JUDGMENT S.K. Mishra, J. 1. In this writ petition, the petitioner, a registered company involved in export of iron ore fines and importing of coal for trading in India, has prayed that the order dated 06.04.2013 passed by the learned Civil Judge (Senior Division), Bhubaneswar, Khurda under Annexure-3 be quashed and the opposite parties, i.e. Paradip Port Trust (for short 'the PPT') be restrained from encashing the bank guarantee till disposal of the Interim Application. The impugned order is passed under Order 39, Rule 3 of the Code of Civil Procedure, 1908 (for short 'the Code'), wherein learned Civil Judge (Senior Division) refused to pass order of ad-interim exparte injunction restraining encashment of bank guarantee. The petitioner's case, in brief, is that the opposite party No. 2-PPT issued notice inviting tender on 02.06.2011 for allotment of manual iron ore plot for convergence and export of iron ore. The petitioner being one of the successful bidders was allotted a manual iron ore plot by the PPT. The license period was for 11 months, i.e. from August, 2011 to June, 2012. Pursuant to such allotment, the petitioner was required to furnish a performance bank guarantee for a sum of Rs. 31,65,750/- (Rupees thirty one lakh sixty five thousand seven hundred fifty only). It is to be submitted to ensure that the petitioner is able to fulfill the Minimum Guaranteed Throughput (MGT). The PPT has imposed condition of furnishing bank guarantee for MGT during the license period as mentioned above. The petitioner submitted the bank guarantee towards the MGT, vide B.G. No. 0665711BG0000207 dated 21.07.2011 for Rs. 31,65,750/-. The same was valid till 20.12.2012 and the license period was upto 30.06.2012. The petitioner admits that it was unable to achieve the M.G.T. in the license period between 01.08.2011 to 30.06.2012 for various impediments including Government restriction and adverse market condition. The PPT vide letter dated 19.10.2012, intimated the opposite party No. 1-Bank to encash the aforesaid performance bank guarantee as the petitioner has failed to deposit the shortfall wharfage charges. However, the petitioner immediately deposited the shortfall amount. Consequently, the PPT vide letter dated 20.10.2012, requested the Bank not to encash the bank guarantee as the petitioner has deposited the shortfall amount. It is borne out from the letter dated 20.10.2012 that petitioner's liability towards performance bank guarantee has ceased to exist since then. However, the petitioner immediately deposited the shortfall amount. Consequently, the PPT vide letter dated 20.10.2012, requested the Bank not to encash the bank guarantee as the petitioner has deposited the shortfall amount. It is borne out from the letter dated 20.10.2012 that petitioner's liability towards performance bank guarantee has ceased to exist since then. In spite of the aforesaid clearance of shortfall wharfage charges, the PPT insisted for renewal of performance bank guarantee and the petitioner finding no alternative and to save money renewed the same till 20.03.2013. Then, the PPT on 12.03.2013 without any basis and justifiable reason asked the Bank to encash the bank guarantee to which the petitioner objected vide letter dated 16.03.2013 as the wharfage dues had already been paid. The same was admitted by the PPT in it's letter dated 20.10.2012 to the Bank. Subsequently, on 19.03.2013 the PPT requested the Bank not to encash the bank guarantee as the petitioner assured to extend the validity period of the same. The petitioner vide letter dated 19.03.2013 intimated the PPT that it has extended the validity of the bank guarantee till 18.07.2013. Thus, the bank guarantee stands extended till as on date (during pendency of the writ petition the petitioner has been directed to request the Bank to extend the bank guarantee on two occasions and as the matter stands its valid upto 13.08.2013). 2. The grievance of the petitioner is that the action of the opposite party No. 2 is without any reason and it is illegal and invalid. The PPT was threatening to encash the bank guarantee. There was every apprehension that the opposite party No. 2 would instruct the Bank to encash the bank guarantee at any moment. On 19.10.2012, the PPT intimated the Bank to invoke the bank guarantee in spite of the fact that the same was renewed prior to that date. Besides that, the petitioner claims that after expiry of the license period, i.e. 30.06.2012, there is no reason to retain the bank guarantee, especially when the shortfall wharfage charges accrued during that period has already been deposited for license period upto 30.06.2012. The petitioner further submits that subsequent renewal has been subject matter of challenge and is sub-judice. This proceeding is relating to performance of bank guarantee for the license period between 01.08.2011 to 30.06.2012. The petitioner further submits that subsequent renewal has been subject matter of challenge and is sub-judice. This proceeding is relating to performance of bank guarantee for the license period between 01.08.2011 to 30.06.2012. The petitioner claims that there is no liability towards the performance bank guarantee and there is no reason why the same shall not be returned. However, the PPT has been acting illegally by writing the Bank on multiple occasions to invoke the bank guarantee. The petitioner finding no other alternative and under compelling circumstance has filed a suit to permanently restrain the PPT from invoking the bank guarantee & to return the same. In that suit, the petitioner has also filed an interim application, numbered as I.A. No. 287 of 2013 under Order 39, Rules 1, 2 and 3 read with Section 151 of the Code for granting ad-interim injunction. The learned Civil Judge (S.D.) heard the matter and finally, after going through the materials on record rejected the petition praying for exparte ad-interim injunction. Therefore, this writ petition has been filed to quash Annexure-3 and to grant ad-interim injunction against the PPT from directing Bank for encashment of the bank guarantee till disposal of the interim application. 3. The opposite party No. 2-PPT has filed counter affidavit. It is admitted that land measuring 5500 Sq. ft. [I-5 (C group)] was allotted in favour of the petitioner on 01.08.2011 for the period of 11 months from 01.08.2011 to 30.06.2012. The M.G.T. for the plot was 1,35,000 matric ton of iron ore for the period for which the petitioner furnished bank guarantee amounting to Rs. 31,65,750/- as per clause-4 of the allotment order. The PPT further pleads that the pleadings available on record does not reveal a case for grant of injunction to restrain the PPT from encashing the bank guarantee in question. There is also no allegation of fraud and irretrievable injustice due to which invoking/encashment of bank guarantee may not be restrained. As far as the plea of payment of bank guarantee of Rs. 31,65,750/- is concerned, the PPT does not dispute or deny the same. Rather, it states that dues of the petitioner as on 13.05.2013 are to the tune of Rs. 3,26,68,191/- but the PPT did not state that the aforesaid amount is in relation to the license period in question. 4. 31,65,750/- is concerned, the PPT does not dispute or deny the same. Rather, it states that dues of the petitioner as on 13.05.2013 are to the tune of Rs. 3,26,68,191/- but the PPT did not state that the aforesaid amount is in relation to the license period in question. 4. A careful examination of the records reveals that the allotment of manual Iron Ore storage plot was issued on 01.08.2011. At clause-3 of the said letter, the PPT specifically mentioned about the bank guarantee. It reads as follows:- The minimum Guaranteed Throughput (MGT) for the plot/area allotted to you is ascertain to be 1,35,000 MT of iron ore for a period of 11 (eleven) months, i.e. upto 30.06.2012. You will have to furnish Bank Guarantee for 1,35,000 MT @ Rs. 23.45 per ton amounting to Rs. 31,65,750/-. The Bank Guarantee should be submitted in the enclosed prescribed format within 15 days positively, failing which you will not be allowed to move cargo to the Port. The validity of the Bank Guarantee should be for a period of 15 months from August, 2011. It is undisputed that the petitioner has failed to export 1,35,000 M.T. Iron ore fines, and therefore, the PPT requested the Bank on 19.10.2012 to encash the bank guarantee amounting to Rs. 31,65,750/- in its favour as the petitioner has failed to deposit the shortfall wharfage charges. However on 20.10.2012, the Traffic Manager, PPT wrote a letter to the Manager, SBI, Paradip Branch requesting not to encash Bank guarantee dated 19.10.2012 amounting to Rs. 31,65,750/- as M/s. Auroglobal Comtrade Pvt. Ltd. has deposited the shortfall amount. The PPT again on 12.03.2013, requested the Bank to encash the bank guarantee. This letter does not disclose why the second letter has been issued especially when the petitioner has already deposited the shortfall amount. 5. The learned counsel for the PPT submitted that an order of injunction restraining invocation and encashment of bank guarantee can only be ordered on the satisfaction of the following conditions, namely; (i) There must have been fraud of egregious (=exception) nature as regards the bank guarantee and such fraud must be pleaded and established. (ii) Irretrievable injustice would be meted out in case injunction is not granted. In support of such contention, the learned counsel for the PPT relied on the reported cases of Himadri Chemicals Vs. (ii) Irretrievable injustice would be meted out in case injunction is not granted. In support of such contention, the learned counsel for the PPT relied on the reported cases of Himadri Chemicals Vs. Coaltar (2007) 8 SCC 110 , ONGC vs. SBI, AIR 2000 SC 2548 , Ansal Vs. Tehri Hydro, (1996) 5 SCC 450 , The State Trading Corporation of India Vs. Jainsons Clothing Corporation, AIR 1994 SC 2778 and Svenska Handelsbanken Vs. M/s. I.C.C.L., AIR 1994 SC 626 . It is true that in the aforesaid cases, the Supreme Court has held that in order to injunct invocation and encashment of bank guarantee, there must be a question of fraud and irretrievable injustice to the petitioner and it should be satisfied. But the facts of the reported cases are different then the facts of the present case. In none of the cases, there is allegation, by the petitioner that the amount of bank guarantee has been deposited by the petitioner and consequently the letter has been issued to the Bank to stop encashment of bank guarantee. Thus, in the fact circumstances of the case, the ratio decided in the reported cases are not applicable to this case. 6. At the cost of the repetition, this Court takes note of the fact that the bank guarantee of Rs. 31,65,750/- was given by the petitioner against the allotment of manual iron ore storage plot pursuant to letter dated 01.08.2011. It is also not disputed that the petitioner has failed to achieve the target and initially the PPT wrote to the Bank that the bank guarantee should be encashed and on 20.10.2012, the PPT has again requested the Bank not to encash the same as the shortfall amount has already been deposited. On such facts, this Court comes to the conclusion that the petitioner has a prima facie case in its favour and balance of convenience leans in its favour. Since the petitioner is a commercial organization if the encashment of bank guarantee is allowed to be made, it will unjustly enrich the PPT, who shall derive double benefit from the petitioner putting it irretrievable loss. 7. In course of arguments the learned counsel for the PPT argued that the petitioner owes money to it, hence, in spite of the deposit of the shortfall wharfage charges, the bank guarantee can be encashed. Such arguments do not appear reasonable on two grounds. 7. In course of arguments the learned counsel for the PPT argued that the petitioner owes money to it, hence, in spite of the deposit of the shortfall wharfage charges, the bank guarantee can be encashed. Such arguments do not appear reasonable on two grounds. Firstly, though the PPT claim the other dues are recoverable from the petitioner, it does not specify on elaborate the same. Secondly, if any bank guarantee has been given for a specific purpose, the same should not be encashed for other dues. Such action would be against the basic tenet of commercial or business practices. 8. The learned counsel for the PPT relies on the reported case of Surya Dev Rai Vs. Ram Chander Rai and others, (2003) 6 SCCs 675 and argues that a writ of certiorari or exercise of supervisory jurisdiction under Article 227 should not be done in this case as there is no error manifest and apparent on the face of the proceeding and no grave injustice or gross failure of justice has occasioned thereby. This Court in applying the principles laid down in the aforesaid case comes to the conclusion that if the PPT is allowed to take double benefit of the bank guarantee, then it will amount to a gross failure of justice. Secondly, it is seen that the learned Civil Judge (S.D.) has failed to exercise the jurisdiction conferred upon him and such failure of exercise of jurisdiction has resulted in error manifest apparent on the face of the proceeding as the PPT is seeking double benefit within the transaction. If the order passed by the learned Civil Judge (Senior Division) is not interfered with, then it will result in gross failure of justice and hence, this Court comes to the conclusion that the order passed by the learned Civil Judge (S.D.) requires interference. 9. It is noted that grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the petitioner only if it is shown to the satisfaction of the court unless the defendant is restrained an order of injunction, irretrievable loss will be caused to the petitioner during pendency of the suit. The purpose of temporary injunction is, thus, to maintain status quo. In that view of the matter, the order passed by the learned Civil Judge (S.D.) on 06.04.2013, as at Annexure-3, requires interference. The purpose of temporary injunction is, thus, to maintain status quo. In that view of the matter, the order passed by the learned Civil Judge (S.D.) on 06.04.2013, as at Annexure-3, requires interference. It is noted that if the bank guarantee, which is valid till 30th September, 2013 is not extended till disposal of the Interim application, it may cause prejudice to the PPT. It is also noted that the observations made in this order should not be allowed to influence the learned Civil Judge (S.D.) while disposing the main application under Order 39, Rules 1 and 2 of the Code. Thus, the order dated 06.04.2013 passed by the learned Civil Judge (S.D.) in I.A. No. 287/2013, arising out of the Civil Suit No. 527/2013, is hereby quashed. The opposite party No. 2 is restrained from encashing the bank guarantee executed by the petitioner on 21.07.2011 till disposal of the interim application. The petitioner is directed to renew the bank guarantee for another 45 days. The learned Civil Judge (Senior Division) is directed to dispose of the I.A. No. 287/2013 within a period of thirty days. The writ petition is, accordingly, disposed of. Pending Misc. Cases are also disposed of. Disposed off.