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2019 DIGILAW 546 (CAL)

Simplex Infrastructure Ltd. v. Siemens LLc Emts

2019-04-26

ASHIS KUMAR CHAKRABORTY

body2019
JUDGMENT : Ashis Kumar Chakraborty, J. The Court: In a suit for declaration that the invocation of the counter bank guarantees issued by the respondent no.2 bank in favour of the respondent no.3 bank, as mentioned hereinafter, is illegal and null and void and permanent injunction, the plaintiff has filed this application praying for, inter alia, an order of injunction restraining the respondent no.1 from receiving any amount under the counter guarantees issued by the respondent no.2, being Annexure-D series to this application. The plaintiff has also prayed for an order of injunction restraining the respondents from making any payment under the counter guarantees as against the demand letters dated April 1, 2019 issued by the respondent no.3. 2. The brief facts leading up to the filing of the suit and the present application are that on December 23,2015 the petitioner and the respondent no.1, a limited liability company incorporated under the appropriate laws of UAE, entered into a contract dated December 23,2015 (hereinafter referred to as "the contract") whereby the latter engaged the former as its sub-contractor for installation, testing and commissioning of three electric sub-stations of DEW at Barsha Housing Madinat, Al Seha and Sadda Street in Dubai (hereinafter referred to as "the said project") on the terms and conditions specified therein. The contract was deemed to have commenced on the date of its execution and the stipulated time for completion of the contract was 15 months. Clause 26 of the contract contains the arbitration agreement contemplating all disputes arising out of or in connection with the contract shall, unless amicably settled between the parties, be finally settled by arbitration according to the Rules of arbitration of the International "Chamber of Commerce, Paris [Rules]" by three arbitrators in accordance with the said Rules. As per clause 7.1 and clause 9 of the contract, the petitioner was required to issue advance bank guarantees being 10% of the total contract value as well as performance bank guarantees being 10% of the total contract value to the respondent no.1. The advance bank guarantees were against mobilisation advance to be paid by the respondent no.1 in respect of the said three substations of the said project and the same were to be proportionately deducted from the RA bills to be raised by the petitioner during the execution of the contract. The advance bank guarantees were against mobilisation advance to be paid by the respondent no.1 in respect of the said three substations of the said project and the same were to be proportionately deducted from the RA bills to be raised by the petitioner during the execution of the contract. So far as the performance bank guarantees in respect of the said three substations of the said project, are concerned, the same were to be issued by the petitioner to secure performance of the contract by the petitioner and the same were to remain valid until issuance of the Final Acceptance Certificate by Dubai Electricity & Water Authority, who engaged the respondent no.1 as the contractor to set up the said project. As per the contract, the petitioner had to furnish the said performance bank guarantees and advance payment bank guarantees to the respondent no.1 though any bank of UAE. Since the petitioner did not have any bank account in the UAE, the respondent no.3 bank had agreed to issue the advance payment guarantees and the performance bank guarantees in favour of the respondent no.1 provided the petitioner would furnish corresponding counter guarantees in their favour from any bank of India. Accordingly, the petitioner through the respondent no.2, Bank of India furnished three counter performance bank guarantees and three advance payment counter guarantee all dated February 10,2016 in favour of the respondent no.3. Each of the said counter performance bank guarantees as well the said advance payment counter bank guarantees contained the similar clause that the respondent no.2 undertook to pay the amounts mentioned in the respective counter guarantees to the respondent no.3 upon receipt of the first written demand from the respondent no.3, supported by a written statement that it has received a demand for payment under its guarantee and in accordance with its term. 3. On February 22,2016, the respondent no.3, on behalf of the petitioner issued three performance bank guarantees amounting to 53,39,865.53/- Dirham (hereinafter referred to as "the said performance bank guarantees") in favour of the respondent no.1. All the said three performance bank guarantees contained the following terms: "IN THIS CONNECTION, WE HEREBY UNCONDITIONALLY AND IRREVOCABLY, UNDERTAKE TO MAKE PAYMENT OF THE ABOVE SUM, IN WHOLE OR IN PART, NOTWITHSTANDING ANY OBJECTIONS ON THE PART OF THE CONTRACTOR UPON YOUR FIRST WRITTEN DEMAND". 4. All the said three performance bank guarantees contained the following terms: "IN THIS CONNECTION, WE HEREBY UNCONDITIONALLY AND IRREVOCABLY, UNDERTAKE TO MAKE PAYMENT OF THE ABOVE SUM, IN WHOLE OR IN PART, NOTWITHSTANDING ANY OBJECTIONS ON THE PART OF THE CONTRACTOR UPON YOUR FIRST WRITTEN DEMAND". 4. On February 18,2016 the respondent no.3 , on behalf of the petitioner, issued three advance payment guarantees amounting to 53,39,865 Dirham in favour of the respondent no.1. 5. All the said advance payment guarantees issued by the respondent no.3 in favour of the respondent no.1 amounting to 53,39,865.53 Dirham contained the following clause: "IN THIS CONNECTION, WE HEREBY UNCONDITIONALLY AND IRREVOCABLY, UNDERTAKE TO MAKE PAYMENT OF THE ABOVE SUM, IN WHOLE OR IN PART, NOTWITHSTANDING ANY OBJECTIONS ON THE PART OF THE CONTRACTOR UPON YOUR FIRST WRITTEN DEMAND, WHICH SHALL CERTIFY TO THE DEFAULT OF THE CONTRACTOR UNDER THIS SUB-CONTRACT". 6. According to the petitioner, the performance of the contract for construction, installation and commissioning of the said three sub-stations of the said project were dependent upon discharge of various reciprocal obligations by the respondent no.1 but as the respondent no.1 failed to discharge its obligations, the contract could not be completed within the stipulated period. Thus, from time to time, the respondent no.1 extended the date of completion of the contract. In the meantime, with the progress of the contractual work by the petitioner, the respondent no.1 adjusted the major amount of advance payment made by it to the petitioner. As such, the advance payment guarantee issued by the respondent no.3 in favour of respondent no.1 stood reduced. Correspondingly, the amount covering the three advance payment counter guarantees issued by the respondent no.2 in favour of respondent no.3 also stood reduced to 36,41,121.80 Dirham. The petitioner claims that in spite of various breaches committed by the respondent no.1 in the month of December, 2018 it has been able to complete the said project and all the said three substations have since been energised. The petitioner further claims that the respondent no.1 has duly accepted the performance of the contract and not a single document has been issued by the respondent no.1 in complaining any defect in the faithful performance of the contract or the performance of all the three substations. The petitioner further claims that the respondent no.1 has duly accepted the performance of the contract and not a single document has been issued by the respondent no.1 in complaining any defect in the faithful performance of the contract or the performance of all the three substations. The mobilisation advance given by the respondent no.1 to the petitioner has been secured by the petitioner by providing the advance guarantee, which is 10% of the total contract value and with the proportionate deduction and recovery made by the respondent no.1 from the relevant RA bills of the petitioner, only an amount of 41,100.53 Dirham remains to be adjusted by the respondent no.1, from the petitioner's final bill. On April 2,2019 the petitioner received an e-mail from the respondent no.2, which appended six swift messages of the respondent no.3 issued to the respondent no.2 stating that all the said advance payment guarantees as well as the performance guarantees issued by the respondent no.3 have been invoked by the respondent no.1 and, as such, the respondent no.3 has demanded the respondent no.2 to release the entire amount secured by the said six counter bank guarantees. As appears from the documents disclosed by the petitioner, by three notices in writing all dated March 31, 2019 the respondent no.3 invoked the three counter performance guarantees issued by the respondent no.2 and called upon the respondent no.2 to credit the proceeds thereof with UAE Central Bank. Further, by three written notices all dated April 1, 2019 the respondent no.3 also invoked all the said counter advance payment guarantees issued by the respondent no.2 and called upon the respondent no.2 to credit the proceeds thereof to its bank account. As mentioned earlier, in the plaint filed in the suit as well as in this application, the plaintiff petitioner has claimed the relief before this Court to restrain the respondent no.2 bank from making any payment to the respondent no.3 under any of the said counter performance bank guarantees or the said counter advance payment bank guarantees. 7. As mentioned earlier, in the plaint filed in the suit as well as in this application, the plaintiff petitioner has claimed the relief before this Court to restrain the respondent no.2 bank from making any payment to the respondent no.3 under any of the said counter performance bank guarantees or the said counter advance payment bank guarantees. 7. On April 5,2019 the petitioner moved this application ex-parte when a learned Single Judge of this Court held that in the present case, it prima facie appears that the invocation of the counter-guarantees by the respondent no.3 is not strictly in accordance with the terms of the bank guarantees and passed an ad-interim order restraining the respondent no.2 from giving any effect to the letters of demand dated April 1,2019 issued by the respondent no.3 in respect of the counter-bank guarantees mentioned in Annexure-'H' to the petition. The petitioner was directed to serve copies of the petition and the said order on the defendants by any acceptable mode of service at the earliest and the matter was made returnable on April 16, 2019. The ad-interim order passed on that date was directed to continue for a period of fortnight or until further order, whichever is earlier. On April 22, 2019 when this application appeared before this Court the respondent no.2 bank, as well as the respondent no.3 bank appeared before this Court. However, at the instance of the respondent no.2 bank hearing of this application was adjourned till April 24, 2019. 8. On April 24, 2019 when this application was taken up for hearing, Mr. S.K. Kapur, learned senior counsel appearing for the plaintiff petitioner submitted that in the present case, admittedly the construction of all the three sub-stations of the said project has been completed by the petitioner and the said substations have already been commissioned and energised and the respondent no.1 has not raised any complaint with regard to any defect in the performance of any of the said three sub-stations. He further submitted that as would be evident from the documents disclosed as part of Annexure-'I' to the petition, the respondent no.1 has already certified the Bill Of Quantities (BOQ) for the said three sub-stations constructed by the petitioner and there is no complaint by the respondent no.1 with regard to any defect in the completion or operation of the any said three sub-stations. It was emphasised that admittedly the respondent no.1 had issued the mobilisation advance of 53,39,865.53 Dirham to the petitioner and with the proportionate deduction and recovery made from the RA bills of the petitioner and only an amount of 41,100.53 Dirham is to be adjusted by the respondent no.1 from the final RA bills of the petitioner. Therefore, once again it is evident that the petitioner has completed the construction and commissioning of the said three sub-stations for the respondent no.1 without any defect. It was further argued for the petitioner that in any event, when the respondent no.1 has already recovered 53,08,765 Dirham from the RA bills of the petitioner, the invocation of the three advance bank guarantees furnished by the respondent no.3, as well as the invocation of the said advance payment counter bank guarantees issued by the respondent no.2 in favour of the respondent no.3 are vitiated by fraud committed by the respondents and each of them. Further, when the respondent no.1 has accepted the construction and commissioning of the said three sub-stations by the petitioner without any complaint, even the invocation of the said three performance bank guarantees issued by the respondent no.3 in favour of the respondent no.1, as well as the invocation of the three counter performance guarantees issued by the respondent no.2 in favour of the respondent no.3 are also vitiated by fraud committed by the respondents and each of them. It was strongly contended that in the facts of the case it is evident that the contract entered into by the respondent no.1 with the petitioner, being the underlying contract is vitiated by fraud committed by the respondent no.1 upon the petitioner. 9. Learned senior counsel appearing for the petitioner further referred to the advance payment guarantees dated February 18, 2016 furnished by the respondent no.3 in favour of the petitioner no.1 and submitted that the respondent no.3 undertook to make payment under the said three guarantees subject to the condition that the written demand by the respondent no.1 would certify to the default of the petitioner under the said contract. According to the petitioner terms for invocation of the said advance payment bank guarantees by the respondent no.1 are also applicable for invocation of the advance payment counter guarantees issued by the respondent no.2 in favour of the respondent no.3. According to the petitioner terms for invocation of the said advance payment bank guarantees by the respondent no.1 are also applicable for invocation of the advance payment counter guarantees issued by the respondent no.2 in favour of the respondent no.3. It was argued that in the present case, in none of the letters of invocation of the said counter advance payment bank guarantees and the counter performance bank guarantees addressed to the respondent no.2 the respondent no.3 has stated to have received any letter of invocation of the said advance payment guarantee or the performance guarantee certifying to the default of the petitioner under the contract. Thus, according to the petitioner, the invocation of the said six counter bank guarantees by the respondent no.3 is not in terms of the counter advance guarantee and the counter performance guarantee, as such, the respondent no.3 cannot obtain any payment from the respondent no.2 under any of the said counter guarantees issued by the respondent no.1. by placing reliance on the decision of a learned single Judge of this Court in the case of Rahee GPT (JV) & Ors. Vs. The Union of India and Ors.,2017 SCCOnLineCal 17244, Mr. Kapur submitted that in the present case when the petitioner has substantiated that the counter bank guarantees issued by the respondent no.2 has not been invoked by the respondent no.3 strictly in their terms and the petitioner has established the case of injustice and irreparable damage it would suffer on account of the invocation of the said six counter bank guarantees issued by the respondent no.2, the petitioner is entitled to obtain an order of injunction as prayed for in this application. In order to buttress the relief claimed in this application, the learned counsel for the petitioner also relied on the decision of the Supreme Court in Gangotri Enterprises Limited Vs. Union of India and Ors., (2016) 11 SCC 720 . It was further submitted by the petitioner in the instant case, after being informed of the said order dated April 5,2018 being passed by this Court, on April 8,2019 the respondent no.3 has made payment to the respondent no.1 on account of invocation of the said three performance bank guarantees dated February 22,2016 and the three advance payment guarantees dated February 18,2016. It was emphasized by the petitioner that although ad interim order dated April 5,2019 passed in this application restrained the respondent no.2 from giving any effect to said letters of demand/invocation dated April 1,2019 issued by the respondent no.3, but by making payment to the respondent no.1 on account of invocation of the said three performance bank guarantees as well as said the advance payment bank guarantees the respondent no.3 has interfered with the administration of justice and it has committed contempt of Court. In support of such contention, learned counsel for the petitioner relied on the decision of the Supreme Court in the Sita Ram Vs. Balbir Alias Bali, (2017) 2 SCC 456 . Urging all these grounds, learned counsel appearing for the petitioner pressed for extension of the interim order dated April 5, 2019 until disposal of the suit. 10. Mr. Dutta, learned Advocate appearing for the respondent no.2 bank submitted that in view of the deduction already made by the respondent no.1 from the running account bills raised by the petitioner the counter advance payment guarantee issued by the respondent no.2 in favour of the respondent no.3 stood reduced to 36,41,121 Dirham. He further submitted that as requested by the respondent no.3, validity of all the three advance payment counter guarantees issued by the respondent no.2 bank in favour of the respondent no.3 has since been extended till June 30,2019. Mr. Dutta, however, submitted that the respondent no.2 bank has neither any fraudulent intention nor is it party to any fraud as alleged by the petitioner. It was further submitted that after receipt of the letters of invocation of all the counter performance guarantees as well as the counter advance payment guarantees from the respondent no.3, the respondent no.2 has not raised any objection to the respondent no.3 with regard to the validity of the invocation of the any of the said counter guarantees. 11. However, Mr. Tilak Bose, learned Senior Counsel appearing for the respondent no.3 raised strong objection to the maintainability of the relief’s claimed by the plaintiff petitioner in this application. He submitted that it is well settled law that a bank guarantee is an independent and separate contract between the bank and the beneficiary thereof, the bank is always obliged to honour an unconditional bank guarantee when called upon by the beneficiary. He submitted that it is well settled law that a bank guarantee is an independent and separate contract between the bank and the beneficiary thereof, the bank is always obliged to honour an unconditional bank guarantee when called upon by the beneficiary. It is no function either of the bank or the Court to enquire as to whether the party at whose instance the bank guarantee was issued actually performed the contract or not. He further submitted that in the present case, the performance bank guarantees dated February 22, 2016 issued by the respondent no.3, in favour of the respondent no.1 clearly stipulates that notwithstanding any objection on the part of the petitioner contractor the respondent no.3 is liable to make payment of the amount claimed by the respondent no.1 in its written demand. It was pointed out that even the counter performance bank guarantees issued by the respondent no.2 in favour of the respondent no.3 stipulated the obligation of the respondent no.2 to make payment of the amount claimed by the respondent no.3 upon receipt of the demand with a statement that it has also received the demand for payment under the performance guarantee and in accordance with its terms. By referring to the letters of invocation of the counter performance guarantee dated March 31, 2019 issued by the respondent no.3 to the respondent no.1 Mr. Bose pointed out that in all the said letters the respondent no.3 has categorically stated to have received a demand for payment under the respective performance guarantee issued by it in accordance with the terms of the said performance guarantee. Thus, it was stressed by the respondent no.3 that the invocation of the three counter performance guarantees by the respondent no.3 was in accordance with its terms. It was further argued for the respondent no.3 that as is evident from the copies of the three counter advance payment guarantees issued by the respondent no.3, the respondent no.2 bank undertook to pay any amount claimed by the respondent no.3 under the three advance payment guarantees upon receipt of a written demand from the respondent tno.3 with a written statement that it has received a demand for payment under the advance payment bank guarantee issued by it in favour of the respondent no.1 and in accordance with its terms. By referring to the letters of invocation of the counter advance payment guarantees dated April 1,2019 issued by the respondent no.3, Mr. Bose pointed out that all the said notices expressly contain a statement that the respondent no.3 has received a demand for payment under the said advance payment bank guarantees from the respondent no.1 and in accordance with the terms of the advance payment guarantees. It was, therefore, contended that even the invocation of the said three counter advance payment guarantees by the respondent no.3 is as per the terms of the said guarantees. According to the petitioner, the terms of invocation of the sad advance payment guarantees by respondent no.3 in favour of the respondent no.1 have no application for invocation of any of the counter bank guarantees by the respondent no.2 in favour of the respondent no.3. Learned senior counsel appearing for the respondent no.3 referred to copies of the communications both dated March 26, 2019 issued by the respondent no.1 to the respondent no.3, thereby invoking all the said three performance guarantees as well as three advance payment guarantees issued by the respondent no.3, on behalf of the petitioner, certifying that the petitioner has failed to perform its obligation under the said contract dated December 23,2015. It was stressed that when the respondent no.1 invoked the said performance guarantees as well as the advance payment guarantees by fulfilling the terms thereof, the respondent no.3 had no option but to make payment of the amounts claimed by the respondent no.1 and in its turn became entitled to invoke all the said counter performance guarantees and counter advance guarantees issued by the respondent no.2 for payment of their dues under the said counter guarantees. It was next submitted that it is well settled law there are two exceptions when the Court can restrain the beneficiary of a bank guarantee from receiving the amounts covered by the bank guarantee, firstly, when there is any egregious fraud vitiating the underlying transaction and secondly, when encashment of the bank guarantees would create special equities in favour of the party who issued the bank guarantee. It was urged that in the present case, the petitioner has not been able to lay any factual foundation in support of any egregious fraud being committed by the respondent no. 1. It was urged that in the present case, the petitioner has not been able to lay any factual foundation in support of any egregious fraud being committed by the respondent no. 1. It was argued for the respondent no.3 that it is the petitioner at whose instance the respondent no.3 issued the said three advance payment guarantees, as well as the three performance bank guarantees in favour of the respondent no.1. In the application the petitioner has admitted that since it does not have any bank account in UAE it had caused the respondent no.2 to issue the said advance payment counter-guarantees, as well as the counter performance guarantees in favour of the respondent no.3. According to the respondent no.3, the petitioner has not been able to substantiate any fraud vitiating the underlying transaction resulting in issuance of the said advance payment guarantees or the performance bank guarantees by the respondent no.3 in favour of the respondent no.1, as well as the said advance payment counter-guarantees and counter performance guarantees issued by the respondent no.2 in favour of the respondent no.3. It was further submitted that in the instant case the petitioner has not been able to create any special equity in its favour. It was argued for the respondent no.3 that if the respondent no.1 has wrongfully invoked the said advance payment guarantees and the performance guarantees issued by the respondent no.3 the petitioner has its remedy to invoke the arbitration agreement, contained in the contract dated December 23,2015 against the respondent no.1 and recover the entire proceeds of all the said advance payment guarantees and performance bank guarantees from the respondent no.1 as well as the counter bank guarantees issued by the respondent no.2 in favour of the respondent no.3. Thus, it cannot be said that by virtue of invocation of the said advance payment guarantees and performance bank guarantees by the respondent no.1 or the invocation of the said counter-advance guarantees and counter-performance guarantees by the respondent no.3 the petitioner would suffer any prejudice. It was further submitted that neither the said Single Bench decision of this Court in the case of Rahee GPT (supra) cited by the petitioner nor the decision of the Supreme Court in the case of Gangotri Enterprises Ltd. (supra) cited by the petitioner has any application in this case. It was further submitted that neither the said Single Bench decision of this Court in the case of Rahee GPT (supra) cited by the petitioner nor the decision of the Supreme Court in the case of Gangotri Enterprises Ltd. (supra) cited by the petitioner has any application in this case. According to the respondent no.3, even the decision of the Supreme Court in the case of Sita Ram (supra) cited by the petitioner has no bearing in this case. 12. According to Mr. Bose, the interim order dated April 5, 2019 was communicated to the respondent no.3 on April 8,2019 after it had already made payment to the respondent no.1 the proceeds of the said three performance guarantees and the said three advance payment guarantees. In any event, in this application, the petitioner has not prayed for any relief to restrain the respondent no.3 from making payment of the proceeds of the said performance guarantees and advance payment guarantees to the respondent no.1. So, the petitioner could not and did not obtain any interim order restraining the respondent no.3 from making payment of the proceeds of the said performance guarantees, as well as the advance payment guarantees to the respondent no.1. It was, therefore, argued for the respondent no.3 that there is no merit in the contention of the petitioner that by making payment of the proceeds of the said advance payment guarantees and performance guarantees to the respondent no.1, the respondent no.3 has committed any act contempt of this Court. Urging all these grounds the learned Senior Counsel appearing for the respondent no.3 prays for dismissal of the present application. 13. In his reply, learned counsel appearing for the petitioner submitted that without filing any affidavit-in-opposition, the respondent no.3 cannot rely upon the bunch of documents disclosed by it including the notices dated March 26,2019 issued by the respondent no.1 towards encashment of the said three performance bank guarantees and advance payment bank guarantees issued by the respondent no.3. It was urged that there is no merit in the contentions raised by the respondent no.3 and, as such, this Court would extend the interim order dated April 5,2019 till disposal of the suit. 14. I have carefully considered the materials on record and the arguments advanced by the learned senior counsel appearing for the respective parties. It was urged that there is no merit in the contentions raised by the respondent no.3 and, as such, this Court would extend the interim order dated April 5,2019 till disposal of the suit. 14. I have carefully considered the materials on record and the arguments advanced by the learned senior counsel appearing for the respective parties. In the present case, learned senior counsel for the petitioner did not advance any argument to suggest that either said performance bank guarantees or the said advance payment bank guarantees issued by the respondent no.3, at the instance of the petitioner, in favour of the respondent no.1 are conditional bank guarantees. Even the counter advance payment bank guarantees and counter performance bank guarantees issued by the respondent no.2, on behalf of the petitioner, in favour of the respondent no.3 are also unconditional bank guarantees. It is settled law that a bank guarantee is an independent contract between the bank and the beneficiary thereof and in case of an unconditional bank guarantee, the bank is always obliged to honour its guarantee. The bank having given such guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer. When an unconditional bank guarantee is invoked by the beneficiary, it is no function either of the bank or the Court to interfere as to whether the performance of the contract had actually been done by the beneficiary or not. If an authority is looked for in support of such principle of law, the same can be found in the decisions of the Supreme Court in the cases of UP State Sugar Corporation vs. Sumac International Limited, (1997) 1 SCC 568 , BSES Ltd. Vs. Fenner India Ltd. & Another, (2006) 2 SCC 728 and Adani Agri Fresh Ltd. Vs. Mahaboob Sharif & Others, (2016) 14 SCC 517 . In the said decisions the Supreme Court also held that there are two exceptions when the Court can restrain the beneficiary of a bank guarantee from receiving the amounts covered by the bank guarantee firstly, when there is any egregious fraud vitiating the underlying transaction and secondly, when encashment of the bank guarantees would create special equities in favour of the party who issued the bank guarantee. 15. 15. As mentioned above, the petitioner has sought to challenge the invocation of the said three counter advance bank guarantees and counter performance bank guarantees issued by the respondent no.2 on the ground that the invocation of the said counter bank guarantees of the said counter bank guarantees does not comply the terms thereof. From a reading of the said counter performance bank guarantees and the counter advance payment guarantees it is evident that for valid invocation of the said bank guarantees the demand notice by the respondent no.3 shall be supported by a statement that it has received a demand for payment under its guarantee issued in favour of the respondent no.1 and in accordance with its terms. So far as the counter advance payment guarantees executed by the respondent no.2 in favour of the respondent no.3, the same stipulates that in case of invocation of the same the demand notice of the respondent no.3 shall contain a written statement that it has received a demand for payment under the advance payment guarantee from the respondent no.1 in accordance with its terms.] From a bare reading of the notices issued by the respondent no.2 invoking the said counter performance bank guarantees and the counter advance payment bank guarantees respectively, it is evident that the same contain a statement by the respondent no.3 that it has received a demand for payment under the respective performance bank guarantees and advance payment bank guarantees in accordance with the terms thereof. Thus, I find that the respondent no.3 is correct in its submission that it has invoked the said counter performance guarantees and counter advance payment guarantees issued by the respondent no.2 as per the agreed terms. In the facts of this case as discussed above, when the mode for invocation of the counter guarantees are stipulated therein I do not find any merit in the contention of the petitioner that term for invocation of the said advance payment guarantee by the respondent no.1 was applicable to the counter guarantees issued by the respondent no.2 in favour of the respondent no.3. Further, the respondent no.3 produced two notices both dated March 26,2019 issued to itself by the respondent no.1, thereby invoking all the said three performance bank guarantees and the three advance payment bank guarantees containing a statement that the petitioner has failed to perform its obligations under the said contract dated December 23,2015. The petitioner has failed to substantiate the invocation of either the said advance payment bank guarantees or the counter performance bank guarantee by the respondent no.3 is not as per the terms thereof. Although it was contended by the petitioner that without the respondent no.3 filing any affidavit in opposition to this application they should not be allowed to rely upon the said notices dated March 26,2019 issued by the respondent no.1, but the petitioner has not been able to demonstrate anything to suspect the genuineness of any of the said two notices. In order to oppose the prayer of the petitioner for extension of the ad-interim order dated April 05,2019 the respondent no.3 is at least entitled to rely upon the said notices dated March 28,2019 copies whereof were already served upon the petitioner and the respondent no.2 bank. 16. Considering the facts of this case as discussed above, I am unable to accept the contention of the petitioner that the contract dated December 23,2015 is vitiated any fraud. Further, clause 26 of the contract contemplates for all disputes arising out of or relating to the contact between the petitioner and the respondent no.3 to be adjudicated through arbitration. Thus, in the arbitration proceeding between the petitioner and the respondent no.1, the petitioner shall have the remedy to prove that it has not failed to perform the contract and invocation of the said advance payment bank guarantees and performance bank guarantees by the respondent no.1 is wrongful. In the arbitration proceeding the petitioner will also be entitled to claim an award for refund the entire proceeds of all the said three performance bank guarantees and three advance payment bank guarantees from the respondent no.1. Accordingly, it cannot be said that the petitioner has special equity in its favour to obtain any order of injunction, as prayed for in this application. 17. Accordingly, it cannot be said that the petitioner has special equity in its favour to obtain any order of injunction, as prayed for in this application. 17. So far as the decision of the learned single Judge of this Court in the case of Rahi GPT (supra) cited by the petitioner in paragraph 17 thereof, the learned single Judge reiterated the settled principles of law for invocation of unconditional bank guarantee. Further, in the said case the learned Single Judge came to a conclusion that the petitioner therein had substantiated its claim for special equity. In the facts of the present case, as discussed above, I have not been able to convince myself that the petitioner herein has been able to substantiate any special equity in its favour. So far as the decision of the Supreme Court in the case of Gangatri Enterprises Ltd., (supra) cited by the petitioner, the Supreme Court held that the respondent railway could not invoke the bank guarantee furnished by the contractor in respect of a contract already performed for realising its claim under another contract between the same parties. Accordingly, the said decision of the Supreme Court in the case of Gangotri Enterprises (supra) has no application in this case. The decision of the Supreme Court in the case of Sita Ram (supra) related to matter under the Contempt of Courts Act,1971, read with Articles 129,142 and 144 of the Constitution of India. The said decision also does not have any bearing on this case. 18. For all the foregoing reasons, I do not find any merit in the present application filed by the petitioner. Accordingly, the application, GA No.982 of 2019 stands rejected. 19. There shall, however, be no order as to costs. 20. Urgent certified copies of this judgment, if applied for, be made available to the parties subject to compliance with all requisite formalities.