DALAVA SUBRAHMANYAM, J. ( 1 ) THE appellant-petitioner-plaintiff filed the appeal against the decree and order dated 6. 3. 2002 passed in I. A. No. 1283 of 2001 in O. S. No. 257 of 2001 in dismissing the petition filed by the appellant-petitioner under Order 39 Rule 1 r/w Section 151 C. P. C praying to grant temporary injunction against the 1st respondent herein from encashing the bank guarantee furnished by the appellant-petitioner. ( 2 ) THE brief facts leading to the filing of the appeal are as follows: The appellant-plaintiff filed O. S. No. 257 of 2001 on the file of the III Additional Chief Judge, City Civil Court, Hyderabad against the respondents-defendants praying to declare the agreement dated 27. 2. 1998 and the supplemental agreement dated 15. 5. 1998 as unconscionable, null and void and being unilateral, not binding on the plaintiff and the 1st defendant is not entitled to encash the demand drafts issued by defendants 2 and 3 for Rs. 6. 66 crores and consequently for mandatory injunction directing the 1st defendant to return the demand drafts to the bank and for damages and for other allied reliefs. ( 3 ) THE plaintiff contended that the 1st defendant called tenders for the supply of LPG cylinders in the Kerala state and the plaintiff Company was one of the bidders to the tenders called for. In pursuance of the discussions held, the plaintiff Company constrained to supply LPG in cylinders on par with the rate charged by the Government Companies, which is about Rs. 120/- per cylinder, less than the actual price charged by the plaintiff Company in the general market. The plaintiff Company represented by its Chairman signed on number of papers including the agreement dated 27. 2. 1998 and the supplemental agreement dated 15. 5. 1998. The 1st defendant promised to offer business of One lakh connections in nine districts of Kerala. As per the terms of the agreement, there would be one time payment for each consumer to the plaintiff Company in a sum of Rs. 5,750/- which is non refundable, for which the Company had to supply one Regulator, two cylinders to each consumer and supply the refill at subsidized rates. For each new connection, the defendant was entitled to a sum of Rs. 250/- towards commission and Rs. 10/- for each refill of 12kgs. 5,750/- which is non refundable, for which the Company had to supply one Regulator, two cylinders to each consumer and supply the refill at subsidized rates. For each new connection, the defendant was entitled to a sum of Rs. 250/- towards commission and Rs. 10/- for each refill of 12kgs. The 1st defendant, as a distributor, procured 22,000 consumers on different dates and they paid the amount at Rs. 5,750/- each. The 1st defendant in a fiduciary capacity collected the amounts from the customers. The terms and conditions of the agreement dated 27. 2. 1998 and 15. 5. 1998 are unilateral and advantageous only to the 1st defendant. The 1st defendant had no stakes involved in any manner whatsoever. The clauses 6 and 7 incorporated in the agreement were due to fraud played by the 1st defendant inducing the plaintiff Company that he would provide one lakh connections to it. The 1st defendant with malafide intention began to distribute LPG in the name of Neethi gas and addresseda letter dated 28. 2. 2000 to the bankers, who are defendants 2 and 3, invoking bank guarantee without any right, contrary to the conditions and the plaintiff Company had instituted a suit in O. S. No. 953 of 2000. The 1st defendant with malafide intention and to make unlawful and illegal gains invoked the bank guarantee. ( 4 ) NEITHER the 1st defendant nor the consumer has got any right to lay any claim for refund of the amount by invoking bank guarantee. The clauses 6 and 7 of the agreement are unconscionable and opposed to the public policy. The plaintiff is not bound to pay any amount to the consumer or the 1st defendant. There is no stipulation to refund the connection fee, as there is no breach of terms. The plaintiff supplied more than three lakhs of cylinders at subsidized rates and incurred loss of Rs. 4. 50 crores for supplying the refills at subsidized rates. The plaintiff filed the suit O. S. No. 953 of 2000 for illegally invoking the bank guarantee by the 1st defendant. The present suit is filed for comprehensive reliefs for declaration and injunction. The plaintiff supplied more than three lakhs of cylinders at subsidized rates and incurred loss of Rs. 4. 50 crores for supplying the refills at subsidized rates. The plaintiff filed the suit O. S. No. 953 of 2000 for illegally invoking the bank guarantee by the 1st defendant. The present suit is filed for comprehensive reliefs for declaration and injunction. The plaintiff also filed I. A. No. 1283 of 2001 in O. S. No. 257 of 2001 under Order 39 Rule 1 C. P. C praying to grant temporary injunction restraining the 1st defendant from encashing the demand drafts with respect to the amount given as bank guarantee. The Managing Director of the 1st respondent filed counter affidavit contending that the agreement to supply LPG refills is a commercial transaction between the CONSUMERFED Limited and the petitioner and it does not arise any statutory provisions and the 1st respondent is entitled to invoke the bank guarantee given by the petitioner whenever there is disruption in the supply of LPG refills by the petitioner and the petitioner failed to supply the refills as agreed. The 1st respondent invoked the bank guarantee as per the terms of the agreement. The petitioner filed O. S. No. 953 of 2000 on the file of the Senior Civil Judge, City Civil Court, Hyderabad and obtained ex parte injunction which was subsequently vacated and having failed in his attempts filed this false suit. However, this Court has no jurisdiction to entertain the suit as per clause 12 of the agreement. The respondents 2 and 4 filed common counter-affidavits and other respondents did not file any counters. ( 5 ) ON behalf of the petitioner Ex. A1 to A20 were marked and on behalf of the respondents Ex. B1 to B18 were marked. After appreciating the documents filed by both sides and after hearing, the learned III Additional Chief Judge, City Civil Court, Hyderabad, held that the petitioner-plaintiff had no prima facie case and the balance of convenience is not in its favour and accordingly the petition was dismissed with costs of the 1st respondent and ex parte interim injunction was vacated. ( 6 ) AGGRIEVED against the decree and order in I. A. No. 1283 of 2001 in O. S. No. 257 of 2001, the appellant-plaintiff filed the appeal contending that the order of the lower court is contrary to law and illegal. ( 6 ) AGGRIEVED against the decree and order in I. A. No. 1283 of 2001 in O. S. No. 257 of 2001, the appellant-plaintiff filed the appeal contending that the order of the lower court is contrary to law and illegal. The Court below failed to appreciate that the appellant-plaintiff established a prima facie case and the balance of convenience was in favour of the petitioner-plaintiff and hence ought to have granted temporary injunction as prayed for restraining the respondents from encashing the bank drafts. The Court below committed error in appreciating Ex. A5, A6 and A8 and the observation of the lower Court that the plaintiff failed to supply LPG refills while meeting the demand is perverse. The observation of the lower Court that the appellant-petitioner failed to prove prima facie case, balance of convenience and irreparable loss is not correct and not maintainable. For the above said reasons, the decree and order of the lower Court may be set aside by allowing the appeal. ( 7 ) NOW the point for consideration is whether the III Additional Chief Judge erred in coming to the conclusion that the appellant-petitioner-plaintiff failed to prove prima facie case, balance of convenience and irreparable injury so as to entitle for the temporary injunction prayed for and if so whether the appeal is liable to be allowed? ( 8 ) THE appellant-petitioner-plaintiff filed the petition praying for grant of temporary injunction against the respondents and therefore the appellant-petitioner has to prove prima facie case, balance of convenience and irreparable loss so as to entitle the petitioner-plaintiff for grant of temporary injunction. The fact that the appellant-petitioner entered into an agreement dated 27-2-1988 and thereafter supplement agreement dated 15. 5. 1998 with the 1st defendant is admitted and they are marked as Ex. A2 and A3. The learned III Additional Chief Judge discussed the terms and conditions of the said agreements and finally, after discussing all the facts, dismissed the petition on merits. ( 9 ) THE learned Advocate appearing for the appellant submitted at the bar that the terms and conditions contained in Ex. A2 and A3 are unconscionable, null and void and therefore the terms cannot be enforced. The agreement between the parties is commercial in nature and it was agreed between the parties that in case of any breach, the 1st respondent was entitled to invoke the bank guarantee. A2 and A3 are unconscionable, null and void and therefore the terms cannot be enforced. The agreement between the parties is commercial in nature and it was agreed between the parties that in case of any breach, the 1st respondent was entitled to invoke the bank guarantee. The appellant agreed to furnish bank guarantee for the amounts collected from CONSUMERFED as connection fee for release of the LPG connections and finally agreed that a bank guarantee for Rs. 3,000/- for each connection shall be furnished by SSLPG to the CONSUMERFED for one year which will be renewed for every year before expiry of the period. The decision of the CONSUMERFED whether there was breach committed by anyone is to be decided by the CONSUMERFED, which shall be conclusive, final and binding on the parties. The documents furnished by both parties would disclose that there was breach in supply of LPG refills to the consumers by the 1st respondent. In fact, the appellant-petitioner could not honour the indents made by 1st respondent. The documents filed by the 1st respondent would prove that the appellant-petitioner failed to supply LPG refills satisfying the demands made during the relevant period, which would prove by the documents Ex. A11, A15 and Ex. A16. In view of the fact that the appellant-petitioner failed to supply LPG refills during relevant period as agreed upon, the 1st respondent was entitled to invoke the bank guarantee and therefore the lower Court has not committed any error in coming to the conclusion that the appellant-petitioner failed to prove prima facie case and balance of convenience was not in favour of the appellant and the appellant failed to prove irreparable loss or injury in case the bank guarantee is invoked. The documents marked on both sides would prove that the appellant-petitioner failed to prove prima facie case and balance of convenience and irreparable loss so as to entitle the appellant for grant of temporary injunction. There are no tenable grounds to interfere with the findings of the lower Court and the order of the III Additional Chief Judge is well considered and hence the same is liable to be confirmed. ( 10 ) IN the result, the appeal is dismissed without costs confirming the decree and order dated 6. 3. There are no tenable grounds to interfere with the findings of the lower Court and the order of the III Additional Chief Judge is well considered and hence the same is liable to be confirmed. ( 10 ) IN the result, the appeal is dismissed without costs confirming the decree and order dated 6. 3. 2002 passed in I. A. No. 1283 of 2001 in O. S. No. 257 of 2001 on the file of the III Additional Chief Judge, City Civil Court, Hyderabad.