JAYANTA KUMAR BISWAS, J. ( 1 ) THIS interlocutory application (T. No. 591 of 2003) dated November 3rd, 2003 has been filed by the plaintiff in its pending suit (C. S. No. 293 of 2003 ). The prayers in this application read as follows:"a) An order of injunction restraining the respondents, their men, servants and agents from receiving and/or making payment under the Letter of credit bearing No. CALJ/fcl/132/03 dated 10th June, 2003 opened by the petitioner through respondent No. 2 as issuing bank and respondent no. 3 as confirming bank; b) The respondent No. 1, its men, servant and/or agent be also restrained from negotiating the Letter of Credit bearing No. CALJ/fcl/ 132/03 and create third party interest in respect thereof; c) The respondent No. 1 be directed to put in security for a sum of USD 8180 being the till date claim for loss and compensation made by the overseas buyer of the petitioner; d) Ad interim orders in terms of prayers above; e) Necessary order as to costs; f) Such further or other order or orders be passed and/or direction be given as to this Hon'ble Court may deem fit and proper;"in the suit the plaintiff has prayed for the following reliefs:"a) A decree for perpetual injunction restraining the respondents, its men, servants and agents from receiving and/or making payment under the letter of Credit bearing No. CALJ/fcl/132/03 dated 10th June, 2003 opened by the petitioner through respondent No. 2 as issuing bank and respondent No. 3 as confirming bank; b) A declaratory decree to the effect that the respondent No. l is not entitled to US $24,640 from the petitioner; c) A decree for USD 8180 as pleaded in paragraph 33 hereinabove; d) Interest, interest pendents lite and interest upon judgement; e) Temporary injunction; f) Receiver; g) Attachment; h) Costs; i) Further and other reliefs;". ( 2 ) ON November 5th, 2003 this application was moved exparte, and an interim order was granted in terms of prayer (a) of this application. Such ex parte interim order was directed to remain in force for a period of four weeks, and the plaintiff was directed to serve notice of this application on the defendants. Affidavit-of-service dated November 28th, 2003 has been filed stating that notice was given to the defendants. In response to the notice, while defendant No. 1 has entered appearance, the other defendants have not. Affidavit-of-service dated November 28th, 2003 has been filed stating that notice was given to the defendants. In response to the notice, while defendant No. 1 has entered appearance, the other defendants have not. ( 3 ) THE facts of the case are these. The plaintiff, inter alia, carries on business as trader of diverse items required for packaging of tea; its registered office is at Kolkata. Defendant No. 1 is a manufacturer of multiwall paper sacks required for packing tea for export and transportation; it has its office and manufacturing unit in Srilanka. On May 5th, 2003 the plaintiff received an order for 32,000 pieces of multiwall paper sacks from a company in Vietnam. The plaintiff placed the order with defendant No. 1 for supplying such sacks direct to the company in Vietnam. For the purpose on June 10th, 2003 the plaintiff opened a Letter of credit in favour of defendant No. 1; it was opened through defendant No. 2 (the federal Bank Ltd. , Overseas Branch at Kolkata ). It was an irrevocable Letter of Credit for US $24,640. In clause 46a of this Letter of Credit the documents required for negotiation of the bills were specified; one of such documents was a pre-shipment inspection certificate to be issued by a recognized surveyor company confirming the quantity and quality of the sacks according to the agreed specifications. ( 4 ) ON June 26th, 2003 the letter was amended. The amendment was made regarding item 7 of clause 46a (documents required) of the original Letter of credit. By amendment it was provided that a pre-shipment inspection certificate issued by the plaintiffs authorised representative Mr. S. R. Thurairaj of Srilanka confirming the quantity and the quality of the sacks according to the agreed specifications would be required to be submitted by defendant No. 1 for negotiating the bills. The letter was lastly amended on August 23rd, 2003, whereby the last date of shipment was fixed for August 30th, 2003, and the last date for negotiation, of bills was fixed for September 4th, 2003. Defendant No. 1 shipped the goods on August 30th, 2003. Simultaneously, defendant No. 1 forwarded shipping documents, viz. , the bill of lading, the certificate of origin, the certificate from National Chamber of Commerce, Sri Lanka, the packing list, the certificate of pre-shipment inspection, etc. Defendant No. 1 shipped the goods on August 30th, 2003. Simultaneously, defendant No. 1 forwarded shipping documents, viz. , the bill of lading, the certificate of origin, the certificate from National Chamber of Commerce, Sri Lanka, the packing list, the certificate of pre-shipment inspection, etc. , to defendant No. 2 (the bank) for drawing the amount on the Letter of Credit. ( 5 ) ON October 17th, 2003 the plaintiff sent a letter dated October 16th, 2003 to defendant No. 1 alleging breach of terms and conditions of the contract, and perpetration of fraud. The particulars of breach and fraud enumerated in this letter are reproduced below:"a) You did not allow the inspecting agency appointed by us to carry out pre-shipment inspection and inspection as per terms of LC so that the short supply and improper print could not be detected prior to shipment. b) You did not forward the inspection note required to be sent as per the lc condition. c) Taking advantage of no pre-shipment inspection or inspection as per lc condition you intentionally stuffed the sacks loosely in the container without palletizing the same thereby causing damage during transit. d) You intentionally made short supply knowing fully well that the goods were to be sent in sealed container, which could be detected only after opening the seal so that you could dispute such short supply on the ground that seal was broken. e) You intentionally packed less than 25 pcs. in the bundles so that the same could not be detected unless each bundle is opened and you could deny your responsibility and liability. f) You intentionally intermingled one print into the bundle of the other print so that short supply could not be detected easily and afford you opportunity to deny such liability. g) You intentionally made such short supply in the scaled container, which could not be detected without breaking open the seal so that we could not make insurance claim for such short supply if so required. h) You intentionally forwarded documents not in accordance with the LC at the last moment knowing fully well that without accepting the same we could not raise our invoice and bills on our buyer. i) You intentionally submitted false declaration certificate as to the quality and quantity of goods believing which to be true we accepted the same for preparing our invoice and bills. i) You intentionally submitted false declaration certificate as to the quality and quantity of goods believing which to be true we accepted the same for preparing our invoice and bills. j) You intentionally gave false declaration as to the quantity, quality and description of the goods before the National Chamber of Commerce of Sri Lanka to obtain a certificate of origin and make us believe as to the authenticity of the goods. k) You intentionally forwarded false and fabricated documents at the last moment being well aware that without such document we could not negotiate our LC with the overseas buyer within time thereby affording us no reasonable opportunity and time to verify the genuinity (sic) of the documents. 1) You had deliberately forwarded false documents to Federal Bank, overseas Branch, Kolkata being the issuing bank of the LC at the last moment without affording them or us any reasonable opportunity and time to verify the genuinity (sic) of the documents. m) You had deliberately forwarded false and fabricated documents at the last moment to get the same accepted and endorsed by us and the issuing bank under compelling circumstances with the intent to deceive and receive payment under the LC or negotiate the documents to receive payment from third parties whereby we and the Federal Bank will be compelled to pay such money. n) You entered into a contract without any intention to perform it and your entire act was designed to deceive us by taking advantage of the fact that you being situated in a different country where we cannot catch hold of you once you receive the payment by intentionally short supplying items, by supplying off grade materials de hors specifications by improperly packing them and, concealing material fact well within your knowledge. o) You had also intentionally attempted to burden us with freight liability after agreeing to dispatch goods on freight prepaid basis and getting the bill of lading endorsed as freight prepaid. " ( 6 ) BY letter dated October 23rd, 2003 defendant No. 1 replied to the plaintiffs above letter. The contents of the letter written by defendant No. 1 are reproduced below:"refer to your fax of 16 October, 2003 and our reply on same dated, we wish to inform you that we very strongly deny all charges and claims made by you. The contents of the letter written by defendant No. 1 are reproduced below:"refer to your fax of 16 October, 2003 and our reply on same dated, we wish to inform you that we very strongly deny all charges and claims made by you. Regarding your paragraph-03, we vermantly (sic) deny that we ever asked you to appoint S. R. Thurairaj as an inspecting agent. We infact objected appointment of him at that time and requested you to appoint a recognised international surveyor. This request was turned down due to, you want to save money on your part. Where the delaying of shipment concerned was due to some unfortunate circumstances, which was beyond our control. These were discussed with you and you accordingly agreed to amend the Letters of Credit. If you had found that we purposely delayed the shipments, you could have cancelled the said shipment. You should understand even very high profile companies face problems in delivery times and discuss with the customer, likewise we have done the same with you. For your information you LC for the last amendment, was done only after goods were loaded on board the ship, which very clearly showed under all circumstances, you were prepared to accept the delay. The reason for us to press you to confirm the Letter of Credit was after a report was requested by one of our banker on your credit rating. The goods were dispatched on 30th of August from Colombo but we are not at fault, the bill of lading very clearly showed on pre-paid basis. Though our shipping agent calculated a mischievous move on this, we will not accept any blame or liabilities on this, where the shortcoming was on part of the shipping agent. Under no circumstances, we have under shipped the orders. For your information may we very clearly and strongly point out both B. O. I, verification officials and custom officials have verified the quantities loaded into the container. The documents can be obtained regarding this matter, from the B. O. I. Therefore your claim of short shipment is completely incorrect. These officials are very strict on their verifications, further more your agent visited the factory and had issued a report that the qualities as stated in the letter of Credit has been verified and is correct. The documents can be obtained regarding this matter, from the B. O. I. Therefore your claim of short shipment is completely incorrect. These officials are very strict on their verifications, further more your agent visited the factory and had issued a report that the qualities as stated in the letter of Credit has been verified and is correct. We are surprised beyond our belief that not you but your agent in Haiphong had found 4047 sacks were short. Reference to your allegation on page 03 stating from 'a' to 'o', we will not accept any of the falsified allegations. We very clearly point out that our quality control has been done thrice over for its quality and quantity manufactured, bundled, and shipped. Regarding where you claim that the sacks had not been palletised, it's very correct, that bundles were loaded loose as there was no instructions from you to palletise the bundles. If any sacks were opening out, we like to have sample of the same so that we can inspect. If the defects are in our manufacture, if so we will replace the sacks at our cost. Considering the past business relationship and the situation you are faced with we are prepared to manufacture and ship at our cost. The 4097 t -holder' sacks your claim has been short shipped once you give us very clear proof. If required we are prepared to send one of our representatives to inspect the 't - Holder' sacks once you give us the name of your agent. Please inform us immediately, as we do not want to delay this matter further, if it is proved our fault, we will go out of our way to safeguards your interest. Anticipating your respond. " ( 7 ) IN the facts and circumstances narrated before the plaintiff filed the suit in which the present application for interim reliefs has been taken out. ( 8 ) MR. Mukherjee, the learned Counsel appearing for the plaintiff, has submitted that since defendant No. 1 has not filed any application under order 39 Rule 4 of the Code of Civil Procedure, the interim order passed on November 5th, 2003 should be continued. ( 8 ) MR. Mukherjee, the learned Counsel appearing for the plaintiff, has submitted that since defendant No. 1 has not filed any application under order 39 Rule 4 of the Code of Civil Procedure, the interim order passed on November 5th, 2003 should be continued. His contention is that once this Court was satisfied that the plaintiff made out a prima facie case for getting interim relief, in the absence of any contrary facts and materials disclosed by defendant No. 1, the interim order should not be vacated. It is his contention that defendant No. 1 perpetrated a fraud and the particulars have been given in the pleading as required by provisions in Order 6 Rule 4 of the Code of Civil Procedure, and hence the allegation of fraud should be examined taking the statements made in the pleading at their face value. For this purpose he relies on the Supreme court decision in the case of Sukhdei vs. Bairo and Ors. , 1994 (4) SCC 262. His further submission is that because of the short supply made by defendant No. 1 the company in Vietnam has refused to pay the full charges, and it has also claimed damages from the plaintiff, and hence if defendant No. 1 is permitted to draw on the Letter of Credit, the plaintiff will suffer financial loss. ( 9 ) ON the other hand Mr. Khanna, the learned counsel appearing for defendant No. 1, has submitted that the plaintiff has totally failed to make out a prima facie case of perpetration of fraud by defendant No. 1. His contention is that there is no dispute regarding the supply of the goods, and the dispute, if any, is only regarding their quality or quantity; and hence, at best, it can be regarded as a case of breach of contract, if the statements in the pleading are taken at their face value and accepted as true and correct, but it cannot be considered a case of fraud. It is his contention that mere bald allegation of fraud is of no worth for supporting a prayer for injunction from a Court of Law and what is required is making out a case of established fraud. It is his contention that mere bald allegation of fraud is of no worth for supporting a prayer for injunction from a Court of Law and what is required is making out a case of established fraud. He has contended that in the face of the pre-shipment inspection report duly signed by the authorised representative of the plaintiff, and in the absence of any objection from defendant No. 2 (the bank) regarding insufficiency of the documents required for drawing the amount on the Letter of Credit, the plaintiff is not entitled to seek any injunction to stop the negotiation of the bills on the irrevocable confirmed Letter of Credit opened by the plaintiff in favour of defendant No. 1. By referring to the handwritten endorsement at the bottom of the certificate of inspection, he has contended that by making attempt to mislead this Court on the basis of such unauthorized and unsigned endorsement the plaintiff rather has practised fraud on this Court, and obtained the ex parte interim order. To support his contention that the order obtained by the plaintiff by exercising fraud should be vacated, he relies on the Supreme Court decision in the case of S. P. Chengaluarya Naidu vs. Jagannath and Ors. , 1994 (1) SCC 1 . His further contention is that in view of the settled position of law, in the absence of a prima facie case of established fraud and special equities in the form of preventing irretrievable injustice between the parties, no injunction is ordinarily granted against negotiation of bills on confirmed irrevocable Letter of Credit; and since the plaintiff has failed to make out such a case, it is not entitled to any injunction in this application. In this connection he relies on the Supreme court decisions in the cases of: - (1) Larsen and Toubro Ltd. vs. Maharashtra state Electricity Board and Ors. , JT 1995 (7) SC 18; and (2) Federal Bank Ltd. vs. V. M. Jog Engineering Ltd. and Ors. , 2001 (1) SCC 663 . In this connection he relies on the Supreme court decisions in the cases of: - (1) Larsen and Toubro Ltd. vs. Maharashtra state Electricity Board and Ors. , JT 1995 (7) SC 18; and (2) Federal Bank Ltd. vs. V. M. Jog Engineering Ltd. and Ors. , 2001 (1) SCC 663 . His next contention is that this application is liable to be dismissed on the simple ground that it cannot be accepted as an affidavit evidence, because an authorised signatory of the plaintiff has verified all the statements in the application as true to his knowledge, while the fact remains that such person being never present at the place of pre-shipment inspection of the goods cannot have any knowledge about the facts and circumstances connected with the inspection and shipment of the goods. In support of his this contention he relies on the Supreme Court decisions in the cases of: (1) A. K. K. Nambiar vs. Union of India and Anr. , AIR 1970 SC 652 ; and (2) Sukhwinder Pal Bipan Kumar and Ors. vs. State of Punjab and Ors. , air 1982 SC 65 . The learned Counsel has also contended that even if ultimately it is found that there was a short supply or the quality of the goods was not up to mark as alleged, the plaintiff would be entitled to damages, and the decree, if any, can certainly be executed in Sri Lanka which is admittedly not an unfriendly country. ( 10 ) AFTER hearing the learned Counsel for the parties and after considering the decisions cited at the Bar, I am of the considered view that in the facts and circumstances of this case no interim relief can be given to the plaintiff, and the interim order dated November 5th, 2003 should be vacated. ( 11 ) I am simply unable to agree with the learned Counsel for the plaintiff that once this Court found that a prima facie case was made out by the plaintiff in this application for getting ex parte interim relief, in the absence of facts and materials produced by defendant No. 1, the ex parte interim order cannot be vacated. The opinion regarding the making out of a prima facie case was formed by this Court for the purpose of granting the ex parte interim order. The opinion regarding the making out of a prima facie case was formed by this Court for the purpose of granting the ex parte interim order. At the ex parte stage this Court, of course, was not supposed to get the assistance of the learned Counsel for the defendants. If the proposition as profounded by the learned Counsel for the plaintiff is to be accepted, then there would be no requirement of hearing the defendant in a suit against whom an ex parte interim order has been passed, so long as such defendant does not file counter to the injunction application. The opinion formed by the Court for the purpose of granting ex parte interim order in a suit, can definitely be reversed by the same Court on a contested hearing of the application; such contest is supposed to take place on the first returnable date when the defendant can seek dismissal of the injunction application on merit, and for this there is no legal requirement of filing a counter by the contesting defendant. Hence I find no merit in the contention that without filing its counter or vacation application defendant No. 1 is not entitled to seek vacation of the ex parte interim order and dismissal by this application. ( 12 ) I find that the learned Counsel for defendant No. 1 is right in his submission that even if the case made out by the plaintiff is accepted as true and correct, the allegations read with the documents accompanying this application do not constitute aprima facie case of fraud committed by defendant no. 1 in connection with the Letter of Credit in question. The Letter of Credit is admittedly an irrevocable confirmed one, and according to law laid down by the Apex Court in the decisions cited at the Bar its enforcement can be stopped by an injunction passed in this application only if it is found that the plaintiff has made out aprima facie case of established fraud and special equities in the form of preventing irretrievable injustice between the parties. Absolutely no case of any irretrievable injustice has been made out. There is no dispute that the goods were shipped by defendant No. 1 within the scheduled date. There is no dispute that the pre-shipment inspection report was signed by the authorised signatory of the plaintiff. Absolutely no case of any irretrievable injustice has been made out. There is no dispute that the goods were shipped by defendant No. 1 within the scheduled date. There is no dispute that the pre-shipment inspection report was signed by the authorised signatory of the plaintiff. The certificate shows that such inspecting authority issued the certificate after inspection, and he certified that the goods conformed to the agreed specifications regarding quantity, quality, size, etc. The plaintiff relies on the communication dated September 3rd, 2003 received from the company in Vietnam. Even if this communication is accepted to be a genuine document, it does not lend any support to the allegation of fraud made by the plaintiff against defendant No. 1. This communication simply shows that there was a short supply of 8,500 pieces, and the company in Vietnam was compelled to purchase the quantity from the local market, and hence, inclusive of all charges, the plaintiff would be getting US $4505 less from the agreed price between the parties. The letter dated September 20th, 2003 stated to be received by the plaintiff also does not lend any credence to the case of fraud alleged by the plaintiff. This letter also speaks about lesser quantity of goods received by the company in Vietnam. I find from the reply dated October 23rd, 2003 given by defendant No. 1 that it called upon the plaintiff to satisfy about the alleged short supply, with the assurance that if the allegation was proved, defendant no. 1 would manufacture and ship the sacks at its own costs. The plaintiff, it appears, without taking steps for sorting out the issue of alleged short supply approached this Court for injunction to stop enforcement of the irrevocable confirmed Letter of Credit by defendant No. 1. On a close examination of the facts, I am of the view that the case made out by the plaintiff can at best be regarded as one of breach of contract, and not one of perpetration of fraud by defendant No. 1. This being the position I am of the view that the plaintiff is not entitled to any injunction to restrain defendant No. 1 from enforcing the letter of Credit and drawing the amount on it. This being the position I am of the view that the plaintiff is not entitled to any injunction to restrain defendant No. 1 from enforcing the letter of Credit and drawing the amount on it. ( 13 ) SINCE on merit I have found that the plaintiff is not entitled to any interim relief in the suit, I do not think any useful purpose will be served by entering into the question whether this application is supported by a proper verification or affidavit. ( 14 ) THE question of furnishing security or bond by defendant No. 1 has also been mooted at the Bar. In the facts and circumstances of the case I am of the view that there is no ground to ask defendant No. 1 to furnish security or bond for permitting it to enforce the Letter of Credit. As noted before it is an irrevocable confirmed Letter of Credit and any restraint order can be passed to stop its enforcement only when a prima facie case of fraud and irretrievable injustice is made out. Once I have found that the plaintiff has failed to make out such a prima facie case, I find no reason to ask defendant No. 1 to furnish any security or bond before permitting it to enforce the letter of credit. If ultimately the plaintiff succeeds in the suit, it goes without saying that the decree can be conveniently executed in Sri Lanka. ( 15 ) FOR the foregoing reasons I am of the view that the interim order dated november 5th, 2003 should be vacated, and hence the same is hereby vacated. The vacation of the interim order, in effect, makes this application infructuous, and hence I find that keeping this application pending will not benefit the plaintiff in any manner. Moreover I have examined the matter in detail and I find nothing more is required to be decided in this application. Hence this application is also hereby dismissed. ( 16 ) IN the facts and circumstances of the case it is ordered that the costs of this application shall be the costs in the suit. ( 17 ) URGENT xerox certified copy of this judgment and order may be supplied to the parties in course of the day, if applied for. Appeal dismissed.