Judgment ( 1. ) THE petitioner entered into an agreement for construction / up gradation and maintenance of rural road under Pradhan Mantri Sadak Yojna, Sehore, package of M. P.-3519, Sehore with the M. P. Rural Road Development Authority (for short "the Authority"), a public undertaking. The work under the contract could not be completed in time. The competent authority of the respondents" authority issued a notice dated 20. 06. 2008 to show cause why the contract should not be rescinded. The same was issued despite recommendation for inspection and being granted further time up to 30. 6. 2008. On 26. 7. 2008 the petitioner vide letter dated 10. 7. 2008 apprised the Chief Executive Officer of the Authority about the reasons for the delay and also sought payment of Rs. 47,35,000/- on account of work done by him. Despite the said communication the General Manager, third respondent herein, rescinded the contract taking recourse to clause 52 of the same. Though the petitioner had not incurred the ineligibility to face the said consequence. As pleaded, the petitioner raised a dispute under Clause 24 before the Chief Executive Officer who concurred with the view taken by the General manager of the respondents Authority. Various other facts have been asserted how the petitioner is not to be blamed for the delay but the officers of the Authority. After rescinding of the contract the General Manager vide letter dated 11-8-2008 sent a fax to the petitioner to deposit a sum of Rs. 114. 57 Lacs within fifteen days from the date of issuance of the letter, failing which action would be taken to encash the Bank Guarantee/fdrs submitted by him against the work under package No. 3519. ( 2. ) IT is urged by the petitioner that the bank guarantee is a conditional bank guarantee, therefore, such a bank guarantee could not have been directed to be encashed by the respondents until conditions stipulated in the bank guarantee are satisfied. For the purposes of said proposition, the petitioner has relied upon the judgment passed by the Apex Court in Hindustan Construction Ltd. v. State of bihar and others with State of Bihar and others v. Hindustan Construction Co. Ltd. , 1999 (8) SCC 436 . ( 3. ) THE respondents along with their return have filed a letter dated 21. 8. Ltd. , 1999 (8) SCC 436 . ( 3. ) THE respondents along with their return have filed a letter dated 21. 8. 2008 (Annexure R/l) from the office of the Project General Manager, M. P. Rural Road development Authority. This is the letter addressed to the Branch Manager, State bank of Hyderabad whereby it is stated that the bank guarantee issued in favour of the authority be encashed and accordingly the amount of Rs. 34,64,000. 00 by demand draft be paid. The letter dated 21. 8. 2008 was followed by a subsequent reminder dated 26. 8. 2008 (Annexure R/2 ). The respondents have also filed the bank guarantee on record. ( 4. ) IT is contended on behalf of the respondents that the bank guarantee has to be encashed because of non performance of the contract which is clear from the letter dated 11. 8. 2008, document No. 6 filed along with the petition. It is contended that since the contract stands rescinded the respondents have the legal authority to encash the bank guarantee. ( 5. ) TO appreciate the rival submission we have to appreciate the nature of the bank guarantee whether it is conditional or unconditional. We have already noticed that the bank guarantee has been filed on record by the respondents and the relevant conditions of the bank guarantee are as follows: "we State Bank of Hyderabad, Industrial Finance Branch, panjagutta, Hyderabad (Name of Bank) of India (Name of country) do hereby undertake to pay Authority an amount not exceeding Rs. 34,64,000/- (Rupees Thirty Four Lakhs Sixty Four thousand Only) against any loss or damage caused to or suffered or would be caused to or suffered by the Authority by reason of any breach by the said contractor of any terms of conditions contained in the said agreement. WE State Bank of Hyderabad, Industrial Finance Branch, panjagutta, Hyderabad (Name of Bank) of India (Name of country) do hereby undertake to pay the amount due and payable under this guarantee without any demur merely on a demand from the Authority stating that the amount claimed is due by way of loss or damage caused to or suffered by the Authority by reason of any breach by said Contractor of any of the terms or conditions contained in the said agreement or by reason of the Contractors failure to perform the said agreement. Any such demand made on the bank shall be conclusive as regards the amount due and payable by the Bank under this guarantee. However, our liability under this guarantee shall be restricted to an amount not exceeding rs. 34,64,000/- (Rupees Thirty four Lakhs sixty Four Thousand only ). " ( 6. ) ON the basis of the aforesaid two conditions it is clear that the bank guarantee is a conditional one and bank was required to encash the bank guarantee only if the intimation is given by the department stating that the amount claimed is due by way of loss or damage caused to or suffered by reason of any breach by said contractor of any of the terms or conditions contained in the said agreement or by reason of the Contractors failure to perform the said agreement. It is also clear that the bank has undertaken to pay an amount not exceeding Rs. 34,64,000/- against any loss or damage caused to or suffered or would be caused to or suffered by any authority by reason of any breach by the said contractor of any of the terms of conditions contained in the said agreement. ( 7. ) IN this context, it will be appropriate to refer to the letter issued by the authority to the bank on 21. 8. 2008 (Annexure R/1), which reads as under: - "the work under Package No. MP3519 vide agreement No. 5/ pmgsy/06 dated 01. 11. 06 was awarded to Shn G. V. Pratap Reddy, contractor, Hyderabad. At the time of agreement the above contractor submitted BG No. 8652 dated 31. 10. 06 for rs. 3464000. 00 as performance security (photocopy enclosed) which is valid up to 30. 10. 2009. The contractor failed to achieve the progress of work and complete the work within the stipulated time even after granting sufficient extended period. In the interest of government work department taken action to rescind the contract and to complete the balance work by fixing another agency. In view of the above department is bound to recover the penalty for non completion of the awarded work from the contractor hence it is necessary to encash the above bank guarantee submitted by the contractor as performance security. The original bank guarantee for Rs. 3464000. 00 is being sent through special messenger for encashing the same. In view of the above department is bound to recover the penalty for non completion of the awarded work from the contractor hence it is necessary to encash the above bank guarantee submitted by the contractor as performance security. The original bank guarantee for Rs. 3464000. 00 is being sent through special messenger for encashing the same. Please arrange to send the amount by demand draft in favour of MPRRDA, Bhopal payable at Bhopal. " ( 8. ) IT will be also appropriate to refer to the reminder issued by the authority to the bank on 26. 8. 2008. Nothing is stated in the said letter about the loss or damage suffered by the department. This letter also does not say that the agreement has been terminated because of any fault on the part of the petitioner. The contents of the letter dated 26. 8. 2008 are reproduced as under:- "please refer this office above letter vide which it was intimated to you for encashment of bank guarantee No. 8652 dated 31. 10. 06 for Rs. 3464000. 00 against performance security issued on request of Shri G. V. Pratap Reddy, Contractor Hydrabad in favour of MPRRDA. Shri Ashutosh Shukla, Sub Engineer of this office is directed to your branch alongwith original Bank Guarantee No. 8652 dated 31. 10. 06 for Rs. 3464000. 00 duly discharged for collecting the amount after its encashment. You are requested to encash the above bank guarantee and handover the amount Rs. 3464000. 00 by demand draft in favour of MPRRDA Bhopal payable at Bhopal through Shri Ashutosh Shukla, Sub Engineer whose signature is attested below. " As we have referred the letter hereinabove, it is clear that the conditions of the bank guarantee while directing the bank to encash the same remains uncomplied. It is so because the conditions for bank guarantee have already been reproduced hereinabove in para-5 of the judgment. The Bank guarantee was liable to be encashed against any loss or damage caused to or suffered or would be caused to or suffered by the authority by reason of any breach of the said contractor of any terms and conditions contained in the said agreement. There is nothing in the letter dated 21. 8. 2008 and the reminder dated 26. 8. There is nothing in the letter dated 21. 8. 2008 and the reminder dated 26. 8. 2008 that the M. P. Rural roads Development authority intimated the bank for encashing the bank guarantee against any loss or damage caused to or suffered or would be caused to or suffered by the authority by reason of any breach of the said contractor of any terms and conditions contained in the said agreement. It only reflects that the contractor failed to achieve the progress of work and did not complete the work within stipulated time even after granting sufficient extended period. Thus, in the absence of any stipulation in the letter dated 21. 8. 2008 and also in the letter dated 26. 8. 2008 with reference to any loss or damage caused to or suffered or would be caused to or suffered by the authority by reason of any breach of the said contractor of any terms and conditions contained in the said agreement, the bank guarantee was not liable to be encashed. ( 9. ) THE matter with regard to the law relating to the encashment of bank guarantee received consideration of the Apex court in National Aluminium Co. Ltd. v. M/s R. S. Builders (India) Ltd. and others, AIR 1991 ORISSA 314 wherein the Apex Court laid down a view in para-9 and 11 as under:- "9. From the aforesaid decisions it is clear that courts interference in enforcing bank guarantees must be minimal. It is in the case of fraud or to prevent irretrievable injustice that Courts interfere to prevent enforcement of bank guarantees. Of course, a bank guarantee has to satisfy the conditions laid down therein before a bank can be called upon to make payment as per the guarantee. If the terms of the bank guarantee be unconditional, the bank has to pay without demur. The payment of bank guarantee cannot be made subject to the claims and counter-claims arising out of the main contract between the parties. If a bank guarantee were to state that payment shall be made notwithstanding any dispute between the parties, the bank would be obliged to do so. To determine whether a bank guarantee is conditional or unconditional, it is the document guarantee which is to be scanned. 11. If a bank guarantee were to state that payment shall be made notwithstanding any dispute between the parties, the bank would be obliged to do so. To determine whether a bank guarantee is conditional or unconditional, it is the document guarantee which is to be scanned. 11. In view of the law noticed earlier, we would state that the aforesaid type of bank guarantee has to be regarded as independent of the contract between the parties and the same can be enforced without reference to any claim or counter-claim arising out of the main contract between the parties. It is also to be regarded as independent of the adjudication of disputes raised and proposed to be referred to arbitration. But then, the bank guarantees at hand cannot be regarded as absolutely unconditional inasmuch as the payment under guarantees is dependent upon the contractor committing default in performing any of the terms and conditions of the contract or in the payment of any money due to the owner or in case the amount at the specified rates cannot be deducted from the running bills of the contractor by the owner towards the payment of Mobilisation Advance. . As to the fulfilment of those conditions, we would state that the statement of the beneficiary would be taken as its face value unless the contractor be in a position to establish that the stand of the beneficiary is actuated by fraud, misrepresentation, deliberate suppression of material facts or the like which would give rise to special equities in favour of the contractor. So, in the absence of a case of fraud, misrepresentation, deliberate suppression of material facts or the like, to establish which a heavy onus lies on the contractor, a bank guarantee like the one at hand has to be honoured by the bank and the beneficiary cannot be restrained from enforcement. Further, decision about fraud, etc. has to be arrived at by the court approached by the contractor to restrain the beneficiary from enforcing the bank guarantee. The court cannot await for this purpose the finding of the arbitrator. " ( 10. ) IN view of the aforesaid situation, the relevant paras 8, 9 and 14 from the judgment passed by the Apex Court in Hindustan Construction Ltd. (supra) for its application in the present facts and circumstances of the case are profitably reproduced as under:- "8. The court cannot await for this purpose the finding of the arbitrator. " ( 10. ) IN view of the aforesaid situation, the relevant paras 8, 9 and 14 from the judgment passed by the Apex Court in Hindustan Construction Ltd. (supra) for its application in the present facts and circumstances of the case are profitably reproduced as under:- "8. Now, a Bank Guarantee is the common mode of securing payment of money in commercial dealings as the beneficiary, under the Guarantee, is entitled to realise the whole of the amount under that Guarantee in terms thereof irrespective of any pending dispute between the person on whose behalf the Guarantee was given and the beneficiary. In contracts awarded to private individuals by the Government, which involve huge expenditure, as for example, construction contracts, Bank Guarantees are usually required to be furnished in favour of the Government to secure payments made to the contractor as "advance" from time to time during the course of the contract as also to secure performance of the work entrusted under the contract. Such Guarantees are encash able in terms thereof on the lapse of the contractor either in the performance of the work or in paying back to the "government Advance", the Guarantee is invoked and the amount is recovered from the Bank. It is for this reason that the Courts are reluctant in granting an injunction against the invocation of bank Guarantee, except in the case of fraud, which should be as established fraud, or where irretrievable injury was likely to be caused to the Guarantor. This was the principle laid down by this court in various decisions. In U. P. Co-operative Federation ltd. v. Singh Consultants and Engineers Pvt. Ltd. , (1988) 1 scc 174 , the law laid down in Bolivinter Oil SA v. Chase manhattan Bank, (1984) 1 Aller 351 was approved and it was held that an unconditional Bank Guarantee could be invoked in terms thereof by the person in whose favour the Bank Guarantee was given and the Courts would not grant any injunction restraining the invocation except in the case of fraud or irretrievable injury. In Svenska Handelsbanken v. Indian Charge Chrome, (1994)1 SCC 502 / (1993 AIR SCW 4002 : AIR 1994 SC 626 ); Larsen and Toubro Ltd. v. Maharashtra State Electricity Board, (1995)6 SCC 68 : (1995 AIR SCW4134 : AIR 1996 SC 334 ); Hindustan steel Works Construction Ltd. v. G. S. Atwal and Co. (Engineers) (P) Ltd. , (1995) 6 SCC 76 : (1995 AIR SCW 3821 : air 1996 SC 131 ); National Thermal Power Corporation Ltd. v. Flowmore (P) Ltd. , (1995) 4 SCC 515 : (1995 AIR SCW 430 : air 1996 SC 445 ); State of Maharashtra v. National construction Co. , (1996) 1 SCC 735 : (1996 AIR SCW 895 : air 1996 SC 2367 ); Hindustan Steel Works Construction Ltd. v. Tarapore and Co. , (1996) 5 SCC 34 : (1996 AIR SCW 2861 : air 1996 SC 2268 ) as also in U. P. State Sugar Corporation v. Sumac International Ltd. , (1997) 1 SCC 568 : (1997 AIR SCW 694 : AIR 1997 SC 1644 : 1997 All LJ 638), the same principle has been laid down and reiterated. 9. What is important, therefore, is that the Bank Guarantee should be in unequivocal terms, unconditional and recite that the amount would be paid without demur or objection and irrespective of any dispute that might have cropped up or might have been pending between the beneficiary under the Bank Guarantee or the person on whose behalf the Guarantee was furnished. The terms of the bank Guarantee are, therefore, extremely material. Since the Bank guarantee represents an independent contract between the Bank and the beneficiary, both the parties would be bound by the terms thereof. The invocation, therefore, will have to be in accordance with the terms of the Bank Guarantee; or else the invocation itself would be bad. 14. This condition clearly refers to the original contract between the HCCL and the defendants and postulates that if the obligations, expressed in the contract, are not fulfilled by HCCL giving to the defendants the right to claim recovery of the whole or part of the "advance Mobilization Loan", then the Bank would pay the amount due under the Guarantee to the Executive Engineer. By referring specifically to said Clause 9, the Bank has qualified its liability to pay the amount covered by the Guarantee relating to "advance mobilization Loan" to the Executive Engineer only if the obligations under the contract were not fulfilled by HCCL or the HCCL has misappropriated any portion of the "advance Mobilisation Loan". It is in these circumstances that the aforesaid clause would operate and the whole of the amount covered by the "mobilisation Advance" would become payable on demand. The Bank Guarantee thus could be invoked only in the circumstances referred to in Clause 9 whenever the amount would become payable only if the obligations are not fulfilled or there is misappropriation. That being so, the bank Guarantee 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. This aspect of the matter was wholly ignored by the High Court and it unnecessarily interfered with the order of injunction, granted by the single Judge, by which the defendants were restrained from invoking the Bank Guarantee. " ( 11. ) FURTHER while dealing with an application for injunction to restrain enforcement of bank guarantees the Apex Court in Himadri Chemicals Industries ltd. vs. Coal Tar Refining Co. , (2007) 8 SCC 110 came to hold in paras 10 and 14, thus:- "10 The law relating to grant or refusal to grant injunction in the matter of invocation of a bank guarantee or a letter of credit is now well settled by a plethora of decisions not only of this Court but also of the different High Courts in India. In U. P. State Sagar corpn. V. Sumac International Ltd. this court considered its various earlier decisions. IN this decision, the principle that has been laid down clearly on the enforcement of a bank guarantee or a letter of credit is that in respect of a bank guarantee or a letter of credit which is sought to be encashed by a beneficiary, the bank giving such a guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer. Accordingly this Court held that the courts should be slow in granting an order of injunction to restrain the realization of such a bank guarantee. Accordingly this Court held that the courts should be slow in granting an order of injunction to restrain the realization of such a bank guarantee. It has also been held by this Court in that decision that the existence of any dispute between the parties to the contract is not a ground to restrain the enforcement of bank guarantees or letters of credit. However, this court made two exceptions for grant of an order of injunction to restrain the enforcement of a bank guarantee or a letter of credit; (i) fraud committed in the notice of the bank which would vitiate the very foundation of guarantee; and (ii) injustice of the kind which would make it impossible for the guarantor to reimburse himself. 14. From the discussions made hereinabove relating to the principles for grant or refusal to grant of injunction to restrain enforcement of a bank Guarantee or a Letter of Credit, we find that the following principles should be noted in the matter of injunction to restrain the encashment of a Bank Guarantee or a Letter of Credit :- (i) While dealing with an application for injunction in the course of commercial dealings, and when an unconditional Bank guarantee or Letter of Credit is given or accepted, the beneficiary is entitled to realize such a Bank Guarantee or a letter of Credit in terms thereof irrespective of any pending disputes relating to the terms of the contract. (ii) The Bank giving such guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer. (iii) The Courts should be slow in granting an order of injunction to restrain the realization of a Bank Guarantee or a Letter of credit. (iv) Since a Bank Guarantee or a Letter of Credit is an independent and a separate contract and is absolute in nature, the existence of any dispute between the parties to the contract is not a ground for issuing an order of injunction to restrain enforcement of Bank Guarantees or Letters of Credit. (v) Fraud of an egregious nature which would vitiate the very foundation of such a Bank Guarantee or Letter of Credit and the beneficiary seeks to take advantage of the situation. (vi) Allowing encashment of an unconditional Bank Guarantee or a Letter of Credit would result in irretrievable harm or injustice to one of the parties concerned. " ( 12. (v) Fraud of an egregious nature which would vitiate the very foundation of such a Bank Guarantee or Letter of Credit and the beneficiary seeks to take advantage of the situation. (vi) Allowing encashment of an unconditional Bank Guarantee or a Letter of Credit would result in irretrievable harm or injustice to one of the parties concerned. " ( 12. ) IN this context, it would further be profitable to refer to the decision of the apex Court in Vinitec Electronics Private Ltd. vs. HCL Infosystems Ltd. , (2008)1 SCC 544 . The relevant paragraphs 12, 13, 14, 22 and 23 from the said decision are reproduced as under;- "12. It is equally well settled in law that bank guarantee is an independent contract between bank and the beneficiary thereof. The bank is always obliged to honour its guarantee as long as it is an unconditional and irrevocable one. The dispute between the beneficiary and the party at whose instance the bank has given the guarantee is immaterial and of no consequence. In BSES Ltd. v. Fenner India Ltd. this Court held: (SCC pp. 733-34, para 10) "10. There are, however, two exceptions to this rule. The first is when there is a clear fraud of which the bank has notice and a fraud of the beneficiary from which it seeks to benefit. The fraud must be of an egregious nature as to vitiate the entire underlying transaction. The second exception to the general rule of nonintervention is when there are special equities in favour of injunction, such as when irretrievable injury or irretrievable injustice would occur if such an injunction were not granted. The general rule and its exceptions has been reiterated in so many judgments of this Court, that in U. P. State Sugar Corpn. v. Sumac international Ltd. (hereinafter u. P. State Sugar Corpn. ) this court, correctly declared that the law was settled. " 13. In Himadri Chemicals Industries Ltd. v. Coal Tar Refining co A this Court summarised the principles for grant of refusal to grant of injunction to restrain the enforcement of a bank guarantee or a letter of credit in the following manner: (SCC pp. 117-18, para 14) "14. . . . " 13. In Himadri Chemicals Industries Ltd. v. Coal Tar Refining co A this Court summarised the principles for grant of refusal to grant of injunction to restrain the enforcement of a bank guarantee or a letter of credit in the following manner: (SCC pp. 117-18, para 14) "14. . . . (i) While dealing with an application for injunction in the course of commercial dealings, and when an unconditional bank guarantee or letter of credit is given or accepted, the beneficiary is entitled to realise such a bank guarantee or a letter of credit in terms thereof irrespective of any pending disputes relating to the terms of the contract. (ii) The bank giving such guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer. (iii) The courts should be slow in granting an order of injunction to restrain the realisation of a bank guarantee or a letter of credit. (iv) Since a bank guarantee or a letter of credit is an independent and a separate contract and is absolute in nature, the existence of any dispute between the parties to the contract is not a ground for issuing an order of injunction to restrain enforcement of bank guarantees or letters of credit. (v) Fraud of an egregious nature which would vitiate the very foundation of such a bank guarantee or letter of credit and the beneficiary seeks to take advantage of the situation. (vi) Allowing encashment of an unconditional bank guarantee or a letter of credit would result in irretrievable harm or injustice to one of the parties concerned. " 14. In Mahatma Gandhi Sahakra Sakkare Karkhane v. National Heavy Engg. Coop. Ltd. 5 this Court observed: (SCC p. 471b-d ). "if the bank guarantee furnished is an unconditional and irrevocable one, it is not open to the bank to raise any objection whatsoever to pay the amounts under the guarantee. The person in whose favour the guarantee is furnished by the bank cannot be prevented by way of an injunction from enforcing the guarantee on the pretext that the condition for enforcing the bank guarantee in terms of the agreement entered into between the parties has not been fulfilled. The person in whose favour the guarantee is furnished by the bank cannot be prevented by way of an injunction from enforcing the guarantee on the pretext that the condition for enforcing the bank guarantee in terms of the agreement entered into between the parties has not been fulfilled. Such a course is impermissible The seller cannot raise the dispute of whatsoever nature and prevent the purchaser from enforcing the bank guarantee by way of injunction except on the ground of fraud and irretrievable injury. What is relevant are the terms incorporated in the guarantee executed by the bank. On careful analysis of the terms and conditions of the guarantee in the present case, it is found that the guarantee is an unconditional one. The respondent, therefore, cannot be allowed to raise any dispute and prevent the appellant from encashing the bank guarantee. The mere fact that the bank guarantee refers to the principal agreement without referring to any specific clause in the preamble of the deed of guarantee does not make the guarantee furnished by the bank to be a conditional one. " (Paras 22 and 28) (emphasis supplied) 22. In the present case the amended clause does not refer to any of the clauses specifically as such but on the other hand the Bank had undertaken responsibility to pay any sum or sums within the guaranteed limit upon receipt of written demand from the company. The operative portion of the bank guarantee furnished by the Bank does not refer to any of the conditions for payment under the bank guarantee. It is true that the bank guarantee furnished makes a reference to the principal agreement between the parties in its preamble. Mere fact that the bank guarantee refers to the principal agreement in the preamble of the deed of guarantee does not make the guarantee furnished by the Bank to be a conditional one unless any particular clause of the agreement has been made part of the deed of guarantee. 23. The recitals in the preamble in the deed of guarantee do not control the operative part of the deed. After careful analysis of the terms of the guarantee we find the guarantee to be an unconditional one. The appellant, therefore, cannot be allowed to raise any dispute and prevent the respondent from encashing the bank guarantee. " ( 13. 23. The recitals in the preamble in the deed of guarantee do not control the operative part of the deed. After careful analysis of the terms of the guarantee we find the guarantee to be an unconditional one. The appellant, therefore, cannot be allowed to raise any dispute and prevent the respondent from encashing the bank guarantee. " ( 13. ) ACCORDING to us, the law laid down by the Apex Court as aforesaid has the full application in the present case. We have also taken a similar view in the case of Sigma Construction v. M. P. Rural Road Development Authority and others, w. P. No. 11022/2008 decided on 30. 4,2009 wherein similar question in relation to encashment of bank guarantee was involved and we held that if the department has not written anything to the bank while directing the bank to encash the bank guarantee, the bank guarantee cannot be invoked. It is not stated that the contractor has failed to perform the work contract then in absence of any such reference resulting into loss or damage caused or to be caused5 the bank is not under a legal obligation to encash the bank guarantee. We also held that the bank guarantee was not entitled to be invoked. The facts and circumstances of the present case are also similar to the case already decided by this Court in Sigma Construction (supra ). ( 14. ) IN view of the aforesaid, we set aside the order dated 21. 8. 2008 (Annexure r/1) and reminder dated 26. 8. 2008 (Annexure R/2) and we further hold that the respondents are not entitled to invoke the bank guarantee No. 8652 dated 31. 10. 2006 as mentioned in Annexure R/3. Accordingly, the present petition stands allowed. There shall be no order as to costs. Petition allowed.