Judgment :- P.A. Mohammed, J. The cardinal dispute for adjudication in this appeal revolves around the invocation of Bank guarantees executed in terms of an agreement for performance of a works contract. The question is whether the appellant is entitled to a temporary injunction restraining the respondents from enforcing the Bank guarantees executed by the second respondent on behalf of the appellant in favour of the first respondent. The plaintiff, M/s. Geo-Tech Constructions Co. Pvt. Ltd. (hereinafter referred to as 'Geo-Tech') is the appellant and the first respondent M/s. Hindustan Steel Works Construction Ltd. (hereinafter called by acronym'H.S.C.L.') is the first respondent in the suit. The State Bank of Travancore, M.G. Road Ernakulam is the second defendant. The appeal is directed against the order of the First Additional Sub Judge, Ernakulam in an interim application, I A. No. 1908 of 1998 in O.S. No. 236 of 1998. 2. The above suit was filed praying for a decree on the following terms: "(a) to declare that the first defendant has no right or authority whatsoever to invoke bank guarantee Nos. BG No. 41/94-95, dated 17th November 1994 for Rs. 5 lakhs, B G No. 42/94-95, dated 17th November 1994 for Rs. 5 lakhs, BG No. 43/94-95, dated 17th November 1994 for Rs. 5 lakhs issued by the second defendant and that the second defendant has no right or authority whatsoever to make any payment of pursuant to the same as that the said Bank stands discharged. (b) to grant a permanent prohibitory injunction restraining the first defendant from invoking bank guarantees nos.bg no.41/94-95, dated 17th November 1994, bg no.42/94-95, dated 17th November 1994, BG No. 43/94-95, dated 17th November 1994 issued by the second defendant and the second defendant from making any payment pursuant to the same. (c) to grant such other reliefs requested for by the plaintiff and this Hon'ble Court may deem fit and proper. Pending the suit the Geo-Tech filed I. A. No. 1908 of 1998 praying for a temporary injunction restraining the H.S.C.L. from invoking the above said Bank guarantees and the Bank from making any payment pursuant to it. The said interim application has been dismissed by the court below on the ground that Geo-Tech failed to make out a prima facie case. Hence this appeal. 3. The said interim application has been dismissed by the court below on the ground that Geo-Tech failed to make out a prima facie case. Hence this appeal. 3. The factual situation behind the suit as well as the interim application as reflected from the plaint and the affidavit filed by the appellant is analysed hereunder in a condensed form. The H.S.C.L. was the contractor for the work of 'Pile Foundation', 'Pile Caps', Site development works, etc., in respect of the 'International Stadium' at Kaloor, Cochin owned by the Greater Cohin Development Authority. As per the Memorandum of Understanding arrived at between the H.S.C.L. and Geo-Tech, the latter will be entrusted with the execution of the above work on successful finalisation of the tender and Geo-Tech will be the sub contractor for executing it and a contract of agreement was executed between Geo-Tech and the H.S.C.L., in consequence of which the H.S.C.L. awarded the work to the Geo-Tech as per letter of intent No. E.D.M./122 Cochin/94/292, dated 7th April 1994. The contract work was successfully completed by the Geo-Tech on 16th April 1996 and the defect liability period was over on 30th November 1996 and the security deposit was released to the Geo-Tech by the H.S.C.L. Consequently the H.S.C.L. released the retention amount when the Geo-Tech executed three Bank guarantees for Rs. 5 lakhs each. Thus the total Bank guarantee for Rs. 15 lakhs has been issued by the Bank for the purpose of releasing the retention amount. Since the contract work was successfully completed and the defect liability period was over, the Geo-Tech wrote several letters to the H.S.C.L. requesting for the release of the Bank guarantees. However, the H.S.C.L. was taking effective steps to invoke the Bank guarantees alleging that Geo-Tech had defaulted in remitting Rs. 14.20 lakhs towards the dues under the Kerala Construction Workers Welfare Fund Act. The Geo-Tech did not remit the dues as they had no liability to pay under the Act. Therefore, there was clear fraud in the action of the H.S.C.L. and thus it would vitiate the very foundation of Bank guarantees. If the Bank guarantees are invoked it would result in irretrievable harm and injustice to the Geo-Tech. In view of the above cause the Geo-Tech filed the suit O.S. No. 236 of 1998 before the Sub Court, Ernakulam with the prayers aforesaid. If the Bank guarantees are invoked it would result in irretrievable harm and injustice to the Geo-Tech. In view of the above cause the Geo-Tech filed the suit O.S. No. 236 of 1998 before the Sub Court, Ernakulam with the prayers aforesaid. Along with the suit I. A. No. 1908/98 seeking temporary injunction was also filed. 4. The application for temporary injunction was opposed by the H.S.C.L. and a counter-affidavit had been filed. The contentions of the H.S.C.L. as revealed from the counter affidavit are thus: The Bank guarantee is a separate agreement and the underlying contract or the respective contentions of the parties on merits cannot be dragged into the matter of invocation of Bank guarantee. Three Bank guarantees were furnished for the refund of retention money and the Bank has undertaken unconditionally to pay the amount claimed by the H.S.C.L. on demand and without any demur. The H.S.C.L. is the sole judge to say whether Geo-Tech has committed any breach or breaches of any of the terms and conditions of the contract between the parties. The contemporaneous correspondence would prove that there was no fraud being played by the H.S.C.L. and it was specifically agreed to by the Geo-Tech that all the liabilities under the law for the time being in force in respect of any labour employed by the contractor and any expenditure incurred by the employer shall be payable by the Geo-Tech and the H.S.C.L. has a lien for such amounts on the security deposit which includes the retention amount. A formal agreement was entered into between the Geo-Tech and the H.S.C.L. on 7th April 1994, which contains several documents including tender documents, general conditions of contract, correspondence exchanged between the H.S.C.L. and the Geo-Tech and the Memorandum of Understanding between the parties, letter of intent issued in favour of the Geo-Tech and the form of agreement between them. Under Clause 27 of the General Conditions of Contract, Geo-Tech shall at all times indemnify the H.S.C.L. against all claims of compensation in respect of any workmen employed by the Geo-Tech. Under Clause 27 of the General Conditions of Contract, Geo-Tech shall at all times indemnify the H.S.C.L. against all claims of compensation in respect of any workmen employed by the Geo-Tech. In view of this and various other provisions contained in the general conditions of contract and the terms contained in the Bank guarantees and other attendant circumstances, it would reveal that the Geo-Tech had agreed to retain the Bank guarantees, indemnify the H.S.C.L. in case it had to incur any expenditure by way of contribution towards Kerala Construction Workers Welfare Fund. The Bank had an unconditional liability to pay the amount to the H.S.C.L. and the Geo-Tech had agreed for the same in its letter dated 20th December, 1996. The Geo-Tech is bound to pay the contribution to the Kerala Construction Workers Welfare Fund in respect of the workers engaged by it. The plea of fraud and irretrievable injustice is totally unfounded. Under the agreement dated 7th April 1994 any liability including the contribution payable to the Kerala Construction Workers Welfare Fund is that of the Geo-Tech. 5. The court below marked the photo copies of three Bank guarantees C.L.I.417 94-95, C.L.I. 42/94-95 and C.L.I. 43/94-95 as Exts. Al to A3 respectively. Ext. B1 is the copy for the General Conditions of Contract (extracts) and Ext. B2 is the copy of the General Instructions and notice inviting tenders. After considering these and other documents produced in the case, the Court below found that the Geo-Tech is liable to pay the contribution under the Kerala Construction Workers Welfare Fund Act inasmuch as it admitted the execution of Exts. B-1 and B-2. While dismissing the petition on the ground that the Geo-Tech failed to make out a prima facie case for temporary injunction the court below, inter alia, observed to the following effect: The H.S.C.L. being the Contractor G.C.D.A. deducted 1 per cent from the part payments of the bills towards the contribution under the Construction Workers Welfare Fund Act. Though H.S.C.L. challenged the said deduction in this court and Supreme Court it had no case that the liability to pay contribution is on Geo-Tech. However, the liability arises in view of execution of Exts. B-1 and B-2. The plea of 'irretrievable injustice' made by the Geo-Tech is negatived inasmuch as the H.S.C.L. has not done any act fraudulently causing injustice to the Geo-Tech. 6. However, the liability arises in view of execution of Exts. B-1 and B-2. The plea of 'irretrievable injustice' made by the Geo-Tech is negatived inasmuch as the H.S.C.L. has not done any act fraudulently causing injustice to the Geo-Tech. 6. During the hearing of this appeal it was brought to out notice that the H.S.C.L. had produced seven documents. However, those documents were not seen marked in the certified copy of the order supplied to the H.S.C.L. From the impugned order it is seen that the Geo-Tech has produced Exts. A-1 to A-11 and the H.S.C.L. has produced Exts. B -1 to B-5. The court below has committed an error in not properly marking the documents produced by the parties. No witnesses were examined by the court below and arguments were heard on the basis of the documents produced by the parties. In the present proceeding the Geo-Tech has filed CMP No. 4380 of 1998 for accepting certain documents in evidence. We have allowed the petition and accordingly the letter of intent dated 7th April 1997 has been taken in evidence. So also on the side of the H.S.C.L. CMP No. 4935 of 1998 was filed praying to accept the General Conditions of contract of M/s. Hindustan Steel Works Construction Ltd. in evidence. We have allowed this petition also. In addition to these documents both parties in the course of hearing, have placed reliance on documents relating to the agreement executed between the parties and no objections had been raised by them during the hearing. 7. Before embarking on the crucial question of temporary injunction, it would be worthwhile to have a peep into the sanctity of Bank guarantees in commercial transactions. S.126 of the Indian Contract Act, 1872 defines 'contract of guarantee' as a contract to perform the promise, or discharge the liability, of a third person in case of his default. The contract of guarantee is trilateral contract, that is to say three persons, surety, principal debtor and creditor are involved. Generally speaking, contract of guarantee, such as Bank guarantee, letters of credit, etc. are absolute and unqualified. But Wilkins Micawber's definition of guarantee in Dickens' masterpiece, David Copper field is, "A guarantee is where one man that can't pay gets another man that can't pay to say he will". This appears to be a cynical approach but really thought provoking. Generally speaking, contract of guarantee, such as Bank guarantee, letters of credit, etc. are absolute and unqualified. But Wilkins Micawber's definition of guarantee in Dickens' masterpiece, David Copper field is, "A guarantee is where one man that can't pay gets another man that can't pay to say he will". This appears to be a cynical approach but really thought provoking. This popular belief is totally denounced in the case of contract of Bank Guarantees. In Tarapore and Co., Madras v. M/s. V/o Tractors Export, Moscow' the Supreme Court observed that it was a mechanism of great importance in international trade and any interference with that mechanism was bound to have serious repecussions on the international trade of this country. In other words, what is said is that the courts should not lightly interfere with the mechanism and autonomy of contract of Bank guarantees and irrevocable letter of credit. It must be recalled that the contract of Bank guarantee revokes around internal trade transactions in the country. In Svenska Handelsbanken v. M/s. Indian Charge Chrome & Ors. the Supreme Court said : 1960) 2 S.C.R.920 (1994) (1) S.C.C.502. "It has to maintain its credibility and not merely be guided by the loss to our citizen. It has also to maintain its international credibility. Credibility is the most important thing for any banking institution. If the credibility goes the Bank cannot survive. The bank in its working has to be most upright and honest in dealing with its customers." The trust in commerce internal and international would be irreparably damaged if the commitment of Bankers is not honoured free from interference by courts 8. The underlying dispute between the parties is whether the Geo-Tech is liable to indemnify the H.S.C.L. in respect of the contribution paid or payable under the provisions of the Kerala Construction Workers Welfare Fund Act. This is an Act intended to provide for the constitution of a fund to grant relief to promote the welfare of and to pay pension to the construction workers in the State of Kerala and for other matters incidental thereto. In view of the provisions contained in clause (e) of S.2, the Geo-Tech will be the 'contractor' and the H.S.C.L. will be the 'employer' and in view of sub-s.(2) of S.8 of the employer shall contribute 1 percent of the cost of construction work undertaken by it to the Fund. In view of the provisions contained in clause (e) of S.2, the Geo-Tech will be the 'contractor' and the H.S.C.L. will be the 'employer' and in view of sub-s.(2) of S.8 of the employer shall contribute 1 percent of the cost of construction work undertaken by it to the Fund. The above Act came up for interpretation before this Court in Poulose v. State of Kerala. `5 There the main challenge was directed against S.2(g) and S.8(2) of the Act as also the levy of licence fee under S.9. This court found Ss.2(g) and 8(2) of the Act and clauses 25 and 26 of the Scheme valid. The learned Single Judge of this Court observed: "There is no procedure in the Act or in the Scheme for determination of disputes or questions which are likely to arise, like the cost of construction, whether there is a construction work at all, and if so, as to when the construction was completed, when the contribution became payable and others. Umpteen similar circumstances may be visualised, particularly in the application of the Act to private employees. Who is to make an assessment and who is the authority and so on are all left nebulous and without guidelines. (emphasis supplied) However, the H.S.C.L. filed writ petition, O.P. No. 11626 of 1994 claiming exemption from the provisions of the Kerala Construction Workers Welfare Fund Act en the ground that it is a Government company wholly owned and controlled by the Central Government. The above contention was negatived by this Court and the matter went up in appeal before the Supreme Court in Hindustan Steel Works Construction Ltd. v. State of Kerala & Ors The Supreme Court in the said decision upheld the decision of this Court in Poulose's case 15 and the claim of the H.S.C.L. for exclusion from the purview of the Act was negatived. However, the Supreme Court in page 180 of the report observed: The Welfare Fund Act is essentially an Act to protect the interest of and welfare of the labourers. Unless expressly the instrumentality or agency of the Government is kept outside the purview of the said Act, it would not be proper to interpret the said Act in a wide amplitude by removing the corporate veil so as to exclude such instrumentality or agency from the purview of the said Act". Unless expressly the instrumentality or agency of the Government is kept outside the purview of the said Act, it would not be proper to interpret the said Act in a wide amplitude by removing the corporate veil so as to exclude such instrumentality or agency from the purview of the said Act". In view of the above decision it is settled that the H.S.C.L. is not entitled to claim exemption on the ground of it being a company owned by the Central Government. However, H.S.C.L. took the view that the liability to pay the contribution under the Act is on Geo-Tech and it had undertaken to indemnify the H.S.C.L. for the defaults committed by non-payment of contribution. It may not be proper for this court to adjudicate this dispute in the present proceeding finally since we are concerned here only with regard to the invocation of bank guarantee executed for refund of retention money. 9. The first and for most contention advanced by the learned counsel for Geo-Tech is that there was no undertaking by the Geo-Tech to indemnify H.S.C.L. for the payment of contribution towards welfare fund dues. He explained the point by submitting that there being no guarantee at all to discharge such liability, the attempt to enforce a non-existing guarantee is liable to be restrained by an order of injunction. He further added that if there was a term in the contract whereby Geo-Tech had undertaken to pay 1 percent contribution towards welfare fund dues H. S. C.L. is within its rights in enforcing the guarantee. Therefore, he pleaded that enforcement of Bank guarantee is vitiated by fraud and irretrievable injustice. 10. On the other hand, the H.S.C.L. claims indemnification in respect of contribution under the Welfare Fund Act paid or payable to the workers employed by Geo-Tech for the performance of works contract. The counsel for the H.S.C.L. by placing reliance on different sections in the Act argued that the statutory liability to pay the contribution was on the Geo-Tech who had employed workers in execution of the contract and for that reasons it had to indemnify the H.S.C.L. for the payment of contribution paid or payable. He pleaded that the claim for injunction against the invocation of Bank guarantees cannot be allowed in view of the principles laid down by the Supreme Court in various decisions. There is neither fraud nor irretrievable injustice as alleged. He pleaded that the claim for injunction against the invocation of Bank guarantees cannot be allowed in view of the principles laid down by the Supreme Court in various decisions. There is neither fraud nor irretrievable injustice as alleged. If at all any injury is caused it can be retrieved by filing suits against H.S.C.L. for recovery of money or otherwise. Since the Bank guarantee is an independent contract, terms of the underlying contract between the parties need not be looked into in a suit for injunction against the enforcement of Bank guarantee. He also placed particular reliance on Clause 27 of the General Conditions of contract which runs thus: "27. The Contractor shall at all tunes indemnify the Employer against all claims for compensation under the provision of the Workmen Compensation Act, 1923, (VIII of 1923) or any other law for the time being in force by or in respect of any workmen employed by the Contractor in carrying out the contract on against all costs and expenses of penalties incurred by the Employer in connection therewith and (without prejudice to any other mean of recovery) the employer shall be entitled to deduct from any money due or to become due to the Contractor (whether under this contract or any other contract) all money paid, or payable by the Employer by way of compensation aforesaid or for costs or expenses in connection with any claim thereto and the contractor shall abide by the decision of the Employer as to the sum payable by the contractor under the provision of this clause." 11. Now let us ascertain the nature of and circumstances under which the contract of Bank guarantees (Exts. Al to A3 ) were given by the Bank in favour of the H.S.C.L. on behalf of the Geo-Tech. An agreement was made on 7th day of April 1994 between the H.S.C.L. and Geo-Tech for the execution of the work of site development, pile foundation and pile caps of the International Stadium at Kaloor by Geo-Tech. The following documents shall be deemed to form and be read and construed as part of the agreement, namely: (i) LetterNo.GP.C.AV2/93/1227, dated 2nd December 1993 from Geo-Tech. (ii) Letter No. G.F.C./W2/93/1312, dated 15th December 1993 from Geo-Tech. (iii) M.O.U. executed by and between H.S.C.L. and Geo-Tech, dated 3rd February 1994. (iv) Letter No. G.C.PI,.AV2/94/1410, dated 8th January 1994 from Geo-Tech. The following documents shall be deemed to form and be read and construed as part of the agreement, namely: (i) LetterNo.GP.C.AV2/93/1227, dated 2nd December 1993 from Geo-Tech. (ii) Letter No. G.F.C./W2/93/1312, dated 15th December 1993 from Geo-Tech. (iii) M.O.U. executed by and between H.S.C.L. and Geo-Tech, dated 3rd February 1994. (iv) Letter No. G.C.PI,.AV2/94/1410, dated 8th January 1994 from Geo-Tech. (v) Detailed information Geo-Tech submitted to H.S.C. L. on 5th March 1994. (vi) HS.C.L.LetterNo.E.D.M./122-Cochin/94/292, dated 8th March 1994 and accepted by Geo-Tech. (viii) Letter of Intent No. E.D.M./122-Cochin/94/292, dated 5th April 1994 issued by H.S.C.L. in favour of Geo-Tech including Annexures A, B & C. The Letter of Intent issued by H.S.C.L. to Geo-Tech on 7th April 1994 contains, inter-alia, the following clauses: "(9) Water and Power required for the work shall be your responsibility and no claim, therefore, in any form shall be entertained. You shall also arrange power and water supply arrangement for the entire project requirement by obtaining approvals and depositing necessary security and other expenditures to the State Authorities. On completion of your contract, the security deposits and the cost of Transformer supplied by you will be reimbursed to you. (11) As a special case to expedite the work and start in no time you shall be granted an interest bearing mobilisation advance equal to Rs. 1,50,00,000 (Rupees one core fifty lakhs only) against bank guarantee as per H.S.C.L.' s approved format. Clause 19 of the General Instructions and notice inviting tenders provides for security deposit and the refund of retention money. The said clause reads thus: 19(a) In addition to the Earnest Money Deposit under clause 16 above further amount shall be paid by the successful tenderer on award of work so as to wake full security deposit amount of 21/2 per cent of the contract value, the E.M.D. forming part of security deposit. As a further security for the due fulfilment of the contract by the contractor 5 per cent of the value of the work done will be deducted by the employer from each payment to be made to the contractor until the retention money and the security deposit together amount to 71/2 per cent of the contract value of the work. On the Architect's Certificate of completion of the works. On the Architect's Certificate of completion of the works. 50 per cent of the retention money and 50 per cent of the security deposit would he refunded and the remaining 50 per cent will be released by the Employer after rectification of the defects pointed out during the defects liability period. The amounts retained by the employer shall not bear any interest. (b) All compensation or other sums of money payable by the contractor to the Employer under the terms of this contract may be deducted from his earnest money and the security deposit if the amount so permits and the contractor shall, unless such deposit has become otherwise payable, within ten days after such deduction make good in cash the amount so deducted. The terms contained in the above clause with regard to security deposit and retention money have been modified as per Ext. A8 letter dated 1st August 1994 sent by the H.S.C.L. to Geo-Tech. The letter is extracted hereunder: "We are pleased to inform you that initial retention of Rs. 5.25 lakhs only will be withheld in cash against retention money recovered, at the rate of 5 percent from each bill. When retention money withheld exceeds Rs. 10.25 lakhs, you will be permitted to submit suitable Bank Guarantee for every Rs. 5 lakhs, withheld beyond initial amount of Rs. 5.25 lakhs whereupon the cash retention of like amount will be released. Thus the retention money will ultimately comprise of cash retention of Rs. 5.25 lakhs and series of Bank Guarantees. Bank Guarantees for 50 per cent of the total retention money shall be valid till completion of work and the Bank Guarantee for the remaining retention money shall be valid till the end of defect liabilities period. The cash part of the Retention Money (Rs. Five point two five lakhs) shall be released at the end of defect liability period after adjustment against dues to greater cochin development authority/H.S.C.L. if any. Retention money will not bear any interest. You may submit Bank Guarantee in multiples of Rs. 5 lakhs in the format enclosed." It was in view of the above provisions the Bank guarantees were given by the Bank, The question is whether this Court can injunct the Bank or H.S.C.L. from enforcing such Bank guarantees executed specifically for refunding the retention money. 12. You may submit Bank Guarantee in multiples of Rs. 5 lakhs in the format enclosed." It was in view of the above provisions the Bank guarantees were given by the Bank, The question is whether this Court can injunct the Bank or H.S.C.L. from enforcing such Bank guarantees executed specifically for refunding the retention money. 12. In this context, it would be worthwhile to examine the terms and conditions contained in the Bank guarantee which is common in all respects. Exts. A-1 to A-3 dated 17th November 1994 are the Bank guarantees bearing nos. CL 41, CL 42 and CL 43 of 1994-95, each for the amount of Rs. 5 lakhs. The relevant portion of the Bank Guarantee are reproduced hereunder: Bank Guarantee for refund of retention money. "In consideration of Hindustan Steel Works Construction Ltd. of 1, Shakespeare Sarani, 8th floor, Calcutta 700 071 (hereinafter called H.S.C.L.) having agreed to release the sum of Rs. 5,00,000 (Rupees five lakhs only) to M/s. Geo-Tech Construction Co. P. Ltd. of 8th floor, K.S.H.B. Office Complex, Panampilly Nagar, Cochin 682036 (hereinafter called the contractor) as per clause 3 of Annexure 1 of Part 1 amendments and subsequent letter No. H.S.C.L./G.C.D.A./507/94dated 1st august 1994 upon the contractor furnishing the Bank guarantee, we, State Bank of Travancore, M.G. Road, Ernakulam, Coch in - 682 03 5 having its Head Office at Trivandrum (hereinafter referred to as said bank') do hereby undertake and agree to indemnify and keep indemnified H.S.C.L. against any loss of damage, cost, charges and expenses, caused to or suffered by or that may be caused to or suffered by H.S.C.L. by reason of any breach or breaches by the said contractor of any of the terms and conditions contained in the said contract and to unconditionally pay the amount claimed by H.S.C.L. on demand and without demur to the extent as aforesaid. We the said Bank further agree that H.S.C.L. shall be the sole judge of and as to whether the said contractor has committed any breach or breaches of any of the terms and conditions of the said contract and to the extent of loss, damage, cost, charges and expenses caused to or suffered by or that may be caused to or suffered by H.S.C.L. on account thereof and the decision of H.S.C.L. that the contractor has committed such breach or breaches and as to the amount or amounts or loss, damage, cost, charges and expenses caused to or suffered by or that may be caused to or suffered by H.S.C.L. from time to time shall be final and binding on us. We. The said bank, further agree that the Guarantee herein contained shall remain in full force and effect during the period that would be taken for the performance of the said contract and till all the dues of H.S.C.L. under the said contract or by virtue of any of the terms and conditions governing the said contract have been fully paid and its claims satisfied or discharged or till H.S.C.L. certifies that the terms and conditions of the said contract have been fully and properly carried out by the said contractor and accordingly discharges this guarantee subject to. however, that H.S.C.L. shall have no claim under this guarantee after 30th June 1996. H.S.C.L. shall have the fullest liberty without affecting in any way the liability of the Bank under this guarantee or indemnity from time to time to vary any of the terms and conditions of the said contract or to extent time of performance by the said contractor or to postpone for any time and from time to time any of the power exercise able by it against the said contract or and either to enforce or forbear from enforcing any of the terms and conditions governing the said contract or security available to H.S.C.L. and the said Bank shall not be released from its liability under this presents by any exercise by H.S.C.L. of the liberty with reference to the matter or thing whatsoever which under the law relating to sureties but for this provisions have the effect of their releasing the Bank from its such liability. It shall not be necessary for H.S.C.L. to proceed against the contractor before proceeding against the Bank and the guarantee herein contained shall be enforceable against the Bank not withstanding any security which H.S.C.L. may have obtain or obtained from the contractor shall the time when proceedings are taken against the Bank hereunder be outstanding or un realised. Notwithstanding anything contained herein above, the liability of the Bank to this guarantee is restricted to Rs. 5,00,000 (Rupees five lakhs only) and the guarantee shall remain in force till 30th June 1996. Unless a suit or action to enforce a claim under this guarantee is filed against the Bank within three months from the date of expiry of this Bank guarantee, all the rights of H.S.C L. under this guarantee shall be forfeited and the Bank shall be relieved and discharged from all obligations under this guarantee. We, the said Bank, lastly undertake not to revoke this guarantee during its currency except with consent of H.S.C.L. in writing and agree that any change in constitution of the said contractor or the said Bank shall not discharge our liability hereunder." 13. A conjoint reading of Ext. A-8 letter and the terms contained in the Bank guarantee would broadly bring forth the following features: (1) That Geo-Tech is allowed to submit Bank guarantees for every Rs. 5 lakhs for the release of retention money when it exceeds Rs. 10.25 lakhs. (2) That the cash retention of 5.25 lakhs and series of Bank guarantees furnished as above together constitute retention money. (3) That the Bank guarantee for 50 per cent of the total retention money shall be valid till completion of work and the remaining 50 percent till the end of defect liabilities period. (4) That the Bank undertakes to unconditionally pay the amount claimed by H.S.C.L. without demur and thus to indemnify H.S.C.L. against any loss or damage, charges and expenses suffered by H.S.C.L. by reason of breach by the Geo-Tech of any of the terms of contract. It (5) That the Bank agreed that H.S.C.L. shall be the sole judge to decide as to whether Geo-Tech has committed breach of any terms and conditions of the contract. (6) That the decision of the H.S.C.L. as to the question of breach or as to the amount of loss or damage suffered by it shall be final and binding on the Bank. (6) That the decision of the H.S.C.L. as to the question of breach or as to the amount of loss or damage suffered by it shall be final and binding on the Bank. (7) That the Bank has agreed that the Bank guarantee shall remain in force and effect during the period of performance of contract. (8) That the H.S.C.L. has the liberty to vary any of the terms and conditions of contract without affecting in any way the liability of the Bank under the guarantee. (9) That the Bank guarantee shall be enforceable against the Bank notwithstanding any security obtained by H.S.C.L. (10) That it is not necessary for the H.S.C.L. to proceed against Geo-Tech before proceeding against the Bank. (11) The cash part of the retention money (Rupees five point two five lakhs) shall be released at the end of defect liability period after adjustment against dues to Greater Cochin Development authority/H.S.C.L. if any 14. It is no doubt true that the terms and conditions of the contract do not specifically refer to the payment of contribution under the Welfare Fund Act. That does not mean the whole transaction is vitiated for exercise of fraud. Whether such payment falls under any general provisions of the contract is a dispute to be decided between the parties. As far as the Bank is concerned when H.S.C.L. says that there is breach by the Geo-Tech that is the final word. What is before us is the Bank guarantee executed specifically for the refund of retention money and enforcement of such Bank guarantees. This Court cannot say either while executing the Bank guarantees or at the time of its enforcement, the H.S.C.L. has exercised fraud either on Geo-Tech or on the Bank. There must be prima facie strong evidence at least for alleging that a transaction is vitiated by fraud. In this behalf we have to look into the plaint and affidavit for that purpose. 15. It is an admitted case that on 13th June 1996 the Geo-Tech requested the Bank to extend the Bank guarantee upto 30th November 1996 for the reason that the guarantee period for all the three Bank guarantees would expire on 30th June 1996. Accordingly it was extended upto 30th November 1996. Again by letter dated 30th November 1996 the period of the Bank guarantee was extended. Accordingly it was extended upto 30th November 1996. Again by letter dated 30th November 1996 the period of the Bank guarantee was extended. Thus the guarantee period in respect of the above three Bank guarantees was extended from time to time, and finally it was extended upto 28th May 1998. The H.S.C.L. by its letter dated 16th February 1998 requested the Geo-Tech to remit Rs. 14.20 lakhs being 1 percent contract value towards contribution to the Welfare Fund. That request may be to monitor the retention money. When the H.S.C.L. represents breach or default by the Geo-Tech that is final and conclusive as far as the Bank is concerned. That will naturally result in the enforcement of Bank Guarantee. It was in the above circumstances the Geo-Tech filed the present suit on 26th February 1998 seeking injunction against the Bank. 16. What is argued by the counsel for H.S.C.L. is that the court need not look into the underlying contract or the correspondence between the parties relating to the terms of contract. What is primarily to be seen is the terms contained in the contract of Bank guarantee. The counsel has specifically drawn our attention to the decision of another Division Bench of this Court in Unique Alliance Industries v. Anupama Agencies wherein one of us (Mohammed, J.) spoke on behalf of the Bench. After placing reliance on the decision of the Supreme Court in Syndicate Bank v. Vijayakumar the court held in that case that the terms contained in the Bank guarantee alone need be considered for its enforceability. In other words, the obligations arising under the Bank guarantee are independent of the obligations arising out of a specific contract between the parties. Therefore, the court should not lightly interfere with the operation of Bank guarantee or irrevocable documentary credit. In order to restrain the operation of an irrevocable letter of credit, performance of bond or guarantee by the order of the court there should be a good prima facie act of fraud or irretrievable injustice. 17. In Generd Electric Technical Services Co. Inc. v. M/s. Punj Sons (P) Ltd. 1 the Supreme Court held that the bank could not be interdicted by the court in the absence of fraud or special equities in the form of preventing irretrievable injustice between the parties. 17. In Generd Electric Technical Services Co. Inc. v. M/s. Punj Sons (P) Ltd. 1 the Supreme Court held that the bank could not be interdicted by the court in the absence of fraud or special equities in the form of preventing irretrievable injustice between the parties. It further held that the High Court in the absence of prima facie case on such matters has committed an error in restraining the Bank from honouring its commitment under the Bank guarantee. Prevention of 'irretrievable injustice' between the parties was considered to be a special equity. Therefore, in all such cases the plea of fraud or irretrievable injustice shall not be allowed unless they are proved by affidavit or otherwise. In a later decision in Ansal Engineering Projects Ltd. v. Tohri Hydro Development Corporation the Supreme Court made it abundantly clear as to the burden of proof in this regard as thus: "The Court exercising its power cannot interfere with enforcement of Bank guarantee/ letters of credit except only in cases where fraud or special equity is prima facie made out in the case as triable issue by strong evidence so as to prevent irretrievable injustice to the parties. The trading operation not be jettisoned and faith of the people in the efficacy of banking transactions would not be eroded or brought to disbelief. The question, therefore, is whether the petitioner had made out any case of irreparable injury by proof of special equity or fraud so as to invoke the jurisdiction of the Court by way of injunction to restrain the first respondent from en cashing the bank guarantee." 18. What is emphasized by the Supreme Court in the above decision is that the fraud and special equity shall be made out prima facie in the case as a triable issue by strong evidence so as to prevent irretrievable injustice to the parties. As far as fraud is concerned, it must be an established fraud and further it must be a fraud known to the Bank. As far as fraud is concerned, it must be an established fraud and further it must be a fraud known to the Bank. In Deny v. Peek' it is observed thus: "It was there decided that in order for fraud to be established, it is necessary to prove the absence of an honest belief in the truth of that which has been stated; in the words of Lord Herschell, -"fraud is proved when it is show that a false representation has been made (1) knowingly or (2) without belief in its truth, or (3) recklessly careless whether it be true or false." Lord Denning observed in Edward Owen Engineering Ltd. v. Barclays Bank International Ltd.: iU "The bank must pay according to its guarantee, on demand if so stipulated, without proof or conditions. The only exception is when there is a clear fraud of which the Bank has notice". In U.P. Co-operative Federation Ltd. v. Singh Consultants and Engineers (P) u Ltd. the Supreme Court said: "The nature of the fraud that the courts talk about is fraud of an egregious nature as to vitiate the entire underlying transaction". It is the fraud of the beneficiary, not the fraud of anybody else. It is reiterated in N.T.P.C. Ltd. v. M/s. Flowmore Pvt. Ltd.l"- In I.T.C. Ltd. v. Debts Recovery Appellate TribunaljL" the Supreme Court said: "What is necessary for the Bank to refuse payment is a case of clear "fraud and the Bank's knowledge as to such fraud." 19. In State Trading Corporation of India Ltd. v. Jainsons Clothing Corporation "' the Supreme Court said: "The grant of injunction is a discretionary power in equity jurisdiction. The contract of guarantee is a trilateral contract which the Bank has undertaken to unconditionally and unequivocally abide by the terms of the contract. It is an act of trust with full faith to facilitate free flow of trade and commerce in internal or international trade or business. It creates an irrevocable obligation to perform the contract in terms thereof. On the occurrence of the events mentioned therein the bank guarantee becomes enforceable. The subsequent disputes in the performance of the contract does not give rise to a cause nor is a court satisfied on that basis, to issue an injunction from enforcing the contract, i.e., bank guarantee. The parties are not left with no remedy. On the occurrence of the events mentioned therein the bank guarantee becomes enforceable. The subsequent disputes in the performance of the contract does not give rise to a cause nor is a court satisfied on that basis, to issue an injunction from enforcing the contract, i.e., bank guarantee. The parties are not left with no remedy. In the event of the dispute in the main contract ends in the party's favour, he/ it is entitled to damages or other consequential reliefs". In Hindustan Steel Works Construction Ltd. v. G.S. Atwal & Co. (Engg) Pvt. Ltd. 13 it observed: "Suffice it to say that in the case of confirmed Bank guarantees/ irrevocable letters of credit, the Court will not interfere with the same unless there is fraud and irretrievable damages are involved in the case and fraud has to be an established fraud". In R.D. Harbottle (Mercantile) Ltd. v. National Westminster Bank Ltd.,ln Kerr, J. said: "In the case of a confirmed performance guarantee, just as in the case of a confirmed letter of credit, bank was only concerned to ensure that the terms of its mandate and confirmation have been complied with and was no way concerned with any contractual dispute which might have arisen between the buyers and sellers." In Edward Owen Engineering Ltd. 's case,lU supra the court said that the net effect of the injunction is to restrain the bank from performing the bank guarantee which cannot be done whereas the respondent could sue the appellant for damages. 20. S.17 of the Indian Contract Act defines 'fraud'. It is a comprehensive term and embraces large number of delinquencies. A person who alleges fraud must give particulars thereof in his pleadings. It must be established beyond any reasonable doubt. Lord Atkin in A.L.N. Narayanan Chettiar v. Official Assignee 1/ observed: "Fraud like any other charge of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonable doubt. A finding as to fraud cannot be based on suspicion and conjecture." 0. XXXIX R.1 authorises the issue of a temporary injunction in a suit only when it is proved by affidavit or otherwise the actions alleged against the defendant or any party to the suit. The Court cannot order temporary injunction as a matter of course when there is a debatable and arguable case prima facie. XXXIX R.1 authorises the issue of a temporary injunction in a suit only when it is proved by affidavit or otherwise the actions alleged against the defendant or any party to the suit. The Court cannot order temporary injunction as a matter of course when there is a debatable and arguable case prima facie. Only when a case is proved by affidavit or otherwise the court gets the power to order temporary injunction in exercise of its discretion. It can be granted 'for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, otherwise causing injury to the plaintiff, in relation to any property in dispute in the suit'. But, at the same time, it may be recalled that the granting of temporary injunction is not a panacea for all disputes coming before courts. When the purpose of obtaining injunction is pleaded, unless it is proved by affidavit or otherwise, the court can refuse to order temporary injunction, even if the court feels that there is a debatable or arguable case. The pleadings make only allegations or averments of facts. Merely pleading does not make a strong prima facie case. The case must be established with sufficient material or proved by affidavit. What is required is a finding that a prima facie case for temporary injunction is proved or made out. 21. What is 'irretrievable injustice'? 'Irretrievable' means not retrievable or irreparable. New Webster's Dictionary says the word 'retrieve' means to recover or regain, to rescue or save, to restore or bring back to a former and better state. In Svenska Handelsbanken's case the Supreme Court says, 'irretrievable injury' is of the nature as noticed in the case of Itek Corporation v. The First National Bank of bosten.18 The expression "to prevent irretrievable injustice" appears to have its origin from the decision of the Court of Appeal in the case of Elian & Rabbath (Trading As Elian & rabbath) v. Matsas & Matsas.'y Though that case has been distinguished on facts by the Supreme Court in Svenska Handelsbanken's case,/- it would be worthwhile to note what actually is 'irretrievable injustice'. Lord Denning, M.R. on the basis of the facts available in that case said, that was a special case in which an injunction should be granted by the Court to prevent what might be 'irretrievable injustice'. Lord Denning, M.R. on the basis of the facts available in that case said, that was a special case in which an injunction should be granted by the Court to prevent what might be 'irretrievable injustice'. He further said: "Although the shippers were not parties to the bank guarantee, nevertheless, they have a most important interest in it. If the Mid land Bank Ltd. pay under this guarantee, they will claim against the Lebanese bank, who in turn will claim against the shippers. The shippers will certainly be debited with the account. On being so debited, they will have to sue the ship owners for breach of their promise, express or implied, to release the goods. Are the shippers to be forced to take that course? Or can they short-circuit the dispute by suing the ship owners at once for an injunction? I think this is a special case in which an injunction should be granted. There is prima facie ground for saying that on the telex messages which passed (and indeed I would add, on the first three lines of the guarantee) the ship owners promised that, if the bank guarantee was given they would release the goods. I know that the only lien they had in mind at that time was the lien for demurrage. But would any one suppose that the goods would be held for another lien? It can well be argued that the guarantee was given on the understanding that the lien was raised and no further lien imposed ;and that when the ship owners, in breach of that understanding, imposed a further lien, they were disabled from acting on the guarantee". Elian's case iy (supra) has been referred to in U.P. Co-operative Federation Lid's case n and in Svenska Handelsbanken's case. /- ~~ the latter case the Supreme court after analysing the facts in Elian's case "'observed: "If we closely analyse the facts of that case, irretrievable injustice which was made the basis for grant of injunction really was on the ground that the guarantee was not en cashable on its terms when the buyers have paid 2,000 pounds to lift the original lien". 22. Itek Corporation's casel~ (supra) has been referred to by the Supreme Court in Svenska Handelsbanken's case /- and in N.T.P.C. 's case. 22. Itek Corporation's casel~ (supra) has been referred to by the Supreme Court in Svenska Handelsbanken's case /- and in N.T.P.C. 's case. l/- In the former case, after narrating the facts the Supreme Court observed that the judgment in Itek's case is on peculiar facts of its own and the situation created after the Iranian revolution when the American Government cancelled the export licence in relation to Iran as it related to high technology. Finally it said: "It is thus clear that this judgment is based on peculiar facts, particularly of situation in the Government of Iran which came into power after the revolution in Iran and its relations with the United States of America and in any case on the prima facie finding of fraud being given by the learned court read with the finding of irreparable harm which could not be avoided by adequate remedy at law due to peculiar situation in Iran. In N.T.P.C. 's case i/- supra. the Supreme Court observed: "While irretrievable injustice should be of the kind arising in an irretrievable situation which was referred to in the U.S. Case of Itek Corporation, v. The First National Bank of Boston, etc. 566 Fed. Supp.1210. The irreparable harm should not be speculative. It should be genuine and immediate as well as irreversible a kind of situation which existed in the case of Itek Corporation. (Supra)" (emphasis supplied) The Court further said: "Learned counsel for the first respondent has relied upon the fact that the first respondent kept all the bank guarantees alive by renewing them from time to time during the pendency of arbitration and on the fact that the appellant did not invoke the bank guarantees while the arbitration was in progress. Neither of these two circumstances can lead to the conclusion that the bank guarantees cannot be invoked while the arbitration is pending. The bank guarantees are unconditional and payable on demand. The circumstances pointed out by learned counsel for the first respondent do not constitute a bar on the right of the appellant to en cash the bank guarantees." The learned counsel for the Geo-Tech has placed reliance on the decisions in Elian's caseload Itek's cases which we have discussed herein above, where the courts in England interfered on account of irretrievable injustice. As observed by the Supreme Court the factual situations in those cases are totally different and they have no comparison or similarity to the facts of the present case. 23. In U.P. Co-operative Federation's case" the Supreme Court after elaborately discussing Edward Owen Engineering's caselu held that the Bank must pay according to its guarantee, on demand as stipulated, without proof or condition. The only exception is when there is a clear fraud of which the bank has notice. If the bank detects with a minimal investigation the fradulent action of the seller, the payment could be refused. By placing reliance on the decision the Supreme Court in Hindustan Steel Works Construction Ltd. v. Tarapore & Co.TM observed: "A demand by the beneficiary under the bank guarantee may become fraudulent not because of any fraud committed by the beneficiary while executing the underlying contract but it may become so because of subsequent events or circumstances". However, the court refused to interfere for the reason that there was no pleading of fraud and special equities pleaded are insufficient. After placing reliance on U.P. Co-operative Federation's case " and H.S.C.L. 's case (supra) the Supreme Court in New India Assurance Co. Ltd. v. Kusumanchi Kameswara Rao & Ann "-l held that as per Ss.91 and 92 of the Indian Evidence Act, 1872 no evidence dehors the terms of the agreement, whether documentary or oral, can be led by the parties to get out of the express terms thereof. It further held: "Whether the express terms of the guarantee bond give rise to the contract of guarantee sought to be enforced will be the only limited enquiry which could be gone into by the courts while deciding the rights and obligations flowing from such contract of guarantee which is a tripartite contract between the creditor, principal debtor and the surety. Once such surety ship agreement is established on the clear terms of the bond then as laid down by the aforesaid decisions of this court no latitude can be given to the contracting party, namely the surety or even the principal debtor to enable them to get out of the obligations of the surety ship agreement flowing from such contract, except in exceptional circumstances and indicated in these decisions." 24. The above analysis of the case law relating to 'fraud' and 'irretrievable injustice' would reveal that the following points may have decisive role in the matter of granting or refusing injunction against the enforcement of bank guarantee. (1) The obligations arising under the Bank guarantee are independent of the obligations arising out of specific or underlying contract. (2) The plea of fraud or irretrievable injustice shall not be allowed unless a prima facie case is made out as a triable issue by a strong evidence. (3) The plea of fraud must be an established fraud and it must be a fraud known to the bank. (4) The fraud alleged must be a fraud of an'egregious nature as to vitiate the entire underlying transaction. (5) The fraud shall be fraud of beneficiary and not the fraud of anybody else. (6) The subsequent dispute in the performance of the contract does not give rise to issue an injunction. (7) In the event of the dispute in the main contract ends in party's favour he is entitled to damages or other consequential reliefs. (8) The irreparable injury should not be speculative. It should be genuine and immediate as well as irreversible. (9) Irretrievable injustice must be of the kind referred to in the case of 'Itek Corporation', if the bank guarantees are realised. (10) If the bank detects with minimal investigation, the fraudulent action the payment could be refused. (11) A demand by the beneficiary under the bank guarantee may become fraudulent because of subsequent events taking place after executing the underlying contract. 25. Learned counsel for the appellant has forcefully contended that if there was no contractual liability undertaken by the principal debtor there could not be any question of enforcing a guarantee for a non-existent liability. That means it goes to the root of the underlying contract and in such situation there is no question of fraud or irretrievable injustice, so argued by the counsel. Therefore, what the counsel pleaded is that the court has to go into the question whether the guarantee covers the claim sought to be realised or the amount sought to be recovered. In support of this plea, the recent decision of the Supreme Court in National Textiles Corporation (South Maharashtra) Ltd. v. Tamil Nadu Co-operative Marketing Federation Ltd.« and in New India Assurance Co. Ltd. v. Kusumanchi Kameswara Rao "-l were cited. In support of this plea, the recent decision of the Supreme Court in National Textiles Corporation (South Maharashtra) Ltd. v. Tamil Nadu Co-operative Marketing Federation Ltd.« and in New India Assurance Co. Ltd. v. Kusumanchi Kameswara Rao "-l were cited. On the basis of these decisions counsel points out that there is no necessity to show fraud in a case where the question whether the principal debtor has contracted to pay the liability is in dispute. That means when non-liability is pleaded, the fraud need not be established. When this proposition is applied to the facts of the present case, the position would be that the enforcement of Exts. A-1 to A-3 bank guarantees can be injuncted in view of the fact that the Geo-Tech has disputed the liability to pay the contribution under the Kerala Construction Workers Welfare Fund Act, without establishing fraud on the part of H.S.C.L. or irretrievable injustice to which proposition we cannot agree. 26. In National Textiles Corporation's case « (supra) the principal debtor disclaimed liability to pay the amount covered by the bank guarantee. The beneficiary invoked the bank guarantee for the balance amount. Thereupon the principal debtor filed the suit in the High Court praying for a declaration that the bank guarantee stood discharged and/or was void. The prayer for ad-interim relief was rejected against which appeals were filed before the Division Bench. Those appeals were dismissed. Thereupon appeals were filed before the Supreme Court by special leave. The Supreme Court said that the appellants furnished irrevocable bank guarantee where under the second respondent unequivocally and unconditionally agreed to pay the first respondent on demand the price of the 'Kapas' not paid by the appellants. Accordingly the court held that the High Court was right in concluding that the appellant was not entitled to any ad-interim relief. Therefore, this is not a case where the High Court or Supreme Court granted injunction against the invocation of bank guarantee. The suit itself arose after the first respondent therein invoked the bank guarantee. There was no plea of fraud or irretrievable injustice. In the present case the temporary injunction was also sought on the ground of fraud and irretrievable injury. The suit itself arose after the first respondent therein invoked the bank guarantee. There was no plea of fraud or irretrievable injustice. In the present case the temporary injunction was also sought on the ground of fraud and irretrievable injury. In New India Assurance Co.'s case "-l (supra) the Supreme Court in the case of confirmed bank guarantees/ irrevocable letters of credit, held that the court will not interfere with the same unless there is fraud and irretrievable damages involved in the case and the fraud has to be an established fraud. The appeal before the Supreme Court arose in a suit for recovery of the money by the beneficiary against the guarantor. Neither the plaintiff nor the defendant pleaded fraud or irretrievable injustice. The court elaborately considered the question whether the guarantee covers the liability sought to be recovered and such a consideration was necessary since the suit was one for recovery of money arising out of a guarantee bond. 27. The counsel for the appellant further argued that the liability to pay contribution towards the welfare fund is not an obligation under any of the terms and conditions of the contract When there is no guarantee at all to discharge such a liability release of the retention money should be allowed. This of course is dependent on the terms of the Bank guarantee and the underlying contract. On the question of credibility to indemnify the H.S.C.L. for the payment of contribution, there is conflicting views between the parties, as pointed out earlier. The case of Geo-Tech is that enforcement of Bank guarantee is vitiated for fraud in as much as it has no liability to pay the contribution. Can it be said to be a case of fraud much less an established fraud? How can a person say it is a case of fraud when two opinions are possible on an interpretation of a term of a contract? This plea of fraud shall not be allowed unless a prima facie case is made out as a triable issue by a strong evidence. The averments contained in the affidavit in support of the petition for temporary injunction do not make out an established fraud. Under any circumstance, the fraud alleged is not of 'egregious' nature as to vitiate underlying transaction. There is no case for the H.S.C.L. that the alleged fraud is known to the bank. The averments contained in the affidavit in support of the petition for temporary injunction do not make out an established fraud. Under any circumstance, the fraud alleged is not of 'egregious' nature as to vitiate underlying transaction. There is no case for the H.S.C.L. that the alleged fraud is known to the bank. Therefore, we are of the view that the H.S.C.L. has failed to make a prima facie case of 'established fraud' as envisaged by the Supreme Court in Ansal 's case, U.P. Co-op. Federation's case " and I.T.C.'s case. 28. As discussed herein above, the bank guarantee provides that the Bank undertakes and agrees to indemnify H.S.C.L. against any loss or damage etc. caused to or suffered by H.S.C.L. by reason of breach of any of the conditions of contracts and to unconditionally pay the amount claimed by H.S.C.L. on demand and without demur. There is a further recital that H.S.C.L. shall be sole judge as to whether Geo-Tech has committed breach of any terms and conditions of contract. The Supreme Court while dealing with similar terms in a bank guarantee observed in H.S.C.L. 's case thus: "We are of the view that the guarantees furnished by the Bank to the appellant are unconstitutional and the appellant is the sole judge regarding the question as to whether any breach of contract has occurred and, if so, the amount of loss to be recovered by the appellant from the respondent. The entire dispute is pending before the Arbitrator." In such circumstances the court said that the grant of interim injunction against the enforcement of bank guarantee is quite illegal and without jurisdiction. However, in respect of conditional bank guarantee operative upto completion of work and trial production the Supreme Court found that the injunction should have been granted as held in Larsen and Toubro Ltd. v, Maharashtra State Electricity Board. Therefore, in view of the specific terms and conditions contained in Exts. A-1 to A-3 the Geo-Tech is not entitled to get an order of injunction restraining the invocation of bank guarantees. 29. Now let us turn to the plea of irretrievable injustice. 'Irretrievable injustice' would arise not only from the performance of a written contract but also from outside the terms of the contract. A-1 to A-3 the Geo-Tech is not entitled to get an order of injunction restraining the invocation of bank guarantees. 29. Now let us turn to the plea of irretrievable injustice. 'Irretrievable injustice' would arise not only from the performance of a written contract but also from outside the terms of the contract. The principle of 'irretrievable injustice' is not a rigid or inflexible formula inasmuch as the circumstances which give rise to it may vary from facts to facts. It cannot be cribbed, cabined or confined within the frame words of the terms laid down in a Bank guarantee or the underlying contract. Of course the solemnity and the credibility of a Bank guarantee has to be respected and upheld at all times but at the same time when there is irretrievable injustice it overlaps all other situations. The circumstances involved in this case will have to be evaluated in the above said premise. 30. An obligation is 'vinculumjuris' or bond of legal necessity which binds together two or more determinate individuals. The duty to perform the contract is an obligation arising from the terms of the contract. Therefore, those obligations must be placed with adequate accuracy so as to determine minutely whether there is violation of those obligations. Before a man is penalised for violation of the obligations, the obligations to be performed by him shall be stated and put before him in precise and explicit terms. It cannot be said in this case that the terms and conditions contained either in the bank guarantee or underlying contract are un-understandable or imperfect. The dispute as to the liability to indemnify the H. S. C.L. in respect of the contribution can be adjudicated in a proper framed suit. If ultimately, Geo-Tech is found to be not liable for contribution then it can be recovered or retrieved from the H.S.C.L. a company owned by the Central Government. There is no case for the Geo-Tech that the company is financially in a crippled position and therefore, there is no possibility to recover the amount or damages from it in case a decree is given to that effect. The person who pleads 'irretrievable injury' must establish that the injury caused to him is genuine and immediate and also irreparable for certain cogent reasons. No such reasons are stated by the Geo-Tech in support of the temporary injunction. The person who pleads 'irretrievable injury' must establish that the injury caused to him is genuine and immediate and also irreparable for certain cogent reasons. No such reasons are stated by the Geo-Tech in support of the temporary injunction. That means injunction sought for cannot be granted even if it suffers certain injury which can be compensated in appropriate proceedings. That is not a reason at all to restrain the invocation of bank guarantee by process of injunction. 31. Let us now examine the pleadings in the present case in support of the prayer for temporary injunction on the ground of fraud and irretrievable injustice. In paragraph 16 of the affidavit it is averred thus: "It is submitted that the first respondent is making frantic attempts to invoke bank guarantee. The letter dated 26th February 1998 mentioned above was issued with the clear intention of invoking bank guarantee. The attempt to invoke bank guarantee is for something beyond the scope of the bank guarantees. It is submitted that there is clear fraud in the action of the first respondent. The fraud in connection with such bank guarantees would vitiate the very foundation of the bank guarantees. If the bank guarantees are invoked it will result in irretrievable harm and injustice to the petitioner. The bank guarantees are made only towards the specific purpose of retention amount and nothing else. The petitioner has no liability whatsoever towards any payment towards the said Act. The claim of the first respondent is illegal, unjust and totally without jurisdiction and to invoke Bank guarantee towards the same can never be permitted particularly because the Bank guarantees are furnished for a specified particular purpose because it is clear fraud resulting in irretrievable harm gross injustice and irreparable injury. The first respondent can never be allowed to misuse the said bank guarantees." The bank guarantees were admittedly executed for refund of the retention money. The dispute is with regard to the payment of contribution towards welfare fund dues and as we said earlier this dispute cannot be resolved in the present proceeding. It requires to be decided in terms of the provisions contained in large number of documents relating to the underlying contract as referred to earlier. What is invoked here is an unconditional bank guarantee and the H.S.C.L. is the sole judge to decide the breach. It requires to be decided in terms of the provisions contained in large number of documents relating to the underlying contract as referred to earlier. What is invoked here is an unconditional bank guarantee and the H.S.C.L. is the sole judge to decide the breach. In such situation, the fraud must be an 'established fraud' to the knowledge of the Bank. The Bank though a party to the suit has no case that there was fraud in creating the bank guarantee or in its performance. What is the fraud committed by the beneficiary and who are the persons involved in fraud? One person alone cannot create fraud. The dispute between the parties on the interpretation of certain provisions contained in the underlying contract does not amount to fraud. Normally fraud consisted of large number of delinquencies and none is alleged against the H.S.C.L. On the basis of suspicion and conjecture, finding of fraud cannot be arrived at. The allegations are quite insufficient to hold that the fraud is established beyond any reasonable doubt. 32. The Supreme court in Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works P. Ltd."-" refused to countenance the plea of fraud in the absence of sufficient pleading in that behalf. The Court said that the application for injunction did not contain allegations of fraud and a bald averment alleging fraud was insufficient. Therefore, the Supreme Court held that in the absence of established fraud and not mere allegation of fraud, the court below could not have granted an injunction relating to the encashment of bank guarantees. As far as the second exception to the rule of granting injunction, the Supreme Court said thus: "The second exception to the rule of granting injunction, ie, the resulting of irretnvable injury, has to be such a circumstance which would make it impossible or the guarantor to reimburse himself, if he ultimately succeeds. This will have to be decisively established and it must be proved to the satisfaction of the court that there would be no possibility whatsoever of the recovery of the amount from the beneficiary by way of restitution". This will have to be decisively established and it must be proved to the satisfaction of the court that there would be no possibility whatsoever of the recovery of the amount from the beneficiary by way of restitution". The above decision rendered by the Bench consisting of three Honourable Judges of the Supreme court took note of the decision in Larsen and Toubro 's cased (supra) where an injunction was granted against the invocation of bank guarantee and distinguished the said decision as thus: "In our opinion, this decision can be of no assistance to respondent No.1 because in Larsen and Toubro's case (supra) this court found that the guarantee which had been given by the bank was to ensure only till the successful completion of the trial operation and the taking over of the plant. The documents revealed that the contractual term in this regard has been complied with and after successful completion of the trial operation, the plant had admittedly been taken over. In view of this, it was held by this court that the terms of the bank guarantee did not permit its invocation once the trial operations have been successfully completed." The Court further laid down: "An injunction of the Court ought not to be an instrument which is used in nullifying the terms of a contract, agreement or undertaking which is lawfully enforceable." 33. The following observation of the Supreme Court in Ansal Engineering Project's case (supra) is apposite in the present context. "At the stage of invocation of bank guarantee, the need for final adjudication and decision on the amount due and payable by the petitioner, would run contrary to the terms of the special contract in which the bank had undertaken to pay the, amount due and payable by the contractor." 34. In U.P. State Sugar Corporation v. Sumac International Ltd." the Supreme Court said that the grounds of fraud or irrespective injustice are not necessarily connected though both may co-exist in some cases. The law in this regard has been explained by the Supreme Court as hereunder. "The existence of any dispute between the parties to the contract is not a ground for issuing an injunction to restrain the enforcement of a bank guarantee. The courts have carved out only two exceptions. A fraud in connection with such a bank guarantee would vitiate the very foundation of such a bank guarantee. "The existence of any dispute between the parties to the contract is not a ground for issuing an injunction to restrain the enforcement of a bank guarantee. The courts have carved out only two exceptions. A fraud in connection with such a bank guarantee would vitiate the very foundation of such a bank guarantee. Hence if there is such a fraud of which the beneficiary seeks to take advantage, he can be restrained from doing so. The second exception relates to cases where allowing the encashment of an unconditional bank guarantee would result in irretrievable harm or injustice to one of the parties concerned. Since in most cases payment of money under such a bank guarantee would adversely affect the bank and its customer at whose instance the guarantee is given, the harm or injustice contemplated under this bead must be of such an exceptional and irretrievable nature as would override the terms of the guarantee and the adverse effect of such an injunction on commercial dealing in the country." In view of the principle laid down in this decision the existence of the dispute as to the liability to pay the contribution under the Welfare Fund Act between the parties is not a ground for issuing injunction to restrain the enforcement of the bank guarantees. Under no circumstances the present case will fall within the two exceptions carved out by the courts as discussed herein above. 35. Finally we are once again reminded of the decision of the Supreme Court in the State Trading Corporation of India's Ltd's case i" (supra) wherein principle governing the grant of injunction against the invocation of bank guarantee has been laid down in unequivocal terms. The law on the subject in hand is well settled in view of the large number of pronouncements of the Supreme Court. That being so, our function is to apply the law to the facts involved in the case and that is what we have done here. 36. In view of the discussion herein above, we are of the view that the appellant has not established a prima facie case for the grant of temporary innunction against the invocation of bank guarantees by the first respondent. Accordingly, we see no merit in this appeal. 36. In view of the discussion herein above, we are of the view that the appellant has not established a prima facie case for the grant of temporary innunction against the invocation of bank guarantees by the first respondent. Accordingly, we see no merit in this appeal. However, we make it abundantly clear that the observations and conclusions we made above have the effect and relevance only with regard to the interim issue involved in this appeal and that they are not to be treated as a conclusive and final expression of opinion with regard to any matter in issue in the suit, In the result, the appeal is dismissed. In the circumstances of the case, no order as to costs.