JUDGMENT V.K. Shali, J. 1. This order shall dispose of applications bearing No. 14978/2009 under Order XXXIX Rules 1 and 2 CPC, 15460/2009 under Order XXXIX Rule 4 code of Civil Procedure and 15480/2009 under Order VI Rule 17 CPC. 2. Briefly stated the Plaintiff is a company incorporated under the Companies Act, 1956 having its registered office at C-4, Phase-II, Noida (U.P.) and Branch Office at 159, Okhla Industrial Estate, Phase-III, New Delhi-110020. The present suit for declaration, cancellation and mandatory injunction was filed through its senior General Manager and authorized signatory who is stated to be duly authorized in this regard. It was alleged in the plaint that the Defendant No. 1 is a private limited company duly registered under the Companies Act, 1956. It is engaged in construction work and providing infrastructure facilities. It was awarded a Work Order by DDA for construction of swimming pool, training hall, fitness centre and athletic track at Commonwealth Games Village near Akshardham Temple, Delhi for a total value of Rs. 63 crores. The Defendant No. 1 assigned a part of the said work for structural steel fabrication to the Plaintiff, the value of which was approximately Rs. 6 crores. This offer was accepted by the Plaintiff on 25.11.2008. It is alleged that the Plaintiff had completed 80 % of the work and submitted bills for a sum of Rs. 4.46 crores to the Defendant No. 1 out of which an amount of Rs. 3.38 crores was released in its favour and a sum of Rs. 1.08 crores remained unpaid. It is alleged that the Plaintiff company vide letter dated 03.08.2009 requested the Defendant No. 1 to clear its bills which was not done and deficiencies in the work was pointed out. It is alleged that the DDA had repeatedly pointed out to the Defendant No. 1 the slow progress of the work on account of lack of planning and because of non deployment of agreed financial resources by it in the work. It is alleged that the DDA vide letter dated 24.07.2009 pointed out to the Defendant No. 1 that by that time 75% of the work ought to have been executed while as only 40% of the work had been done. Eventually on being dissatisfied with the work carried out by the Defendant No. 1, DDA issued a letter dated 13.10.2009 to the Defendant No. 1 terminating the contract. Eventually on being dissatisfied with the work carried out by the Defendant No. 1, DDA issued a letter dated 13.10.2009 to the Defendant No. 1 terminating the contract. It is the case of the Plaintiff that although Plaintiff was the sub contractor of the Defendant No. 1 for execution of a specified work, the DDA after termination of the contract of the Defendant No. 1, vide letters dated 12.11.2009 and 19.11.2009 gave the work to the Plaintiff which was earlier being sub contracted to them. 3. The Plaintiff had furnished a bank guarantee of its banker State Bank of Patiala in favour of the Defendant No. 1 for a sum of Rs. 50,00,000/- on 03.06.2009. The Defendant No. 1 sought to encash the bank guarantee furnished by the Plaintiff vide letter dated 16.10.2009 but this invocation was subsequently withdrawn by the Defendant No. 1 on the ground that they wanted to settle the matter with the DDA as is reflected in the letter dated 16.10.2009. In the meantime, it is alleged that the Plaintiff had extended the bank guarantee from 12.11.2009 to 22.01.2010. It is alleged that on account of termination of the contract the DDA filed a petition under Section 11 of the Arbitration and Conciliation Act, 1996 for reference of the dispute between DDA and Defendant No. 1 to arbitration. The Plaintiff alleges that the Defendant No. 1 concealed from this Court the aspect of the arbitration petition having been filed. 4. Since the circumstances did not change, the Defendant No. 1 issued a fresh letter of invocation dated 17.11.2009 to the Defendant No. 2 invoking the bank guarantee despite the fact that an amount of Rs. 1.50 crores was still due and payable to the Plaintiff on account of the work having been executed by them and in respect of which the Plaintiff has filed a suit bearing No. 578/2010 which is pending in this Court. The Plaintiff has alleged that the invocation of bank guarantee by the Defendant No. 1 vide letter dated 17.11.2009 was based on fraud as the very basis of getting work from the DDA was based on fraud by the Defendant No. 1 since the share capital of the Defendant No. 1 was merely Rs. 10,00,000/- and it had no reserves, surplus or fixed assets. It had received a loan to the tune of Rs. 10,00,000/- and it had no reserves, surplus or fixed assets. It had received a loan to the tune of Rs. 9.4 crores and had given loans to the extent of Rs. 9.48 crores for the year ending on 31.03.2010 and has suffered losses to the tune of Rs. 34,922/-. It is alleged that had these facts been disclosed to DDA, the latter would not have awarded the contract in favour of the Defendant No. 1. The Plaintiff also alleged that the invocation of bank guarantee by the Defendant No. 1 would cause irretrievable injustice to the Plaintiff in as much as in the event of money being released to the Defendant No. 1 by the Defendant No. 2, and in case, the Plaintiff succeeds in the civil suit against the Defendant No. 1 he will not be able to recover the aforesaid amount from the Defendant No. 1 on account of lack of its financial capacity. 5. The suit came up for the first time before the Court on 20.09.2009. On IA bearing No. 14978/2009, this Court while issuing notice had directed the Defendants to maintain the status quo in respect of bank guarantee No. 5079409BG0002587 dated 13.06.2009 for a sum of Rs. 50,000,00/-. It is this bank guarantee in respect of which an application under Order XXXIX Rule 4 has been filed and the application under Order XXXIX Rules 1 and 2 bearing IA No. 14978/2009 is pending for confirmation or vacation of the said order. 6. While the suit was pending, the Plaintiff in order to strengthen his allegation of fraud against the Defendant No. 1 for invocation of the bank guarantee, in respect of which no details were given in the suit except use of the term 'fraud' in the application for stay, had tried to supplement the facts by making averments under Order VI Rule 17 code of Civil Procedure seeking amendment of the plaint wherein the Plaintiff wanted to incorporate in the plaint the following paragraphs: 18-A it is submitted that after filing of the present suit, on 20.11.2009, the Plaintiff?s bankers i.e. Defendant No. 2 received letter dated 17.11.2009 of Defendant No. 1 invoking the Bank Guarantee No. 5079409BG0002587 dated 13.6.2009 in the sum of Rs. 50 Lacs. (Rupees Fifty Lakhs only). Needless to say that the invocation is fraudulent to say the least. Fraud is of egregious nature and vitiates entire underlying transaction. 50 Lacs. (Rupees Fifty Lakhs only). Needless to say that the invocation is fraudulent to say the least. Fraud is of egregious nature and vitiates entire underlying transaction. It is clear that the Defendant No. 1 never had the where with all to perform the contract granted by the DDA to it. It does not have the finance to do the work. By misrepresenting, it coaxed the Plaintiff entering into an agreement with it and also forced it to give Bank Guarantees. Had the Plaintiff known about the aforesaid, it would have never entered into an agreement with the Defendant No. 1. No reason for invoking the Bank Guarantee has been given. In fact Show Cause Notice dated 13.10.2009 issued by the DDA speaks volumes of incapability of Defendant No. 1 to perform the Contract. The Plaintiff has also recently been able to lay its hands upon letter dated 27.2.2009 and 24.7.2009 sent by the DDA to Defendant No. 1 reprimanding the Defendant Bi, 1 for not completing the work in time due to mis-management and lack of resources as well as lack of sufficient labour. 18-B It is submitted clearly the Defendant No. 1 has played a fraud upon the Plaintiff and coaxed it to enter into an agreement in question. 18-C The Plaintiff has done the works diligently and in time. Being satisfied with the performance of the Plaintiff, the DDA granted contract of work to the Plaintiff on 19.11.2009. 18-D It is submitted that the Defendant No. 1 has withheld C-Forms worth Rs. 40 lacs. (Rupees Forty Lakhs only) and is not giving the same to the Plaintiff. The Defendant No. 1 company is at the verge of closure and is liable to pay over Rs. 1.08 crores to the Plaintiff apart from cost of material lying with the Plaintiff as well as the C-Forms worth Rs. 40 lacs. 18-E It is submitted that apart from the Plaintiff, there are various contractors who have not been paid by the Defendant No. 1 company. If the bank guarantee is invoked and the money handed over to the Defendant No. 1, it will be impossible for the Plaintiff to recover the money and irretrievable injustice shall be occasioned to the Plaintiff. Special equities are in favour of the Plaintiff and against the Defendants. 7. If the bank guarantee is invoked and the money handed over to the Defendant No. 1, it will be impossible for the Plaintiff to recover the money and irretrievable injustice shall be occasioned to the Plaintiff. Special equities are in favour of the Plaintiff and against the Defendants. 7. The Defendant No. 1 has opposed the amendment application of the Plaintiff by filing the reply and contending that the case as originally set up in the plaint does not use the term 'fraud' and even the averments are bereft of any details as to how fraud has been committed. Therefore, this plea of fraud which has been set up by the Plaintiff is only an after thought. 8. However, since the case is at the threshold and the details of the fraud have not been given, in case the facts are seen in its entirety, along with the averments made in the application for stay, it cannot be said that fraud was not sought to be urged as a ground in the plaint. Therefore, keeping in view the averments made by the parties and the fact that the case is still at the threshold, I feel that no serious prejudice would be caused to the Defendant if I allow the application of the Plaintiff for amendment of the plaint subject to the payment of cost of Rs. 10,000/-. This cost in my opinion is sufficient to compensate the Defendants. Therefore, I proceed ahead with the application of the Plaintiff under Order XXXIX Rules 1 and 2 code of Civil Procedure and that of the Defendant under Order XXXIX Rule 4 code of Civil Procedure on the basis of the amended plaint. 9. A perusal of these averments made in the amended application would show that essentially the averments are made by the Plaintiff by way of an amendment, only to bring the averments made in the plaint within the observations passed by the Court, so as to advance his plea of fraud against the invocation of bank guarantee. 10. I have heard the learned senior counsel Mr. Sandeep Sethi on behalf of the Plaintiff and Mr. Rishabh Bhutani, on behalf of the Defendant. 11. 10. I have heard the learned senior counsel Mr. Sandeep Sethi on behalf of the Plaintiff and Mr. Rishabh Bhutani, on behalf of the Defendant. 11. The first contention which has been urged by the learned senior counsel for the Plaintiff is that the very basis of obtaining the bank guarantee by the Defendant No. 1 from the Plaintiff is based on egregious fraud. He has contended that the Defendant No. 1 had been awarded the work by the DDA worth Rs. 63 crores while as its working capital was only Rs. 10,00,000/- and had DDA known the factum of the financial incapability of the Defendant No. 1, it would not have awarded the construction of swimming pool etc. to the Defendant No. 1. It is stated that it is in this context that the part of the said contract was allocated by the Defendant No. 1 to the Plaintiff whereby the Plaintiff was coaxed by the Defendant No. 1 to sign the sub-contract and execute the bank guarantee for a sum of Rs. 50 Lakhs in favour of Defendant No. 1. 12. A subsidiary argument which was advanced by the learned senior counsel, to substantiate this plea was that the invocation of the bank guarantee is sought to be done by the Defendant No. 1 on the ground that the Plaintiff was slow in performance of its work which untimely occasioned the cancellation of contract of the Defendant No. 1 while the circumstances on record completely belies this stand of the Defendant No. 1. The learned senior counsel has urged that till 13.10.2009 the Defendant No. 1 did not send even a single communication to the Plaintiff raising any objection to the slow progress of the work on the part of the Plaintiff. On the contrary, what is to be borne in mind is that only a part of the entire contract was allocated by the Defendant No. 1 to the Plaintiff and the DDA had sent a letter dated 24.07.2009 to the Defendant No. 1 indicating that there was a delay in execution of the project assigned to the Defendant No. 1 on account of ill planning and delayed execution of the work as well as because of lack of induction of sufficient financial resources. It is on account of this reason that the contract of the Defendant No. 1 was cancelled by the DDA. It is on account of this reason that the contract of the Defendant No. 1 was cancelled by the DDA. It is further stated by the learned senior counsel that after cancellation of the contract, the DDA allocated the same contract earlier sub contracted to the Plaintiff directly to the Plaintiff itself which clearly belies the submission of the learned Counsel for the Defendant No. 1 that it was because of the mismanagement or ill planning on the part of the Plaintiff that the contract of the Defendant No. 1 was cancelled. It is submitted by the learned senior counsel that in this background, the invocation of the bank guarantee by the Defendant No. 1 after cancellation of its contract by DDA is only actuated by fraud, and therefore, interim order against the invocation deserves to be confirmed. 13. The second submission made by the learned senior counsel is to the effect that in case the bank guarantee is permitted to be invoked by the Defendant No. 1, it will cause irretrievable injustice to the Plaintiff in as much as in case the Plaintiff ultimately succeed in the arbitration proceedings/recovery proceedings, it will be very difficult for the Plaintiff to retrieve the huge amount of money from the Defendant No. 1 as it does not have sufficient solvency on account of its share capital being only to the tune of Rs. 10,00,000/-. It has also been stated that there are no details of the fixed assets of the Defendant No. 1 from which the aforesaid recovery could be effected. The learned senior counsel for the Plaintiff in support of his contention has relied upon Continental Construction Ltd. v. Satluj Jal Vidyut Nigam Ltd. 2006 (1) Arb. LR 321 and Hindustan Construction Co. Ltd. v. State of Bihar and Ords. (1999) 8 SCC 436 . 14. It has been submitted by the learned senior counsel for the Plaintiff that in both these judgments it is categorically laid down that two of the contingencies in which the bank guarantee cannot be permitted to be invoked, is in case, where there is fraud and secondly in case where the invocation is going to cause irretrievable injustice to the party in whose behalf the bank guarantee has been given. 15. 15. The learned Counsel for the Defendant refuted the contention of the learned senior counsel for the Plaintiff both on the question of egregious fraud and irretrievable injustice. It was contended by the learned Counsel for the Defendant that it is a settled legal position that the bank guarantee is an independent contract, and therefore, in order to give sanctity to the commercial transactions, it has been consistently laid down by the Apex Court as well as by the various other High Court from time to time that unless and until there is a egregious fraud which goes to the root of the matter of execution of the bank guarantee itself, the invocation of the bank guarantee need not be stayed. Reliance in this regard was placed on the following authorities: Dwarikeksh Sugar Industries Ltd. v. Prem Heavy Engineering Works IP) Ltd. (1997) 6 SCC 450 , Svenska handelsbanken v. M/s Indian Charge Chrome and Ors. (1994) 1 SCC 502 , STC v. Jainsons Clothing Corpn. and Anr. (1994) 6 SCC 597 , U.P. State Sugar Corporation v. SUMAC International Ltd. (1997) 1 SCC 568 . 16. It has been further contended by the learned Counsel that no irretrievable injustice will be caused to the Plaintiff, in case, the bank guarantee is permitted to be invoked and money is paid to it. It is the contention of the learned Counsel that merely because the Defendant has a share capital of only Rs. 10,00,000/- it does not mean that it is solvent only to the extent of Rs. 10,00,000/-. It has been stated that this is only an ill founded apprehension on the part of the Plaintiff and therefore, it cannot be gone into and made a basis for staying the invocation of the bank guarantee. The learned Counsel for the Defendant has contended that it is this very company which had been given the contract by the DDA which had been executed substantially apart from various other contracts running into crores of rupees. 17. The learned Counsel for the Defendant has contended that the invocation of the bank guarantee can be stayed only in a contingency like the one as was anticipated in case titled Itek Corpn. v. First National Bank of Boston and referred to in U.P. State Sugar Corporation v. SUMAC International Ltd. (1997) 1 SCC 568 . 17. The learned Counsel for the Defendant has contended that the invocation of the bank guarantee can be stayed only in a contingency like the one as was anticipated in case titled Itek Corpn. v. First National Bank of Boston and referred to in U.P. State Sugar Corporation v. SUMAC International Ltd. (1997) 1 SCC 568 . It has been further stated that the invocation of the bank guarantee has not been stayed by the Courts even in cases where the company is sick or is being wound up as no irretrievable injustice to a party has been perceived. Reliance in this regard has been placed on M.S.E.B. v. Official Liquidator High Court of Eranakulam 1982 (3) SCC 358 and U.P. State Sugar Corporation v. SUMAC International Ltd. (1997) 1 SCC 568 . 18. I have carefully considered the respective submissions made by the learned Counsel for the Plaintiff as well as the Defendant and have also gone through the record. 19. The law regarding bank guarantee is settled by catena of judgments of the Apex Court. The following paragraph in case titled U.P. State Sugar Corporation v. SUMAC International Ltd. (1997) 1 SCC 568 has summed up the law regarding the bank guarantee: The law relating to invocation of such bank guarantees is by now well settled. When in the course of commercial dealings an unconditional bank guarantee is given or accepted, the beneficiary is entitled to realize such a bank guarantee in terms thereof irrespective of any pending disputes. The bank giving such a guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer. The very purpose of giving such a bank guarantee would otherwise be defeated. The courts should, therefore, be slow in granting an injunction to restrain the realization of such a bank guarantee. The courts have carved out only two exceptions. A fraud in connection with such a bank guarantee would vitiate the very foundation of such a bank guarantee. Hence if there is such a fraud of which the beneficiary seeks to take advantage, he can be restrained from doing so. The second exception relates to cases where allowing the encashment of an unconditional bank guarantee would result in irretrievable harm or injustice to one of the parties concerned. Hence if there is such a fraud of which the beneficiary seeks to take advantage, he can be restrained from doing so. The second exception relates to cases where allowing the encashment of an unconditional bank guarantee would result in irretrievable harm or injustice to one of the parties concerned. Since in most cases payment of money under such a bank guarantee would adversely affect the bank and its customer at whose instance the guarantee is given, the harm or injustice contemplated under this head must be of such an exceptional and irretrievable nature as would override the terms of the guarantee and the adverse effect of such an injunction on commercial dealings in the country. The two grounds are not necessarily connected, though both may coexist in some cases. The rule is well established that a bank issuing a guarantee is not concerned with the underlying contract between the parties to the contract. The duty of the bank under a performance guarantee is created by the document itself. Once the documents are in order the bank giving the guarantee must honour the same and make payment ordinarily unless there is an allegation of fraud or the like. The courts will not interfere directly or indirectly to withhold payment, otherwise trust in commerce internal and international would be irreparably damaged. But that does not mean that the parties to the underlying contract cannot settle the disputes with respect to allegations of breach by resorting to litigation or arbitration as stipulated in the contract. The remedy arising ex contract is not barred and the cause of action for the same is independent of enforcement of the guarantee. 20. In the light of the aforesaid law laid down by the Apex Court, which has been reiterated in different judgments till date, let us now examine the facts of the present case. There is no dispute in the instant case that the DDA had given a contract for construction of swimming pool and some ancillary things on account of commonwealth games to the Defendant No. 1. The total value of the contract was approximately 63 cores out of the aforesaid contract a part of the contract was sub contracted by the Defendant No. 1 to the Plaintiff for total value of Rs. The total value of the contract was approximately 63 cores out of the aforesaid contract a part of the contract was sub contracted by the Defendant No. 1 to the Plaintiff for total value of Rs. 4.46 crores out of which 80% of the work is purported to have been executed by the Plaintiff and a payment of Rs. 3.38 crores has been admittedly received by the Plaintiff. The balance payment of approximately Rs. 1.08 crores is yet to be received. It is also not in dispute that the DDA had cancelled the contract of the Defendant No. 1 on account of ill planning and delayed execution of the project, a part of which was sub contracted to the Plaintiff, and therefore, the cancellation of the contract by the DDA in favour of the Defendant No. 1 cannot be attributed to any act or omission on the part of the Plaintiff. It is also fortified further by the fact that the Plaintiff cannot be held to be responsible for the cancellation of the contract of the Defendant No. 1 by the DDA as the work which was sub contracted to the Plaintiff by the Defendant No. 1 was directly given by the DDA to the Plaintiff after cancellation, so therefore, this clearly establishes the fact beyond any pale of doubt that so far as the cancellation of contract by the DDA given in favour of the Defendant No. 1 is concerned, it cannot be attributed to any act of omission or commission on the part of the Plaintiff. 21. It is not in dispute that after the cancellation of the contract the Defendant No. 1 has invoked the bank guarantee. It is also not disputed that on account of these cancellation of contract by the DDA in favour of the Defendant No. 1 and consequently the cancellation of the sub contract by the Defendant no1 in favour of the Plaintiff has resulted in institution of various proceedings in the nature of arbitration proceedings or recovery proceedings between the contracting parties. The question which is to be considered is as to whether these disputes which have arisen on account of cancellation of contract seeking reference of the dispute to the arbitration or to the civil court for the purpose of recovery can be said to constitute a fraud and consequently a ground for staying the invocation of bank guarantee. The question which is to be considered is as to whether these disputes which have arisen on account of cancellation of contract seeking reference of the dispute to the arbitration or to the civil court for the purpose of recovery can be said to constitute a fraud and consequently a ground for staying the invocation of bank guarantee. For this purpose, what will be necessary would be first to examine the language of the bank guarantee. 22. The bank guarantee which is furnished by the Defendant No. 2 in favour of the Defendant No. 1 is in following terms: BANK GUARANTEE To M/s Sportina Payce Infrastructure Pvt. Ltd. A-4, Vinay Bhavya Complex, 159, CST Road, Kalina, Santacruz (E), Mumbai-400098 Dear Sir, Guarantee No. BG No. 5079409BG0002587 Amount of Guarantee Rs. 50,00,000/- (Rs. Fifty Lacs Only) Guarantee Cover from to 13 Jun. 2009 Last date for lodgement of claim: 11.12.2009 This Deed of Guarantee executed on this the ____ day of 2009 at Delhi by the State Bank of Patiala, Commercial Branch Janpath, New Delhi having its Head Office at The Mall Patiala (Punjab) and amongst other places a Branch at Janpath, New Delhi-110001 (hereinafter referred to as "the Bank?) in favour of M/s Sportina Payce Infrastructure Pvt. Ltd. Having office at A-4, Vinay Bhavya Complex, 159, CST Road, Kalina, Santacruz (E), Mumbai-4000980 (hereinafter referred to as the "Beneficiary?) for an amount not exceeding Rs. 50,00,000/- (Rs. Fifty Lacs Only) at the request of M/s. Fedders Lloyd Corp. Ltd., 159, Olkhla Industrial Estate, Phase-III, New Delhi-110020. Whereas the Beneficiary and M/s Sportina Payce Infrastructure Pvt. Ltd. Entered into a Agreement dated 06 November 2008 for construction of commonwealth Games Village for common wealth Games Delhi 2010 near Akshardham Temple Off Road No. NH-24, in terms of the said agreement we 'The Bank' agree to give this Bank Guarantee on request of M/s Fedders Lloy Corp. Ltd. This Guarantee is issued subject to the condition that the liability of the Bank under this Guarantee is limited to a maximum of Rs. 50,00,000/- (Rs. Fifty Lacs Only) and this guarantee shall remain in full force up to an can be invoked only by a written demand or claim under this guarantee served on the bank by the beneficiary at the following address Commercial Branch Janpath, New Delhi by way of Registered Post or by hand delivery duly obtaining acknowledgment form "The Bank? 50,00,000/- (Rs. Fifty Lacs Only) and this guarantee shall remain in full force up to an can be invoked only by a written demand or claim under this guarantee served on the bank by the beneficiary at the following address Commercial Branch Janpath, New Delhi by way of Registered Post or by hand delivery duly obtaining acknowledgment form "The Bank? on or before. We 'The Bank' expressly agree that our liability and obligation under the guarantee: (a) Shall be absolute, unconditional, irrevocable and payable on a mere demand made by the Beneficiary, without any demur, irrespective of any disputes or differences of whatsoever nature between the beneficiary and Fedders Lloyd Corp. Ltd. (b) Shall not be discharged released, altered or otherwise effected in any manner by reason of any arrangement or compromise made between the beneficiary and Fedders Lloyd Corp. Ltd. (c) Shall not be discharged, released, altered or impaired in any manner by amalgamation or reconstituting or alteration of the status or change in constitution of Fedders Lloyd Corp. Ltd. (d) Shall be valid for any amendments, alterations, modifications, renewals of whatsoever nature made to the work order dated 20th November, 2008 (e) We the Bank hereby expressly and irrevocably waive all claims of waiver, release, surrender and compromise and all defences, of set off, counter claims, recoupments, reductions and impairments. We "The Bank? acknowledge receipt of a copy of the said Work Order dated 20th November, 2008 entered into between issued by the beneficiary and Fedders Lloyd Corp. Ltd. Notwithstanding anything contained herein: (a) Our liability under this Bank Guarantee shall not exceed Rs. 50,00,000/- (Rs. Fifty Lacs Only) (b) This Bank Guarantee shall be valid upto 11.12.2009 (c) We are liable to pay the guarantee amount or part thereof under this Bank Guarantee only and only if you serve upon us a written claim or demand on or before 11.12.2009 Confirmation of this Bank Guarantee may be sought from our controlling authority on address given below: The Deputy General Manager State Bank of Patiala Commercial Branch 2nd Floor, Chanderlok Building, 36, Janpath, New Delhi-110001. 23. 23. A perusal of the highlighted portion of the bank guarantee would show that it is not performance bank guarantee and further that it is an unconditional and irrevocable bank guarantee in which it has been agreed by the Defendant No. 2 to the beneficiary namely the Defendant No. 1 to pay the amount so guaranteed without any demure or protest in case the same is demanded by the Defendant No. 1. In my view, the plea of fraud which has been set up by the learned senior counsel for the Plaintiff cannot be a ground which goes to the root of the execution of the bank guarantee itself and result in stay of its invocation. These are subsidiaries issues or disputes which are arising between the contracting parties that is Plaintiff and the Defendant No. 1 and between the Defendant No. 1 and DDA which cannot be said to be underlying disputes affecting the independent contract which the bank guarantee in the instant case is. These disputes were non-existent at the time of execution of the guarantee by the bank/ Defendant No. 2 in favour of Defendant No. 1. 24. Nor can it be said that merely because the Defendant No. 1 had a financial incapacity or share holding only to the tune of Rs. 10,00,000/-, and had this fact be known to the DDA it would not have given the contract worth crores of rupees to the Defendant No. 1 and also it cannot be said to be constituting a fraud because admittedly the Defendant No. 1 had executed substantial portion of the contract allocated to it worth Rs. 63 crores. So far as the Plaintiff himself is concerned, out of the total contracted work of Rs. 4.46 crores, he had admittedly received Rs. 3.36 crores from the Defendant No. 1, and therefore, it cannot be said that this factum of solvency or the share holding of the Defendant No. 1 only to the extent of Rs. 10,00,000/- constitutes a fraud which must result in staying the operation or invocation of the bank guarantee by the Defendant no1. 3.36 crores from the Defendant No. 1, and therefore, it cannot be said that this factum of solvency or the share holding of the Defendant No. 1 only to the extent of Rs. 10,00,000/- constitutes a fraud which must result in staying the operation or invocation of the bank guarantee by the Defendant no1. The bank guarantee being an independent contract and in the instant case being irrevocable as well as unconditional and the same having been invoked by the Defendant No. 1, it cannot be stayed on the alleged ground of fraud or irretrievable injustice as no such circumstances have prima facie been established. The Plaintiff by simply seeking amendments in the suit by using the terminology which has been used by the judgments of the Supreme Court cannot be said to satisfy the requirement of law for staying the invocation. I, therefore, reject this contention of the Plaintiff. 25. The second ground regarding irretrievable injustice which has been taken by the learned senior counsel for the Plaintiff also does not convince the Court that invocation of the bank guarantee in the instant case would cause any irretrievable injustice to Plaintiff in case the bank guarantee is not stayed. The kind of irretrievable injustice which must result has been approved by the Apex Court, by referring to the facts of Itek Corpn.?s Case where in view of the peculiar facts and circumstances of the case the American Court held that if the bank guarantee is permitted to be invoked then it will result in irretrievable injustice because the money could not be recovered from a party or the bank in turn which was under turmoil. 26. Merely because the share capital of the Defendant No. 1 company is Rs. 10,00,000/- does not result in irretrievable injustice to the Plaintiff in case the bank guarantee is invoked on the ground that it will be very difficult for the Plaintiff to recover the amount. 26. Merely because the share capital of the Defendant No. 1 company is Rs. 10,00,000/- does not result in irretrievable injustice to the Plaintiff in case the bank guarantee is invoked on the ground that it will be very difficult for the Plaintiff to recover the amount. This is on account of the fact that the Apex Court even in cases where the company has become sick or has gone in for winding up, has not stayed the invocation of bank guarantee on the ground that if in such cases the bank guarantee which is held to be an independent contract is stayed will result in diluting the efficacy of commercial transaction which is the very basis of the execution of the bank guarantee, and therefore, I feel that this contention of the learned Counsel for the Plaintiff is also without any merit. The judgments which have been cited by the learned Counsel for the Plaintiff are of no help to the Plaintiff. In the first case i.e. continental construction?s case (supra) the facts are distinguishable as it was a case where initially performance guarantee was given which was sought to be converted into unconditional guarantee while as in present case there is no such dispute. Therefore, the one passage of the judgment cannot be torn out of content to be applied to the facts of the present case so far as the second case is concerned, instead of supporting the Plaintiff it supports the point of the Defendant. 27. In view of the aforesaid circumstances, I am of the considered opinion that the ex-parte ad interim stay which was given to the Plaintiff vide order dated 20.09.2009 on IA bearing No. 14978/2009 stands vacated and the application under Order XXXIX Rules 1 and 2 code of Civil Procedure stands dismissed and the corresponding application of the Defendant No. 1 IA bearing No. 15460/2009 under Order XXXIX Rule 4 code of Civil Procedure stands allowed. So far as the application bearing No. 15480/2009 under Order VI Rule 17 code of Civil Procedure is concerned, that is allowed and the amended plaint is permitted to be taken on record. The Defendant may file the written statement to the amended plaint. 28. Post the matter before the learned Joint Registrar on 1st April, 2011.