JUDGMENT 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 application moved under Section 41-B of the Arbitration Act. 2. The brief facts are that an application under Section 20 of the Arbitration 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 agreement 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 = 1,780 lacs. According to the terms of the agreement the purchaser was to advance the amount. As per agreement three installments 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 Rs. 89 lacs was given in two installments, 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 purchaser and only thereafter the second installment 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 installments 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 obtained 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 obtained 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 advance guarantee and delivery guarantee were invoked. This was done during the pendency of petition under Section 20 of the Arbitration Act. The contention of the revisionist has been that there was no breach 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 was caused irretrievable injustice to the seller. It was also the case of the seller that delivery guarantee could not be invoked because the agreement was abandoned by the purchaser. This was also one of the allegations of fraud. 3. The petition was contested in the court below. Initially prayer was made for maintaining status-quo regarding supply of machineries and construction 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. 5.1. I have heard learned Counsel for the revisionist Mr. K. N. Tripathi, assisted by Sri Pramod Kumar Jain, and also the Additional Advocate General, Mr. Rakesh Dwivedi and Mr. R. D. Khare, representing the opposite party. 6. It is, therefore, this revision. 5.1. I have heard learned Counsel for the revisionist Mr. K. N. Tripathi, assisted by Sri Pramod Kumar Jain, and also the Additional Advocate General, Mr. Rakesh Dwivedi and Mr. 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 inasmuch 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 inasmuch as it has no legs to stand. Three cases were cited by the learned Additional Advocate General reported in AIR 1982 Delhi, 78, AIR 1982 Delhi 357 and AIR 1986 Orissa, 238. In my view the revision cannot be rejected having not maintainable in the 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 is 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; Thirdly, from the very nature of the arbitration proceeding and the arbitration 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 over ruled. 7. Coming to the question whether revisional jurisdiction is to be exercised 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 application finally and such application was moved in the proceeding for reference to Arbitrator, hence jurisdiction under Section 115 of the Code Civil Procedure can be exercised. After exercising the impugned order I find that the impugned 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. After exercising the impugned order I find that the impugned 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 parties 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 portion 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 nowhere laid down that there is absolute prohibition in granting a injunction. No statute 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 convenience, 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 made out by the petitioner and he should further establish that in case injunction is refused irretrievable injustice 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 and others (1995 III AD 706 (SC) = 1995 (1) Arb. LR 482). 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 guarantees 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 respondents No. 1 and 4 deserves to be issued on that score. The court below was in error in not doing so. We hereby restrain respondents No. 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 guarantee, 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. 10. Various decisions of the Supreme Court were cited in this case in paragraph 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 & Engineers (P) Ltd. ( 1988 (1) SCC 174 ). General Electric Technical Services Company Inc. v. Punj Sons (P) Ltd. and another ( 1991 (4) SCC 230 = 1991 (2) Arb. LR 173), and the decision of the court of Appeal in England in Elian and Rabbath v. Matsas & Matsas (1966 (2) Lloyed's Report 495), and a few American decisions, and of the Supreme Court in Svastika Handelsbanken v. M/s. Indian Charge Chrome and others ( 1994 (1) SCC 502 ). LR 173), and the decision of the court of Appeal in England in Elian and Rabbath v. Matsas & Matsas (1966 (2) Lloyed's Report 495), and a few American decisions, and of the Supreme Court in Svastika Handelsbanken v. M/s. Indian 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 interfered 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. 11. 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 and another (1995 (1) Bank C.I.R. 175). Even this case lays down that the High Court erred in issuing such injunction which could be issued only in case of specific plea of fraud in execution of contract of guarantee or irretrievable in justice likely to be suffered. The plea of fraud in execution of contract of guarantee was the consideration in this case which was expanded in the case of Larson & Toubro Limited (supra) 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. 12. The case of Larsen & 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. The case of Hindustan Steel Workers Construction Ltd. v. G. S. Atwal & Co. (Engineers) Put. Ltd. (JT 1995 (7) SC 26), 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 case of Hindustan Steel Workers Construction Ltd. v. G. S. Atwal & Co. (Engineers) Put. Ltd. (JT 1995 (7) SC 26), 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 un-conditional and the appellant of the case was the sole Judge regarding the question as to whether any breach of contract 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. My attention was also drawn to a decision of Hon'ble 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 enforcement of Bank guarantee cannot be restrained on 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, injunction can be granted. 13. 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 = 48 (1992) DLT 468 = 1992 (1) Arb. LR 76), granted injunction restraining encashment of performance guarantee observing that encashment of mobilisation guarantee not in terms of bank guarantee can be restrained. The 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. The 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 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. 14. Thus, from the above analysis of various decisions 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 be made out by the claimant. 15. With the above legal position in mind, it is now proposed to discuss the factual aspect of the case. On the point of prima facie fraud, the learned Additional. Advocate General contended that it would be fraud of egregious nature. Ritual allegation 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 granting 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 guarantee subsequently. 16. 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. 16. 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 performance guarantee No. 9/32 dated 26th November, 1990 has not been invoked, hence it is not a subject matter of dispute in this revision. 17. Delivery Guarantee No. 12/28 dated 13th November, 1980 has been invoked for Rs. 89 lacs. In my view there is patent and established fraud in invoking this guarantee for the following reasons. The paper book will be referred for short as P.B. In the subsequent portions of this judgment P.B. page 151 clearly spells out 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. indicated that Bank guarantees were to be invoked because 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 invoked. 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 enforced 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 guarantee was made. In paper No. 151 the total demand from the seller has been to the tune of Rs. 3,14,178,093/- after giving adjustment of Rs. 42 lacs or so to the seller. The papers on record loudly speak that neither the time was the essence of the contract nor there was real breach on the part of the seller. In paper No. 151 the total demand from the seller has been to the tune of Rs. 3,14,178,093/- after giving adjustment of Rs. 42 lacs or so to the seller. The papers on record loudly speak that neither the time was the essence of the contract nor there was real breach 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. 18. Coming to the three advance guarantees, again I find from the documents 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. 19. 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 essence of the contract or not is not to be decided on more recital of this fact at pages 48 and 49 of P.B. On the other hand the entire material has to 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 out 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 letter range between 8th June, 1990 to April 19, 1991. The subsequent conduct of the purchaser has also to taken into consideration. I have gone through all these annexures. These annexures do not make out a case that time was the essence of the contract. These letter 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 extension 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 materials is quoted below. This is a letter from Managing Director of U.P. State Sugar Corporation 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 our plan." 20. This letter clearly shown that in July, 1995 also the purchaser was ready to grant extension. Consequently, there is no force in the technical objection 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 writing from the purchaser offering extension. Besides this compelling 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 terminated 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. 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 written in paper No. 151 of P.B. This is, therefore, not a case of breach of contract or obligation, under the agreement by the seller. 21. 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 written in paper No. 151 of P.B. This is, therefore, not a case of breach of contract or obligation, under the agreement by the seller. 21. The next question is that if the agreement was unilaterally abandoned under the instruction of the State Government, through letter dated 6th September, 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. If 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 directive 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 under take to refund within 120 days thereafter all outsiding un-utilised and un-adjusted amount of the advance payment, if any, with interest at the 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 outstanding, un-utilised and un-adjusted 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. 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 or 120 days means that the seller can pay upto 120 days of the receipt of the notice. 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 or 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 guarantee 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. 22. It has been contended that even under the agreement the guarantees could be invoked because proper utilisation certificate was not filed and refund of un-utilised and non-adjusted amount was not made 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 first advance of Rs. 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 alongwith 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 nobody is going to believe that all the three installments were paid without satisfying that the amount was utilised for the purchase, of machinery etc. or not. Even in Paper No. 151 indication is that some adjustment was given by the purchaser to the seller. Paper No. 237 shows that adjustment of Rs. 42 lacs were 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. Paper No. 237 shows that adjustment of Rs. 42 lacs were 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 installment should not have been released and if those installments of heavy amount were easily released there must have been some loop-hole some where and if it was not plugged by the purchaser, the blame cannot be shifted to the seller. The payments of all the three installments of advance will indicate that there was prima facie satisfaction 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 inspite of the advance given by the seller because of association of price. It is also mentioned in the reports of the Committee 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 payment 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 of the suppliers were not ready to supply because of escalation of price inspite of advance given to them by the seller. There is also allegation that machineries were supplied subsequently but the same were refused, to be accepted by the purchaser. It is also relevant to mention that utilisation certificates were never rejected earlier before invocation. Payments 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 considered. Payments 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 considered. 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 guarantee 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. 3,14,78,093/- was made which is also indicative of fraud on the seller. There is no explanations how Rs. 78,093/- more were demanded from the seller. 23. The element of fraud is further highlighted 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 sellers 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 termination 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 abandon the plan. The insistence 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 terminated. Whatever action was taken, it was under the instructions of the State Government to abandon the plan. The insistence 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 terminated. 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 because 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 recommend by various Committee also suggests that the seller was kept in dark and he was under the hope that he will complete the project within the extended 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 argue that the supply of Rs. 232 lacs was made by the purchaser to the seller and then this amount was reduced to Rs. 210 lac. In either case the amount of adjustment should have been either 46 lacs and odd or 42 lacs. Neither of these two amounts own fit in the actual demand made in Paper No. 151. 24. 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 advance guarantee and demanding payment without completion of 120 days is stipulated in the agreement. By this fraud the beneficiary, namely, the purchaser is going to gain advantage. Thus, the first ingredient, namely, prima facie case and prima facie fraud of egregious nature in invocation Bank guarantee is established. 25. Irretrievable injustice will be done to the revisionist, if injunction is refused. By this fraud the beneficiary, namely, the purchaser is going to gain advantage. Thus, the first ingredient, namely, prima facie case and prima facie fraud of egregious nature in invocation Bank guarantee is established. 25. 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 encash the Bank guarantees and if the Court comes to the conclusion or the Arbitration 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 crores. As discussed above all the payments or advance 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 failed and also to pay interest in keeping the Bank guarantee 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. 26. 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 apposite party is not going to suffer irreparable from such injunction. 27. From the above discussion I find that this is a fit case where invocation and encashment of three advance guarantees and delivery guarantee should be restrained. The restrain order was also obtained by the revisionists from the lower court for maintaining status-quo 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 status-quo. The restrain order was also obtained by the revisionists from the lower court for maintaining status-quo 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 status-quo. 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 expedient to order status-quo 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. 28. For the reasons given above, I am of the view that the Court below as in error in rejecting the injunction application. The adverse inference drawn by the lower Appellate Court were based on surmises and conjectures and against the evidence on the record. The revision, therefore, succeeds. 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 advance guarantees No. 9/47 dated 10th August, 1989, 9/64 dated 20th November, 1989, 9/70 dated 6th January, 1990 and Delivery Guarantee No. 12/28 dated 13th November, 1990 during the pendency of the arbitration proceedings. Likewise the parties shall maintain status-quo 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.