JUDGMENT I. MAHANTY, J. : M/s. Trafalgar House Construction, the petitioner has entered into a contract with Orissa Hydro Power Corporation Ltd.- Opp.party No.2 and the said contract was num¬bered as 1/ICB/95-96 of Indravati Head Race Division and the work was for the purpose of construction and completion of the balance work, namely, (i) Head Race Tunnel and (ii) Muran Masonry & Concrete Dam of Upper Indravati H.E. Project and the contract value was Rs.26,90,12,360/- and Rs.37,52,19,875/- respectively bringing the total value to Rs.64,42,32,235/-. 2. For the purpose of carrying on its work and in terms of the agreement entered into between the parties, the petitioner provided the following Bank Guarantees : (1) Bank Guarantee No.1/95, dated 4.4.1995 from Canara Bank, Bangalore for Rs.6,45,00,000/- as performance Security. (2) Bank Guarantee No.63/97 dated 18.12.1997 from Canara Bank, Bangalore for Rs.1,00,00,000/- as Retention money. (3) Bank Guarantee No.63/97 dated 18.12.1997 from Canara Bank, Bangalore for Rs.1,00,00,000/- as Retention money. (4) Bank Guarantee No.77/85 dated 13.10.1999 from Central Bank of India, Hyderabad for Rs.1,00,00,000/- as Retention money. 3. The petitioner has filed the present writ application with the following prayer : “For issuance of a writ/writs in the nature of certiorari/mandamus and/or any other or further writ/direction quashing Annexure-1, Annexure-1(a) and (a) Commanding the Opp.parties to release the Bank Guarantees held by them forthwith. (b) Prohibiting the Opp.parties from encashing the Bank Guaran¬tees of the petitioner retained by them, (c) Directing the Opp.Parties to issue taking over certificate and defect liability certificate forthwith, (d) Issuing a mandamus to the Opp.Parties particularly the State Govt.(Opp.Party No.1) to grant formal extension of time up to 28.12.1998 for the HRT work, and (e) Ordering payment of final bill as per the agreement terms including the price escalation dues arising out of payment of revised rates with interest @ 10% from the due date as per sub-clause 60.8 of the agreement.” The main dispute raised in this writ application pertains to the Bank Guarantees issued by the petitioner and the impugned action of the Opp.Parties in trying to encash the same. 4. Mr. Jagannath Patnaik, learned Sr. Advocate appearing for the petitioner contended that the law relating to Bank Guar¬antee is no more res integra and both, in England and India, the jurisprudence on the same has been settled. In this respect, Mr. 4. Mr. Jagannath Patnaik, learned Sr. Advocate appearing for the petitioner contended that the law relating to Bank Guar¬antee is no more res integra and both, in England and India, the jurisprudence on the same has been settled. In this respect, Mr. Patnaik has placed reliance upon a decision of the Supreme Court in the case of U.P. Co-operative Federation v. Singh Consultants and Engineers (P) Ltd., (1988) 1 SCC 174 and submitted that injunction can be granted against invocation of Bank Guarantee only in cases of (i) established fraud or (ii) irretrievable injury. Mr. Patnaik, further placed reliance upon another judg¬ment of the Supreme Court in the case of Hindustan Construction Co. Ltd. v. State of Bihar and Others, AIR 1999 SC 3710 and submitted that the Courts can interfere in a clear case of ille¬gal invocation of Bank Guarantees. Relying upon the aforesaid case laws, Mr. Patnaik submitted that the law seems to be clear that the Courts have very “restricted power” to interfere with the cases of invocation of Bank Guarantees. In fact, all the decisions on this point prohibit judicial interference in case of invocation of Bank Guarantees, on the ground that the Bank Guar¬antees are unequivocal and therefore, the beneficiary is entitled to encash the same in terms of the guarantee. He further submit¬ted that though the beneficiary is entitled to encash the Bank Guarantees, such encashment must be for the purpose for which they were executed notwithstanding any pending dispute in that regard. After having placed reliance upon the aforesaid judgments of the Supreme Court, learned counsel for the petitioner contend¬ed that the present case comes within the concept of “irretrieva¬ble injury” highlighted by the Supreme Court. 5. Mr. Patnaik, further submitted that in the instant case, so far as the petitioner is concerned, there is no dispute on their behalf so far as entitlement is concerned. Admittedly, in such a dispute, the contract provides a separate forum for arbitration. He submitted that the reason for the petitioner to seek a mandamus by invoking the extra ordinary jurisdiction of this Court has emanated from the impugned action spelt out in the communication under Annexure-1 series and in such communications, the Opp.Parties have created a dispute at their end so far as payment already made to the petitioner is concerned. He submitted that the reason for the petitioner to seek a mandamus by invoking the extra ordinary jurisdiction of this Court has emanated from the impugned action spelt out in the communication under Annexure-1 series and in such communications, the Opp.Parties have created a dispute at their end so far as payment already made to the petitioner is concerned. It was fur¬ther averred that the Opp.parties have disputed such payment and labelled the same as “excess payment” and have attempted to encash the Bank Guarantees to make good their alleged “un-adjudicated over payment” though the Bank Guarantees were meant to be securi¬ty for the purpose of securing performance of the contract. Mr. Patnaik, further submitted that the Bank Guarantees referred to herein above, were furnished by the petitioner against perform¬ance or security as per sub-clause 10.1 of CPA. Therefore, Clause 10.2 of G.C.C. envisages the period of validity of performance security and stipulates that no claim shall be entertained after issuance of defect liability certificate in accordance with sub-clause-62.1 Therefore, it was submitted that this Clause clearly stipulates defect liability certificate shall be issued within 28 days of the expiration of the defect liability period and Clause-49.1 of G.C.C. prescribes the defect liability period as 365 days calculated from the date of completion and the delay certificate by the engineer in accordance with Clause-48. It is, thus, sub¬mitted by the learned counsel for the petitioner that the defect liability period being admittedly over the performance security period no more remains in force and, therefore, the bank guaran¬tees executed for this purpose become otiose after the defect liability period. Learned counsel for the petitioner submitted that a compendious reading of all the clauses would lead to the conclusion that the opposite parties are obliged to issue the “taking over certificate” and the “defect liability certificate” and they should be injuncted from encasing the bank guarantees beyond the defect liability period and for anything other than performance security. It is further submitted that the opposite parties have failed to point out any defect in the work carried out by the petitioner and on the contrary have made substantial financial gain from the work constructed by the petitioner. 6. Mr. It is further submitted that the opposite parties have failed to point out any defect in the work carried out by the petitioner and on the contrary have made substantial financial gain from the work constructed by the petitioner. 6. Mr. R. K. Rath, learned Senior Counsel appearing for opposite party No.2 submitted that all the bank guarantees in question which are the subject matter of the present application are “unconditional bank guarantees’ and submitted that the judg¬ments relied upon by the learned counsel for the petitioner are cases in which the bank guarantees were found to be “conditional” bank guarantees whereas in the present case the Bank Guarantees are “unconditional”. 7. Mr. Rath, further submitted that the performance bank guarantees which are the subject matter of the writ application are “unconditional bank guarantees’ and the law in this respect has been settled by the Supreme Court in the case of Svenska Handelsbanken v. M/s. Indian Charge Chrome and others, AIR 1994 SC 626 , by a Bench consisting of three Hon’ble Judges who came to hold that when a party seeks injunction from encashing of bank guarantees it has to show a prima facie case of established fraud and an irretrievable injury, i.e., that the plaintiff has no adequate remedy at law and that the allegations of “irreparable harm” are not speculative but genuine and immediate, and the plaintiff will suffer irreparable harm if the requested relief is not granted. Mr. Rath also placed reliance on a decision of the Hon’ble Supreme Court upon in a case of Oil and Natural Gas Corporation Ltd. v. State Bank of India, Overseas Branch, Bombay, AIR 2000 SC 2548 , wherein the Judgment of the apex Court in the case of Svenska Handelsbanken (supra) was noted and reiterated to the following effect: “..........in case of confirmed bank guarantee/irrevocable letters of credit, it cannot be interfered with unless there is a fraud and irretrievable injustice involved in the case and fraud has to be as established fraud there should be prima facie case of fraud and special equities in the form of preventing irre¬trievable injustice between the parties. Mere irretrievable injustice without prima facie case of established fraud is of no consequence in restraining the encashment of bank guarantee.” Their Lordships also relied upon a judgment of the Supreme Court in the case of Hindustan Steel works Construction Ltd. v. Tarapore and Co., AIR 1996 SC 2268 in which it was held that encashment of an unconditional bank guarantee does not depend upon the adjudication of disputes, no distinction can also be made between bank guarantee for due performance of a work con¬tract and a guarantee given towards security deposit for a con¬tract or any other kind of guarantee where the beneficiary shall be the sole Judge on the question of breach of primary contract the bank shall pay the amount covered by the guarantee on demand without a demur in the absence of a plea of fraud, guarantee had to be given effect to. 8. Mr. Rath also placed reliance upon a judgment of this Court in the case of S.M.S. Demag AG and another v. Neelachal Ispat Nigam Ltd. and others, AIR 2004 Orissa 89, in which Hon’ble Mr. Justice A. K. Patnaik, as His Lordship then was, after having granted interim injunction against encashment the bank guarantee ultimately dismissed the writ petition and vacated the injunc¬tion, inter alia, placing reliance on various decisions rendered by the Supreme Court and in particular placing reliance upon a judgment of House of Lords in the case of Bolivinter Oils S.A. v. Chase Manhattan Bank, (1984) 1 All ER 351, at page 352, the learned Judges concluded as follows : “Thus, not only ‘fraud’ be clearly proved but so far as the bank is concerned, it must prove that it had knowledge of the fraud”. His Lordships further concluded that for a party to avail the exception of irretrievable injustice must plead exceptional circumstances which make it impossible for the guarantor to reimburse himself if he ultimately succeeds. This will have to be decisively established and a mere apprehension that the other party will not be able to pay is not enough. 9. Mr. His Lordships further concluded that for a party to avail the exception of irretrievable injustice must plead exceptional circumstances which make it impossible for the guarantor to reimburse himself if he ultimately succeeds. This will have to be decisively established and a mere apprehension that the other party will not be able to pay is not enough. 9. Mr. Rath, learned counsel further relied upon the judgment of the Supreme Court in case of M/s. BSES Ltd. (now Reliance Energy Ltd.) v. M/s. Fenner India Ltd. & another, AIR 2006 SC 1148, wherein once again the Supreme Court relying upon various judgments rendered earlier especially the law laid down in the case of U.P. Co-operative Federation (supra) did not accept the judgment of the Appellate Court in Singapore in the case of Samwoh Asphalt Premix Pte. Ltd. v. Sum Cheong Piling Pte. Ltd., (2002) 1 SLR 1, in which the Court of Appeal held that calling a performance guarantee for an oblique purpose was not permissible and that the unconscionable calling of a bank guaran¬tee was an exception independent of fraud. Hon’ble Supreme Court relying upon the earlier judgment in the case of U.P. Co-opera¬tive Federation (supra) held that they were unable to accept the foreign judgments cited by learned counsel for the Respondent and came to hold as follows : "Whatever may be the law, as to the encashment of bank guarantees in other jurisdictions, when the law in India is clear, settled and without any deviation whatsoever, there is no occasion to rely upon foreign case law. Thereafter, their Lordships considered the language used in the bank guarantees in the said case and found that no “egregious fraud” was established in the case for grant of injunction. Further taking note of the fact that certain disputes have been referred to the arbitration and one of the substantive prayer in the arbitration made on behalf of the first respondent was to make an award declaring four bank guarantees “unenforceable, illegal, void and liable to be discharged”. Taking into consideration the fact that the said prayer was already pending consideration before the Arbitral Tribunal, their Lordships held that they saw no situation of “irretrievable injustice” if, at the present moment the appellant was allowed to encash the bank guarantees. Since justice can always be rendered to the respondent if he succeeds before the Arbitrators. 10. Taking into consideration the fact that the said prayer was already pending consideration before the Arbitral Tribunal, their Lordships held that they saw no situation of “irretrievable injustice” if, at the present moment the appellant was allowed to encash the bank guarantees. Since justice can always be rendered to the respondent if he succeeds before the Arbitrators. 10. Apart from the above arguments on question of law, Mr. Rath, learned counsel for opposite party No.2 in course of hear¬ing brought to our notice the fact that an arbitration proceeding was in progress between the petitioner and opposite party No.2. He further stated that since the present petitioner has sought for the self same remedy, as sought for in the present writ application, before the arbitrators, there was no justification for the contentions being raised in the present writ application and for interim injunction. He submitted that the petitioner themselves have invoked the jurisdiction of the arbitrator in terms of the arbitration clause in its agreement by raising a counter claim, so the writ application needs to be dismissed. 11. On consideration of the rival contentions as noted herein above, the first question that needs to be dealt with in order to determine the present lis is to first of all determine whether the bank guarantees in question were “conditional or unconditional”. In this respect, it is worthwhile to take note of the language/words used in the bank guarantees itself which is quoted herein below : “FORM OF PERFORMANCE BANK GUARANTEE (UNCONDITIONAL) To xxx xxx xxx WHEREAS .......................(name and address of the Contrac¬tor) (hereinafter called “the Contractor”) has undertaken in pursuance of Contract No..............dated ............to exe¬cute ...............(name of contract and brief description of Works) (hereinafter called “the Contract”); AND WHEREAS it has been stipulated by you in the said contract the Contractor shall, furnish you with a bank Guarantee by a recognised bank for the sum specified therein as security for compliance with obligations in accordance with the contract: AND WHEREAS we.......... have agreed to give the Contractor such a Guarantee. have agreed to give the Contractor such a Guarantee. NOW THEREFORE we hereby affirm that we are the Guarantor and responsible to you on behalf of the contractor up to a total sum of Rs...........(amount of guarantee) ...........(in words) such sum being payable in the types and properties..........currencies in which the contract price is payable xxx xxxx as aforesaid without your needing to prove show grounds or reasons for your demand for the sum specified therein. We hereby waive the necessity of your demanding the said debt from contractor before presenting us with the demand. We further agree that no change or addition to or other modifica¬tion of the terms of the contract or of the works to be performed thereunder or of any of the contract documents which may be made between you and the contractor shall in any way release us from any liability under this guarantee, and we hereby waive notice of any such charge, addition or modification. This guarantee shall be valid until the date of issue of the De¬fects Liability Certificate.” In terms of the aforesaid agreement, the bank guarantees have been provided “as security for compliance with obligations in accordance with the contract” and the declaration contained in the said guarantee issued on behalf of the contractor is that, the contractor had waived the necessity of any notice and it further indicates that the contractor has agreed that the employ¬er may seek encashment of the bank Guarantees without the need to prove/show grounds or reasons for such demand. The Bank Guarantee ultimately declares that the guarantee shall remain valid until the date of issue of the ‘Defects Liability Certificate’. A complete reading of the aforesaid terms, we are of the view that the bank guarantee in the present case are clearly “unconditional bank guarantees”. 12. In the case of U.P. Co-operative Federation (supra), Hon’ble Justice Sabyasachi Mukherji (as His Lordship then was) was unable to agree with the views expressed by the High Court, that since it prima facie appeared that the plant had been handed over after a trial run to the employer and that the commercial production had started, the High Court was of the view that in these circumstances, it can not be said that the invocation order was final and irrevocable. The High Court was further of the view that having ‘taken over’ the possession of the plant it was necessary to consider all these aspects and held that the bank guarantees could not be invoked. This view of High Court was held to be unreasonable by the Supreme Court and Hon’ble Justice Mukherji in paragraphs-14 and 15 of the Judgment came to hold as follows : “14. I am, however, unable to agree. The principles upon which the bank guarantees could be invoked or restrained are well settled. Our attention was also drawn to several decisions of the High Court as well as of this Court. Reference had also been made to some of the English decisions. So far as the position of English law is concerned, the principles by now are well settled. I will refer to some of the decisions and explain the position. 15. The question arose before the Court of Appeal in England in Hamzeh Melas & Sons v. British Imex Industries Ltd. There the plaintiffs, a Jordanian firm, contracted to purchase from the defendants, a British firm, a large quantity of reinforced steel rods, to be delivered in two instalments. Payment was to be effected by the opening in favour of the defendants of two con¬firmed letters of credit with the Midland Bank Ltd. in London, one in respect of each instalment. The letters of credit were duly opened and the first was realized by the defendants on the delivery of the first instalment. The plaintiffs complained that instalment was defective and sought an injunction to bar the de¬fendants from realizing the second letter of credit. Justice Donovan refused the application. The plaintiffs appealed to the Court of Appeal in England. It was held that although the Court had wide jurisdiction to grant injunction, this was not a case in which, in the exercise of its discretion, it ought to do so. The Court of Appeal emphasized that an elaborate commercial system had been built up on the footing that a confirmed letter of credit constituted a bargain between the banker and the vendor of the goods, which imposed upon the banker an absolute obligations to pay, irrespective of any dispute there might be between the parties whether or not the goods were up to contract. The princi¬ple was that commercial trading must go on the solemn guarantee either by the letter of credit or by bank guarantee or irrespec¬tive of any dispute between contracting parties whether or not the goods were up to contract. The banks cannot be absolved of their responsibility to meet the obligations. Lord Jenkins, L.J. observed that a vendor of goods selling against confirmed letter of credit was selling under the assurance that nothing would prevent it from receiving the price. That was of no mean advan¬tage when goods manufactured in one country were sold in another. Though, in this case no international trade was involved, bank guarantee was uninvocable and on that assurance parties have bargained. This principle enunciated by Lord Justice Jenkins has been invoked by this Court in some decisions in case of confirmed bank guarantee.” 13. Therefore, on a consideration of the conclusion arrived at by the apex Court as narrated hereinabove, even if it is accepted in the present case, that the petitioner had completed the work and had handed over the project to its employer-O.P. No.2, this fact cannot form a basis of prayer for injunction. In other words, the fact as to whether the plant had been handed over after a trial run and that the commercial production has started or that the party had taken over possession of the plant are not essential considerations while considering the applica¬tion seeking injunction from encashment of bank guarantee. It is made clear by the Supreme Court in the aforesaid judg¬ment that commercial trading honour the solemn guarantee either by the letter of credit or by bank guarantee irrespective of any dispute between contracting parties whether or not the goods were up to contract, the banks cannot be absolved of their re¬sponsibility to meet the obligations. 14. Reliance was placed by the petitioner on the case of Hindustan Construction Company Ltd. (supra). In the said case their Lordships came to hold that from the documents filed before them, the lapse was on the part of the defendant who was not in possession of necessary funds for completion of the work. In the said case, their Lordships were dealing with two bank guarantees provided by the appellant, one was towards “mobilization advance” and the other towards “performance of guarantee”. In the said case, their Lordships were dealing with two bank guarantees provided by the appellant, one was towards “mobilization advance” and the other towards “performance of guarantee”. It is only in the case of bank guarantee furnished towards “mobilization ad¬vance” that the Supreme Court took note of Clause-9 of the agree¬ment on the basis of which guarantee was provided. Clause-9 stipulates that the bank guarantee can be invoked only in the circumstances referred to in Clause-9 i.e. whenever the amount would become payable only if the obligations are not fulfilled or there is misappropriation. Considering this clause in the bank guarantee, the Supreme Court came to hold that the bank guarantee in question could not be said to be unconditional or unequivocal in terms so that the defendants could be said to have had an unfettered right to invoke that guarantee and demand immediate payment thereof from the bank. Therefore, the bank guarantee towards “mobilization advance” shall be taken to be “conditional” bank guarantee and can be invoked in the circumstances referred to in Clause-9 of the agreement. In the present case at hand, no such or similar stipulation exists. In so far as “performance” bank guarantee is concerned, their Lordships came to hold that such bank guarantees have been furnished to the Chief Engineer and neither in the agreement nor in the bank guarantee, it is provided that the Chief Engineer would also include Executive Engineer and therefore, their Lord¬ships came o hold that such bank guarantee should be invoked by non-else other than the Chief Engineer and therefore attempt for encashment made by the Executive Engineer was held to be bad. In the present case at hand, no such issue arose for consideration and, therefore, on a plain reading of the facts which emanate for consideration in the case of Hindustan Construction Company Ltd. (supra), it is clear that the said judgment is of no assistance for adjudicating the present lis. 15. On the other hand, the law on the subject of encashment of bank guarantee has been firmly established by the Supreme Court in the case of Svenska Handelsbanken (supra). 15. On the other hand, the law on the subject of encashment of bank guarantee has been firmly established by the Supreme Court in the case of Svenska Handelsbanken (supra). In the said judgment rendered by the Hon’ble three Judges of the Supreme Court after having considered various earlier judgments rendered by the Supreme Court till then concluded as follows : “In a law relating to bank guarantees, a party seeking injunction from encashing of bank guarantee by the suppliers has to show prima facie case of established fraud and an irretrieva¬ble injury. Irretrievable injury is of the nature as noticed in the case of Itek Corporation v. The First National Bank of Boston (566 Federal Supplement 1210). While relying upon the aforesaid judgment, the Supreme Court dealt with the facts of the said case in paragraph-83 of the said judgment which is quoted hereinbelow: “83. It will be noticed that this judgment is on peculiar facts of its own and the situation created after the Iranian Revolution and the American Government cancelled the export licence in relation to Iran as it related to high technology. As the American Government had cancelled the export licence in view of revolution in Iran and the Iranian Government had forcibly taken 52 American citizens as hostages and the President Cater by Executive order blocked all Iranian assets subject to the juris¬diction of the United States and also cancelled the export con¬tracts, the plaintiff informed the importer in Iran invoking force majeure but the Iranian importer in spite of it resorted to encashment of the bank guarantee. The Court was of the view that even if claim for damages is decreed by the American Courts situation in Iran was such that the decree will not be executable in Iran. It was on these facts that the Court felt that it was a case where the plaintiff had demonstrated that it has no adequate remedy at law and the allegations of irreparable harm are not speculative but genuine and immediate and the plaintiff would suffer irreparable harm if the requested relief is not granted. It was on these facts that the Court felt that it was a case where the plaintiff had demonstrated that it has no adequate remedy at law and the allegations of irreparable harm are not speculative but genuine and immediate and the plaintiff would suffer irreparable harm if the requested relief is not granted. The Court also found as a fact at page 1217 itself that “the uncontested facts in the record, if proved at trial, appear to make out a prima facie case of fraud within the meaning of Sec¬tion 5-114(2)(b) and held that under these circumstances, any demand on the guarantees or letters of credit by Iran importer in March, 1980 would necessarily have been fraudulent.” The aforesaid judgment of the Supreme Court clearly lays down the very limited scope for judicial interference in the mat¬ters of seeking injunction against encashment of bank guarantees. 16. In the case at hand, the petitioner has not pleaded ‘fraud’ as a ground for seeking injunction. On the contrary, learned counsel for the petitioner specifically contended that its case was not a case of “established fraud”, but of “irre¬trievable injury”. Further, it was contended that injunction ought to be granted against encashment of bank guarantee since defect liability period and performance liability period had expired and at the same time, prayed for a direction to the opposite parties to issue Taking Over Certificate and Defect Liability Certificate. In essence, the fact of irretrievable injury is based on the contention that the bank guarantee submit¬ted were made over as security for performance and the said defect liability period having lapsed, permitting opposite par¬ties to encash the bank guarantees would result in irretrievable injury. 17. We are unable to accept the aforesaid contention of the learned counsel for the petitioner. The term “irretrievable in¬jury” itself must be tested on the touch stone of the judgment rendered in the case of Itek Corporation (supra). In the case at hand, Orissa Hydro Power Corporation Ltd. O. P. No.2 is a Govern¬ment of Orissa undertaking having substantial assets and funding and there is no averment in the case to establish that in the event the petitioner ultimately succeeds in their claim against O.P. No.2, the opposite parties would not be in a position to reimburse itself if it finally succeeds. Therefore, irretrievable injury of the nature contained in the case of Itek Corporation (supra) has neither been pleaded nor can have application to the facts of the present case. 18. Apart from the above, it is important to take note of the judgment of the Supreme Court in the case of Svenska Handels¬banken (supra). Taking into account the possibility of irretriev¬able injury which may be caused to a recipient of the bank guaran¬tee, the Hon’ble Supreme Court held as follows : “.........Mere irretrievable injustice without prima facie case of established fraud is of no consequence in restraining the encashment of bank guarantee.” The petitioner in the present case has merely contended that “irretrievable injustice” will be caused and at the same time specifically stated that its case is not based on “established fraud”. On the background of dicta laid down by the Supreme Court, such submission of the learned counsel for the petitioner has to be rejected. 19. This Court in the case of S.M.S. Demag AG (supra) has held that in order to avail the exception of irretrievable injus¬tice exceptional circumstances which make it impossible for the guarantor to reimburse himself if he ultimately succeeds has to be decisively established and a mere apprehension that the other party will not be able to pay is not enough. The aforesaid judgment of this Court clearly applies to the facts of the present case inasmuch as there is no averment what¬soever by the petitioner to the effect that such an exceptional circumstance exists nor is there any pleading to the effect that if the petitioner ultimately succeeds it would be impossible for the guarantor to reimburse himself. 20. Before parting it would be important to take note of the fact that the petitioner have made the following prayers before this Court and before the Arbitral Tribunal. Both the sets of prayers are quoted below for the purpose of comparison. 21. From the aforesaid comparison, it appears that except prayer under Clause-b, which seeks prohibition against the opposite parties from encashing bank guarantees, all the other reliefs sought for in the present writ application have also been sought for before the Arbitration Tribunal by filing a counter claim during the pendency of the writ application. 21. From the aforesaid comparison, it appears that except prayer under Clause-b, which seeks prohibition against the opposite parties from encashing bank guarantees, all the other reliefs sought for in the present writ application have also been sought for before the Arbitration Tribunal by filing a counter claim during the pendency of the writ application. Therefore, their is no dispute that the arbitral proceeding is pending and in fact, all the aforesaid disputes are referred to for arbitra¬tion relate to issue of “Taking Over Certificate “, grant of normal “extension of time” for completion of work, direction for “release of final bill” and direction for “release of bank guar¬antees”.Therefore, since these prayers have been made before the Arbitral Tribunal, we see no reason for holding “irretrievable injustice” in favour of the petitioner and therefore, if at the present moment opposite party No.2 is allowed to encash the bank guarantee, Justice can always be rendered to the petitioner, if he succeeds before the Arbitrator as held by the Supreme Court in the case of M/s. BSES Ltd. (now Reliance Energy Ltd.) (supra), in particular in paragraph-26 thereof. 22. In view of the conclusion arrived at by us and as having noted herein above, we are of the view that the present writ application merits no further consideration whatsoever and is, accordingly, dismissed, but in the circumstances without any costs. All interim orders stand vacated. A. K. GANGULY, C.J. I agree. Petition dismissed.