1) JCLR 1 (SC), where fraud in invocation of guarantee was also found to be a ground for granting injunction and further if in terms of the contract of guarantee, it could not be invoked in that case injunction could be granted. Consequently this case cited by the learned Additional Advocate General does not lay down absolute rule of law that in no case injunction can be granted, 11. The case of Larsen and Toubro Limited (supra) was also cited by the learned Additional Advocate General and in view of my discussion in respect of this pronouncement, it is of little help to the opposite party. 12. The case of Hindustan Steel Workers Construction Ltd. v. G. S. Atwal & Co. The case of Larsen and Toubro Limited (supra) was also cited by the learned Additional Advocate General and in view of my discussion in respect of this pronouncement, it is of little help to the opposite party. 12. The case of Hindustan Steel Workers Construction Ltd. v. G. S. Atwal & Co. (Engineers) Pvt. Ltd J. T. 1995 (7) SC 26 : 1996 (1) JCLR 6 (SC) also to my mind does not help the opposite-party. In this case the dispute was as to the performance of the contract pending in arbitration. The terms of bank guarantee were such that it were unconditional and the appellant of that case was the sole judge regarding the question as to whether any breach of con tract has occurred or not, it was on these facts held that injunction could not be granted. In the case before me there is no dispute regarding performance guarantee nor it has been involved nor is there any actual dispute regarding performance of the contract. Consequently this case is distinguishable. 13. My attention was also drawn to a decision of Honble Single Judge of this Court in M/s Sumac International Ltd. v. Kisan Sahkari Chini Mills Ltd. and another, 1991 SCD 959. In this case the observation was that the enforce ment of Bank guarantee cannot be restrained oijt the ground of dispute to liability pending in the arbitration proceedings. It,\was further laid down that injunction, however, can be granted on the ground that the agreement of guarantee had been obtained by fraud or on the ground of presence of any special feature requiring intervention of the court. Thus this case also does not lay down absolute prohibition in granting injunction. In cases of fraud in junction can be granted. 14. Delhi High Court in the case of M/s V. K. Constructions Works Ltd. v. The Bank of Rajasthan Ltd, and another, 1992 (2) All India Banking Law Judgments 416 granted injunction restraining encashment of performance guarantee observing that encashment of mobilisation guarantee not in terms of bank guarantee can be restrained. 15. Two Division Bench decisions of this Court also support me in the view that where there is allegation of fraud irretrievable injustice, special equities etc. invocation of bank guarantee can be restrained. Unreported decision in M/s Triveni Structural Ltd. v. M/s Garhwal Mandal Vikas Nigam, Ltd. and others, Civil Misc. 15. Two Division Bench decisions of this Court also support me in the view that where there is allegation of fraud irretrievable injustice, special equities etc. invocation of bank guarantee can be restrained. Unreported decision in M/s Triveni Structural Ltd. v. M/s Garhwal Mandal Vikas Nigam, Ltd. and others, Civil Misc. Writ Petition No. 29263 of 1995, decided on 17th October, 1995 and M/s Sugar and Power Engineers and another v. M/s Richardson and Cruddes (1972 Ltd.) and another First Appeal from Order No. 179 of 1991 decided by Lucknow Bench of this Court on 4th October, 1994 can be referred. 16. Thus from the above analysis of various decision of the Apex Court, this Court and other High Courts, it follows that where there is prima facie case of fraud either in execution or in invocation of bank guarantee and there is element of irretrievable injustice to the party seeking injunction it can be granted. Likewise if under the terms of guarantee it cannot be invoked then also injunction can be granted. Special equities must also exist in favour of the petitioner/claimant. Besides this other usual ingredients, namely, prima facie case, balance of convenience and irreparable loss and injury for grant of injunction should also be made out by the claimant. 17. With the above legal position in mind, it is now proposed to discuss the factual aspect of the case. 18. On the point of prima facie fraud, the learned Additional Advocate General contended that it should be fraud of egregious nature. Ritual allega tion of fraud will not be sufficient to grant injunction. He further contended that the fraud should be in relation to the execution of guarantee and not to the execution of the agreement nor to the performance of the contract. As discussed above, fraud in execution of contract of guarantee as well as in its invocation in view of the Supreme Court decisions can be a ground for grant ing injunction. It is not only ritual allegation that has been made by the revisionist. On the other hand documents on records speak loudly that it was a real case of fraud of egregious nature in invoking the guarantee and also in execution and renewal of bank guarantees subsequently. 19. As indicated earlier five guarantees were executed by the revisionist. The first three guarantees were known as advance guarantees for Rs. 89 lacs, Rs. On the other hand documents on records speak loudly that it was a real case of fraud of egregious nature in invoking the guarantee and also in execution and renewal of bank guarantees subsequently. 19. As indicated earlier five guarantees were executed by the revisionist. The first three guarantees were known as advance guarantees for Rs. 89 lacs, Rs. 178 lacs and Rs. 89 lacs. The third guarantee known as delivery guarantee was for Rs. 89 lacs and the fourth guarantee was performance guarantee of Rs. 89 lacs. The preferance guarantee No. 9/32, dated 26th November, 1990 has not been invoked, hence it is not a subject-matter of dispute in this revision. 20. Delivery guarantee No. 12/28 dated 13th November, 1980 has been in voked for Rs. 89 lacs. In my view there is patent and establised fraud in in voking this guarantee for the following reasons. The paperbook will be referred for short as P. B. In the subsequent portions of this judgment P. B. page 151 clearly spells put a case that only advance guarantees were invoked in terms of clauses 16. 1 and 16. 2 of the agreement dated 2nd August, 1989. The total amount mentioned in this letter speaks that only advance guarantees were invoked whereas the letters of invocation of bank guarantees show that besides three advance guarantees, the delivery guarantee was also invoked. Paper No. 151 of P. B. indicates that bank guarantees were to be invoked be cause the modernisation plan was abandoned under the directions of the State Government. If this was so then the seller had no option but to stop further work and he could not give the complete delivery of the plant, design and machinery. The delivery guarantee in these circumstances on this term could not be invoked. Page No. 244 of P. B. shows that delivery guarantee was in voked. Paper No. 240 of P. B. is the letter of invocation of October 19, 1995. On the terms of this guarantee because the contract was abandoned by the purchaser, the delivery guarantee could not be invoked. Further it was not en forced when the petition under Section 20 of the Arbitration Act was filed. It is during the pendency of the petition that this invocation of delivery guaran tee was made. In paper No. 151 the total demand from the seller has been to the tune of Rs. Further it was not en forced when the petition under Section 20 of the Arbitration Act was filed. It is during the pendency of the petition that this invocation of delivery guaran tee was made. In paper No. 151 the total demand from the seller has been to the tune of Rs. 3,14,78,093 after giving adjustment of Rs. 42 lacs or so to the seller. The papers on record loudly speak that neither the time was the es sence of the contract nor there was real break on the part of the seller. It is only because of abandonment of the agreement by the purchaser that this situation has arisen. In these circumstances there is prima facie fraud of egregious nature in invoking the delivery guarantee and restraint order against this invocation and encashment to my mind is justified in view of the aforesaid decisions. 21. Coming to the three advance guarantees, again I find from the docu ments on the record that the revisionist has made out a prima facie case of fraud of strong nature in obtaining these guarantees and also in invoking those guarantees. 22. The learned Additional Advocate General contended that since the time was the essence of the contract and the plant was not completed within the time fixed and since it could not be commissioned within the stipulated time, there was prima facie evidence of breach of contract on the part of the seller and as such the seller is not entitled to any restraint order. In the first place I do not find any substance in this contention. Whether time is the es sence of the contract or not is not to be decided on mere recital of this fact at pages 48 and 49 P. B. On the other hand the entire material has to be seen as to what was the intention of the parties. The learned Additional Advocate General has argued that the production should be started with effect from 30th November, 1990 and since the plant could not be commissioned due to the fault of the seller there was patent breach of contract. My attention was also drawn by him to several annexures filed with the supplementary counter-affidavit and it was contended that repeated letters were sent to the seller to complete. The plant but of no effect. I have gone through all these annexures. My attention was also drawn by him to several annexures filed with the supplementary counter-affidavit and it was contended that repeated letters were sent to the seller to complete. The plant but of no effect. I have gone through all these annexures. These annexures do not make out a case that time was the essence of the contract. These letters range between 8th June, 1990 to April 19, 1991. The subsequent conduct of the purchaser has also to taken into consideration. There has been request from the side of the seller to grant extension and also the correspondences from the side of the purchaser granting extension. For this there are several papers in the paper-book which indicate that the exten sion of time was granted. Page 28 of paper-book shows that extension upto October, 1992 was prayed for and it was recommended in the minutes of the meeting of a committee. Page 132 of P. B. in so far as it is material is quoted below. This is a letter from Managing Director of U. P. State Sugar Corpora tion dated 11th July, 1995" in case you still feel interested to complete the project, it will be our pleasure to attend to your any queries in this regard provided, we are enlightened as to a definite time frame in which the project will be implemented, as per your plan. 23. This letter clearly shows that in July, 1995 also the purchaser was ready to grant extension. Consequently there is no force in the technical ob jection that without a written letter extension could not be granted in terms of para 11. 1 page 65 of P. B. For all purposes this letter will be deemed to be a letter in writting from the purchaser offering extension. Besides this com pelling the seller to renew the advance guarantees and other guarantees is also an action indicative that time was not the essence of the contract. Moreover at no point of time during subsistence of agreement it was ter minated because of breach of terms by the seller. On the other hand paper No. 151 of P. B. is nothing but a notice under clauses 16. 1. and 16. 2 of the agreement. It clearly speaks that because the State Government has decided to close the modernisation project that the seller should stop the work forthwith. On the other hand paper No. 151 of P. B. is nothing but a notice under clauses 16. 1. and 16. 2 of the agreement. It clearly speaks that because the State Government has decided to close the modernisation project that the seller should stop the work forthwith. In this letter not even a remote allegation of breach of contract was made. Consequently the purchaser cannot be permitted to travel beyond what is writ ten in paper No. 151 of P. B. This is, therefore, not a case of breach of con tract or obligation, under the agreement by the seller. 24. The next question is that if the agreement was unilaterally abandoned under the instruction of the State Government, through letter dated 6th Sep tember, 1995, as indicated to the seller in the letter dated 7th September, 1995, paper No. 151 of P. B. whether the advance guarantees could be invoked or not in the terms of the agreement. In this case the seller after receiving the letter dated 7th September, 1995 sent a reply letter requesting that he should be permitted to complete the project. In the contract has been unilaterally abandoned with immediate effect what is the remedy of the seller is to be gathered from the agreement. Clause 16. 1 of the agreement, paper No. 78 provides that if at any time after signing this agreement the purchaser shall in order to comply with any directives of the Government of U. P. not require the whole or any part of the supply, the purchaser shall give notice in writing of the fact to the seller. The consequences of such notice are given in this clause. Clause 16. 2 is important. It runs as under: "in the event of the closing up to the work as above, the seller undertake to refund within 120 days thereafter all out standing unutilised and unadjusted amount of the advance payment, if any, with interest at the lending rate of bank then prevailing. " It is thus clear that within a period of 120 days of abandonment of contract or closing up of the work, the seller is to refund the out standing, unutilised and unadjusted amount. As indicated above, the letter dated 17th September, 1995 shows that the work was closed from the date of this notice, that is, 7th September, 1995 whereas the letter of invocations paper Nos. As indicated above, the letter dated 17th September, 1995 shows that the work was closed from the date of this notice, that is, 7th September, 1995 whereas the letter of invocations paper Nos. 237 to 240 show that the guarantees were invoked on 26th October, 1995. This was not after 120 days of revocation or closing up of the work stipulation of 120 days means that the seller can pay upto 120 days of the receipt of the notice. That period had not expired and since the guarantees were invoked during this period on the term of clause 16. 2 of the agreement, there is a prima facie case of fraud in invoking the advance guarantees before time. As per contents of para 16. 2. These guarantees could not be invoked on 26th October, 1995. This is certainly a ground for issuing restraint order. 25. It has been contended that even under the agreement the guarantees could be invoked because proper utilisation certificate was not filed and refund of unutilised and unadjusted amount was not mode by the seller. In my opinion, this contention also cannot be accepted. The mode of advance payment is contained in the agreement, clauses 13 and 13. 1. In short the provision in these clauses is that the first advance of 89 lacs was to be paid on obtaining bank guarantee. The second advance of Rs. 178 lacs could be given only when utilisation certificate as contemplated in the agreement signed by the Chief Executive of the seller and documentary proof to the satisfaction of the purchaser was filed. The utilisation certificate should have been for purchase of the machinery and equipments. Likewise after furnishing the utilisation certificate of the second advance, the third advance was released. It is not in dispute that the utilisation certificates along with papers were not filed by the seller. A lame stand has been taken that the utilisation certificates were not to the satisfaction of the purchaser, but no body is going to believe that all the three instalments were paid without satisfying that the amount was utilised for the purchase of machinery, etc. or not. Even in paper No. 151 in dication is that some adjustment was given by the purchaser to the seller. Paper No. 237 shows that adjustment of Rs. or not. Even in paper No. 151 in dication is that some adjustment was given by the purchaser to the seller. Paper No. 237 shows that adjustment of Rs. 42 lacs was made in respect of supply of machinery as adjustment towards advance and delivery of machinery, etc. The documents on record show that there is admission by the opposite party that utilisation certificate was filed. If the purchaser was not satisfied with the utilisation certificate subsequent instalment should not have been released and if those instalments of heavy amount were easily released there must have been some loophole some where and if it was not pluged by the purchaser, the blame cannot be shifted to the seller. The payments of all the three instalments of advance will indicate that there was prima facie satisfac tion of the purchaser that the amount was utilised. Not only this enquiries were made and Committees were set up to look into the matter and the reports of the Committees on record indicates that advances were made by the seller to various concerns for obtaining machinery, etc. and electrical equipments. It is also indicated from these papers that some of the suppliers refused to supply the machinery in spite of the advance given by the seller because of escalation of price. It is also mentioned in the reports of the Com mittee page 140 of P. B. That the machinery worth Rs. 2 crores was ready for despatch. Paper No. 274 is the letter of G. E. C. Company. Paper No. 273 shows the payment of Rs. 159- 86 cash. Paper Nos. 262 and 263 show the pay ment of Rs. 25 lacs to Texmaco Ltd. Paper Nos. 248, 254, 259, 260 and 261 can likewise be referred for showing that attempt was made by the purchaser to verify the utilisation of the amount and that attempt partly succeeded. Some or the suppliers were not ready to supply because of escalation of price in spite of advance given to them by the seller. There is also allegation that machineries were supplied subsequently but the same were refused, to be ac cepted by the purchaser. It is also relevant to mention that utilisation certifi cates were never rejected earlier before invocation. Payment were made and advances were given by the seller only for the purchase of machinery, etc. There is also allegation that machineries were supplied subsequently but the same were refused, to be ac cepted by the purchaser. It is also relevant to mention that utilisation certifi cates were never rejected earlier before invocation. Payment were made and advances were given by the seller only for the purchase of machinery, etc. Consequently there is no force in the contention that the advance was not utilised exclusively for purchase of machinery, etc. If part payment was made by the seller to various concerns, even then its utilisation was to be con sidered. Utilisation of advance has not been considered by the purchaser. On the other hand a sum of Rs. 42 lacs has been adjusted towards part of the price of the machinery actually supplied by the seller. Even this adjustment is not free from doubt. The seller alleges that advance of Rs. 46 lacs was granted. In any case presuming that the advance of Rs. 42 lacs was granted, when the contract was abandoned, the entire price of machinery supplied should have been taken into account. The total of three advance guarantees was 3 crores 56 lacs. After deducting Rs. 42 lacs towards adjustment, a sum of Rs. 3 crores, 14 lacs only could be claimed, but in the letter paper No. 151 the demand of Rs. 3,14,780. 937- was made which is also indicative of fraud on the seller. There is no explanation how Rs. 78093/- more were demanded from the seller. 26. The element of fraud is further high lighted from the conduct of the purchaser. At one point of time the guarantees were invoked earlier on 12th April, 1991 (paper No. 137 ). Subsequently those invocations were withdrawn on 6th January, 1992 (paper No. 212 ). This also suggests that time was not the essence of the contract and fraud was played upon the seller in getting now guarantees executed on 6th January, 1992. There was thus element of fraud in invocation of the subsequent guarantees and also in their execution. If time upto October, 1992 was extended why was there silence for three years has not been explained. The contract should have been terminated if there was breach of contract on the part of the seller. No action for termina tion of contract on grounds of breach on the part of the seller was ever taken. If time upto October, 1992 was extended why was there silence for three years has not been explained. The contract should have been terminated if there was breach of contract on the part of the seller. No action for termina tion of contract on grounds of breach on the part of the seller was ever taken. Whatever action was taken, it was under the instructions of the State Government to abandone the plan. The insistance of the purchaser on the seller to execute and renew the existing guarantees also is indicative of fraud because if breach was already committed, the contract should have been ter minated. The learned Additional Advocate General illustrated an example that if restrain order would have been passed by some court, the contract could not have been terminated, but this analogy or illustration does not apply be cause in this case there was no injunction from any court at any time. The fact that verification of utilisation was made and extension of time was recom mended by various Committees also suggests that the seller was kept in dark and he was under the hope that he will complete the project within the ex tended time. If without rejecting the utilisation certificate, advances were made and guarantees were obtained and were not renewed from time to time, it also suggests fraud on the part of the purchaser. The breach of contract by the seller was not mentioned in the terms of reference from the purchaser vide paper No. 287 dated 31st October, 1995. The element of fraud is further indicated from the stand of the purchaser that 20 per cent adjustment towards actual supply of machinery has been made. At one place it was argued that the supply of Rs. 232 lacs was made by the purchaser to the seller and then this amount was reduced to Rs. 210 lacs. In either case the amount of adjust ment should have been either 46 lacs and odd or 42 lacs. Neither of these two amounts can fit in the actual demand made in paper No. 151. 27. 232 lacs was made by the purchaser to the seller and then this amount was reduced to Rs. 210 lacs. In either case the amount of adjust ment should have been either 46 lacs and odd or 42 lacs. Neither of these two amounts can fit in the actual demand made in paper No. 151. 27. Thus from what has been discussed above, it follows that there is prima facie evidence of fraud of egregious nature on the part of the purchaser in execution and renewal of bank guarantees and also invocation of three ad vance guarantees and demanding payment without completion of 120 days as stipulated in the agreement. By this fraud the beneficiary, namely, the pur chaser is going to gain advantage. Thus the first ingredient, namely, prima facie case and prima facie fraud of egregious nature in invocation of bank guarantee is established. 28. Irretrievable injustice will be done to the revisionist, if injunction is refused. I do not find force in the contention and suggestion of the learned Additional Advocate General, that the opposite-party may be permitted to en cash the bank guarantees and if the court comes to the conclusion or the Ar bitrator concludes that something to be given to the seller, the same shall be refunded immediately. It is not a case of few lacs of rupees. The claim of the revisionist is for a sum of Rs. 12. 83 crore. As discussed above all the pay ments or advances have not been considered, so also the adjustment. It is for the Arbitrator to decide what is the amount due from the parties as claimed by each other. By seeking restrain order the loss would be caused to the seller inasmuch as he has to pay interest to the opposite-party in case the revisionist fails and also to pay interest in keeping the bank guarantees alive and to pay interest to the bank. This is special equity in this case in favour of the revisionist. Irreparable loss and injury would be caused to the revisionist in case the injunction is refused. 29. The balance of convenience for granting injunction lies in favour of the revisionist. The revisionist is already incurring expenditure in getting the bank guarantee alive through continuous renewal. The opposite-party is not going to suffer irreparably from such injunction. 30. Irreparable loss and injury would be caused to the revisionist in case the injunction is refused. 29. The balance of convenience for granting injunction lies in favour of the revisionist. The revisionist is already incurring expenditure in getting the bank guarantee alive through continuous renewal. The opposite-party is not going to suffer irreparably from such injunction. 30. From the above discussion I find that this is a fit case where invoca tion and encashment of three advance guarantees and delivery guarantee should be restrained. 31. The restrain order was also obtained by the revisionist from the lower court for maintaining status qua regarding supply and erections made by the seller to the purchaser at the spot. Paper No. 156 of P. B. is the order of lower court regarding maintaining statuts qua. Since the parties have agreed to refer their dispute to the Arbitrator and the only dispute is regarding the name of the Arbitrator, to be appointed by the parties, it is just and ex pedient to order status qua to be maintained regarding supply of machinery by the seller to the purchaser lying on the spot and also regarding erections made by the seller on the spot. The Arbitrator may like to see these things on the spot when the reference is made to him. 32. For the reasons given above, I am of the view that the court below as in error in rejecting the injunction application. The adverse inferences drawn by the lower appellate court were based on surmises and conjectures and against the evidence on the record. The revision, therefore, succeeds. 33. The revision is hereby allowed. The order under revision is set aside. The injunction applications 6-C and 25-C are allowed with the direction that the opposite party is restrained from invoking and encashing the three ad vance guarantees No. 9/47 dated 10th August, 1989, 9/64 dated 20th Novem ber, 1989, 9/70 dated 6th January, 1990 and delivery guarantee No. 12/28 dated 13th November, 1990, during the pendency of the arbitration proceed ings. Likewise the parties shall maintain status qua during the pendency of the arbitration proceedings in respect of supply of machineries made by the seller to the purchaser and structural erections, etc. made by the seller at the spot. Revision allowed. .