JUDGMENT : V. Ramasubramanian, J. 1. Aggrieved by the dismissal by the Commercial Court, of three independent applications under Section 9 of the Arbitration and Conciliation Act, 1996, refusing to grant an injunction against invocation of three bank guarantees, the appellant has come up with the above three appeals under Section 13 of the Commercial Courts Act, 2015, read with Section 37 of the Arbitration and Conciliation Act, 1996. 2. Heard Mr. S. Niranjan Reddy, learned senior counsel appearing for the appellant and Mr. S. Ravi, learned senior counsel appearing for the 1st respondent. 3. The 1st respondent herein was awarded a contract for building, owning and operating a Coal Fired Electricity Power Plant consisting of 2 x 270 MW Units each located at Goindwal Sahib, Tarn Taran District, Punjab. The contract empowered the 1st respondent to appoint sub-contractors to carryout the works mentioned therein. 4. Accordingly, the 1st respondent appointed the appellant for carrying out certain items of work, under three separate agreements. All the three agreements were entered into on 14.09.2009. While the first two agreements were for plant supplies, the third agreement was for construction and services. The value of these agreements respectively were Rs. 257 crores, Rs. 448 crores and Rs. 250 crores. 5. Under the agreements, the 1st respondent gave mobilization advances to the appellant and the appellant furnished bank guarantees for securing the mobilization advances. Three independent bank guarantees all dated 31.08.2012, for sums of Rs. 44.80 crores, Rs. 25.00 crores and Rs. 25.70 crores respectively were furnished by the appellant in favour of the 1st respondent as against the advance monies received. 6. The appellant also furnished three independent performance guarantees, all dated 29.01.2013, respectively for the amounts of Rs. 8.96 crores, Rs. 5.00 crores and Rs. 5.14 crores. 7. Thus, there were three agreements, three advance bank guarantees and three performance bank guarantees. In addition, the 1st respondent provided a separate advance of Rs. 30.00 crores, in respect of which a fourth advance bank guarantee was executed on 29.05.2012 for a sum of Rs. 30.00 crores. 8. The contract was to be commissioned within 30 months from 01.12.2009 in respect of Unit No. 1 and within 33 months from 01.12.2009 in respect Unit No. 2. According to the appellant, they performed all their obligations and completed the project from an operational point of view to the satisfaction of the 1st respondent. 30.00 crores. 8. The contract was to be commissioned within 30 months from 01.12.2009 in respect of Unit No. 1 and within 33 months from 01.12.2009 in respect Unit No. 2. According to the appellant, they performed all their obligations and completed the project from an operational point of view to the satisfaction of the 1st respondent. Even according to the appellant, they were unable to comply with the timeline agreed under the contract, due to defaults and obstacles not attributable to the appellant. Therefore, the appellant admittedly made a request on 22.10.2012 for extension of time up to 10.09.2013 for Unit No. 1 and upto 10th December 2013 for Unit No. 2. The extension appears to have been granted and according to the appellant, the project was completed in all aspects. However, due to the non-availability of coal, the power plant of the 1st respondent could not be commissioned. 9. However, the 1st respondent made a claim through a letter dated 24.12.2014. The claim was for money. According to the appellant, the claim was towards liquidated damages, but according to the 1st respondent, the claim was not confined to liquidated damages. 10. Thereafter, the 1st respondent sent a mail dated 02.01.2015 and subsequently, sought to invoke the bank guarantees. Immediately, the appellant issued a legal notice dated 02-02-2015 invoking the arbitration clause and also nominating Hon'ble Mr. Justice R.C. Chopra (Retd.) as Arbitrator on behalf of the appellant. In response, the 1st respondent nominated Hon'ble Mr. Justice P. Lakshmana Reddy (Retd.) as Arbitrator on their behalf. Despite the fact that these nominations had taken place in February, 2015, the arbitration was a non-starter. No umpire/Presiding Arbitrator was appointed and no party approached the High Court under Section 11, until very recently, perhaps after filing of the above appeals. 11. Fearing the invocation of bank guarantees, the appellant filed three applications under Section 9 before the Delhi High Court in OMP Nos. 24, 25 and 27 of 2015. The Delhi High Court initially granted an order of status quo, but eventually dismissed all the petitions by an order dated 21-04-2015, on the ground of lack of territorial jurisdiction. 12. Challenging the order of the learned single Judge, the appellant filed three appeals in FAO (OS) Nos. 222 to 224 of 2015, before the Division Bench of the Delhi High Court. 12. Challenging the order of the learned single Judge, the appellant filed three appeals in FAO (OS) Nos. 222 to 224 of 2015, before the Division Bench of the Delhi High Court. The appeals were dismissed by the Division Bench by orders dated 08.03.2015, on the ground of lack of territorial jurisdiction. 13. It is relevant to note that during the pendency of the appeals before the Division Bench of the Delhi High Court, the 1st respondent gave an undertaking not to proceed with the matter and hence, the appellant had protection, throughout the pendency of the Original Petitions under Section 9 and the appeals under Section 37 before the Delhi High Court. 14. Immediately after the dismissal of the appeals by the Division Bench of the Delhi High Court on 08.03.2017, the appellant moved three applications in C.O.P. Nos. 69, 70 and 71 of 2017 before the XXIV Additional Chief Judge-cum-Commercial Court, City Civil Court, Hyderabad, for injunction against invocation of the bank guarantees. The Commercial Court initially granted a protective order on 09.03.2017. But after hearing the arguments on both sides, the Commercial Court dismissed all the three applications filed under Section 9, by separate orders dated 13.12.2017. Therefore, aggrieved by the rejection of their prayer for injunction against invocation of bank guarantees, the appellant has come up with the above appeals. 15. The main contentions of Mr. S. Niranjan Reddy, learned senior counsel appearing for the appellant are (a) that the whole claim of the 1st respondent as against the appellant is for liquidated damages and hence, the advance bank guarantees and performance bank guarantees cannot be invoked for a claim relating to liquidated damages (b) that when independent contracts are entered into and separate advance and performance bank guarantees are executed in relation to each of those contracts, the 1st respondent was not entitled to invoke all the bank guarantees in relation to a wholesome claim. 16. In support of the first contention that an advance/performance bank guarantee cannot be invoked for enforcing a claim for liquidated damages, Mr. S. Niranjan Reddy, learned Senior Counsel relied upon the decision of the Supreme Court in Gangotri Enterprises vs. Union of India, 2016 (11) SCC 720 . 16. In support of the first contention that an advance/performance bank guarantee cannot be invoked for enforcing a claim for liquidated damages, Mr. S. Niranjan Reddy, learned Senior Counsel relied upon the decision of the Supreme Court in Gangotri Enterprises vs. Union of India, 2016 (11) SCC 720 . In the said decision, the Supreme Court reiterated the principles laid down in one of the earliest decisions in Union of India vs. Raman Iron Foundry, 1974 (2) SCC 231 to the effect that a claim for damages for breach of contract is not a claim for a sum presently due and payable. 17. But in response, it is contended by Mr. S. Ravi, learned senior counsel for the 1st respondent that bank guarantee is an independent and distinct contract, not qualified by the underlying transaction and that the decision of the Two Member Bench of the Supreme Court in Gangotri runs contrary to the law laid down by a Three Member Bench in Ansal Engineering Projects Limited vs. Tehri Hydro Development Corporation Limited and Another, 1996 (5) SCC 450 . The Learned Senior Counsel invited our attention to a judgment of the Division Bench of this Court in NCC Limited vs. Sembcorp Gayatri Power Limited and Another dated 24.10.2017, wherein the Division Bench held that when conflicting judgments of the Supreme Court are brought to its notice, the High Court is bound to follow the decision of the Larger Bench. The decision of the Division Bench of this court in NCC Limited was taken on appeal to the Supreme Court in SLP (Civil) No. 28730 of 2017. But the Supreme Court dismissed the Special Leave Petition on 03.11.2017. Therefore, it is contended by the learned Senior Counsel for the 1st Respondent that the nature of the claim to be raised in the arbitration, cannot deter the invocation of the bank guarantee, which constitutes an independent contract. 18. We have carefully considered the above submissions. We do not think that in this case we need to go into the question as to whether an advance or performance bank guarantee can be invoked in respect of a claim for liquidated damages or not. It is for the reason that there is a more fundamental dispute as to whether the claim made by 1st Respondent is in the nature of liquidated damages at all. 19. It is for the reason that there is a more fundamental dispute as to whether the claim made by 1st Respondent is in the nature of liquidated damages at all. 19. In paragraph 12 of its counter affidavit before the commercial court, the 1st Respondent took a stand that they imposed liquidated damages upon the Appellant, in terms of Article 6.2 of the agreement to the tune of Rs. 1443 crores. If the 1st Respondent had stopped with that, perhaps it would have become necessary to examine whether the claim is in the nature of liquidated damages. 20. But the 1st Respondent went on to plead that as per the emails exchanges on 31.12.2014 between the parties, enclosing the billing summaries, an amount of Rs. 188 crores was admittedly outstanding from the Appellant. According to the 1st Respondent, the actual amount outstanding was Rs. 196.94 crores and that in any case the billing summary shows at least Rs. 188.18 crores. 21. Again in paragraphs 13 and 14, of its counter affidavit, the 1st Respondent contended that the Appellant not only failed to complete the project in time, but also retained an admitted amount of Rs. 188 crores, without repaying the same. 22. Though Mr. S. Niranjan Reddy, learned Senior Counsel for Appellant, attempted to demonstrate by inviting our attention to the billing summary up to 24.12.2014 that what was paid as mobilisation advance to the tune of Rs. 104.44 crores had already been adjusted against payments due under certified bills to the tune of Rs. 104.03 crores, we do not think that we can decide the dispute today, without going into evidence. 23. In other words, the 1st Respondent has clearly demonstrated before the Commercial Court and before this Commercial Appellate Division that what was claimed by them was not merely liquidated damages but also a sum of money which according to them was admittedly due. Therefore, it is not possible in this case to apply Gangotri principles, even if we take the decision in Gangotri to have laid the correct principles. Hence, the 1st contention of the Learned Senior Counsel deserves to be rejected. Accordingly it is rejected. 24. Therefore, it is not possible in this case to apply Gangotri principles, even if we take the decision in Gangotri to have laid the correct principles. Hence, the 1st contention of the Learned Senior Counsel deserves to be rejected. Accordingly it is rejected. 24. The second contention of the Learned Senior Counsel for the Appellant is that due to the existence of three independent contracts, two for supplies and one for services, the bank guarantees executed in relation to each of the agreements, can be allowed to be invoked only if the claim could be traced to that particular agreement. In support of the contention that each of the contracts containing an arbitration clause should be treated as independent, the Learned Senior Counsel relied upon the decision of the Supreme Court in Duro Felguera S.A. vs. Gangavaram Port Limited, (2017) 9 SCC 729 . 25. We fail to understand as to how such a contention could be advanced. Admittedly, the 1st Respondent bagged a contract from the State of Punjab for building, owning and operating a coal fired electricity power plant. The contract was for construction of two units of 270 MW each. 26. In respect of that wholesome contract, the 1st Respondent engaged the appellant as a sub-contractor and split the work into three different agreements, with two relating to supplies and one relating to services. It is true that for the mobilisation advance granted under every one of the three agreements, separate advance bank guarantees were executed. Similarly separate performance guarantees were also executed. 27. But, it appears that the parties did not maintain three different accounts. This is seen from the billing summary. 28. In any case, unless and until the 1st respondent files a detailed claim statement along with a statement of account it is not possible to find out the amount claimed under each one of the contracts. It is not the case of the appellant that the 1st respondent has made a claim independently in respect of each of the contracts and that therefore, the invocation of bank guarantee could happen only to the extent of the claim arising out of the contract to which that particular bank guarantee related. 29. It is not the case of the appellant that the 1st respondent has made a claim independently in respect of each of the contracts and that therefore, the invocation of bank guarantee could happen only to the extent of the claim arising out of the contract to which that particular bank guarantee related. 29. The peculiarity of a bank guarantee is that it is a distinct and independent contract and that at the time of invocation, it is not necessary for the person invoking the bank guarantee to demonstrate to the bank, the nature of the claim and the underlying contract to which it relates. 30. The decision of the Supreme Court in Duro Felguera cannot be pressed into service in cases relating to invocation of bank guarantees. Duro Felguera arose out of an arbitration application filed under Section 11(6)(a) read with Section 11(12)(a) of the Arbitration and Conciliation Act, 1996. How the dispute in Duro Felguera arose was that while one contracting party issued a comprehensive arbitration notice, the other party issued five arbitration notices on the ground that there were five independent contracts, each containing an arbitration clause. An argument was raised that all five agreements arose out of a single bid/tender and that the parties split the works into five different contracts, for the purpose of convenience. It is in that context that the Supreme Court examined whether a composite reference was possible or not. 31. In the case on hand, that contingency has not arisen. The first reason is that we are on the question of invocation of the bank guarantees and not on the question of reference. The second reason is that when both parties issued arbitration notices in the case on hand, both of them invoked it only once, by way of composite invocation and both parties appointed only one arbitrator for examining the whole claim. Therefore, Duro Felguera cannot be pressed into service in the cases on hand. Hence, the second contention is also liable to be rejected. 32. As rightly contended by the Mr. S. Ravi, learned Senior Counsel, appearing for the 1st Respondent the appellant is also guilty of laxity. Admittedly the Appellant secured an interim order of protection from the Delhi High Court way back in February 2015. They continued to enjoy the protection up to March 2017. 33. 32. As rightly contended by the Mr. S. Ravi, learned Senior Counsel, appearing for the 1st Respondent the appellant is also guilty of laxity. Admittedly the Appellant secured an interim order of protection from the Delhi High Court way back in February 2015. They continued to enjoy the protection up to March 2017. 33. But during this period the Appellant did not make any attempt to break the dead lock by moving an application under Section 11. The duties of the parties will not come to an end by merely nominating an arbitrator and keeping quiet thereafter if no presiding arbitrator could be appointed. As observed by the Supreme Court in Firm Ashok Traders and Another vs. Gurumukh Das Saluja and Others, (2004) 3 SCC 155 , a protection under Section 9 is intended to be an interim measure. The failure of the appellant to move an application under Section 11 after securing a status quo order in February 2015 from the Delhi High Court is also a point that will disentitle them to an order of protection. 34. Needless to point out that an injunction against invocation of bank guarantee can be granted only in cases (i) of fraud of an egregious nature or (ii) of special equities. The fraud pleaded by the appellant in their petitions under section 9 revolved around the circumstances surrounding the invocation of bank guarantees and not about the manner in which bank guarantees came to be executed. For securing an injunction, a party should plead fraud at the inception and not at the stage of invocation. 35. Hence, all the appeals are dismissed. There will be no orders as to cost. 36. As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed. 37. After we pronounced the judgment, learned counsel for the appellants made a request to grant a limited protection for a period of two (2) weeks to enable the appellants to work out their remedies before the Supreme Court. But, it appears that the Bank guarantees now sought to be invoked would expire on 31.12.2017. But considering the fact that the appellants have been in enjoyment of some protection or the other, right from February 2015, we are of the view that they can be granted a limited protection subject to extension of the bank guarantees. 38. But, it appears that the Bank guarantees now sought to be invoked would expire on 31.12.2017. But considering the fact that the appellants have been in enjoyment of some protection or the other, right from February 2015, we are of the view that they can be granted a limited protection subject to extension of the bank guarantees. 38. Therefore, the appellants are granted a limited protection against invocation of the bank guarantees, up to 09.01.2018, subject to the condition that the extension of all the bank guarantees for a further period of at least three (3) months, is made and the same is communicated to the 1st respondent before today evening.