Judgment : The Petitioner has invoked Section 9 of the Arbitration and Conciliation Act, 1996 (for short, “the Arbitration Act, 1996”) in view of the arbitration clause in the agreement/contract between the parties. Heard finally by consent of the parties. 2. On 8 November 2011 by a purchase order, Respondent No.1 placed an order with the Petitioner for purchase of 50,000 MT (+/-10%) of Egyptian Rock Phosphate to be supplied in two consignments of 25,000 MT (+/-10%). A Performance Bank Guarantee was required to be furnished in respect of the supply of the goods. As the supply could not be commercially viable because of several reasons and also including civil unrest and common prevailing in Egypt and therefore after discussion the supply was restricted to 16,000 MT (+/-10%). The Petitioner agreed accordingly. Therefore, on 22 October 2011, requested to amend the revised terms in Letter of Credit/performance guarantee. The Petitioner, therefore, called upon Respondent No.1 to approve the agreed reduction in the quantity to be supplied from 25,000 MT to 16,000 MT (+/-10%) and for the reduction of Performance Guarantee amount from US $ 2,09,468/-to US 67,030 being 3% of 16,000 MT (+/-10%). Ultimately, Respondent No.1 and accepted the change in terms and conditions. Respondent No.1 accordingly furnished an amended copy by a letter dated 2 November 2011. The Petitioner on 4 November 2011 submitted to Respondent No.1 the amended agreed Performance Bank Guarantee issued by Respondent no.2. On 28 November 2011, the Petitioner supplied cargo, loaded on board the MV Sam Panther, which arrived in Mumbai on November 28, 2011 and accordingly fully discharged its cargo, 14500 MT of Egyptian rock phosphate, on 4 December 2011. This supply falls within the ambit of 16,000 MT (+/-10%). 3. The Respondent, however, by email dated 8 December 2011 referring to basic purchase order called upon the Petitioner to nominate a suitable vessel for the balance quantity. As stated earlier, the Petitioner was not in a position to supply the originally agreed quantity of the goods. The Petitioner invoked the Force Majeure clause of the contract. The Respondents again by a letter dated 6 January 2012 called upon the Petitioner to forthwith perform its contractual obligations and supply the balance amount of cargo. The Petitioner by letter dated 10 January 2012 reiterated the position and denied the liability in view of agreed revised terms as the supply was reduced to 16000 MT. The Respondents again by a letter dated 6 January 2012 called upon the Petitioner to forthwith perform its contractual obligations and supply the balance amount of cargo. The Petitioner by letter dated 10 January 2012 reiterated the position and denied the liability in view of agreed revised terms as the supply was reduced to 16000 MT. 4. Inspite of above, on 17 January 2012 the Respondents called upon the Petitioner to extend the Performance Bank Guarantee on or before January 21, 2012 failing which they threatened to invoke the same. Though the Petitioner performed its obligation based upon the amended agreement. Therefore, this Petition under Section 9 of the Arbitration Act, 1996. 5. On 23 January 2012 after hearing both the parties, the Court has passed the ad-interim following order and the same has been in force till this date. “Respondent No.1 is at liberty to invoke the bank guarantee issued by respondent No.2. Till 31st January, 2012, respondent No.1 shall not receive any amounts pursuant to the invocation. This injunction is passed only in view of the undertaking on behalf of the petitioner to pay interest at 12% per annum to the petitioner (respondent) in the event of this order being vacated. The rate of interest and the payment thereof shall only be on account of and subject to final orders in the petition.” [Bracketed word added/corrected by the consent of the parties.] 6. It is clear from the documents on record that both the parties, after considering the delay and the reason for non-supply of goods as agreed/settled restricted the supply of 16000 MT goods instead of 50000 MT. Based upon this agreement, both the parties acted upon and accordingly Performance Guarantee as contemplated under Clause 5 of General Terms and Conditions was executed. The Petitioner accordingly performed its part and discharged and delivered the goods about 14,500 MT which definitely was within the ambit of 16,000 MT (+/-10%). There is no dispute so far as this part is concerned. At the time of execution and/or amendment in the Letter of Credit and/or Performance Guarantee, there was no such condition put or added that it was towards part performance of the original agreement. There is no dispute so far as this part is concerned. At the time of execution and/or amendment in the Letter of Credit and/or Performance Guarantee, there was no such condition put or added that it was towards part performance of the original agreement. There is nothing pointed out that before execution of the amended documents, any reservation was made with regard to balance goods as the basic agreement provided supply to be made in two instalments i.e. 25000 MT. 7. I am inclined to observe that document dated 8 November 2011 specifically provided quantity only of 16000 MT and the security sum was of US $ 67,030. It was an unconditional irrevocable Bank Guarantee as per the terms and conditions mentioned therein. Therefore, having once performed and discharged the goods as per this Bank Guarantee, Respondent No.1 cannot insist the Petitioner to continue with the Guarantee and/or extend the Guarantee and insist to supply the balance quantity of goods. Therefore, the Petitioner, in my view, having once performed its part is entitled for the discharge of the Bank Guarantee. The Respondents are not entitled to invoke the Guarantee as threatened. 8. The submission that there are no allegations of fraud and misrepresentations and/or undue influence and this Court under Section 9 of the Arbitration Act may not grant any injunction and the ad-interim so granted needs to be vacated, is unacceptable. Respondent No.1 is bound by the amended terms and conditions of the Guarantee. I am not inclined to accept the submission that the beneficiary is entitled to decide whether the performance as agreed was performed or not in the present case. The conduct of the Respondent No.1 itself shows that though agreed for supply of 16000 MT goods and accordingly approved and accepted the goods as mentioned in the Bank Guarantee cannot be now permitted to invoke the same on the basis of original documents/contract of the supply of 50,000 MT of goods. This document/Performance Guarantee just cannot be read, to mean that it was only the part performance of the original agreement and the Petitioner is under obligation to supply whole of 50,000 MT of the goods as originally agreed. This document/Performance Guarantee just cannot be read, to mean that it was only the part performance of the original agreement and the Petitioner is under obligation to supply whole of 50,000 MT of the goods as originally agreed. The averments so made and the reason for modification of the basic contract itself shows that it was never intended to supply the remaining amount at any point of time, except the 16000 MT as agreed and for which the Guarantee in question was executed. At this stage, as rightly contended by the learned Senior Counsel appearing for the Petitioner, we have to consider clauses of the Guarantee only. The dispute, if any, revolving around the main contract need to be adjudicated by the Arbitrator in view of the arbitration clause. 9. The submission that this document needs to be considered/read with the original document, is unacceptable in view of the fact that the goods were delivered as agreed in the Guarantee. There is no dispute with regard to the receipt of the goods and/or quantity of the goods. The Petitioner has performed its part based upon the amended agreement and Guarantee. Therefore, I am not inclined to accept the case of the Respondents that the Respondents are entitled to ask for supply of balance goods and the extension of the Guarantee and/or the revocation of the same. 10. It is settled that the reference of the principal agreement in the preamble of performance guarantee/deed cannot be treated that the guarantee based upon the clauses of the main agreement. Even otherwise, the recital in the preamble cannot control the main operative part of the deed specifically when the guarantee clauses are clear. There is no vagueness of any kind. The background under which the guarantee was executed is also not relevant in view of the specific clauses of the guarantee. 11. It is also settled that such performance guarantee is an independent contract between the Bank and the beneficiary. The dispute between the beneficiary and the party is of no consequence. The Bank is under obligation to honour such guarantees as it is an unconditional and irrevocable one. 11. It is also settled that such performance guarantee is an independent contract between the Bank and the beneficiary. The dispute between the beneficiary and the party is of no consequence. The Bank is under obligation to honour such guarantees as it is an unconditional and irrevocable one. Still question is, if case is made out on the foundation of “special equity”, “irretrievable injury” and “irretrievable injustice” and when the conduct and the intended actions are contrary to the clear conditions of the guarantee of the beneficiary and as the Petitioner performed its part as agreed, in such situation, in my view, the Court needs to consider the case of the Petitioner for interim protection/relief/injunction against the beneficiary. 12. The Performance Guarantee being a commercial document, therefore, needs to be tested from the point of view of both the parties and not only from the point of view of the beneficiary, merely because it is unconditional and irrevocable. As noted above, purpose of such performance guarantee is to have a performance of obligation and/or guarantee of their performance and/or to invoke in case of defaults as agreed. There is nothing on record to show that the Petitioner has committed any default and/or breach in terms and conditions of this performance guarantee. The Petitioner having performed this part and supplied the goods as agreed, the beneficiary, in my view, is not entitled to invoke the performance guarantee by referring to terms and conditions of the original contract. The parties actions need to restrict to the terms and conditions of the guarantee. If not the Court may pass such order if case is made out. The amount is lying in the Standard Chartered Bank, Bandra Kurla Branch, Mumbai. It is settled that such performance Bank Guarantee cannot be invoked unless there is breach of terms and conditions of the guarantee. (Hindustan Construction Co. Ltd. v. State of Bihar, JT 1999 (8) SC 142 : (1999) 8 SCC 436 . ) 13. The learned senior counsel appearing for the Petitioner submitted to confirm the order already passed. He has also made a statement that they never intended and/or they are not in a position to supply the goods other than which was already supplied as the same was done as agreed by the Respondents, inspite of various uncontrollable situation. They have already invoked the force majeure clause as provided under the original agreement. He has also made a statement that they never intended and/or they are not in a position to supply the goods other than which was already supplied as the same was done as agreed by the Respondents, inspite of various uncontrollable situation. They have already invoked the force majeure clause as provided under the original agreement. The parties are willing to constitute an Arbitration Tribunal also. 14. Taking overall view of the matter and the apprehension so raised by the Petitioner and which is also clear in view of the submissions made by the learned counsel appearing for the Respondent, that they want to invoke the Bank Guarantee, in view of the main contracts’ terms and conditions, though the obligations, as per the guarantee was performed by the Petitioner. I am inclined to continue the ad-interim order passed by this Court, subject to modification as under. ORDER (i) The ad-interim order dated 23 January 2012 shall continue till the constitution and first meeting of Arbitral Tribunal and four weeks thereafter. (ii) The amount lying in the Standard Chartered Bank be invested in a fixed deposit of 90 (ninety) days, and/or till further orders, if passed by the Arbitral Tribunal. The Arbitral Tribunal is at liberty to pass such suitable order. (iii) All contentions are kept open. 15. The Petition is accordingly allowed in the above terms. There shall be no order as to costs.