ORDER : Kalyan Rai Surana, J. 1. Heard Mr. G.N. Sahewalla, learned Senior counsel assisted by Mr. D. Senapati, learned counsel for the appellants. Also heard Mr. B. Sarma, learned Standing counsel for NF Railway, the principal respondent Nos. 1 to 7 herein. The matter has been heard at the admission stage. 2. By this appeal under Order XLIII Rule 1(r) CPC, the appellants have assailed the order dated 11.11.2019 passed by the learned Civil Judge No. 1, Kamrup (M), Guwahati in Misc. (J) Case No. 884/2019 in T.S. No. 511/2019. By the said order the learned trial Court had held that the contents of the petition do not show any urgency at this juncture and, as such, no ad-interim injunction was granted and notice was issued upon the respondent to show cause, fixing 11.12.2019 for service report and objection. Along with the appeal, the appellants have also filed a separate application under Order XXXIX Rules 1 and 2 read with Section 151 CPC for grant of ad interim injunction. By this common order, the appeal and the application for ad interim injunction are both disposed of. 3. Assailing the impugned order, the learned Senior counsel for the appellants has submitted that by letter dated 18.09.2019, the respondents had threatened to encash two bank guarantees dated 15.01.2018 and 29.09.2018 issued by the proforma respondents No. 8 and 9, which was of combined value of more that Rs. 11.00 Crore. Accordingly, in view of the said letter dated 18.9.2019, a specific prayer had been made by the appellants in Misc. (J) Case No. 884/19 filed before the learned trial court to seek ad-interim injunction thereby restraining the respondents herein from recovering their claim amount from the appellants by encashing/invoking the herein before referred 2 (two) bank guarantees. 4. The learned senior counsel for the appellants has submitted that the appellants have been threatened with encashment of the said two bank guarantee instruments, but if those two bank guarantees are actually invoked and encashed, the appellants would suffer a irreparable and irreversible prejudice and financial set-back and it would completely erode the credibility of the appellants before the concerned banks. Accordingly, it is submitted that the finding recorded by the learned trial Court by holding that no urgency was perverse and was not sustainable in the eye of law. Accordingly, it is submitted that the finding recorded by the learned trial Court by holding that no urgency was perverse and was not sustainable in the eye of law. It is submitted that once the said bank guarantees were invoked, there was no alternative for the concerned bank, but to make payment of the amount covered by their respective bank guarantees. 5. The learned Senior counsel for the petitioner has submitted that due to a human error in carrying out the calculation, there was a mistake on part of the appellants to raise Price Variation Bills (PVC bills for short), which resulted in excess payment being drawn. However, when such discrepancies were brought to their notice, the appellants had revisited the calculation and agreed to an adjustment of the erroneously drawn amount from future bills due to them from out of 18 (eighteen) pending contracts. It is also submitted that as on date the appellants would be entitled to approximately Rs. 25.00 Crore from the respondents in respect of the said 18 (eighteen) pending contracts. Moreover, it is submitted that further money of the appellants are also lying with the respondents on account of security deposit and various performance guarantees given and, as such, the money due to the respondents, if there be any, was fully secured. 6. In this connection, it is submitted that out of the estimated over drawn amount of Rs. 6.33 crore, the Railways have already realized a sum of about Rs. 2.16 crore by way of adjustment from the subsequent PVC bills, and it is further submitted that as per the verbal instruction received today, the Railways have made a further recovery of Rs. 92.00 lakh approx., for which the relevant documents is not immediately available with him. It is submitted that without taking into consideration the said sum of Rs. 92.00 lakh approx. recovered by the respondent, only the projected overdrawn amount of Rs. 4.17 crore remains to be concerned by the respondents. In the said context, it is submitted that subject to appropriate directions issued by this Court, the appellant is ready to provide additional bank guarantee of 50% of the said balance Rs. 92.00 lakh approx. recovered by the respondent, only the projected overdrawn amount of Rs. 4.17 crore remains to be concerned by the respondents. In the said context, it is submitted that subject to appropriate directions issued by this Court, the appellant is ready to provide additional bank guarantee of 50% of the said balance Rs. 4.17 crore and it is also submitted that as and when the Railway authorities make their own assessment/calculation and provide the exact figure of the excess payment paid to the appellants, the appellants would take immediate measures to liquidate such amount on mutually agreed terms, by adjustment against the pending bills of the appellants. 7. Per contra, the learned standing counsel for the Railways has submitted that as per instructions provided to him, in a preliminary inquiry made by the Railway authorities, it discloses that in a systematic manner inflated bills were raised by the appellants and as of now they have detected an excess payment of Rs. 6.33 crore to the appellants. It is further stated that the figures are only tentative or an estimate and not the exact amount recoverable from the appellants. It is submitted that the investigation has been taken over by the vigilance team and the authorities apprehend that this amount might be the tip of an iceberg. It is submitted that all the relevant documents have been seized by the Vigilance Department and that examination of the said documents by the vigilance team is now in progress, which is in an early stage and, as such, the Railway administration is not in a position now to immediately disclose the excess amount paid to the appellant against inflated bills till the seized files are released or till such amount is determined by the Vigilance Department. 8. It is also submitted that this is not a case or ordinary commercial dispute, but this is a case where by practicing fraud, excess payment has been illegally drawn by the Railways. It is also submitted that there are strong suspicion that there might have been more such fraudulent withdrawal of money from the Railways. Rather, the two bank guarantees in question are sought to be invoked for encashment because this is a case where huge public money presently estimated at about Rs. 6.33 Crore is detected to have been illegally and/or fraudulently withdrawn by the appellants. Rather, the two bank guarantees in question are sought to be invoked for encashment because this is a case where huge public money presently estimated at about Rs. 6.33 Crore is detected to have been illegally and/or fraudulently withdrawn by the appellants. Accordingly, it is submitted that it prima facie appears that monetary loss has been suffered by the Railways, as such, the Railway authorities had deemed it fit to invoke and encash the said two bank guarantees with an intent to secure public money. 9. It is also submitted that by various legal interpretations, it has been well settled that save and except any two exceptions of (i) fraud and (ii) irretrievable harm and injury, there is no other situation where any ad interim injunction can be granted by Courts in the Country against the invocation and encashment of the bank guarantees. In support of the submission, he has relied on the cases of (i) Himadri Chemicals Industries Ltd. Vs. Coal Tar Refining Co., (2007) 8 SCC 110 , and (ii) Dwarikesh Sugar Industries Ltd. Vs. Prem Heavy Engineering Works (P) Ltd., (1997) 6 SCC 450 . 10. Perused the materials available on record. It prima facie appears to the Court that the appellants had acknowledged that a considerable sum of money has been received by the appellants on account of the disputed PVC bills. The learned senior counsel for the appellants has projected that due to inadvertent error in accounting, erroneous PVC bills were submitted, and as the respondents also could not detect the inadvertent error, an excess amount of Rs. 6.33 Crore is alleged to have been drawn by the appellants. However, the learned senior counsel for the appellants has submitted that out of such money, the Railways had realized Rs. 2.16 Crore from other pending PVC bills the appellants, as such, only a sum of Rs. 4.17 Crore remains to be paid by the even if more payment to the extent of Rs. 92.00 lakh approx., is not taken into consideration because of lack of documents in the hands of the counsel for the appellants at this moment. It is proposed by the learned senior counsel for the appellants that if this Court so desires, they would be ready and willing to secure at least 50% of such amount by presenting additional bank guarantees. It is proposed by the learned senior counsel for the appellants that if this Court so desires, they would be ready and willing to secure at least 50% of such amount by presenting additional bank guarantees. It has also been suggested that even otherwise, the appellants are working in 18 (eighteen) other contracts with the Railways, and that in respect of work already done by the appellants, they are to receive payments from the Railways to the extent of around 25.00 Crore, as such, the respondents can easily recover money from the appellants, and that by doing so the respondents shall not suffer any loss of injury whatsoever. 11. In the present case in hand, the railway authorities are contemplating to invoke the two bank guarantees in order to secure money paid in excess to the appellants than what was due to them in connection various contracts. The learned standing counsel for the respondents is claiming that the appellant had committed fraud by submitting inflated bills. However, but it is seen that by their letters dated 19.09.2019 (Annexure-XVIII, XIX, XX, XXI), the appellants are projecting that they have written to the Railway authorities, admitting thereby that there were financial irregularities in their PVC bills, attributing the same to clerical negligence and by expressing regret, the corrected/revised PVC bills had been submitted after rectification. Therefore, at this stage, this Court refrains from making any comment on the projection made by the learned standing counsel for the Railways that fraud was committed by the appellants, as it is for the vigilance/investigating agencies and/or the Court having jurisdiction to give their finding as to whether the appellants had committed any fraud or not However, it is noticeable that from the contents of the hereinbefore referred letters dated 19.09.2019 (Annexure-XIII, XIX, XX, XXI), it can be inferred that there had been irregularities in the PVC bills submitted by the appellants resulting in payment of money, excess to what was actually due to the appellants. Hence, it appears to the Court that the Railway authorities are merely trying to secure the payment made in excess by them to the appellants by invoking the two bank guarantees. Hence, it appears to the Court that the Railway authorities are merely trying to secure the payment made in excess by them to the appellants by invoking the two bank guarantees. Under such circumstances, the act of invoking the bank guarantee is not found to be vitiated by (1) fraud, and (2) irretrievable harm or injury, which are the only two exceptions carved out from the ratio laid down by the Supreme Court of India in the case of Himadri Chemicals Industries Ltd. (supra) and Dwarikesh Sugar Industries Ltd. (supra), under which injunction against the bank guarantee can be granted by the Courts. 12. Although the submissions made by the learned senior counsel for the appellant appear to be attractive that if the bank guarantees are permitted to be invoked and encashed, their commercial standing before the concerned banks who had given the bank guarantees would plummet to a very low which would tarnish the standing of the appellants before such banks. His further submissions that the appellant is ready to provide alternative bank guarantees to secure the excess payments also appears to be very attractive. However, if the said submissions are tested in the light of the ratio laid down by the Supreme Court of India in the cases of Himadri Chemicals Industries Ltd. (supra) and Dwarikesh Sugar Industries Ltd. (supra), it is found that these two explanations, though attractive, cannot be a ground for grant of an ad interim injunction and to restrain the respondents from (a) invoking and/or encashing of the (i) bank guarantee dated 15.01.2018 issued by the State Bank of India, Khanapara Branch (proforma respondent No. 8), and (ii) bank guarantee dated 29.09.2018 issued by the Allahabad Bank, Panbazar (proforma respondent No. 9), and/or (b) from forfeiting the security deposit furnished by the appellants. In this regard, the Court cannot remain oblivious of the case projected by the respondents that excess amount has been drawn by the appellant. In such circumstances, ordinary prudence would require that such excess payment be immediately refunded once the knowledge about excess withdrawal of money is received by the appellants. In this regard, the Court cannot remain oblivious of the case projected by the respondents that excess amount has been drawn by the appellant. In such circumstances, ordinary prudence would require that such excess payment be immediately refunded once the knowledge about excess withdrawal of money is received by the appellants. Therefore, the Court cannot give its seal of approval over of the projection made by the learned senior counsel for the appellants that such excess money already drawn should be recovered from the pending bills or bills to be submitted in the future against the works contracts being executed by the appellants. Moreover, it is not the projected case of the appellants that it would be impossible of the appellants to recover money from the NF Railway authorities. Therefore, the Court is unable to accept that the appellants would suffer any irretrievable harm and injury. 13. It appears that there exists a prima facie case which can be gone into in the appeal. From the discussions above, the Court is of the considered opinion that the appellants have not succeeded to make out a case from which it can be reasonably inferred that any fraud had been committed by the Railway authorities. The appellants have also not been able to show that their bankers were aware that any fraud had been committed by the Railway authorities. Therefore, the balance of convenience is found more tilted towards the respondents than in favour of the appellants. Hence, the appellants are not found to be entitled to grant of an ad-interim injunction in terms of ratio laid down in the two cases of Himadri Chemicals Industries Ltd. (supra) and Dwarikesh Sugar Industries Ltd. (supra). 14. The appellants have also not been able to demonstrate that they will suffer any irretrievable loss or injury, which cannot be compensated in terms of money. Moreover, the appellants have already encashed money by submitting inflated bills. Thus, there is no way to accept the submissions made by the learned senior counsel for the appellants that they would suffer irreparable loss and injury and cannot be compensated in terms of money. Accordingly, in the absence balance of convenience and irreparable loss and injury, which are the two out of three golden principles for grant of injunction, ad interim injunction against the respondents is refused. This disposes of LA. (C) No. 3659/2019. 15. Accordingly, in the absence balance of convenience and irreparable loss and injury, which are the two out of three golden principles for grant of injunction, ad interim injunction against the respondents is refused. This disposes of LA. (C) No. 3659/2019. 15. The appeal has been taken up now. 16. As the appellants and the concerned principal respondents No. 1 to 7 are represented, the appeal is admitted for hearing by issuing Rule returnable forthwith. Issuance of notice of this appeal on the proforma respondents No. 8 and 9 are exempted in view of the nature of order that is proposed to be passed upon hearing the learned senior counsel for the appellants and the learned standing counsel for the principal respondents. As all the relevant documents are filed on record in I.A.(C) 3659/19, there is no necessity to call for the records. 17. On appreciating the order impugned in this appeal, it is seen that the learned trial Court had refused injunction only on the ground that the contents of the petition does not show any urgency at this juncture. It is seen that the learned trial Court had not discussed any pleadings and did not record any reasons for arriving at such conclusions. A prima-facie reading of the contents of paragraph 25 of the injunction petition filed under Order XXXIX Rule 1 and 2 read with section 151 CPC, being Misc. (J) Case No. 884/2019 discloses that there are pleadings to show that there was urgency for moving the injunction application. 18. Accordingly, this Court is inclined to interfere with that part of the order of the learned Civil Judge No. 1, Kamrup (M), Guwahati, wherein the following finding is recorded- "The contents in the petition does not show any urgency at this juncture and so no ad interim order is passed." It is ordered that the said herein before quoted observation made by the learned trial Court would not come in the way of the said learned Court to hear and decide the said case in its own merit. 19. It is seen that the respondents No. 1 to 7 as well as the proforma respondents No. 8 and 9 are yet to appear in Misc. (J) Case No. 884/2019 and to file their respective written objections. 19. It is seen that the respondents No. 1 to 7 as well as the proforma respondents No. 8 and 9 are yet to appear in Misc. (J) Case No. 884/2019 and to file their respective written objections. Under such circumstances, it is apprehended that the pendency of the appeal before this Court may prejudice the interest of both parties before the learned trial Court. Hence, it is deemed appropriate that the present appeal be closed with a direction to both appearing sides to appear in the said Misc. (J) Case No. 884/2019 on the date fixed i.e. on 11.12.2019 and seek further instructions from the learned trial Court. 20. Accordingly, this appeal stands partly allowed by making an observation to the effect that this Court has interfered with that part of the impugned order dated 11.11.2019 by which the learned Civil Judge No. 1, Kamrup (M), Guwahati has recorded that "The contents in the petition does not show any urgency at this juncture and so no ad interim order is passed". by holding that the said observation contained in the said impugned order dated 11.11.2019 would not come in the way of the learned trial Court while deciding the Misc. (J) Case No. 884/2019 as well as T.S. No. 511/2019 in its own merit. However, the other part of the order, by which only notice was issued without granting any ad-interim injunction, the said part of the order is not interfered with. It is further made clear that while hearing the said Misc. (J) Case No. 884/2019 and the connected T.S. No. 511/2019, the learned trial Court would adjudicate the matter in its own merit without being prejudiced or influenced by any observations made herein. 21. Accordingly, this appeal and the connected IA are both disposed of.