Judgment Ashim Kumar Banerjee J. Thermal Power Project: The respondent no.1, Videocon Industries Limited (hereinafter referred to as Videocon), is a well-known multinational company in the field of electronic gadgets. They ventured to set up a thermal power project in Chattisgarh as they claimed. The Memorandum of Understanding dated February 1, 2008 was entered into for setting up coal based power project at Jangjir in the district of Champa in the State of Chattisgarh. The State Government approved the scheme on May 14, 2008. On May 28, 2008 the respondents made an application for coal linkage with the appellant. They also applied for land. The State Government permitted them to acquire private land vide letter dated December 13, 2010. On October 26, 2010 the State entered into an implementation agreement. The respondents applied for water connection on December 29, 2010 and deposited Rs.18.31 crores for the purpose. The Environment Board fixed the hearing for permission on April 18, 2011 as informed to the company vide letter dated February 8, 2011. Subsequently, the State withdrew the approval for acquiring the private land vide letter dated April 1, 2011. Thus, the company would claim, they could not proceed further with the power project. LINKAGE: As per the policy of the Central Government, the coal companies were required to make bulk supply to various industrial sectors including power sector. Since the subject project was coal based power project, it would require huge quantity of coal and that too, by a ready flow to make the project ongoing. To make the smooth supply of such huge quantity, the coal companies would have to make special arrangement ensuring bulk supply to the company. For such purpose, they would enter into a linkage agreement. In this case the company applied for linkage as referred to hereinafter. The coal company being the South Eastern Coalfields Limited, the appellant, issued a letter of assurance dated June 9, 2011/August 12, 2011 assuring smooth supply on condition, the company would have to secure compliance of milestone specified in the project. They would also have to furnish commitment guarantee for Rs.8.65 crores. Allahabad Bank issued the guarantee on June 29, 2011. As per the guarantee, the same was to expire on December 28, 2013. As per Clause 3.5 the Coal Company was obliged to return the commitment guarantee in case of expiry of the period. They would also have to furnish commitment guarantee for Rs.8.65 crores. Allahabad Bank issued the guarantee on June 29, 2011. As per the guarantee, the same was to expire on December 28, 2013. As per Clause 3.5 the Coal Company was obliged to return the commitment guarantee in case of expiry of the period. This would also provide Force Majeure Clause that would at best permit extension for three months only. If we take the extension, the guarantee was to expire in March, 2014. The Videocon by their letters dated June 21, 2012 and October 1, 2013 expressed their inability to achieve the milestone. In fact, they could not achieve any of the milestones. At the instance of the coal company, the Videocon got the guarantee extended till December 28, 2014. CONTROVERSY: The Videocon would put the blame on the State. According to them, State initially approved the project and thereafter withdrew the approval for land acquisition that made the situation worse. There is some grey area where we could not get any plausible answer. If the State was at fault, how the coal company or the bank could be dragged in litigation. We are trying to find out the answer. We are yet to get. Videocon would contend, Coal Company was at fault. They threatened to invoke the guarantee on February 17, 2014 after they got the bank guarantee extended. Videocon would also make a complain, fraud was committed upon them. There is special equity in their favour to restrain the bank from acting upon the request for invocation at the instance of Coal Company. THE PRESENT LIS: On November 25, 2013 Videocon approached the learned Single Judge by filing a suit, inter-alia, praying for an order of restraint against the coal company and the Bank from invoking the guarantee. They also filed application simultaneously for interim protection. They kept the application pending, however, did not press for any interim order, at least we do not find any such hint from the record. The basis of the suit as we find from pages 43-44, was a fraudulent deal between the Bank and the coal company, may be State was also involved. Particulars of fraud as pleaded in the plaint are set out herein below: “(I) The Respondent Nos. The basis of the suit as we find from pages 43-44, was a fraudulent deal between the Bank and the coal company, may be State was also involved. Particulars of fraud as pleaded in the plaint are set out herein below: “(I) The Respondent Nos. 1 and 2 are fraudulently taking steps to invoke and/or encash the said bank guarantee despite having knowledge of occurrence of force majeure event for more than three months, and continuance of such force majeure event, till the date of filing of the instant suit. (ii) The sole purpose of the Respondent Nos. 1 and 2’s actions are to deceive your petitioners, and deprive your petitioners of their rights under the aforesaid Letter of Assurance, by acting contrary to the terms of the Letter of Assurance. (iii) The Respondent nos. 1 and 2 are fraudulently using the provisions of the aforesaid letter of Assurance to illegally invoke the said bank guarantee. (iv) The Respondent’s actions are fraudulent inasmuch as they have failed to appreciate that your petitioners have fulfilled all their commitments in terms of the aforesaid Letter of Assurance and/or have not been able to fulfil some of their commitments in view of events of force majeure and/or events beyond their control. (v) Under Clause 3.5 of the Letter of Assurance, the respondents are liable to return the said Bank Guarantee in the event of a force majeure even operating for more than three months, but the respondent nos. 1 and 2 are giving a complete go-bye such clause and are trying to invoke the same to defraud your petitioners and make unjust enrichment.” We, however, do not find any pleading as to special equity save and except in paragraph 28 where it is mentioned, special equities exist in favour of the petitioner inasmuch as they invested huge sums in the project and are not guilty of any breach of contract and fulfilled their obligation. BACKDROP RESULTING IN THE JUDGMENT AND ORDER IMPUGNED DATED FEBRUARY 25 AND 26, 2014: Videocon would complain, they did not insist upon any interim protection and acted bona fide in keeping the request of the Coal Company by extending the guarantee which was to expire on December 28, 2013. They were however, surprised to receive the letter dated February 17, 2014 appearing at page 277 of the petition whereby the Coal Company threatened to invoke the guarantee. They were however, surprised to receive the letter dated February 17, 2014 appearing at page 277 of the petition whereby the Coal Company threatened to invoke the guarantee. They immediately approached the learned Single Judge. Learned Single Judge by Order dated February 25, 2014 recorded assurance at the Bar, Coal Company would maintain status-quo. Next day i.e. February 26, 2014 His Lordship after hearing the parties delivered the judgment and Order, allowing the application passing an Order of restraint on the bank, as well as the Coal Company to act in furtherance of the request for invocation. Being aggrieved, Coal Company is before us. CONTENTIONS: Mr. Jishnu Chowdhury learned Counsel appearing for the appellant, would base his argument being prompted by the ratio decided in the case of Reliance Salt Limited Vs. Cosmos Enterprises and another reported in 2006 Volume-XIII Supreme Court Cases Page-599. Mr. Chowhury would heavily rely upon paragraphs 17 and 19 of the said decision. Relying on the said decision Mr. Chowdhury would contend, the Coal Company was not at all concerned with the miseries sought to have been suffered by Videocon because of the indifferent attitude on the part of the State. Coal Company set its ball in motion at the request of Videocon for Coal linkage. Once they issued the letter of assurance assuring smooth bulk supply the Coal Company would have to make special arrangement for the purpose. As a condition precedent, Videocon was to furnish commitment guarantee that would be unequivocal and unfettered and liable to be invoked and/or encashed any time during its existence and/or validity, at the instance of the Coal Company. The Coal Company invoked the guarantee during the validity period that Videocon was not entitled to stop. Per contra, Mr. Pratap Chatterjee learned Senior Counsel appearing for Videocon would strenuously contend, the learned Judge assigned reason while passing the Order for interim protection. Mr. Chatterjee would explain the situation particularly, the miseries Videocon faced due to the indifferent attitude of the State of Chattisgarh and prayed for dismissal of the appeal as according to him, the Order could be sustained on the plea of special equity that would be in favour of Videocon considering the fact situation. Mr. Chatterjee would then take a technical plea, according to him, as per the agreement the Coal Company was entitled to terminate the contract during its subsistence. Mr. Chatterjee would then take a technical plea, according to him, as per the agreement the Coal Company was entitled to terminate the contract during its subsistence. Once the period got expired, Videocon was entitled to return of the guarantee. There was no scope for invocation however, Videocon, acting bona fide, extended the same. Coal Company took advantage of the situation and invoked the guarantee. Such invocation would be liable to the quashed or set aside. Mr. Chatterjee could not finish his argument on the day when we heard him. On the next day he appeared and expressed his personal difficulty that we need not elaborate and prayed for leave so that the hearing could be resumed by Ms. Pinki Anand learned Counsel, also appearing for Videocon. Considering his personal difficulty, we permitted Mr. Chatterjee to retire from the case and Ms. Anand to take up the hearing. Ms. Anand would base her submission mainly on the plank of promissory estoppel. According to her, Videocon furnished the guarantee as per the conditions stipulated in the letter of assurance. She would refer to Clauses 3.5 and 3.4.1 and contend, the Coal Company was not entitled to withhold the guarantee on the expiry of the period. The period was to expire on August 11, 2013. As soon as the period expired, it was obligatory on the part of the Coal Company to return the same. They did not do so, instead they invoked the guarantee which would be without any support of law. On the promissory estoppel Ms. Anand would contend, the Coal Company requested renewal of the guarantee. Videocon on good faith renewed the same and altered their position hence, the Coal Company was not entitled to invoke the same. Ms. Anand would rely upon the Apex Court decisions in the case of Motilal Padampat Sugar Mills Company Limited Vs. State of Uttar Pradesh reported in 1979 Volume-II Supreme Court Cases Page-409 on the issue of promissory estoppel. She would also rely upon the decision in the case of The Union of India and others Vs. M/s. C. Damani and Company and others reported in All India Reporter 1980 Supreme Court Page-1149. She would also rely upon the Orissa High Court judgment in the case of Syed Khurshed Ali Vs. State of Orissa and another reported in All India Reporter 2007 Orissa Page-56. M/s. C. Damani and Company and others reported in All India Reporter 1980 Supreme Court Page-1149. She would also rely upon the Orissa High Court judgment in the case of Syed Khurshed Ali Vs. State of Orissa and another reported in All India Reporter 2007 Orissa Page-56. She would refer to various correspondences to show, Videocon was not at fault. Also appearing for the appellant, Mr. Pradip Dutta learned Senior Counsel while replying, would contend, the Coal Company was not at all concerned with the dealings between Videocon and the State on the issue of Thermal Project. The Coal Company was only concerned with the assurance that they gave as per the letter of assurance referred to above. They were to perform their obligation under the letter of assurance whereas Videocon was obliged to perform their part of the obligation. Videocon furnished the commitment guarantee that could be invoked any time at the instance of Coal Company during its subsistence Videocon could not achieve any of the milestones as they admitted by their letter dated June 21, 2012 and October 1, 2013 hence, Coal Company was right in invoking the guarantee. Mr. Dutta would also inform us, similar situation arose with many linkage agreements. The ministry of Coal decided to form a committee to consider the representations. Accordingly, the committee took cognizance of the issue and dealt with each and every case separately. Page-244 would show, the high power committee dealt with the issue in respect of Videocon/Chattisgarh Power Energy Company and rejected their representation finding it merit less. When the committee was in seisin of the matter at their request, Coal Company did not take any punitive steps in any of the cases. Since, the issue was pending the Coal Company asked Videocon to extend the guarantee hence, the guarantee was extended. It was only upon the committee rejecting the case of Videocon, Coal Company invoked the guarantee upon giving appropriate notice to Videocon. Such invocation could not be stalled at the instance of Videocon that too, on the plea that would have no connection with the bank guarantee. With the permission of the Court, Ms. Anand would clarify, Videocon was never called in the meeting. Such invocation could not be stalled at the instance of Videocon that too, on the plea that would have no connection with the bank guarantee. With the permission of the Court, Ms. Anand would clarify, Videocon was never called in the meeting. She would however, in her usual fairness, admit, the Coal Company did not take any punitive step until February 17, 2014 when they threatened invocation that prompted Videocon to approach the learned Judge on February 25,2014. She prayed for dismissal of the appeal. OUR VIEW: Before we deal with the subject controversy, we would be failing in our duty if we do not discuss the law on the subject. The parties did not multiply cases. As referred to herein before, Mr. Chowdhury would rely upon Reliance Salt (supra), whereas Ms. Anand would rely upon Hindustan Construction Company (Supra). We cannot lose sight of a Division Bench decision of this Court (VISS POWER LTD A.P.O. 282 OF 2012 dated August, 14, 2012) in which one of us (Ashim Kumar Banerjee, J.) was a party wherein series of decisions of the Delhi High Court and the Apex Court came up for consideration. Dealing with all those cases, the Division Bench discussed the law on the subject and held, Bank guarantee being an independent contract could not be fettered with any controversy that the parties may face as per the matrix contract. It would be apt to quote relevant paragraphs of the said decision: “On the issue of Bank Guarantee, compilation was handed over to us containing Delhi High Court judgments. Let us first deal with the same. The cases are as follows: 1. Victor Cables Industries Ltd. Vs. Engineering Projects (I) Ltd. & Anr. reported in 58(1995) Delhi Law Times Page 464. 2. P.D. Alkarma Pvt. Ltd. Vs. Canara Bank & Anr. reported in 73 (1998) Delhi Law Times page-147. 3. Satluj Jal Vidyut Nigam Vs. Jai Prakash Hyundai Corsortium reported in 129 (2006) Delhi Law Times page-453. 4. M/s. Hindustan Construction Co. Ltd. & Anr. Vs. M/s. Satluj jal Vidyut Nigam Ltd. reported in All India Reporter 2006 Delhi page-169. 5. Unreported decision in the case of Satluj Jal Vidyut Nigam Vs. Hindustan Construction Co. Ltd. & Anr. 6. Unreported decision in the case of Satluj Jal Vidyut Nigam Vs. Jai Prakash Hyundai Corsortium. 4. M/s. Hindustan Construction Co. Ltd. & Anr. Vs. M/s. Satluj jal Vidyut Nigam Ltd. reported in All India Reporter 2006 Delhi page-169. 5. Unreported decision in the case of Satluj Jal Vidyut Nigam Vs. Hindustan Construction Co. Ltd. & Anr. 6. Unreported decision in the case of Satluj Jal Vidyut Nigam Vs. Jai Prakash Hyundai Corsortium. In the case of M/s. Hindustan Construction (supra) the learned Single Judge dealt with the issue of like nature. While dealing with the issue, the learned Single Judge considered the earlier decisions of the Apex Court and came to a finding that to decide on an issue relating to Bank Guarantee, Court would have to consider whether it would fall within the exception. The exceptions are, irretrievable injury, fraud, extraordinary special equities and invocation not in terms of the Bank Guarantee itself. The learned Single Judge said, the Court would have to examine each case in order to find out whether the case would fall in any or more of the aforesaid cases. The Court considered the factual matrix involved in the said case and came to the conclusion that it came within the exception as above. While doing so, the learned Single Judge further observed, “The exceptions aforenoticed are merely indicative of the kind of cases where the Court may injunct encashment of a Bank Guarantee. It is neither possible nor permissible to exhaustibly classify the cases where the Court would intervene in such matters. On a combined reading of the said decision, we would find, according to the learned Judge, four exceptions were not exhaustive enough to deny injunction in cases not falling within those four exceptions, there might be other cases too. The Division Bench did not go into the details and affirmed the decision of the leaned single Judge as we find from the unreported decision. In the case of Satluj Jal Vidyut Nigam (supra) a performance guarantee was being invoked giving rise to an application under Section 9 of the said Act of 1996. The Division Bench of the Delhi High Court considered the issue and observed, “performance guarantee which was to be invoked in terms of contract of guarantee but same is being sought to be invoked not in terms of agreement but for something which is alien to the agreement would be unconscionable and would lack in bona fides. The Division Bench of the Delhi High Court considered the issue and observed, “performance guarantee which was to be invoked in terms of contract of guarantee but same is being sought to be invoked not in terms of agreement but for something which is alien to the agreement would be unconscionable and would lack in bona fides. The Apex Court did not interfere with the said decision as we find from page 34 of the compilation. Same view was taken by the learned Single Judge of the Delhi High Court in the case of P.D. Alkarma Pvt. Ltd. (supra) and found that the case would come within the exception of special equity warranting injunction. Another Single Bench decision in the case of Victor Cables Industries Ltd. (supra) also granted injunction in a case of the like nature. On a combined reading of the decisions of the Delhi High Court referred to and discussed above, we would find that the Delhi High Court was of the consistent view, the order or injunction in the case of invocation of Bank Guarantee would be considered on factual matrix involved therein to find out whether it would come within the exception. The Court also observed that the exceptions so long recognised were not exhaustive. There might be other circumstances warranting interference restraining invocation. Our Court however was having a different stand as we find from the decision of the Division Bench in the case of B.S. Aujla Company Pvt. Ltd. (supra) and Texmaco Ltd. (supra). In the case of Texmaco Ltd. (supra) our Division Bench held, “Where the performance bank guarantee provided that the decision of the beneficiary under the guarantee on the question of loss or damages suffered by him or on the question of default or negligence by reason of which the guarantee becomes enforceable would be final then in such circumstances such decision is binding on the parties.” If the guarantee was irrevocable and unconditional the decision of the beneficiary would be final. In the case of B.S. Aujla Company Pvt. Ltd. (supra) our Division Bench held, once a letter of credit is established, there is a contract between the issuing bank and the seller. The buyer has no right to intervene. If the bank pays in violation of the letter of credit, the buyer can always sue the bank for any damages or breach of his contract. The buyer has no right to intervene. If the bank pays in violation of the letter of credit, the buyer can always sue the bank for any damages or breach of his contract. If, on the other hand, there are certain other claims of the buyers against the seller the buyers can file a suit for recovery of such damages and money from the seller. But as between the seller and the issuing bank the injunction should not be granted. Our Division Bench also held, “In view of well-settled principle of balance of convenience, in the instant case, in the absence of the bank, the Court should not grant injunction restraining payment in terms of the letter of credit, as though in this case the letter of credit was irrevocable one, it has not yet been revoked.” Mr. Sarkar also relied upon English decision in the case of Edward Owen Engineering (supra), where the English Court observed, “A performance guarantee was similar to a confirmed letter of credit. Where, therefore, a bank had given a performance guarantee it was required to honour the guarantee according to its terms and was not concerned whether either party to the contract which underlay the guarantee was in default. The only exception to that rule was where fraud by one of the parties to the underlying contract had been established and the bank had notice of the fraud. Mr. Mukherjee relied on the decision of the Court of appeal where Lord Denning considered the case within the exception and observed that denial of injunction would amount to irretrievable injustice to the plaintiff. In the said case the shipper shipped goods on a charter. There was delay in unloading and ship owners claimed lien on the goods. The shippers were not liable for the demurrage. They wanted goods to be released to the buyers. The shipper wanted to give a Bank Guarantee for discharge of cargo. As soon as the guarantee was given, the ship owners sent a cable to the master to lift the lien for demurrages. At that juncture master imposed a second lien that involved further delay. The buyer had to pay the demurrage on account of the second lien. Two years later ship owners claimed right to go for arbitration to assess the demurrage on the first lien and claimed to enforce the guarantee. At that juncture master imposed a second lien that involved further delay. The buyer had to pay the demurrage on account of the second lien. Two years later ship owners claimed right to go for arbitration to assess the demurrage on the first lien and claimed to enforce the guarantee. The shippers then asked for a Court’s intervention on the issue. This case, in our view, would squarely fall within the exception. Mr. Mukherjee further relied upon a Division Bench decision of our Court in the case of M. & M. Trading Corporation (supra). Our Division Bench therein held that Bank Guarantee would not enjoy autonomy of irrevocable letter of credit and it would depend upon a contingency on the occurrence of which the guarantee would become enforceable. This decision is no longer a good law, particularly in case where performance guarantee is given unconditionally. From the cases discussed above, we feel, the learned Judge very rightly declined to interfere on the issue of invocation. In our view, if the invocation was wrongful, the aggrieved party would definitely have a right to claim for compensation and/or damage in the arbitration. Bank Guarantee is an independent contract between the bank and the beneficiary. When it is unconditional it would depend upon the decision of the beneficiary to have it encashed at any time as he likes. His decision is final and binding upon the bank. If his decision is wrong that would give rise to a right to the aggrieved party to sue him for damage. However, the Court cannot pass an order of injunction restraining the bank to dishonour the said requisition, if any, or any order of injunction which would in effect stop invocation of an unconditional guarantee. We do not find any inference on that score.” The paragraphs quoted supra would, however, do not deal with those two cases cited at the Bar referred to above. Hence, we deal with the same. In the case of Hindustan Construction Company Limited (Supra), the Apex Court categorically held, the dispute pertaining to the matrix contract would have no bearing on the Bank Guarantee that would have an independent character borne out from the contract of guarantee itself. Hence, we deal with the same. In the case of Hindustan Construction Company Limited (Supra), the Apex Court categorically held, the dispute pertaining to the matrix contract would have no bearing on the Bank Guarantee that would have an independent character borne out from the contract of guarantee itself. Paragraph 9 of the said decision is quoted below: “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.” Cursory glance to the said paragraph would show, the Apex Court recognized the independence of a Bank Guarantee and observed, the parties would be bound by the terms and invocation must be in accordance with the terms of the guarantee. In paragraph 10, Their Lordships observed, “The whole matter can be disposed of purely on the basis of the terms of the Bank Guarantee.” Their Lordships considered the Bank Guarantee in that case and ultimately came to conclusion, the Bank Guarantee mentioned Chief Engineer being the appropriate Authority to invoke the guarantee whereas the executive engineer invoked the same. Hence, invocation was not in terms of the guarantee. Their Lordships would, however, consider fact situation in paragraph 22 and observed, special equity was wholly in favour of H.C.C.L.. Their Lordships were prompted to observe so as Their Lordships found, the beneficiary did not have sufficient money for the project. In the case of Reliance Salt (Supra), the Apex Court was also specific while dealing with the definition of fraud in connection with the contract of guarantee. The Apex Court observed, the fraud could only be alleged by the Bank and not by the promisor. The Apex Court observed, “Bank guarantee constitutes an agreement between the banker and the principal, albeit, at the instance of the promisor. The Apex Court observed, the fraud could only be alleged by the Bank and not by the promisor. The Apex Court observed, “Bank guarantee constitutes an agreement between the banker and the principal, albeit, at the instance of the promisor. When a contract of guarantee is sought to be invoked, it was primarily for the bank to plead a case of fraud and not for a promisor to set up a case of breach of contract.” Combined reading of those two decisions would strengthen the view as expressed in the case of Visa Power Limited (Supra) quoted above. With the above mind set on the proposition of law on the subject, let us now deal with the present lis. OUR VIEW ON THE CONTROVERSY: If we give full credence to what the plaintiff Videocon would say in their plaint, we would still be at a loss as to how could the lis be maintained as against the coal company and the bank. We fully appreciate the miseries the company might have faced in view of the indifferent attitude of the State that they contend. The particulars of fraud that they complained of in their plaint had no nexus with the invocation of a bank guarantee that would rather relate to and attributable to the so-called misery that they suffered as against the State. They admit, the coal company was all throughout cordial in their dealings until February 17, 2014. They also admit, the coal company could have invoked the guarantee earlier. They did not do so. On the contrary they asked for extension. We get a plausible explanation from Mr. Dutta when he would contend, the coal company did not take any step at the request of the High Power Committee when they were in seisin over the matter. We give a cursory glance to the minutes of the meetings annexed to the pleadings wherein we find, the High Power Committee excused many companies. However, Videocon unfortunately could not get any such blessing. It was only then Coal Company became active and invoked the guarantee. The coal company also gave their reasons for invocation. They would contend, as per the linkage policy and the letter of assurance, they would have to make special arrangement for ensuring bulk supply to the project. However, Videocon unfortunately could not get any such blessing. It was only then Coal Company became active and invoked the guarantee. The coal company also gave their reasons for invocation. They would contend, as per the linkage policy and the letter of assurance, they would have to make special arrangement for ensuring bulk supply to the project. They were not concerned whether Videocon would get any private land through acquisition or adequate water supply or environmental clearance. They would have to keep themselves content with their letter of assurance and the contract of guarantee. They acted in terms of these two documents that we do not find any fault. The learned Judge considered the so called misery as special equity. With deepest regard we have for His Lordship and with all humility may we say, His Lordship perhaps overlooked the observation of the Apex Court in Reliance Salt (supra) wherein the Apex Court observed, the promisor was not entitled to raise breach of contract to stop any invocation. The view of the learned Judge so expressed in the relevant paragraphs are quoted below: “Now, my prima facie findings: There cannot be any dispute that the facts of this case are more or less identical to those in the said case pending in this Court. In that case, Mr. Dutta had stated before the Court that his clients were not, at that time, invoking the bank guarantee. In those circumstances, an order was passed restraining the defendants from invoking the bank guarantee for the time being and by stipulating that they would have to give 15 days’ notice to the plaintiff before doing so. No appeal was preferred from this order. No affidavit was filed. So far there is no notice invoking the bank guarantee, in that case. The defendants, being government companies are estopped from taking a different stand in this case. I agree with Ms. Anand that the bank guarantee in question could only have been invoked had the contract been terminated within two years of execution of the LOA by giving seven days’ notice. The defendants, being government companies are estopped from taking a different stand in this case. I agree with Ms. Anand that the bank guarantee in question could only have been invoked had the contract been terminated within two years of execution of the LOA by giving seven days’ notice. This is more so, because in the minutes of their meeting held on 7th January, 2013, the SLC [LT] Committee was very conscious that deliberation by S.L.C./ its members should not be so long that the contract expires ‘automatically’ with ‘forfeiture of C.G.’ Here the contract expired by efflux of time by 11th November, 2013 without invocation of the bank guarantee. Therefore, I do not think that at this point of time the defendants have any right under the underlying contract to invoke the bank guarantee. Furthermore, the letter of termination appears to be nonest. When the contract is gone there is nothing to terminate. The contract, according to the terms, was discharged by efflux of time on or about 11th November, 2013. Therefore, nothing was achieved by the letter dated 17th February, 2014 trying to terminate the contract. The above conduct of the defendants was grossly unfair and unjust and shocks the conscience of this Court. Further it is quite clear, in my notion, that the defendants realised that the plaintiffs were not at fault or at least not entirely at fault. That is why, they referred the case to the above committee. The defendants extended the validity of the contract realising this till 11th November, 2013. The plaintiffs, according to the LOA, were required to keep the bank guarantee renewed for at least four months after the expiry of the LOA. The defendants extended the validity period of LOA being fully conscious that the bank guarantee was alive till 28th December, 2013 only. Furthermore, on 2nd December, 2013 the defendants suggested to the plaintiff that the bank guarantee be renewed. There was no whisper of invocation of the bank guarantee. The defendants had the option to do so. Instead they induced the plaintiff to renew the bank guarantee. In my view, having so induced the plaintiff to change their position to their detriment, the defendants were estopped from invoking the bank guarantee immediately after its renewal. There was no whisper of invocation of the bank guarantee. The defendants had the option to do so. Instead they induced the plaintiff to renew the bank guarantee. In my view, having so induced the plaintiff to change their position to their detriment, the defendants were estopped from invoking the bank guarantee immediately after its renewal. Equity prevents them from doing so.” We are constrained to observe, there is neither any fraud nor any special equity involved herein that would make the Rule not applicable. The request for invocation might be wrongful considering the entire facts situation. Even if it is ultimately held so, Videocon would be entitled to appropriate damages. The situation would, however, not demand stoppage of invocation. Ms. Anand heavily relied on Motilal (supra) to support her contention on promissory estoppel. We wonder, how this principle of law would have an application in the instant case. In the case of Motilal (supra) the Apex Court dealt with a controversy in the matrix contract and not a bank guarantee. In the instant case, we are occupied with the question as to whether invocation was wrongful or not. Invocation is liable to be stopped or not. The plea that Videocon renewed the guarantee at the instance of the coal company would have no basis when we consider the explanation of Mr. Dutta as to the reasons for such asking. In case of Damani (supra) the Apex court dealt with a situation in respect of frustration of a contract. Similarly, in case of Kurshid (supra) the Orissa High Court considered the case of impossibility in performing the contract. None of the situations is involved in the present case. We may also look at the problem from a different angle. The learned Judge contributed two paragraphs on the bank. We wonder how the bank could be made a party. The bank issued an unequivocal guarantee at the instance of the promisor. Once the guarantee was issued, the contract would be between the bank and the beneficiary under the guarantee. The promisor would have no role to play. Thebank could only object to the invocation that too, strictly as per the contract. Promisor would have no say in the matter. The exception is “fraud” and “special equity”. We have already observed, we do not find so. The appeal succeeds and is allowed. The judgment and order impugned herein is set aside. Thebank could only object to the invocation that too, strictly as per the contract. Promisor would have no say in the matter. The exception is “fraud” and “special equity”. We have already observed, we do not find so. The appeal succeeds and is allowed. The judgment and order impugned herein is set aside. The appeal is disposed of without any order as to costs. Mr. Debojyoti Dutta learned Counsel, with his humble eloquence, would pray for stay of operation of the order. The learned Judge passed the impugned order on February 26, 2014 whereas the coal company after rising from the deep slumber filed the appeal only on May 5, 2014. We also find from the noting, they applied for certified copy on March 3, 2014 and filed the order on April 24, 2014 that would show their so-called eagerness. We consider the prayer of Mr. Dutta reasonable. We also want, the parties should test the order higher up. We grant stay of operation of this judgment and order for a period of three weeks from date. I agree.