ORDER S. C. Pandey, J. 1. This revision is directed against the order dated 20.9.96 passed by the District Judge, Jabalpur in M. J. C. No. 126/96, whereby the learned District Judge has rejected the application filed by the applicant under Section 41 of the Arbitration Act, 1940 read with IInd Schedule thereof. 2. The applicant filed an application seeking injunction restraining the non-applicant No. 1 i. e. Madhya Pradesh Electricity Board, Rampur, Jabalpur from encashing the bank guarantee given by the non-applicant No. 2 for the amount of Rs. 20,08,158/- (Rupees Twenty Lakhs Eight Thousand One Hundred and Fifty Eight). The applicant entered into a contract with non-applicant No. 1 for erection of 400 K. V. Double Circuit Transmission Line Itarsi / Bhopal Vide order dated 30.6.89. As per order under the contract, the applicant furnished a bank guarantee on 10.9.91. This bank guarantee was furnished for the purpose of securing payment of 10% retention money. Subsequently, this bank guarantee was modified on 28.10.91 as per demend made by the non-applicant No. 1. It appears that there was an amendment in aforesaid bank guarantee No. L & T 91/23 dated 28.10.91. The amendment was made on 31.10.91 and the value of bank guarantee was enhanced from Rs. 19, 46, 220/- (Rupees Nineteen Lakhs Forty Six Thousand Two Hundred and Twenty) to Rs. 20,08,158/- (Rupees Twenty Lakhs Eight Thousand One Hundred and Fifty Eight) on the same terms, It is not disputed by the parties that the applicant has completed its work on 18.6.91 and non-applicant No. 1 was handed over possession of the transmission lines fully commissioned on 26.6.91. It is also not disputed that the concerned Supreintending Engineer of the non-applicant No. 1 had certified by a certificate dated 4.5.96 that the applicant has completed erection work as per contract and transmission lines were complete in all respects and they were working satisfactorily. According to the applicant, the bank guarantee was issued by the non-applicant No. 2 at the instance of the applicant for the purpose of securing payment of 10% retention money. It is alleged by the applicant that the said amount of 10% was duly deducted by the non-applicant No. 1 from the running bills of the applicant. Therefore, the applicant requested the non-applicant No. 1 to refund the amount so deducted after completion of the work in view of the bank guarantee. It is alleged by the applicant that the said amount of 10% was duly deducted by the non-applicant No. 1 from the running bills of the applicant. Therefore, the applicant requested the non-applicant No. 1 to refund the amount so deducted after completion of the work in view of the bank guarantee. Instead of refunding the amount, the non-applicant No. 1 was trying to encash the bank guarantee also. The applicant, therefore, was compelled to file Civil Suit No. 1082/93 against the non-applicant in the High Court of Bombay in original civil jurisdiction and the applicant was granted exparte stay in the year 1993. Subsequently, the non-applicant No. 1 appeared before the High Court of Bombay and raised a preliminary objection to the effect that the dispute between the parties cannot be decided by the High Court of Bombay as the jurisdiction to try all the disputes in respect of the contract could only be decided at Jabalpur. The High Court of Bombay by its order dated 20.8.96 directed that it has no territorial jurisdiction to decide the suit and, therefore, the plaint be returned for presentation to the proper Court. The High Court of Bombay however, continued the operation of stay granted by it for four weeks in order to enable the applicant to file the civil suit. 3. The applicant, instead of filing the civil suit at Jabalpur in a Court of competent jurisdiction, filed an application under Section 41 of the Arbitration Act, 1940 read with its IInd Schedule. As already stated, the application has been rejected by the learned District Judge by the impugned order. 4. Learned counsel for the applicant was specifically asked by this Court during the course of the arguments why did he not prefer civil suit as directed by the High Court of Bombay in its order dated 28.8.96. Learned counsel for the applicant stated that in his opinion no suit would lie for the reason, the matter is already pending for arbitration. According to the learned counsel for the applicant, the correct remedy was to file an application under Section 41 of the Arbitration Act, 1940 read with the IInd Schedule. Learned counsel for the applicant has also produced before this Court the plaint filed before the High Court of Bombay. According to the learned counsel for the applicant, the correct remedy was to file an application under Section 41 of the Arbitration Act, 1940 read with the IInd Schedule. Learned counsel for the applicant has also produced before this Court the plaint filed before the High Court of Bombay. In paragraph 8 of the plaint, the applicant has stated frankly that the arbitration proceedings had already commenced when the plaint was filed. It is, therefore, inferred that the applicant did not suppress the fact before the High Court of Bombay that the arbitration proceedings had already commenced. It may be another matter that the counsel for the applicant at Jabalpur may disagree with the counsel for the applicant at Bombay but this fact by itself would not come in the way of applicant in prosecuting the application for injunction under Section 41 of the Arbitration Act, 1940 read with its IInd Schedule. It cannot be said that applicant has not come with clean hands before this Court. For this reason the application for temporary injunction filed by the applicant is not liable to be dismissed. Therefore, this Court proceeds to decide the case of the applicant on merits. 5. Learned counsel for the applicant contends that the applicant is entitled to an injunction against the non-applicant No. 1 restraining it from claiming any amount whatsoever under the said bank guarantee. It is contended that the 10% of retention money has already been withheld by the non applicant No. 1, therefore, it cannot encash bank guarantee also. According to the learned counsel for the applicant, the non-applicant No. 1 is paying fraud upon the applicant by trying to encash the bank guarantee while refusing to refund the retention money equivalent to the bank guarantee. According to the learned counsel for the applicant, the non-applicant No. 1 cannot have it both ways. It cannot benefit itself doubly. 6. Learned counsel for the non-applicant No. 1, on the other hand contends that the applicant received payment in excess and for that a claim has already been pending in the arbitration proceedings. Learned counsel for the non-applicant No. 1 also argued that the non-applicant No. 2 was not a party to the original contract between applicant and non-applicant No. 1. It has nothing to do that the terms of contract between the applicant and non-applicant No. 1. Learned counsel for the non-applicant No. 1 also argued that the non-applicant No. 2 was not a party to the original contract between applicant and non-applicant No. 1. It has nothing to do that the terms of contract between the applicant and non-applicant No. 1. As per terms of the bank guarantee, the non-applicant No. 1 was the sole Judge to decide whether there was a breach of contract and non-applicant No. 2 could not question the merits of the duspute between two parties. The non-applicant No. 2 was legally obliged to make payment to the beneficiary of the bank guarantee. 7. Having heard the learned counsel for the parties, this Court is of the view that the bank guarantee is an independent of the original contract entered into by the applicant and the non-applicant No. 1. The bank guarantee was in the nature of a surety agreement of which the non-applicant No. 1 was a beneficiary. There is nothing in the original contract to show that the bank guarantee in question was related to the contract. The Clauses 5, 6, & 7 of the modified bank guarantee dated 28.10.91 read as under :- Clause 5; The Surety shall on demand made by the Creditor in that behalf, discharge the liability of the Debtor under the said order in case of any act, omission, negligence, default or breach whatsoever on the part of the Debtor and pay such sum at may be payable by the Debtor to the Creditor by or under the conditions of the said order to the extent of the Surety's guarantee, namely Rs. 19, 46, 220/- (Rupees Nineteen Lakhs Forty Six Thousand Two Hundred Twenty only). Clause 6 : The surety agrees and decalares that notwithstanding the provisions of Sections 133 to 135 of the Indian Contract Act, 1872, (IX of 1872) of any other rule of law or equity in that behalf any variance in the terms of the said order shall not operate as a discharge of its obligation hereunder, not shall any composition made by the Creditor with the Debtor in respect of any breach of the terms and conditions of the said order or any extension of time wherein stipulated granted by the Creditor for any breach of the said order operate as a discharge of the Suraty's obligation. And the Surety further expressly agrees on and declares that though as between the Debtor and Surety the Surety is only guarantor for the Debtor as between the Creditor and the Surety, the surety shall be liable for any sum payable or falling due hereunder equally with the debtor and the Surety hereby waives all his rights which he might as guarantor be entitled to claim and enforce. Clause 7: The decision of the Creditor that any sum has become payable by the Debtor under the said order, shall be final and binding on the surety. It is clear from Clauses 5 and 7 of the bank guarantee that the non-applicant No. 2 was a surety to fulfil the demands of the non-applicant No. 1 and the non-applicant No. 1 was the sole Judge of the fact of the amount under the bank guarantee was payable to the non-applicant No. 1 and the non-applicant No. 2 was bound by the decision of the non-applicant No. 1. Since this agreement for bank guarantee was independent of the original contract entered into between the applicant and the non-applicant No. 1, the non-applicant No. 1 was entitled to encash the bank guarantee when it came to the conclusion that it was proper to encash the bank guarantee for any act, omission, negligence, default or breach committed by the applicant as per Clause 5 of the terms of the bank guarantee. It is well established that the Courts usually do no grant temporary injunctions to restrain the beneficiary from encashing the bank guarantee, where bank guarantee is not a part of the original contract and the rights and liabilities of the parties are governed by the terms of the bank guarantee itself. In this particular case i. e. civil revision we have already seen that the non-applicant No. 1 is the sole Judge to decide whether the applicant was guilty of any breach mentioned in Clause 5 of the bank guarantee. The non-applicant No. 2 is not interested in or concerned with the dispute between the applicant and non-applicant N(sic). It cannot examine the merits of the dispute between the two parties. It is bound to honour the bank guarantee when the beneficiary requests for the payment. The non-applicant No. 2 is not interested in or concerned with the dispute between the applicant and non-applicant N(sic). It cannot examine the merits of the dispute between the two parties. It is bound to honour the bank guarantee when the beneficiary requests for the payment. It is apparent that the question whether the non-applicant No. 1 is trying to calim double benefit can only be decided in appropriate proceedings because the applicant asserts that it is claiming double benefit whereas the non-applicant No. 1 denies it. It may appear on the surface that the non-applicant No. 1 is claiming double benefit but this fact itself is a disputed question which this Court cannot decide in this case of bank guarantee on the basis of the arguments advanced by the counsel for the applicant. There are number of cases in which it has been held that such a contract of bank guarantee can be restrained only on the ground that a party is likely to suffer irretrievable injury or injustice being caused or on the ground of eagregious fraud played by the beneficiary. Ordinarily these banking transactions cannot be restrained. In the decision of the Supreme Court reported in the case of Syamska Mandelabanken Vs. M/s. Indian Charoo Chrome and others 1994 1 S. C. C. 502 and in the case of U. P. Cooperative Federation Ltd. Vs. Singh Consultants and Engineers (P) Ltd 1988 1 S.C. C. 174. this view has been taken. The above two cases have been followed in the cases of Larson and Toubro Limited Vs. Maharashtra State Electricity Board and others A. I. R. 1996 S. C. 334. and in Hindustan Steel Works Construction Ltd. Vs. Tarapore and Co. and anothers A. I. R. 1996 S. C. 2268 alongwith several others. 8. In the opinion of this Court, the case reported in AIR 1996 S. C. 334 between the applicant-company and Maharashtra State Electricity Board and others is complete answer to the argument of the learned counsel for the applicant. In this particular case, there were two kinds of bank guaratees, which were considered. The first bank guarantee was furnished by the Citi Bank, N. A. in the sum of Rs. 2.72 Cores (Rupees Two Cores and Seventy Two Lakhs). The Supreme Court found it to be a conditional bank guarantee. In this particular case, there were two kinds of bank guaratees, which were considered. The first bank guarantee was furnished by the Citi Bank, N. A. in the sum of Rs. 2.72 Cores (Rupees Two Cores and Seventy Two Lakhs). The Supreme Court found it to be a conditional bank guarantee. The Supreme Court found that this bank guarantee was a continuing bank guarantee and it was under the terms of bank guarantee and the contract that it was to enure only till successful completion of the trial operation and handing over of the Coal Handling Plant to Maharashtra Electricity Board. Therefore, the Supreme Court held that under the terms of the contract as well as the terms of the bank guarantee in order to prevent irretrievable injustice temporary injunction should be granted for restraining the encashment of the bank guarantee after handing over of the plaint. However, in the same judgment, there was another kind of bank grantee which was also considered as item No. 5. This bank guarantee was given by the Standard Chartered Bank for Rs. 1.12 Cores (Rupees One Cores and Twelve Lakhs). It was found by the Supreme Court that the Maharashtra Electricity Board in that case had made an adhoc payment of Rs. 1.11 Cores (Rupees One Core and Eleven Lakhs) out of the total retention amount for which the bank grantee was given by the Standard Chartered Bank. The Supreme Court found that this bank guarantee was unequivocal and unconditional guarantee. There was no fraud made out by the appellant, Larson and Toubro Limited in that case. In this case, i. e. civil revision, the guarantee in question is unequivocal and unconditional. It was not furnished for the purpose of successful completion of transmission lines. Since the non-applicant No. 1 is claiming that it has over paid the total amount to the applicant and the applicant is disputing that fact and this matter is still to be decided by the arbitrators, it cannot be inferred that non-applicant, No. 1 has played any fraud upon the applicant. The terms of the bank guarantee also show that the non-applicant No. 1 is entitled to encash it upon its sole judgment. Therefore, in the opinion of this Court, the bank guarantee in question is similar to that furnished by the Standard Chartered Bank in the aforesaid case decided by the Supreme Court. The terms of the bank guarantee also show that the non-applicant No. 1 is entitled to encash it upon its sole judgment. Therefore, in the opinion of this Court, the bank guarantee in question is similar to that furnished by the Standard Chartered Bank in the aforesaid case decided by the Supreme Court. A Division Bench of this Court in the case of Bharat Construction v. Madhya Pradesh Electricity Board and another decided on 9.4.96 has taken a similar view in respect of a bank guarantee furnished by the bank in favour of Madhya Pradesh Electricity Board. There is nothing to show that the non-applicant No. 1 has committed any egregious fraud. For all these reasons, there is no merit in this revision and it is dismissed without any order as to costs.