Judgment Arun Mishra, J. ( 1. ) This Arbitration Appeal has been filed under section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act of 1996) assailing the order passed by the Court of First Additional Judge to the Court of First Additional District Judge, Narsinghpur in Misc. Arbitration Case No. 9/2008. ( 2. ) M/s B.C.Biyani Projects Pvt. Ltd filed an application under section 9 of the Act of 1996 in the backdrop of the fact that M/s B.C.Biyani Projects Pvt. Ltd entered into an agreement with Ssangyong Engineering Constructions Company Ltd. for providing all adequate labour plant, machinery, construction equipment and all other resources-financial and administrative etc required in order to perform the work order under the project signed between Ssangyong Engineering Constructions Company Ltd. and National Highways. The work in question which was to be performed, was given to Ssangyong Engineering Constructions Company Ltd by National Highway Authorities of India (for short NHAI) for construction of four laning of Jhansi-Lakhanadon section Km.351.0 to Km.405.7 of NH-26 in the State of Madhya Pradesh on 12.4.2006. The agreement of subcontract between appellant and Ssangyong Engineering Constructions Company Ltd was entered into on 2.8.2006, period of completion of the work was 30 months. It is not in dispute that in the agreement of subcontract, clause 27 provides for arbitration in case any dispute arises between the parties. ( 3. ) It was submitted by M/s B.C.Biyani Project Pvt. Ltd in the application filed under section 9 of the Act of 1996 that the appellant company have expertise in constructing and completing the work assigned to it by Ssangyong Engineering Constructions Company Ltd under package No. ADB-II/C-9 of NHAI and the appellant company mobilized all resources including the financial, administrative, manpower and machineries as were required to undertake the work in amicable manner as detailed in the agreement and schedule of work. The appellant had also furnished performance guarantee in the form of irrevocable and unconditional Bank Guarantee @ 1% of the contract price of Rs. 203,50,43,148/-. The Bank Guarantee was furnished for a sum of Rs. 2 Crores with UCO Bank, through Branch Manager Bhusawal District Jalgaon. It was also submitted that it was necessary for Ssangyong Engineering Constructions Company Ltd to obtain prior permission of NHAI, however, the appellant was kept in dark and was informed that permission has already been obtained. 203,50,43,148/-. The Bank Guarantee was furnished for a sum of Rs. 2 Crores with UCO Bank, through Branch Manager Bhusawal District Jalgaon. It was also submitted that it was necessary for Ssangyong Engineering Constructions Company Ltd to obtain prior permission of NHAI, however, the appellant was kept in dark and was informed that permission has already been obtained. Appellant performed the work. It appears that employing of an agency under subcontract was objected to by NHAI. The NHAI warned Ssangyong Engineering Constructions Company Ltd to discontinue the subcontract otherwise main contract was threatened to be terminated. Thus fraud was played with the appellant. Appellant performed the work of more than Rs. Five Crores, payment of which was received by the appellant. The plight of the appellant did not stop up to the termination of agreement of subcontract by Ssangyong Engineering Constructions Company Ltd on 2.8.2006. Due to termination of agreement dated 24.4.2008 effort was being made to invoke the Bank Guarantee. There was non cooperation of Ssangyong Engineering Constructions Company Ltd in referring the matter for Arbitration as per clause 27 of the agreement. Appellant would like to invoke the arbitration clause and move to the court for appointment of Arbitrator under section 11 of the Act of 1996. Prayer was made in the application to restrain Ssangyong Engineering Constructions Company Ltd from encashment of Bank Guarantee furnished by the appellant to the bank in the interest of justice. ( 4. ) Application was resisted by Ssangyong Engineering Constructions Company Ltd. It was submitted that there is no arbitration clause in Bank Guarantee dated 23.5.2007 and the Bank Guarantee being a separate contract is governed by the terms and conditions. Its an unconditional Bank Guarantee and there was default on the part of the appellant of not completing the work. Appellant did not complete even 10% of the work in approximately one year and eight months before contract was terminated. The appellant was not entitled for the injunction as Ssangyong Engineering Constructions Company Ltd had the right to invoke the Bank Guarantee in view of the breach of contract, no fraud was played. Allegation with respect to fraud have been specifically denied. The appellant was not entitled for the injunction as Ssangyong Engineering Constructions Company Ltd had the right to invoke the Bank Guarantee in view of the breach of contract, no fraud was played. Allegation with respect to fraud have been specifically denied. It was mentioned in the agreement itself that the main contract has been given by NHAI of which the appellant was well aware and responsibility to correspond with the NHAI was that of Ssangyong Engineering Constructions Company Ltd, thus this fact was to the knowledge of the appellant right from beginning, no fraud was played. In fact permission was sought from NHAI for approving the subcontract which was not approved by NHAI as apparent from correspondence, thus it cannot be said that Ssangyong Engineering Constructions Company Ltd had committed any fraud with the appellant. ( 5. ) The learned First Additional District Judge by the impugned judgment held that it cannot be said that fraud was played by Ssangyong Engineering Constructions Company Ltd with the appellant. Injunction prayed for has been declined, hence instant appeal has been preferred by appellant M/s B.C.Biyani Project Pvt. Ltd under section 37 of the Act of 1996. ( 6. ) Shri Rajesh Pancholi, learned counsel appearing for the appellant has submitted that Ssangyong Engineering Constructions Company Ltd has committed serious kind of fraud with the appellant. They knew it very well that sub contract was prohibited and prior permission of NHAI ought to have been obtained, which was not obtained. He has also submitted that work has been done by the appellant in the project of NHAI, thus there is no right with the Ssangyong Engineering Constructions Company Ltd to invoke the Bank Guarantee. More so when subcontract was prohibited without prior permission. The 93% of the amount was to be paid to the appellant and 7% was to be retained by the Ssangyong Engineering Constructions Company Ltd, huge amount has been spent in mobilization advance and other expenditure has also been incurred. Real reason for termination can be culled out from communication (A-21) dated 23.7.2007 which are minutes of the meeting of Ssangyong Engineering Constructions Company Ltd, in which it has been mentioned that due to pressure of NHAI, it was necessary to cancel the subcontract. He has further submitted that the appellant has spent a sum of Rs. 57 Crores as mentioned in communication A-22 dated 28.7.2007. He has further submitted that the appellant has spent a sum of Rs. 57 Crores as mentioned in communication A-22 dated 28.7.2007. Though documents A-21 and A-22 were not placed on record before the Court below, they have been filed for the first time before this Court, appellants counsel has prayed for consideration of aforesaid communications in the interest of justice. He has also relied upon the decisions, to be referred later. ( 7. ) Shri R.S. Jaiswal, Sr. Counsel with Shri Manoj Kushwaha appearing for the respondents has supported the judgment and has relied upon clause 3.1, 3.2, 10 and 23 of the agreement of subcontract. He has also relied upon communication (R-1) dated 24.4.2008 in which various reasons have been culled out for termination of contract. He has submitted that Bank Guarantee is irrevocable and unconditional, it has been rightly invoked as contract has been terminated, it was invocable in the event of termination of contract. The Bank Guarantee being unconditional, there is no equity in favour of the appellant to restrain Ssangyong Engineering Constructions Company Ltd from invoking the Bank Guarantee. It is purely a contractual matter. No case of fraud is made out in the facts and circumstances of the instant case. Facts were to the knowledge of the appellant. Appellant was aware that permission had also been applied to NHAI and NHAI had not granted the permission and there was no progress of work made, consequently subcontract had to be terminated as per the commiinication (R-1) dated 24.4.2008. No case is made out so as to make interference. He has also relied upon various decisions, to be referred later. ( 8. ) First question for consideration is whether the fraud, as alleged, had been played by Ssangyong Engineering Constructions Company Ltd with appellant M/s B.C.Biyani Project Pvt. Ltd. Clause 3.1 of the agreement (A-2), which has been placed on record, provides for furnishing of performance guarantee in the form of an irrevocable and unconditional Bank Guarantee from a reputable bank which is acceptable to Ssangyong, in terms thereof the Bank Guarantee was submitted. As per clause 3.2 the said Bank Guarantee can be invoked by Ssangyong at its discretion in case of termination of this agreement as per Termination of Agreement clause hereinbelow and/or as and when the Ssangyong Engineering Constructions Company Ltd is satisfied that any loss has been caused or might be caused to it because of any overt or covert act of appellant while executing the project. ( 9. ) Clause 4.21 of the agreement is quoted below :- 4.21 Biyani shall not correspond with NHAI in any capacity not even as a representative of Ssangyong. All letter correspondence in connection with work order shall be done by Ssangyong only. Default in any respect will be treated as breach of condition of this Agreement. Biyanis responsibilities described under this Clause are not to be constructed as limiting in any manner. It is apparent from the aforesaid clause that the main contract with Ssangyong Engineering Constructions Company Ltd was to the knowledge of appellant right from beginning and they had undertaken not to correspond with NHAI even as representative of Ssangyong Engineering Constructions Company Ltd, thus they knew it fully well that permission of NHAI was necessary for subcontract. Prima facie it cannot be said that they were not aware of the existence of agreement. The mentioning of the aforesaid condition was enough to put at guard the appellant to make enquiry as to the nature of main agreement. In case they were not aware of the terms and condition of main agreement, it cannot be said that they had exercised reasonable and due diligence. Thus the knowledge of the existence of the terms and conditions of the main agreement can be imputed. It was incumbent upon the appellant to gather information as to terms and conditions of the main agreement while they entered into sub contract with Ssangyong Engineering Constructions Company Ltd. It cannot be said that any fraud was played as agreement was to the knowledge of the appellant. ( 10. ) Clause 23 of the agreement provides for consequences of default by Biyani/ Termination of agreement. Clause 23(1) contains the events which were to be treated breach of the agreement. Clause 23(1) is quoted below :- (a) fails to perform or observe any of its obligations, covenants, conditions hereunder or in the Main Agreement or any other document, to be performed and observed. Clause 23(1) contains the events which were to be treated breach of the agreement. Clause 23(1) is quoted below :- (a) fails to perform or observe any of its obligations, covenants, conditions hereunder or in the Main Agreement or any other document, to be performed and observed. (b) fails to execute and complete the works and remedy any defects in strict accordance with the Main Agreement to the satisfaction of the Engineer as appointed by NHAI. (c ) sub-contracts, assigns or part with any work allocated to it of the benefits or rights under this Agreement without prior writt approval or consent of Ssangyong (d) fails to rectify the defects and deficiencies whatsoever as pointed out by the Ssangyong (e) fails to follow the instructions, directions etc. issued by Ssangyong (f) acts or conducts in breach of the Main Agreement conditions executed between Ssangyong and Employer/Engineer. (g) becomes bankrupt or insolvent or its progress payment from Ssangyong attached by any third party or is made subject matter of a garnishee order. (h) makes any Misrepresentation in pursuance of this Agreement or during the performance/execution of the work. (i) fails to furnish or renew the Bank Guarantee under this Agreement. (j) fails to pay more than three monthly lease rentals/hire charges. (k) deals directly with NHAI directly/indirectly - communicates will NHAI as a sub-contractor of Ssangyong in writing or otherwise or corresponds in writing with NHAI as a representative of Ssangyong. (1) failure to maintain confidentially of this agreement. Clause 27 provides for Arbitration. In the instant case we find that for the various reasons culled out in communication (R-1) dated 24.4.2008, the contract has been terminated. Following reasons were given for termination of contract :- (i) Until now, the progress of this project is approximate 10% despite 23 months have already passed since commencement of the project; from this pace, it is not possible to complete the Project within the stipulated time specified in the contract.This is breach of the Subcontract under the Subclause 2.1, 2.2, 4.1, 4.16 and 23.1 (a), (b), (c ), (f) and/or Memorandum of Understanding on 20th Aug. 2007. (ii) The equipment and machinery brought by M/s B.C. Biyani Projects Pvt. Ltd. were out of order most of the time and not up to the mark as per the requirement of the NHAI projects. 2007. (ii) The equipment and machinery brought by M/s B.C. Biyani Projects Pvt. Ltd. were out of order most of the time and not up to the mark as per the requirement of the NHAI projects. Also, the repairing and maintenance were not taken due care within the time frame. Inspite of reminders for deployment of requisite number of equipment and machinery, same was never adhered by M/s B.C. Biyani Projects Pvt. Ltd. Which caused direct impact on the Project and hampered the progress to a great extent. (iii) Work programme was not submitted on time, weekly and monthly reports were also not submitted. (iv) M/s B.C. Biyani Projects Pvt. Ltd failed to submit even IPC which is for payment from NHAI, which was breach of subclause 4.1, 4.4, 4.19, 4.16 and 23.1(a), (b), (c ), (f) and/or MOU of subcontract. (v) Instruction of Project Manager were not followed. (vi) M/s B.C. Biyani Projects Pvt. Ltd was unable to pay the bills of suppliers, labourers and their employees in cue course of time. (vii) the project suffered loss to a great extent due to M/s B.C. Biyani Projects Pvt. Ltd.s incapability for utilization of Manpower and Machinery in a best practical way. (viii) M/s B.C. Biyani Projects Pvt. Ltd. Took finance from SREI Finance Company for some of your plants and machinery which we have purchased from M/s B.C. Biyani Projects Pvt. Ltd under the sale deed as a security and M/s B.C. Biyani Projects Pvt. Ltd. Could not pay its installments at stipulated period to the financer. This is also a breach of subclause 4.1, 4.4, 4.19, 4.16 and 23.1(a), (b), (c ), (f) and/or MOU of subcontract. ( 11. ) On facts it is submitted by Shri Rajesh Pancholi, learned counsel appearing for the appellant that an application has been filed by the appellant before this Court for appointment of Arbitrator, which is pending consideration. It is also stated that no order has been passed in the said application nor any injunction has been prayed for. Fact is placed on record. ( 12. It is also stated that no order has been passed in the said application nor any injunction has been prayed for. Fact is placed on record. ( 12. ) Clause 59.1 of the main contract entered into between Ssangyong Engineering Constructions Company Ltd and NHAI provides that all specialists, merchants, tradesmen and others executing any work or supplying any goods, materials, Plant or services for which Provisional Sums are included in the Contract, who may have been or be nominated or selected or approved by the Employer, or the Engineer, and all persons to whom by virtue of the provisions of the Contract the Contractor is required to subcontract shall, in the execution of such work or the supply of such goods, materials, Plant or services, be deemed to be subcontractors to the Contractor and are referred to in this Contract as nominated Subcontractors. It appears from the correspondence (R-12) dated 4.6.2007 written by NHAI to Ssangyong Engineering Constructions Company Ltd that sub-contractorship to the appellant was turned down by NHAI. Various reasons have been given for not approving the appellants subcontractor ship. It also appears that there was some dispute with respect to certificate filed of the officers of NHAI, they were alleged to be forged. There is dispute on facts whether these certificates were obtained by the appellant or by personnels of Ssangyong Engineering Constructions Company Ltd We are not entering into that aspect, but the fact remains that NHAI was informed as to subcontractor ship and in view of clause 59, it could not be said that any fraud was played by Ssangyong Engineering Constructions Company Ltd. Shri Raiesh Pancholi, learned counsel appearing for appellant has submitted that NHAI was informed belatedly about subcontractor ship not immediately, thus it was a case of fraud played. He has also submitted that agreement of subcontractor ship was as a matter of fact never sent to the NHAI. We do not find any of the submission to be acceptable so as to advance the cause for grant of injunction. After going through the pleadings made in the application under section 9 of the Act of 1996 we are not satisfied that any fraud was played as right from the beginning appellant was aware of the main agreement. We do not find any of the submission to be acceptable so as to advance the cause for grant of injunction. After going through the pleadings made in the application under section 9 of the Act of 1996 we are not satisfied that any fraud was played as right from the beginning appellant was aware of the main agreement. A reading of letter (R-1/8) also indicates that NHAI was apprised about the subcontractor ship and considering the conditions mentioned in the agreement of subcontract, we are of the opinion that no fraud was played, as alleged. ( 13. ) It is necessary to restrain invocation of the Bank Guarantee as it is irrevocable and unconditional one, so as to make out prima facie case of fraud as held by the Apex Court in U.P Cooperative Federation Ltd. Vs. Singh Consultants and Engineers (?) Ltd. - (1988) 1 SCC 174 . The Apex Court has laid down that in case of Bank Guarantee, Court cannot issue injunction under section 41 of Arbitration Act read with Rules 1 and 2 of Order 39 CPC restraining the principal from invoking and encashing the guarantee except in cases of fraud or apprehension of irretrievable injustice to the contractor. ln the instant case we are not satisfied that prima facie case of fraud has been made out. Appellant has failed to make out a case of fraud. ( 14. ) The Apex Court in General Electric Technical Services Company Inc., v. M/s Punj Sons (P) Lid. And another - AIR 1991 SC 1994 has laid down that when there is unconditional Bank Guarantee, Court cannot grant injunction restraining the principal from invoking and encashing the Bank Guarantee in the absence of fraud or likelihood of irretrievable injustice between parties. It is only in the case of fraud or in case beneficiary wants to take unjust advantage, injunction can be granted not otherwise. ( 15. ) Similar is the law laid down by the Apex Court in Centax (India) Ltd. v. Vinmar Impex Inc. and others - AIR 1986 SC 1924 ; Ansal Engineering Projects Ltd. v. Tehri Hydro Development Corporation Ltd. And another - (1996) 5 SCC 450 ; State Trading Corporation of India Ltd. v. Jainsons Clothing Corporation and another - (1994) 6 SCC 597 . and others - AIR 1986 SC 1924 ; Ansal Engineering Projects Ltd. v. Tehri Hydro Development Corporation Ltd. And another - (1996) 5 SCC 450 ; State Trading Corporation of India Ltd. v. Jainsons Clothing Corporation and another - (1994) 6 SCC 597 . It has also been laid down by the Apex Court that contract of Bank Guarantee is independent between the beneficiary and person with whom primary contract has been entered into. It is distinct from the primary contract. In the instant case as per the terms and conditions mentioned in the Bank Guarantee, the Bank Guarantee has become invocable due to breach and violation of agreement. In the instant case, we do not find any ground so as to restrain its invocation. In Hindustan Steel Works Construction Ltd, v. Tarapore and Co and another - AIR 1996 SC 2268 , the Apex Court has laid down that when there is unconditional Bank Guarantee furnished, Banks obligation is absolute. No distinction can be drawn between guarantee for due performance of works contract or towards security deposit. Obligation of Bank remains same. It has to be discharged in manner provided in Bank Guarantee. In the instant case, we do not find any exceptional circumstances to grant relief. Counsel for appellant has also relied upon the aforesaid decision of Hindustan Steel Works Construction Ltd., but we find that the aforesaid decision is of no help to the appellant as each case has to depend upon its own facts. ( 16. ) Counsel for the appellant has also relied upon the decision of Apex Court in Hamza Haji v. State of Kerala and another - (2006) 7 SCC 416 in which concept of fraud has been considered and it has been held by Apex Court that when a decision is vitiated by fraud, proper course would be to approach the court which had rendered the decision for redressal. It has also been held that in case any deliberate suppression of fact is there which was fundamental to entitlement of relief sought and found the claim on the basis of a non existent fact, amounts to practising fraud on court, such fraud vitiates the decision/order of the court. In the instant case we find that there was no suppression right from the beginning. Appellant was aware of the main agreement. In the instant case we find that there was no suppression right from the beginning. Appellant was aware of the main agreement. Either he knew the terms and conditions of the agreement or it was his duty to ascertain it by exercising due diligence which is expected of a person of ordinary prudence, thus knowledge can be attributed to the appellant of the terms and conditions of the agreement which was entered into between NHAI and Ssangyong Engineering Constructions Company Ltd. Shri Rajesh Pancholi, learned counsel appearing for appellant has also relied upon the decision of Apex Court in Nangia Constructions India (P) Ltd. vs. National Buildings Construction Corporation Ltd. And others 41 (1990) DLT 359, to submit that in the similar facts Delhi High Court granted injunction on invocation of Bank Guarantee. Each case with respect to fraud has to be decided by considering the facts so pleaded and agreement entered into. In the instant case we have considered the facts and agreement and we are of the opinion that prima facie no fraud has been committed. Thus we are not inclined to interfere in the order passed by the court below. ( 17. ) Resultantly, the appeal fails and is liable to be dismissed, same is hereby dismissed. However, we leave the parties to bear their own costs as incurred of this appeal. Appeal dismissed.