JUDGMENT : V.P. Patel, J. 1. This Petition is filed by the Petitioner-Cargo Motors Pvt. Ltd. Company being aggrieved and dissatisfied with invocation of bank guarantee dated 27.12.2012 issued by Respondent No. 2-Bank of India, in favour of the Respondent No. 1-Gujarat Maritime Board, which is a body set up under Gujarat Maritime Board Act 1981 (fore short "GMB"). 2. Heard Mr. Mihir J. Thakore learned Senior Advocate and Mr. P.C. Kavina, learned Senior Advocate with Mr. Rohan Lavkumar, learned Advocate for the Petitioner, learned Advocate Mr. G.H. Virk for Respondent No. 1-GMB and learned Advocate Mr. K.M. Parikh with learned Advocate Mr. Kuldeep K. Adesara for Respondent No. 2-Bank of India and perused the record and documents produced on record. 3. The Petitioner has prayed for the reliefs in para 38 of the petition which reads as under: "(a) Issue a writ of mandamus, directing Respondent No. 1 to refund the amount of Rs. 17.5 crores to Respondent No. 2 for its wrongful and illegal invocation of the Bank Guarantee dated 27th September 2012, without fulfilling the necessary conditions stipulated therein; (b) Issue a writ of mandamus, directing Respondent No. 2 to reverse the debit in the Petitioner's account and issue a fresh Bank Guarantee on similar terms and conditions as the Bank Guarantee dated 27th September 2012; (c) Restrain Respondent No. 1 from invoking the Bank Guarantee in question without there being any breach of the terms and conditions contained the Letter of Intent; (d) Pending hearing and final disposal restrain Respondent No. 2 from invoking the mortgage against the Petitioner and charging any interest on the debit balance of the Petitioner in its account; (e) Pending hearing and final disposal Direct, Respondent No. 1 to deposit the monies in this Hon'ble Court that its received from Respondent No. 2 on account of the illegal invocation of the conditional Bank Guarantee; (f) Ex-parte ad-interim relief in terms of prayer (d) and (e) above may kindly be granted; (g) Pass such other and further reliefs as may be deemed just and proper in the interest of justice. 4. Case of the Petitioner: 4.1. It is the case of the petitioner Cargo Motors Pvt. Ltd. that the petitioner is registered under the Companies Act and it is engaged in the business of development of Ports, Infrastructure etc. 4. Case of the Petitioner: 4.1. It is the case of the petitioner Cargo Motors Pvt. Ltd. that the petitioner is registered under the Companies Act and it is engaged in the business of development of Ports, Infrastructure etc. (hereinafter it will be referred to as "the Petitioner"), and that it had applied, as a lead promoter, to develop the green field port of Nargol for and on behalf of Gujarat Maritime Board. In response to the request for proposal issued by the GMB dated 21st April 2011, the Petitioner had made a proposal dated 20th September 2011. 4.2. The Petitioner was issued a Letter of Intent ("LoI" for short) dated 30th August 2012 by the Respondent awarding the project to the Petitioner and appointing it as the lead promoter and successful bidder for the development of the Port at Nargol on Build-Own-Operator-Transfer ("BOOT" for short) basis. The LoI laid down certain basic conditions including but not limited to submission of a detailed project report, its acceptance by the Respondent GMB, environmental clearances by the Coastal Regulatory Zone Authority, Ministry of Environment & Forests ("MOEF" for short) and subsequent signing of the concession agreement only after obtaining the relevant environmental clearances. 4.3. The LoI was accepted by the Petitioner on 4th September 2012. Pursuant to the LoI, the Petitioner submitted a Bank Guarantee through Respondent No. 2-Bank of India ("Respondent No. 2-BoI" for short) in the format that was prescribed by Respondent No. 1-GMB. The Bank Guarantee was for a sum of Rs. 17,50,00,000/- i.e. 17.5 crores. The Petitioner was required to and did pay a 25% margin on the Bank Guarantee. 4.4. The Petitioner has claimed that: after conducting various surveys such as hydrographic surveys, topographic surveys, bathometric surveys, flora fauna surveys etc., the Petitioner submitted the detailed project report in March 2015, which included a master plan of the entire project and various phases of development etc., and that in the meantime it had also been seeking environmental clearances and other approvals. In October 2015, the Petitioner submitted a draft environmental impact assessment report to the Gujarat Pollution Control Board ("GPCB" for short). A public hearing for the same was conducted only in January 2016. The Petitioner had also applied for approval from the CRZ authority, which was granted only in June 2017. In October 2015, the Petitioner submitted a draft environmental impact assessment report to the Gujarat Pollution Control Board ("GPCB" for short). A public hearing for the same was conducted only in January 2016. The Petitioner had also applied for approval from the CRZ authority, which was granted only in June 2017. The Final Environmental Impact Assessment Report was submitted to the Ministry of Environment & Forests ("MOEF" for short) only in June 2017 after CRZ approval. Thereafter a meeting was held with the MOEF in November 2017 and various approvals have been received from various government authorities in March 2018 and that the Internal Expert Appraisal Committee of the MOEF has also recommended approval to the Nargol Project only as recent as August 2018 and that the Petitioner has also sought forest land of 4 hectares to build logistic support facilities. The Petitioner had submitted its application to the District Forest Officer, Valsad in April 2015 but the measurement and survey work was done only in January 2018. A detailed project report for connectivity with the Railways was approved only in September 2015 and the engineering scale plan was approved by the Western Railway only in January 2017 and that in the meantime the bank guarantee came to be extended repeatedly in August 2014, December 2015 and in December 2017. Thus, repeatedly at the instance of Respondent No. 1, the Petitioner issued instructions to Respondent No. 2 to renew and extend the bank guarantees. Further, by letter dated 5th October 2016, the LoI was also extended by Respondent No. 1 up to 31st December 2017 and that, subsequently, in order to make the project financially viable, reduce capital cost and meet the requirements under the LoI, the Petitioner was required to resubmit its draft detailed report to Respondent No. 1. The number of berths for the project were brought to five berths wherein two berths were coastal berths and the other berths being coal, container and multipurpose berths. Therefore, in May 2018, the Petitioner submitted a second DPR and that as on date the Petitioner is awaiting forest, biodiversity and other environment clearances from various authorities and ultimately in March 2018 the Petitioner once again sought an extension of the LoI. Therefore, in May 2018, the Petitioner submitted a second DPR and that as on date the Petitioner is awaiting forest, biodiversity and other environment clearances from various authorities and ultimately in March 2018 the Petitioner once again sought an extension of the LoI. The petitioner sent further reminder on 6th September 2018 to the Respondent No. 1-GMB and categorically sought extension in order to enable it to find a strategic partner to the project; and that on 8th May 2019. the Respondent No. 1 wrote to the Petitioner to amend the bank guarantee to incorporate a revised amount to include goods and service tax and a further reminder was sent on 12th June 2019. Though the Petitioner was in the process of revising the quantum of the Bank Guarantee, it is learnt on 15th July 2019 that the bank guarantee was being invoked by Respondent No. 1-GMB. 4.5. It is further submitted that at no point of time has the Respondent even alleged any beach of condition on the part of the Petitioner. In fact the Petitioner has been regularly following up with the Respondent about the environment clearance and project extensions. In June 2019, the Respondent was seeking a revision of the bank guarantee it sought to invoke the same by a letter dated 12th July 2019. 4.6. It is also stated that the Bank guarantee is conditionally payable upon the Respondent No. 1-GMB alleging breach and consequent loss. 4.7. It is stated that the Bank Guarantee was conditionally payable "as against the breach by the lead promoter of conditions contained in the LoI". The bank guarantee further expressly stipulated a condition that the invocation shall "state that the amount claimed is due by way of loss suffered by reason of any breach by the said lead promoter of conditions contained in the LoI and other communications or by reason of the lead promoter's failure to perform the covenants of the same". 4.8. It is stated that in the absence of a breach of the condition contained in the LOI and respondent No. 1's invocation on such ground after satisfaction of the said condition alone, could respondent No. 2 have released payments under the Bank Guarantee. The Bank Guarantee was conditional upon and invocation which stipulated breach of condition and consequent loss suffered by respondent No. 1. 4.9. The Bank Guarantee was conditional upon and invocation which stipulated breach of condition and consequent loss suffered by respondent No. 1. 4.9. It is further claimed that the Petitioner ultimately learnt on 16th July 2019 that Respondent No. 2 had unlawfully permitted the Bank Guarantee to be encashed. It is alleged that despite a clear condition in the bank guarantee that it is conditionally payable only "as against breach by the lead promoter of conditions contained in the LoI" the Respondent No. 2-The Bank of India has wrongfully released payment in favour of Respondent No. 1. 4.10 By e-mail dated 16th July 2019 the Respondent No. 2-The BoI called up the Petitioner to deposit approximately Rs. 13 crores towards the unlawfully released bank guarantee. 5. Arguments on behalf of the Petitioner: 5.1. Learned Senior Counsel for the Petitioner has submitted that the bank guarantee is ex facie conditional upon a breach of the terms and conditions of the LoI and consequent loss suffered by the Respondent. It is submitted that Clauses (a) and (b) of the bank guarantee state that the invocation must expressly state "that the amount claimed is due by way of loss suffered by reason of any breach by the said lead promoter of conditions contained in the LoI and other communications or by reason of the lead promoter's failure to perform the covenants of the same and that the said clause clearly demonstrates that the bank guarantee in question is conditional and cannot be invoked nor can the invocation be honoured unless these conditions are fulfilled. 5.2. Learned Senior Counsel for the Petitioner further argued that in the present case the specific conditions for invocation in the guarantee has not been fulfilled. Neither is there any breach by the Petitioner, nor has the Respondent even alleged breach of terms and conditions of the LoI. That at the Bank guarantee dated 27th September 2012 requires that the letter of invocation must state that the invocation is on account of loss suffered on account of breach of the terms of LoI. However, even prima facie the invocation letter dated 12th July 2019 demonstrates that Respondent No.1 has not even alleged any breach on the part of the Petitioner. He therefore submitted that since the condition for invocation has not been fulfilled, the said bank guarantee cannot be invoked by Respondent No.1-GMB. 5.3. However, even prima facie the invocation letter dated 12th July 2019 demonstrates that Respondent No.1 has not even alleged any breach on the part of the Petitioner. He therefore submitted that since the condition for invocation has not been fulfilled, the said bank guarantee cannot be invoked by Respondent No.1-GMB. 5.3. Learned Counsel for the Petitioner argued that the invocation of bank guarantee will have to be strictly in accordance with the terms of the contract/bank guarantee deed and in the present case. It is further argued that the Petitioner's Draft Final Proposal has not received any response from the Respondent nor has the Petitioner received all environment clearances from various authorities for the past several years. Even if the Respondent alleges any delay it cannot be said to be on the part of the Petitioner. 5.4. It is also argued that the Petitioner has appointed several agencies such as Ernst and Young, Pricewaterhouse Coopers, Centrum etc. to look for a consortium partner after the change in the Draft Final Proposal and is awaiting approval of the same as well as extension of the LoI. It is submitted that at no point of time has the Respondent even alleged breach on the part of the Petitioner. 5.5. Learned Counsel for the Petitioner submitted that the action of the Respondent No.1 in invoking the bank guarantee is unreasonable, arbitrary and without any application of mind. Furthermore, the Respondent No.2-The Bank of India's action of releasing the funds in favour of Respondent No.1-GMB without verifying compliance of the conditions of the bank guarantee is also illustrative of complete non-application of mind and clear breach of its fiduciary duties towards the Petitioner. Learned advocate for the petitioner has requested to allow petition and grant relief as prayed for. 5.6. Learned Advocate for the Petitioner has relied upon certain the judgments, which will be discussed hereinafter. 6. Submission of Learned Advocate Mr. G.H. Virk for Respondent No. 1-GMB: 6.1. It is argued that the Petitioner has approached this court with unclean hands, and is guilty of manipulation, and is further guilty of suggestio falsi and suppressio veri. Therefore, the petition is not maintainable as the petitioner is seeking to evade the remedy of civil suit. That the petitioner has filed another petition being SCA 12877/2019 and effectively attempted to, as side-wind. Therefore, the petition is not maintainable as the petitioner is seeking to evade the remedy of civil suit. That the petitioner has filed another petition being SCA 12877/2019 and effectively attempted to, as side-wind. That the petitioner had adopted devious conduct and therefore the petition is required to be dismissed with costs. 6.2. It is further argued that the nature of litigation is purely commercial and contractual matters between the private parties and therefore there is a limited scope of writ jurisdiction. 6.3. That the petitioner has not answered for the central goods and service tax which is required to be collected from the petitioner. That the petitioner is effectively damaging the reimbursement of sizable contractual compensation under the agreement between the parties and waiver of contractual dues payable by it. The petitioner has failed to develop port as covenanted by it. That the petitioner has furnished bank guarantee which is a distinct contract between Respondent No.1-GMB and the Respondent Bank which cannot be allowed to wriggle out of it by resorting the writ jurisdiction. 6.4. It is argued that the petitioner has suffered from financial hardship on account of encashment of bank guarantee, inconvenience or hardship in performance of conditions agreed to in the contract can provide no justification in not complying with the terms of contract. That the leading of evidence and interpretation of terms and conditions of the contract would be required in the matter which cannot be done in the writ jurisdiction. That the petitioner has adopted short cut approach. 6.5. It is also argued by learned advocate for the respondent No. 1 that the letter of intent executed between the petitioner and the Respondent No. 1 which is already terminated. That the bank guarantee is already encashed. That the contract is between the petitioner and Respondent No. 2 for financing and mortgaging of property against the bank guarantee. That the request for proposal and model concession agreement, which forms the core contract between the parties. That the Respondents have relied upon such documents, that the petitioner has not complied with the terms and contracts of letter of intent as regards to the berthing port. 6.6. That the petitioner has not complied with the other conditions as regards to the land acquisition, creation of Special purpose vehicle (SPV) within 3 months; submission of detailed project report within 12 months. 6.6. That the petitioner has not complied with the other conditions as regards to the land acquisition, creation of Special purpose vehicle (SPV) within 3 months; submission of detailed project report within 12 months. It is further submitted that petitioner has to ensure the environmental clearance and the financial closure of the report within 18 months from issuance of letter of intent. That the right up to the termination of letter of intent (19.7.2019) by the Respondent-GMB, the petitioner neither received environmental clearance for the project nor achieved financial closure for the project. That the petitioner has failed to fulfill the terms and conditions of the letter of intent for which the letter of intent could be cancelled with written notice to the petitioner. That the time was the essence of the contract between the parties and yet the petitioner miserably failed to fulfill the contractual obligation, Inspite of that the Respondent-GMB gave five extensions of the letter of intent to the petitioner. Finally the extension was granted up to 31.12.2017. That the Respondent-GMB vide letters dated 2.6.2015, 18.6.2015, 10.02.2016, 13.7.2016, 5.10.2016, 27.9.2017, 8.1.2018 and 23.3.2018 highlighted the breach of the terms and conditions of the letter of intent. It is further argued that the petitioner has miserably failed to make the E.C. Application within six months of issuance of LOI and also obtaining E.C. Within 18 months of issuance of LOI. 6.7. That Bank Guarantee is unconditional. That the petitioner has not made out a case of grievous fraud or irretrievable injury, therefore the petitioner is required to be dismissed with cost. It is further submitted that the bank guarantee was encashed on 16.7.2019. Petitioner was informed vide letter dated 19.7.2019 by the GMB electing to terminate the letter of intent. As per the condition of the bank guarantee, the decision of the Respondent-GMB to encash the bank guarantee is final and binding to the petitioner. That the petitioner prepared as regards to the status quo ante in the contractual dispute cannot be resorted to. That the petitioner has adequate alternative remedy and the petitioner is not maintainable and requested to dismiss the petition. 6.8. Learned Advocate for the Respondent has relied upon certain the judgments, which will be discussed hereinafter. 7. Submission of Learned Advocate Mr. K.M. Parikh for Respondent No. 2-Bank. 7.1. That the petitioner has adequate alternative remedy and the petitioner is not maintainable and requested to dismiss the petition. 6.8. Learned Advocate for the Respondent has relied upon certain the judgments, which will be discussed hereinafter. 7. Submission of Learned Advocate Mr. K.M. Parikh for Respondent No. 2-Bank. 7.1. It is argued that the petitioner had no legal or fundamental right to file the present petition against the Respondent No.2-Bank challenging the invocation of bank guarantee. That the petitioner had no legal, contractual or fundamental right to maintain the present petition against the Respondent Bank. That the petition is not maintainable to enforce the non-statutory statutory contract executed by the parties. That the Respondent Bank has issued bank guarantee unconditionally, therefore the petition is not maintainable. He relied upon the judgment of the Hon'ble Supreme Court in case of Joshi Technologies International Inc. v. Union of India & ors. reported in (2015) 7 SCC 728 . 7.2. That Bank Guarantee is issued on 27.09.2012 and at the request of petitioner it was renewed from time to time and further extended upto 31.12.2019. 7.3. That the Director of the Petitioner Company have mortgaged the immovable property belonging to the petitioner to secure the due repayment and discharge of bank guarantee facility. The learned Advocate for the Respondent Bank has further argued that the bank guarantee is already invoked on 12.7.2019. The petitioner was informed through e-mail dated 15.7.2019. 7.4. The learned Advocate for the Respondent Bank has stated that on intimation given by the Respondent No. 1-GMB, the payment was made by the Bank in terms of the Bank guarantee. The Petitioner was informed vide email dated 15.5.2019 and letter dated 16.7.2019 and further letter on 17.7.2019. But the petitioner has not replied. That the Respondent Bank has produced the document in respect of the action by it vide Annexure R-I to R-5. Further, learned Advocate for the bank has submitted that the Bank has carried out the action as per the terms and condition of the bank guarantee. No case is made out for interim relief by the petitioner. Learned Advocate for the bank has requested to dismiss the petition and Misc. Civil Application with cost. 8. S cope of Judicial Review in Contractual Field: In this petition we have kept in mind the scope of judicial review in contractual field in general as held by the Hon'ble Apex Court. Learned Advocate for the bank has requested to dismiss the petition and Misc. Civil Application with cost. 8. S cope of Judicial Review in Contractual Field: In this petition we have kept in mind the scope of judicial review in contractual field in general as held by the Hon'ble Apex Court. Learned Advocate for Respondent No. 1-GMB has cited the following judgments: 8(A) Contract General: The Hon'ble Apex Court in a judgment in case of The Silppi Constructions Contractors v. Union of India And Anr. Etc. Etc. [Special Leave Petition No. 13802 of 2019] has observed as under: "Para 6: Aggrieved, the original writ petitioner is before us in these petitions. This Court in a catena of judgments has laid down the principles with regard to judicial review in contractual matters. It is settled law that the writ courts should not easily interfere in commercial activities just because public sector undertakings or government agencies are involved. Para 7: In Tata Cellular vs. Union of India, 1994 6 SCC 651 , it was held that judicial review of government contracts was permissible in order to prevent arbitrariness or favouritism. The principles enunciated in this case are:- "94......... (1) The modern trend points to judicial restraint in administrative action. (2) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure." Para 8: In Raunaq International Ltd. vs. I.V.R. Construction Ltd., 1999 1 SCC 492 , this Court held that superior courts should not interfere in matters of tenders unless substantial public interest was involved or the transaction was mala fide. Para 9: In Air India Limited vs. Cochin International Airport Ltd., 2000 2 SCC 617 , this Court once again stressed the need for overwhelming public interest to justify judicial intervention in contracts involving the State and its instrumentalities. It was held that Courts must proceed with great caution while exercising their discretionary powers and should exercise these powers only in furtherance of public interest and not merely on making out a legal point." Para 11: In Master Marine Services (P) Ltd. vs. Metcalfe & Hodgkinson (P) Ltd., 2005 6 SCC 138 it was held that while exercising power of judicial review in respect of contracts, the Court should concern itself primarily with the question, whether there has been any infirmity in the decision-making process. By way of judicial review, Court cannot examine details of terms of contract which have been entered into by public bodies or State. Para 13: In Jagdish Mandal vs. State of Orissa, 2007 14 SCC 517 it was held: "22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold........ Para 18: Most recently this Court in Caretel Infotech Limited vs. Hindustan Petroleum Corporation Limited and Others, 2019 6 Scale 70 observed that a writ petition under Article 226 of the Constitution of India was maintainable only in view of government and public sector enterprises venturing into economic activities. This Court observed that there are various checks and balances to ensure fairness in procedure. It was observed that the window has been opened too wide as every small or big tender is challenged as a matter of routine which results in government and public sectors suffering when unnecessary, close scrutiny of minute details is done." Para 19: This Court being guardian of fundamental rights is duty bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court in all the aforesaid decisions has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The Courts must realise heir limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give "fair play in the joints" to the governmental and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer. Para 20: The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case." 8(B) In case of Joshi Technologies International Inc. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case." 8(B) In case of Joshi Technologies International Inc. v. Union of India and others reported in (2015) 7 SCC 728 , the Hon'ble Apex Court has held that when the writ jurisdiction in contractual matters be exercised. The paragraphs which deal with the situation relevant to the case read as follows: "68. The Court thereafter summarised the legal position in the following manner: (ABL International Ltd. Case (2004) 3 SCC 553 ) 27. From the above discussion of ours, following legal principles emerge as to the maintainability of a writ petition: (a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable. (b) Merely because some disputed questions of facts arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. (c) A writ petition involving a consequential relief of monetary claim is also maintainable. 28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks. [ (1998) 8 SCC 1 ]) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction." 69. The position thus summarised in the aforesaid principles has to be understood in the context of discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, it can refuse to exercise. It also follows that under the following circumstances, "normally", the Court would not exercise such a discretion: 69.1. The Court may not examine the issue unless the action has some public law character attached to it. 69.2. Whenever a particular mode of settlement of dispute is provided in the contract, the High Court would refuse to exercise its discretion under Article 226 of the Constitution and relegate the party to the said mode of settlement, particularly when settlement of disputes is to be resorted to through the means of arbitration. 69.3. If there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determination. 69.4. Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances. 70. Further, the legal position which emerges from various judgments of this Court dealing with different situations/aspects relating to contracts entered into by the State/public authority with private parties, can be summarised as under: 70.1. At the stage of entering into a contract, the State acts purely in its executive capacity and is bound by the obligations of fairness. 70.2. State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practise some discrimination. 70.3. Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 of the Constitution could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases the Court can direct the aggrieved party to resort to alternate remedy of civil suit, etc. 70.4. Writ jurisdiction of the High Court under Article 226 of the Constitution was not intended to facilitate avoidance of obligation voluntarily incurred. 70.5. Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the licence if he finds it profitable to do so: and he can challenge the conditions under which he agreed to take the licence, if he finds it commercially inexpedient to conduct his business. 70.6. Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages." 9. Conditions of Letter of Intent: As per the case of the Petitioner, the Petitioner has applied as lead promoter to develop green field part of Nagrol for and on behalf of the Respondent GMB in response to the request for proposal issued by the Respondent GMB dated 21.4.2011. The petitioner had made a proposal dated 23.9.2011. In pursuance of that, the Respondent-GMB had issued a letter of intent dated 30.8.2012. The same is produced by the Petitioner at Annexure-A. The relevant portion of the letter of intent is required to be referred which reads thus: "3. This letter is intended to convey GMB's acceptance of your proposal, subject to the terms & conditions specified in the RFP Document and the Draft Model Concession Agreement (DMCA). The same is produced by the Petitioner at Annexure-A. The relevant portion of the letter of intent is required to be referred which reads thus: "3. This letter is intended to convey GMB's acceptance of your proposal, subject to the terms & conditions specified in the RFP Document and the Draft Model Concession Agreement (DMCA). Accordingly, the Concession Agreement for the project may be signed between GMB and the proposed Special Purpose Vehicle (SPV) to be formed by the consortium members, whereby the Government of Gujarat (GOG) will be confirming party and changes that may be incorporated by GOG, without prejudice to the rights of GMB to add, amend and alter conditions. The Concession Agreement will be signed after the approval of DPR. For purpose of abundant clarity, while the acceptance of the proposal is subject to the terms as set out in the RFP document as a whole, some of the important conditions mentioned in the RFP, DMCA and the consortium's proposal are enumerated below: 3(a) According to the amended clause 2.41(a) of the RFP, the Port at Nargol shall be an All Weather Direct Berthing Port. A minimum of 3 berths (each capable of handling a panamx size vessel minimum); i.e., 2 container berths and 1 multipurpose berth, along with provision of 2 breakkwaters shall be provided in the Phase-I. 3(b) According to clause 3.5.2(b) of DMCAm the consortium shall submit the application for all the environment clearance for the purpose of the Project within 6 months of the issue of LOI. (d) According to clause 2.14.2(2) of RFP and the proposal submitted by the consortium, it is clear that the Land Acquisition requirement for development of port facilities in Phase I of the project is 'Nil'. 3(f) According to clause 7.2 (c) of DMCA, the combined share-holding of Key Promoters in the proposed SPV shall not be less than 51 % for a period of two years from the date of commercial operation of the project or a period of seven years from the Effective Date; whichever is later. 3(h) Any change in the ownership of SPV company/Consortium by way of equity sale/transfer/amalgamation/merger/demerger etc., which has direct or indirect bearing on the ownership pattern of the SPV/Consortium shall require and shall be subject to prior approval of GOG/GMB. 3(h) Any change in the ownership of SPV company/Consortium by way of equity sale/transfer/amalgamation/merger/demerger etc., which has direct or indirect bearing on the ownership pattern of the SPV/Consortium shall require and shall be subject to prior approval of GOG/GMB. 3(i) According to clause 6.3 of the DMCA, the responsibility of all applicable clearances at both the Central and State Government levels for the performance of its rights and obligations under the RFP/DMCA lies with the consortium; while the GMB/GOG shall make reasonable efforts to assist the consortium in obtaining these clearances. 10. Validity of Letter of Intent: As per Section 5(A), the validity of LoI is 18 months from the date of issuance of LoI unless renewed or cancelled by the GMB. The correspondence i.e. letters produced by the petitioner vide Annexure-F, G, H, I, more particularly the letter no. GMB/N/PVT./1047/274/4998 dated 19th July 2019, the LoI was terminated with immediate effect. It is stated in the letter that in view of the failure on part of the petitioner to fulfill its obligation under the captioned LoI the said LoI stood terminated with immediate effect. 11. Non-Compliance of Conditions of Letter of Intent: Learned Advocate for the Respondent-GMB has submitted that as per the Condition 3(b) of the LoI according to Clause 3.5.2 (b) of DMCA the consortium has to submit the application of the environment clearance for the purpose of the project within six months from the issuance of LoI: 11.1. Learned Advocate for the Respondent-GMB has referred to the affidavit in reply wherein in it is stated in paragraph 9 as under: "The Petitioner was obligated to ensure its application for Environment Clearance of the project within 6 months from the issuance of the LoI, i.e. on or before February, 2013. It is an admitted fact, not even disputed in the Memo of its Writ Petition, that the Petitioner miserably failed to make the said EC Application within 6 months of the issuance of the LOI. 11.2. Learned Advocate for Respondent No. 1-GMB had drawn attention towards the letter No. GMB/N/prtd/1047/134 dated 18.6.2005 12. Learned Advocate for Respondent No. 1-GMB has submitted that as per condition no. 11.2. Learned Advocate for Respondent No. 1-GMB had drawn attention towards the letter No. GMB/N/prtd/1047/134 dated 18.6.2005 12. Learned Advocate for Respondent No. 1-GMB has submitted that as per condition no. 3(d) of the LoI that Clause 2.14.2 (2) of RFP and the proposal submitted by the consortium, it is clear that the land acquisition requirement for the development of port facilities in Phase-I of the project is 'Nil' and referred to the affidavit in reply at paragraph no. 10 as under: "Under the LoI, the Petitioner had agreed to the Land Acquisition requirements for the development of Phase-I of the Port as "NIL". However, subsequently, the Petitioner even started demanding land from the Respondent No. 1; and this was in fundamental breach of the consensus ad idem of the parties at the time of the execution of the contract-i.e. the LOI." 13. Learned Advocate for Respondent No. 1-GMB has further submitted that as per Condition No. 3(h) of the LoI, any change in ownership of SPV Company/consortium by way of equity/transfer/amalgamation/merger/demerger etc., which has direct or indirect bearing on the ownership pattern of the SPV/consortium shall require and shall be subject to prior approval of GOG/GMB and drawn attention towards condition no. 4(c) of LoI which reads as under: "Send the details of share holding of the SPV to develop this project within 3 months from the date of issuance of this letter to GMB along with Joint equity share holder's agreement." 14. Learned Advocate for Respondent No. 1-GMB has referred to the affidavit in reply in para 12 which reads as under: "The Petitioner was also obligated to create a Special Purpose Vehicle (SPV) within 3 months of the issuance of the LoI, for the development of the Port, along with the corresponding Joint Equity Shareholders' Agreement of the SPV. He submitted that the Petitioner has also failed to fulfill this fundamental contractual obligation; and, in fact, its technical-partner (one M/s. Amaryllis from Israel) withdrew from the project and formally informed GMB directly, that it would no longer participate in the project. It must be noted that this fundamentally destroyed all prospects of timely development of the project as the original bid of the Petitioner in and around September, 2011 was based on the proposed joint-venture that it would have with the aforementioned foreign technical-partner, who would infuse technical know-how for the development of the Port." 15. It must be noted that this fundamentally destroyed all prospects of timely development of the project as the original bid of the Petitioner in and around September, 2011 was based on the proposed joint-venture that it would have with the aforementioned foreign technical-partner, who would infuse technical know-how for the development of the Port." 15. Learned Advocate for the Respondent No. 1-GMB has also referred to the letter dated 2.6.2015 bearing No. GMB/N/ Pvt.-1/1047/105/3216 dated June 2nd 2015 (at Annexure R-1) and also referred to letter No. GMB/N/ Pvt.-1/1047/503/928 dated February 10, 2016. 16. It is also submitted that as per paragraph 4(d) of the LoI, the detailed project report is required to be prepared and submitted within 12 months from the issuance of the LoI which reads as under: "Ensure that the Detailed Project Report (DPR) is prepared and submitted to GMB within a period of 12 months from issue of this Letter of Intent. To this end, you are expected to provide all the details and various milestones in the preparation of DPR; submit and discuss the Interim Reports within GMB, so that necessary changes can be can be incorporated in final DPR. You are also required to submit Monthly progress reports to GMB for status update and submission to Government of Gujarat. The scope of the DPR shall include but not be limited to scope of work indicated in Appendix-II of this LoI." 16.1. He has referred to paragraph 13 of the affidavit in reply as under: "Next under the LoI, the Petitioner was obligated to prepare and submit the Detailed Project Report (the "DPR") for the project within 12 months from the date of issuance of the LoI, i.e. on or before the end of August, 2013. In fundamental breach of this obligation, the Petitioner submitted the DPR in 2015. Thereafter, the Petitioner itself chose to seek revision of the DPR submitted by it in view of the contention of the Petitioner itself, that the DPR's parameters were unrealistic. Subsequently, the Petitioner submitted a second version of the DPR which liquidated the terms of the RFP and LOI, and was in stark contrast of the original understanding between the parties. Thereafter, the Petitioner itself chose to seek revision of the DPR submitted by it in view of the contention of the Petitioner itself, that the DPR's parameters were unrealistic. Subsequently, the Petitioner submitted a second version of the DPR which liquidated the terms of the RFP and LOI, and was in stark contrast of the original understanding between the parties. He submitted that ultimately, even to this date, nothing stands crystallized by the Petitioner and the Petitioner's paper-tiger approach to continuously seek extensions and yet, never actually deliver on the project's development, has caused the answering Respondent to suffer tremendously in terms of monetary and opportunity loss." 17. It is also argued that as per Condition No. 4(e) of the LoI, the environmental clearance and the financial closure of the project is required to be achieved within 18 months of from the date of LoI, and he referred to paragraph 14 of the affidavit in reply as under: "Next, under the LOI, the Petitioner was required to ensure the Environmental Clearance and Financial Closure of the project was achieved within 18 months of the issuance of the LoI. This 18 months' period gains significance because the LoI itself, was valid only for 18 months. It is an admitted matter of record that right up to the termination of the LoI (on 19.07.2019) by-GMB, the Petitioner neither received Environmental Clearance for the project, nor achieved Financial Closure for the project. In fact, in the absence of a technical partner, the Petitioner can never achieve Financial Closure for the project." 17.1. Learned Advocate for the Respondent No. 1-GMB has drawn the attention towards the letter No. GMB/N/Pvt-1/1047/134 dated June 18, 2015. 17.2. Learned Advocate for the Respondent No. 1-GMB has pointed out as above that the conditions incorporated in the LoI are not complied with. Per contra the petitioner has filed affidavit in rejoinder to Respondent No. 1's affidavit filed on 9th August 2019 at page 147 on the record and affidavit in rejoinder to Respondent No. 2's affidavit dated 13th August 2019 at page 153 on the record. 17.3. On perusing the affidavit in rejoinder filed by the petitioner, it appears that the allegation stated in the affidavit in reply and not straightway admitted by the petitioner. 17.4. 17.3. On perusing the affidavit in rejoinder filed by the petitioner, it appears that the allegation stated in the affidavit in reply and not straightway admitted by the petitioner. 17.4. To deal with such contentions, the parties have to lead evidence and if any witness is examined the right of cross-examination is required to be given in natural justice. Such exercise is not permissible while exercising writ jurisdiction. Therefore, we are not inclined to go into the details as regards to the breach of conditions mentioned in the LoI. 18. The petitioner's claim and allegations against the Bank (and also against the Board require adjudication. They are such which cannot be adjudicated in writ proceedings and to examine the allegations and to decide legality and maintainability of petitioner's allegations and claim evidence from both sides will be necessary. 19. Keeping in mind the aforesaid principles enumerated in above referred to judgments and after considering the arguments of the learned Advocates of the respective parties, we are of the view that on the facts of the present case, it is not a fit case where the High Court has to exercise discretionary jurisdiction under Article 226 of the Constitution of India since the matter is in the realm of pure contract. 20. Law Relating to Bank Guarantee in General: Learned Advocate for Respondent No. 2-GMB has relied upon following judgments on nature of Bank Guarantee: 20A. The Hon'ble Apex Court in a judgment in case of Syndicate Bank v. Vijay Kumar & Ors. reported in (1992) 2 SCC 330 has observed as under: "9. In this context it becomes necessary to examine the meaning and scope of a Bank guarantee and the respective rights created thereunder. 10. It is in common parlance that the issuance of guarantee is what that a guarantor creates to discharge liability when the principal debtor fails in his duty and guarantee is in the nature of collateral agreement to answer for the debt. It is well-settled that the Bank guarantee is an autonomous contract and imposes an absolute obligation on the Bank to fulfill the terms and the payment in the Bank guarantee becomes due on the happening of a contingency on the occurrence of which the guarantee becomes enforceable. 11. The Guarantee has been defined in Halsbury's Laws of England Vol. 20, Fourth Edn. 11. The Guarantee has been defined in Halsbury's Laws of England Vol. 20, Fourth Edn. page 49 para 101 as that" A guarantee is an accessory contract whereby the promisor undertakes to be answerable to the promisee for the debt, default or miscarriage of another person whose primary liability to the promise must exist or be contemplated. 12. In the banking system it is understood that Bank guarantee has an dual aspect. In the case of a Bank guarantee the banker is the promisor. It is a contract between the Bank and the beneficiary of the guarantee and it is also a security given to the beneficiary by a third party. Now, it is a well-known business transaction in the World of commerce and it has become the backbone of the banking system. Now coming to its enforceability the same depends upon the terms under which the guarantor has bound himself. He cannot be made liable for more than what he has undertaken. Therefore the Bank guarantee, as already noticed, is in the nature of a special contract depending upon the happening of a specific event and when once it is discharged the guarantee comes to an end. It has to be borne in mind that the obligations arising under the Bank guarantee are independent of the obligations arising out of a specific contract between the parties. Therefore the endorsement of the words "Lien to BG 11/80" cannot have a bearing on the banker's lien on the two FDRs. Merely because on the basis of the security of the two FDRs the appellant Bank gave a guarantee it cannot be said that the banker had only a limited particular lien and not a general lien on the two FDRs. In our view this finding of the High Court is erroneous." 20B The Hon'ble Apex Court in a judgment in case of Ansal Engineering Projects Ltd. v. Tehri Hydro Development Corpn. Ltd., (1996) 5 SCC 450 , in para 4 has held as under: "4. It is settled law that bank guarantee is an independent and distinct contract between the bank and the beneficiary and is not qualified by the underlying transaction and the validity of the primary contract between the person at whose instance the bank guarantee was given and the beneficiary. It is settled law that bank guarantee is an independent and distinct contract between the bank and the beneficiary and is not qualified by the underlying transaction and the validity of the primary contract between the person at whose instance the bank guarantee was given and the beneficiary. Unless fraud or special equity exists, is pleaded and prima facie established by strong evidence as a triable issue, the beneficiary cannot be restrained from encashing the bank guarantee even if dispute between the beneficiary and the person at whose instance the bank guarantee was given by the bank, had arisen in performance of the contract or execution of the works undertaken in furtherance thereof. The bank unconditionally and irrevocably promised to pay, on demand, the amount of liability undertaken in the guarantee without any demur or dispute in terms of the bank guarantee. The object behind is to inculcate respect for free flow of commerce and trade and faith in the commercial banking transactions unhedged by pending disputes between the beneficiary and the contractor." 20C The Hon'ble Apex Court in a judgment in case of Gujarat Maritime Board v. Larsen and Toubro Infrastructure Development Projects Ltd. reported in (2016) 10 SCC 46 has observed as under: "[16] In a latest decision in Gujarat Maritime Board vs. Larsen and Toubro Infrastructure Development Projects Ltd. and Anr., 2016 10 SCC 46 , it was further explained: 9. Unfortunately, the High Court went wrong both in its analysis of facts and approach on law. A cursory reading of LoI would clearly show that it is not a case of forfeiture of security deposit "if the contract had frustrated on account of impossibility" but invocation of the performance bank guarantee. On law, the High Court ought to have noticed that the bank guarantee is an independent contract between the guarantor Bank and the guarantee appellant. The guarantee is unconditional. No doubt, the performance guarantee is against the breach by the lead promoter viz. the first respondent. But between the bank and the appellant, the specific condition incorporated in the bank guarantee is that the decision of the appellant as to the breach is binding on the Bank. The guarantee is unconditional. No doubt, the performance guarantee is against the breach by the lead promoter viz. the first respondent. But between the bank and the appellant, the specific condition incorporated in the bank guarantee is that the decision of the appellant as to the breach is binding on the Bank. The justifiability of the decision is a different matter between the appellant and the first respondent and it is not for the High Court in a proceeding under Article 226 of the Constitution of India to go into that question since several disputed questions of fact are involved. Xxx xxx xxx 13. The guarantee given by the Bank to the appellant contains only the condition that in case of breach by the lead promoter viz. the first respondent of the conditions of LoI, the appellant is free to invoke the bank guarantee and the Bank should honour it " without any demur, merely on a demand from GMB (appellant) stating that the said lead promoter failed to perform the covenants ". It has also been undertaken by the Bank that such written demand from the appellant on the Bank shall be "conclusive, absolute and unequivocal as regards the amount due and payable by the Bank under this guarantee". Between the appellant and the first respondent, in the event of failure to perform the obligations under the LoI dated 6-2-2008, the appellant was entitled to cancel the LoI and invoke the bank guarantee. On being satisfied that the first respondent has failed to perform its obligations as covenanted, the appellant cancelled the LoI and resultantly invoked the bank guarantee. Whether the cancellation is legal and proper, and whether on such cancellation, the bank guarantee could have been invoked on the extreme situation of the first respondent justifying its inability to perform its obligations under the LoI, etc. are not within the purview of an inquiry under Article 226 of the Constitution of India. Between the Bank and the appellant, the moment there is a written demand for invoking the bank guarantee pursuant to breach of the covenants between the appellant and the first respondent, as satisfied by the appellant, the Bank is bound to honour the payment under the guarantee." 21. Is Bank Guarantee Conditional or unconditional? Between the Bank and the appellant, the moment there is a written demand for invoking the bank guarantee pursuant to breach of the covenants between the appellant and the first respondent, as satisfied by the appellant, the Bank is bound to honour the payment under the guarantee." 21. Is Bank Guarantee Conditional or unconditional? The main controversy in the present case is that the Bank Guarantee at the instance of petitioner issued by Respondent No. 2-Bank in favour of Respondent No. 1-GMB is a conditional or unconditional. The same is required to be examined. 21.1. It is submitted by learned Senior Counsel for the Petitioner that the bank guarantee is ex facie conditional upon the breach of the terms of conditions of letter of intent and consequent loss suffered by the Respondent. It is further submitted that as per Clause-A and Clause-B of the bank guarantee, the invocation must expressly state that the amount claimed is due by way of loss suffered by reason of any breach by the said Lead Promoter of conditions contained in the LOI and other communications or by reason of the Lead Promoter's failure to perform the covenants of the same. That the aforementioned Clause clearly demonstrate that the bank guarantee in question is conditional and cannot be invoked untill these conditions are fulfilled. 21.2. Against this, learned Advocate for Respondent No. 1 -GMB has submitted that the bank guarantee was unconditional and it can be invoked as per terms of the bank guarantee. The Respondent No. 1-GMB has rightly asked for the payment as per conditions of the bank guarantee and invocation is made as per contract of Bank Guarantee. 21.3. The Petitioner has produced the copy of the letter of intent vide Annexure-A. The bank guarantee is required to be submitted as per para 4(b) of the letter of intent which reads thus: "4(b) Submit within 4 weeks from the date of this letter, Development Guarantee for a sum of Rs. 17,50,00,000/- (Rupees Seventeen Crore Fifty Lakhs Only) to GMB in the form of a bank guarantee from a Nationalized bank in India, in the form as set forth in Appendix-I ("Development Guarantee"). 21.4. The Petitioner has produced the bank guarantee vide Annexure C in this petition. 17,50,00,000/- (Rupees Seventeen Crore Fifty Lakhs Only) to GMB in the form of a bank guarantee from a Nationalized bank in India, in the form as set forth in Appendix-I ("Development Guarantee"). 21.4. The Petitioner has produced the bank guarantee vide Annexure C in this petition. The relevant para of the said bank guarantee is as under: "Whereas GMB have sought a Bank Guarantee in the form of unconditional and irrevocable Bank Guarantee equivalent to sum of Rs. 17,50,00,000/- (Rupees Seventeen Crore Fifty Lakh Only) as security for due fulfillment of conditions mentioned in Letter of Intent (LOI) for the development of Nargol Port. And whereas CARGO MOTORS PRIVATE LIMITED has been inducted as the Lead Promoter for implementing the project as per the said LOI. Now, this Deed witnessed that in consideration of the said Bank having agreed on the request of the Lead Promoter to stand as Surety for payment of Rs. 17,50,00,000/- (Rupees Seventeen Crore Fifty Lakh only) as Security to the GMB towards the fulfillment of conditions mentioned in LOI to the following" 22. On perusing the averments made in the bank guarantee, it is specifically stated that the Respondent No. 1-GMB has sought a bank guarantee in the form of unconditional and irrevocable bank guarantee. Such bank guarantee is issued as security for due fulfillment of the conditions mentioned in the letter of intent. If any condition mentioned in the letter of intent is breached by the petitioner, the bank guarantee can be invoked. The Respondent Bank has to pay the amount unconditional irrespective of any litigation, dispute, formalities and without demur. For this purpose, we may have to read the relevant conditions incorporated in the bank guarantee which reads thus: (b) "We, Bank of India, do hereby undertake to without any reference to the Lead Promoter or any other person and Irrespective of the fact whether any dispute is pending between GMB and the Lead Promoter or any court or tribunal or arbitrator relating thereto, pay the amount due and payable under this guarantee without any demur, merely on a demand from GMB stating that the amount claimed is due by way of loss suffered by reason of any breach by the said Lead Promoter of conditions contained in the LOI and other communications or by reasons of the said Lead Promoter's failure to perform the covenants of the same. Any such demand made on the bank shall be conclusive, absolute and unequivocal as regards the amount due and payable by the Bank under this guarantee. (d) In order to give full effect to the guarantees herein contained GMB shall be entitled to act as if we, BANK OF INDIA are your principal debtor in respect of all your claims against the Lead Promoter hereby guaranteed by us as aforesaid and we hereby expressively waive all out rights or Suretyship and other rights, if any, which are inconsistent with the above or any other provisions of this guarantee. The Bank's guarantee to pay hereunder will not be determined or affected by your proceeding against the Lead Promoter and the Bank will be liable to pay the said sum as and when demanded by you merely on first demand being made on the Bank by you and even before any legal or other proceedings taken against the Lead Promoter. Any letter of demand delivered at the Bank's above branch in India or Ahmedabad/Gandhinagar Branch Office under the Seal of GMB shall be deemed to be sufficient under this guarantee. (e) We, BANK OF INDIA, further agree that GMB shall have the fullest liberty without our consent and without affecting in any manner our obligation hereunder to vary any of the terms and conditions to extend time of performance by the said Lead Promoter from time to time or to postpone for any time or from time to time any of the powers exercisable by GMB against the said Lead Promoter and to forebear or enforce any of the terms and conditions and we shall not be relieved from out liability by reason of any such variation or extension being granted to the said Lead Promoter or for any of the forbearance, act, or omission on the part of the GMB or any indulgence of GMB to the said Lead Promoter or any such matter of things whatsoever which under the law relating to the sureties would but for this provision have effect of so relieving us." 23. Even the Bank has averred and asserted that: "(a) Petitioner is not entitled to challenge invocation of unconditional Bank Guarantee in the present Petition by invoking discretionary and extraordinary Writs jurisdiction under Article 226 of the Constitution of India. Even the Bank has averred and asserted that: "(a) Petitioner is not entitled to challenge invocation of unconditional Bank Guarantee in the present Petition by invoking discretionary and extraordinary Writs jurisdiction under Article 226 of the Constitution of India. (b) In reply to Para-10 of the Petition, it is submitted that whether BG issued by Res. No. 2 Bank is conditional or unconditional, are disputed questions of fact, which cannot be raised by Petitioner in Petition for its logical adjudication. The Res. No. 2 Bank is duty bound to honour terms of unconditional Bank Guarantee irrespective of any dispute with Res. No. 1. Hence, by honouring BG, Res. No. 2 Bank have acted as per terms of BG and Res. No. 2 Bank is liable to make payment of said amount to Res. No. 1 in view of its invocation on 12/07/2019 by Res. No. 1. Hence, the grievance voiced by Petitioner in this Para is nothing but afterthought and the same is unsustainable in the eye of law. It is settled law that nature of Bank Guarantee cannot be decided by High Court while exercising discretionary jurisdiction under Article 226 of the Constitution of India. Hence, the contention of the Petitioner raised in this ground is legally not tenable and same cannot be examined by this Hon'ble Court as prayed for by the Petitioner." 24. The statement, submission, declaration and contentions by both the parties to the contract of guarantee give out that both the parties viz. the Board and the Bank understand and believe that the guarantee agreement is "unconditional & irrevocable". When both the parties to the said contract assert that the bank guarantee is unconditional & irrevocable, the petitioner-which is not party to said contract-has little scope to claim that the said guarantee is not unconditional/it is conditional. The author of the contract or party to the contract is the best person to clarify the nature of the contract of guarantee. Besides this the nature of bank guarantee can be deciphered from the intention of the parties. 25. Actually in such cases the person/party best suited to clarify the intention would be the parties to the contract/author of the Contract. Besides this the nature of bank guarantee can be deciphered from the intention of the parties. 25. Actually in such cases the person/party best suited to clarify the intention would be the parties to the contract/author of the Contract. In present case the author of the Contract/parties to the contract of guarantee i.e. both, the Board and the Bank, assert that intention of the parties/demand of the Board was for irrevocable and unconditional Bank guarantee and that the Guarantee in question is "unconditional and irrevocable. 26. In view of the above terms of Bank Guarantee it is stated that any demand made on the bank shall be conclusive, absolute and unequivocal as regards the amount due and payable by the Bank under guarantee. Any letter of demand delivered at the Bank's branch/office shall be deemed to be sufficient under the Guarantee. Considering these terms of bank guarantee, it can be said that the bank guarantee is unconditional for revocation in spite of any litigation, dispute, formality or any demur. 27. Invocation of Bank Guarantee: In the present case, the Bank Guarantee dated 17.9.2012 was invoked by Respondent No. 1-GMB on 12.7.2019. The invocation of Bank Guarantee is disputed by the Petitioner and claim to redeposit money with the High Court and further prayed for ad interim relief as regards to Bank Guarantee. 27.1. Learned Senior Counsel for the Petitioner has submitted that in the present case, the specific condition for invocation of bank guarantee has not been fulfilled. That neither is there any breach by the petitioner nor has the Respondent has alleged breach of terms and conditions of letter of intent. It is the case of the petitioner that the letter of invocation must state that the invocation is on account of loss suffered on account of breach of terms of letter of intent. That in the letter dated 12.7.2019, the Respondent No. 1 has not even alleged any breach on part of the petitioner. That since the condition of invocation has not been fulfilled, the said bank guarantee cannot be invoked by the Respondent No. 1. 27.2. It is the case of the Respondent No. 1 that the bank guarantee is the subject of the realm of the contractual relationship between the parties i.e. between the Respondent No. 1 and Respondent No. 2. That since the condition of invocation has not been fulfilled, the said bank guarantee cannot be invoked by the Respondent No. 1. 27.2. It is the case of the Respondent No. 1 that the bank guarantee is the subject of the realm of the contractual relationship between the parties i.e. between the Respondent No. 1 and Respondent No. 2. That the contract (letter of intent) executed between the Petitioner and Respondent No. 1 already stood terminated. That a separate contract (bank guarantee) between Respondent No. 1 and Respondent No. 2 has already been encashed. That the third contract between the Petitioner and the Respondent No. 2-Bank is regarding financing and mortgaging of the properties against the bank guarantee. That the petitioner has not complied with the conditions of the letter of intent and they have breached the conditions of the bank guarantee is required to be encashed or invoked and accordingly the bank guarantee was invoked. 28. It is not in dispute that the Bank Guarantee of Rs. 17.50 was issued on 27.07.2012. The said Bank Guarantee was originally valid up to 30.08.2014. Subsequently, it was extended up to 31.03.2015, 31.12.2015, 31.12.2017 and further extended up to 31.12.2019. 29. We have already mentioned the nature of bank guarantee that it is unconditional. The demand made by the respondent no. 1 GMB on the bank shall be conclusive, absolute and unequivocal as regards to the amount due and payable by the bank under the Bank Guarantee. Any letter of demand at the bank Office is deemed to be sufficient under the Bank Guarantee. The respondent no. 1 GMB has send report by letter dated 12.07.2019 which is produced by respondent No. 1 GMB at Annexure J on the record. It is stated that it is hereby requested to consider this letter as claim letter for encashing the Bank Guarantee in favour of GMB by depositing in GMB's Bank Account through RTGS." 30. Therefore, the Bank has forwarded the said letter by way of E-mail dated 15.07.2019 to petitioner on its E-mail. The copy of such E-mail is placed by the Bank will Annexed R/3 at Page 113 of the record. The bank has paid the amount of Bank Guarantee Rs. 17.50 Crores to the respondent no. 1 GMB and intimated to the petitioner vide letter/Email dated 16.07.2019. The Copy of the Email produced by Respondent no. The copy of such E-mail is placed by the Bank will Annexed R/3 at Page 113 of the record. The bank has paid the amount of Bank Guarantee Rs. 17.50 Crores to the respondent no. 1 GMB and intimated to the petitioner vide letter/Email dated 16.07.2019. The Copy of the Email produced by Respondent no. 1 vide Annexure-K at Page 46 of the record. 31. Learned Advocate for Respondent No. 2 has relied upon following judgments of Hon'ble Supreme Court and submitted that no ad interim relief can be granted in case of invocation of Bank Guarantee. Development of law in the field of injunction in case of Bank Guarantee is as under: 31A The Hon'ble Apex Court in a judgment in case of Syndicate Bank v. Vijay Kumar & Ors. reported in (1992) 2 SCC 330 has observed as under: "13. In this context it is also necessary to consider the extent to which the Court can go into the nature of the securities offered for the Bank guarantee in the light of the banker's lien. In United Commercial Bank v. Bank of India this Court referred to a passage from R.D. Harbottle (Mercantile) Ltd. and Anr. v. National Westminster Bank and Ors. (1977) 2 All ER 862 with approval which runs as under: It was only in exceptional cases that the courts would interfere with the machinery of irrevocable obligations assumed by banks. They were the life blood of international commerce. The machinery and commitments of banks were on a different level. They must be allowed to be honoured, free from interference by the courts. Otherwise trust in internal commerce could be irreparably damaged. In R.D. Harbottle (Mercantile) Ltd. case it was stated in the Headnote as under: (i) Only exceptional cases would the courts interfere with the machinery of irrevocable obligations assumed by banks. In the case of a confirmed performance guarantee, just as in the case of a confirmed letter of credit, the bank was only concerned to ensure that the terms of its mandate and confirmation had been complied with and was in no way concerned with any contractual disputes which might have arisen between the buyers and sellers.... The above passage has also been referred in U.P. Cooperative Federation Ltd. v. Singh Consultants and Engineers (P) Ltd. wherein this Court held that the aforesaid represents the correct state of the law. The above passage has also been referred in U.P. Cooperative Federation Ltd. v. Singh Consultants and Engineers (P) Ltd. wherein this Court held that the aforesaid represents the correct state of the law. In this case, this Court has affirmed the obligation of payment without dispute by the Bank in the Indian context in cases relating to Bank guarantees. But it is equally obvious that the same liability or obligation on the part of the Bank will not be there when the Bank guarantee is discharged and this needs no emphasis. 14. From the above discussion it can be gathered that the Bank guarantees are on different level and they must be allowed to be honoured free from interference by the courts and a Bank which gives a guarantee must honour the same according to its terms and it is only in exceptional cases that the court will interfere with the machinery of irrevocable obligations assumed by the banks. A fortiori the same principle applies in respect of Bank guarantees which are discharged. When once the Bank guarantee is discharged the obligation of the Bank ends and there is no question of going behind such discharged Bank guarantee. The court should refrain from probing into the nature of the transactions between the Bank and the customer which led to the furnishing of the Bank guarantee." 31B The Hon'ble Apex Court in case of State Trading Corporation v. Jainsons Clothing Corporation, (1994) 6 SCC 597 , has observed as under: "8. The grant of injunction is a discretionary power in equity jurisdiction. The contract of guarantee is a trilateral contract which the bank has undertaken to unconditionally and unequivocally abide by the terms of the contract. It is an act of trust with full faith to facilitate free flow of trade and commerce in internal or international trade or business. It creates an irrevocable obligation to perform the contract in terms thereof. On the occurrence of the events mentioned therein the bank guarantee becomes enforceable. The subsequent disputes in the performance of the contract does not give rise to a cause nor is the court justified on that basis, to issue an injunction from enforcing the contract, i.e. bank guarantee. The parties are not left with no remedy. On the occurrence of the events mentioned therein the bank guarantee becomes enforceable. The subsequent disputes in the performance of the contract does not give rise to a cause nor is the court justified on that basis, to issue an injunction from enforcing the contract, i.e. bank guarantee. The parties are not left with no remedy. In the event of the dispute in the main contract ends in the party's favour, he/it is entitled to damages or other consequential reliefs. 9. It is settled law that the Court, before issuing the injunction under Order 39, Rules 1 and 2, CPC should prime face be satisfied that there is triable issue strong prima facie case of fraud or irretrievable injury and balance of convenience is in favour of issuing injunction to prevent irremediable injury. The court should normally insist upon enforcement of the bank guarantee and the court should not interfere with the enforcement of the contract of guarantee unless there is a specific plea of fraud or special equities in favour of the plaintiff. He must necessarily plead and produce all the necessary evidence in proof of the fraud in execution of the contract of the guarantee, but not the contract either of the original contract or any of the subsequent events that may happen as a ground for fraud." 31C. The Hon'ble Apex Court in a judgment in case of U.P. State Sugar Corpn. v. Sumac International Ltd., reported in (1997) 1 SCC 568 in para 16 has observed as under: "16. Clearly, therefore, the existence of any dispute between the parties to the contract is not a ground for issuing an injunction to restrain the enforcement of bank guarantees. There must be a fraud in connection with the bank guarantee. In the present case we fail to see any such fraud. The High Court seems to have come to the conclusion that the termination of the contract by the appellant and his claim that time was of the essence of the contract, are not based on the terms of the contract and, therefore, there is a fraud in the invocation of the bank guarantee. This is an erroneous view. The disputes between the parties relating to the termination of the contract cannot make invocation of the bank guarantees fraudulent." 31D. This is an erroneous view. The disputes between the parties relating to the termination of the contract cannot make invocation of the bank guarantees fraudulent." 31D. The Hon'ble Apex Court in a judgment in case of Dwarikesh Sugar Industries Limited v. Prem Heavy Engineering Works (P) Ltd. reported in (1997) 6 SCC 450 has held as under: "21. Numerous decisions of this Court rendered over a span of nearly two decades have laid down and reiterated the principles which the Courts must apply while considering the question whether to grant an injunction which has the effect of restraining the encashment of a bank guarantee. We do not think it necessary to burden this judgment by referring to all of them. Some of the more recent pronouncements on this point where the earlier decisions have been considered and reiterated are Svenska Handelshanken v. M/s. Indian Charge Chrome, (1994) 1 SCC 502 : (1993 AIR SCW 4002), Larsen and Toubro Ltd. v. Maharashtra State Electricity Board, (1995) 6 SCC 68 : (1975 AIR SCW 4134), Hindustan Steel Workers Construction Ltd. v. G.S. Atwal and Co. (Engineers) Pvt. Ltd., (1995) 6 SCC 76 : (1995 AIR SCW 3821) and U.P. State Sugar Corporation v. Sumac International Ltd., (1997) 1 SCC 568 : (1997 AIR SCW 694). The general principle which has been laid down by this Court has been summarised in the case of U.P. State Sugar Corporation's case as follows (at p. 697 of AIR SCW): "The law relating to invocation of such bank guarantees is by now well settled. When in the course of commercial dealings an unconditional bank guarantee is given or accepted, the beneficiary is entitled to realize such a bank guarantee in terms thereof irrespective of any pending disputes. The bank giving such a guarantee is bound to honour, it as per its terms irrespective of any dispute raised by its customer. The very purpose of giving such a bank guarantee would otherwise be defeated. The Courts should, therefore, be slow in granting an injunction to restrain the realization of such a bank guarantee. The courts have carved out only two exceptions. A fraud in connection with such a bank guarantee would vitiate the very foundation of such a bank guarantee. Hence if there is such a fraud of which the beneficiary seeks to take the advantage, he can be restrained from doing so. The courts have carved out only two exceptions. A fraud in connection with such a bank guarantee would vitiate the very foundation of such a bank guarantee. Hence if there is such a fraud of which the beneficiary seeks to take the advantage, he can be restrained from doing so. The second exception relates to cases where allowing the encashment of an unconditional bank guarantee would result in irretrievable harm or injustice to one of the parties concerned. Since in most cases payment of money under such a bank guarantee would adversely affect the bank and its customer at whose instance the guarantee is given, the harm or injustice contemplated under this head must be of such an exceptional and irretrievable nature as would override the terms of the guarantee and the adverse effect of such an injunction on commercial dealings in the country." Dealing with the question of fraud it has been held that fraud has to be an established fraud. The following observations of Sir John Donaldson, M.R. in Bolivinter Oil S.A. v. Chase Manhattan Bank, (1984) 1 All ER 351, are apposite: "The wholly exceptional case where an injunction may be granted is where it is proved that the bank knows that any demand for payment already made or which may thereafter be made will clearly be fraudulent. But the evidence must be clear both as to the fact of fraud and as to the bank's knowledge. It would certainly not normally be sufficient that this rests on the uncorroborated statement of the customer, for irreparable damage can be done to a bank's credit in the relatively brief time which must elapse between the granting of such an injunction and an application by the bank to have it charged." (emphasis supplied) 22. The aforesaid passage was approved and followed by this Court in U.P. Co-operative Federation Ltd. v. Singh Consultants and Engineers (P.) Ltd., (1988) 1 SCC 174 . 23. The second exception to the rule of granting injunction, i.e., the resulting of irretrievable injury, has to be such a circumstance which would make it impossible for the guarantor to reimburse himself, if he ultimately succeeds. This will have to be decisively established and it must be proved to the satisfaction of the Court that there would be no possibility whatsoever of the recovery of the amount from the beneficiary, by way of restitution. 24. This will have to be decisively established and it must be proved to the satisfaction of the Court that there would be no possibility whatsoever of the recovery of the amount from the beneficiary, by way of restitution. 24. In the instant case, as has been already noticed there were two types of bank guarantees which were issued. Bank Guarantee No. 40/51 for Rs. 26,15000/- was issued to ensure timely performance of the agreement by respondent No. 1. The relevant terms of this guarantee firstly makes it clear that the bank has unconditionally and irrevocably undertaken to pay to the appellant, on written demand and without demur, the amount demanded by it. Secondly, Clause II of the said guarantee clarifies that the payment shall be made without demur and on the undertaking that the appellant is to be sole Judge whether the seller has committed any breach. Consequently the right of the appellant to recover the guaranteed amount is not to be effected or suspended by reason of any dispute which can be raised or pending before the Courts tribunals or arbitrator. Thirdly the guarantor had no right to know the reasons of or to investigate the merits of the demand or to question or to challenge the demand or to know any facts affecting the demand and lastly it was not open to the bank to require the proof of the liability of respondent No. 1 to pay the amount before paying the aforesaid guaranteed amount to the appellant." 31E. The Hon'ble Apex Court in a judgment in case of Hindustan Construction Co. Ltd. v. State of Bihar & Ors. reported in (1999) 8 SCC 436 has observed as under: Para 8: "Now, a Bank Guarantee is the common mode of securing payment of money in commercial dealings as the beneficiary, under the Guarantee, is entitled to realise the whole of the amount under that Guarantee in terms thereof irrespective of any pending dispute between the person on whose behalf the Guarantee was given and the beneficiary. In contracts awarded to private individuals by the Government, which involve huge expenditure, as for example, construction contracts, Bank Guarantees are usually required to be furnished in favour of the Government to secure payments made to the contractor as "Advance" from time to time during the course of the contract as also to secure performance of the work entrusted under the contract. Such Guarantees are encashable in terms thereof on the lapse of the contractor either in the performance of the work or in paying back to the "Government Advance", the Guarantee is invoked and the amount is recovered from the Bank. It is for this reason that the Courts are reluctant in granting an injunction against the invocation of Bank Guarantee, except in the case of fraud, which should be as established fraud, or where irretrievable injury was likely to be caused to the Guarantor. This was the principle laid down by this Court in various decisions. In U.P. Cooperative Federation Ltd. v. Singh Consultants and Engineers Pvt. Ltd., (1988) 1 SCC 174 , the law laid down in Bolivinter Oil SA v. Chase Manhattan Bank, (1984) 1 All ER 351 was approved and it was held that an unconditional Bank Guarantee could be invoked in terms thereof by the person in whose favour the Bank Guarantee was given and the Courts would not grant any injunction restraining the invocation except in the case of fraud or irretrievable injury. In Svenska Handelsbanken v. Indian Charge Chrome, (1994) 1 SCC 502 : (1993 AIR SCW 4002 : AIR 1994 SC 626 ); Larsen and Toubro Ltd. v. Maharashtra State Electricity Board, (1995) 6 SCC 68 : (1995 AIR SCW 4134 : AIR 1996 SC 334 ); Hindustan Steel Works Construction Ltd. v. G.S. Atwal and Co. (Engineers) (P) Ltd., (1995) 6 SCC 76 : (1995 AIR SCW 3821: AIR 1996 SC 131 ); National Thermal Power Corporation Ltd. v. Flowmore (P) Ltd., (1995) 4 SCC 515 : (1995 AIR SCW 430 : AIR 1996 SC 445 ); State of Maharashtra v. National Construction Co., (1996) 1 SCC 735 : (1996 AIR SCW 895 : AIR 1996 SC 2367 ); Hindustan Steel Works Construction Ltd. v. Tarapore and Co., (1996) 5 SCC 34 : (1996 AIR SCW 2861 : AIR 1996 SC 2268 ) as also in U.P. State Sugar Corporation v. Sumac International Ltd., (1997) 1 SCC 568 : (1997 AIR SCW 694 : AIR 1997 SC 1644 : 1997 All LJ 638), the same principle has been laid down and reiterated." 31F. The Hon'ble Apex Court in a judgment in case of Federal Bank Ltd. v. V.M. Jog Engg. Ltd., (2001) 1 SCC 663 , in para 55 has held as under: "55. The Hon'ble Apex Court in a judgment in case of Federal Bank Ltd. v. V.M. Jog Engg. Ltd., (2001) 1 SCC 663 , in para 55 has held as under: "55. In several judgments of this Court, it has been held that courts ought not to grant injunction to restrain encashment of bank guarantees or letters of credit. Two exceptions have been mentioned--(i) fraud, and (ii) irretrievable damage. If the plaintiff is prima facie able to establish that the case comes within these two exceptions, temporary injunction under Order 39 Rule 1 CPC can be issued. It has also been held that the contract of the bank guarantee or the letter of credit is independent of the main contract between the seller and the buyer. This is also clear from Articles 3 and 4 of UCP (1983 Revision). In case of an irrevocable bank guarantee or letter of credit the buyer cannot obtain injunction against the banker on the ground that there was a breach of the contract by the seller." 31G. An injunction against the invocation of an absolute and an unconditional bank guarantee cannot be granted except in situations of egregious fraud or irretrievable injury to one of the parties concerned. This position also is no more res integra. In Himadri Chemicals Industries Limited v. Coal Tar Refining Company, AIR 2007 SC 2798 , at paragraph-14: "14. From the discussions made hereinabove relating to the principles for grant or refusal to grant of injunction to restrain enforcement of a bank guarantee or a letter of credit, we find that the following principles should be noted in the matter of injunction to restrain the encashment of a bank guarantee or a letter of credit: (i) While dealing with an application for injunction in the course of commercial dealings, and when an unconditional bank guarantee or letter of credit is given or accepted, the beneficiary is entitled to realise such a bank guarantee or a letter of credit in terms thereof irrespective of any pending disputes relating to the terms of the contract. (ii) The bank giving such guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer. (iii) The courts should be slow in granting an order of injunction to restrain the realisation of a bank guarantee or a letter of credit. (ii) The bank giving such guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer. (iii) The courts should be slow in granting an order of injunction to restrain the realisation of a bank guarantee or a letter of credit. (iv) Since a bank guarantee or a letter of credit is an independent and a separate contract and is absolute in nature, the existence of any dispute between the parties to the contract is not a ground for issuing an order of injunction to restrain enforcement of bank guarantees or letters of credit. (v) Fraud of an egregious nature which would vitiate the very foundation of such a bank guarantee or letter of credit and the beneficiary seeks to take advantage of the situation. (vi) Allowing encashment of an unconditional bank guarantee or a letter of credit would result in irretrievable harm or injustice to one of the parties concerned." 32. Now so far as the claim against Bank is concerned it is necessary to note that according to the Bank:- (1) on one hand the petitioner did not raise any objection at the stage when the Bank informed the petitioner about Board's letter of invocation dated 11/12.7.2019; and (2) on the other hand the petitioner has suppressed the fact about bank's letter dated 15.7.2019 (to the petitioner); (3) it paid the amount after having informed the petitioner (about invocation of Bank Guarantee by the Board) and when it did not receive any reply/response from the petitioner. (4) The bank supports and strengthens its submission with the fact that (a) before making the payment it had informed the petitioner about board's action and that (b) after having informed the petitioner it waited for petitioner's reply but since the petitioner did not respond or did not take any action it paid the amount; and that (c) it merely discharged its contractual obligation under unconditional and irrevocable bank guarantee which required immediate payment on demand and without demur. 33. Differently put the bank's case is that it acted bonafide and in regular course of business and with due and proper care, caution and prudence and that there is no breach or irregularity. It is claimed that petitioner's claim is, therefore, not tenable. 33. Differently put the bank's case is that it acted bonafide and in regular course of business and with due and proper care, caution and prudence and that there is no breach or irregularity. It is claimed that petitioner's claim is, therefore, not tenable. In this view of the matter, to maintain and support/justify its allegations and claim and to seek the relief against the Bank, the petitioner must, therefore, establish that the Bank's action is (i) contrary to contract (ii) incompetent and unauthorised (iii) Payment of the amount to the Board is Bank's mistake (iv) Bank's action is not bonafide and (v) Bank was not vigilant; but (vi) Bank was negligent and bank acted without care, caution and due diligence. The said issue cannot be decided in absence of evidence with regard to the intention of the parties. 34. Learned Senior Counsel for the Petitioner has cited following judgments in support of his case: 34.1. 19. Learned Senior Advocate for the Petitioner has referred to and relied upon the judgment of this Court in case of Priya Blue Industries Ltd. & Anr. v. Debt Recovery Appellate Tribunal & Ors. passed in Special Civil Application No. 678/2001 and Special Civil Application No. 1910/2001 dated 6.5.2004, wherein the Hon'ble Court has observed as under: "Such documents shall conform with the terms of the credit contract. As said by Viscount Sumner in his Lordship's speech in the matter of Equitable Trust Company of New York [Supra], "...the accepting bank can only claim indemnity if the conditions on which it is authorized to accept are in the matter of the accompanying documents strictly observed. There is no room for documents which are almost the same, or which will do just as well." It is further observed in the said case as under: "The letter of Credit was issued on 2nd March, 1998 on application made by the Buyer for the benefit of the Seller. The relevant Clause No. 6 required, "...A copy of certificate from Registration Authority of the Vessel's present port of registry, stating that there is not lines, mortgages, debts, taxes or other encumbrances on the vessel 'DALNIY VOSTOK'. Such certificate should be dated not prior to 7 days from the date of physical delivery of the vessel 'DALNIY VOSTOK'. The relevant Clause No. 6 required, "...A copy of certificate from Registration Authority of the Vessel's present port of registry, stating that there is not lines, mortgages, debts, taxes or other encumbrances on the vessel 'DALNIY VOSTOK'. Such certificate should be dated not prior to 7 days from the date of physical delivery of the vessel 'DALNIY VOSTOK'. Amongst other conditions, the last date of physical delivery of the vessel 'M.V. DALNIY VOSTOK' was specified as 98-03-04 [i.e. 4th March, 1998]; whereas the negotiation of documents under the Letter of Credit not later than 98-03-19 [i.e. 19th March, 1998] at New York, U.S.A." 34.2. The learned counsel for the Board, however relied on the decision in case of Gujarat Maritime Board v. Larsen and Toubro Infrastructure Development Projects Limited and Anr. (supra) to emphasize his submission and he claimed that almost identical clause (of guarantee) was under consideration in said case before the Apex Court. In the decision in case of __ (supra) Apex Court considered similar clause (with similar text/language). 34.3. 19.1 The Hon'ble Apex Court in a judgment in case of Gujarat Maritime Board v. Larsen and Toubro Infrastructure Development Projects Limited And Anr., reported in (2016) 10 SCC 46 has observed as under: "3. On 07.05.2010, the first respondent requested for change of location from Sutrapada to Kachchigarh and the bank guarantee was extended. At the instance of the first respondent, the Yes Bank Limited furnished a bank guarantee to the appellant on 26.11.2011 for an amount of Rs. 5 crores. The relevant conditions read as follows: "(a) We, YES BANK Ltd. do hereby guarantee and undertake to pay to GMB an amount not exceeding Rs. 5,00,00,000/- (Rupees Five Crores only) as against breach by the Lead Promoter for the development of Kachchigarh Port. The decision of GMB as to any breach having been committed and loss/damages caused or suffered shall be absolute and binding on us. (b) We, YES BANK Ltd, do hereby undertake to without any reference to the Lead Promoter or any other person and irrespective of the fact whether any dispute is pending between GMB and the Lead Promoter or any court of Tribunal or arbitrator relating thereto, pay the amount due and payable under this guarantee without any demur, merely on demand from GMB stating that the said Lead Promoter's failure to perform the covenants of the same. Any such written demand made by GMB on the Bank shall be conclusive, absolute and unequivocal as regards the amount due and payable by the Bank under this guarantee. However, Bank's liability under this guarantee shall be restricted to an amount not exceeding Rs. 5,00,00,000/- (Rupees Five Crores only)." The Hon'ble Apex Court has further observed in paragraphs 9 to 13 as under: "9. Unfortunately, the High Court went wrong both in its analysis of facts and approach on law. A cursory reading of LoI would clearly show that it is not a case of forfeiture of security deposit "… if the contract had frustrated on account of impossibility…" but invocation of the performance bank guarantee. On law, the High Court ought to have noticed that the bank guarantee is an independent contract between the guarantor-bank and the guarantee-appellant. The guarantee is unconditional. No doubt, the performance guarantee is against the breach by the lead promoter, viz., the first respondent. But between the bank and the appellant, the specific condition incorporated in the bank guarantee is that the decision of the appellant as to the breach is binding on the bank. The justifiability of the decision is a different matter between the appellant and the first respondent and it is not for the High Court in a proceeding under Article 226 of the Constitution of India to go into that question since several disputed questions of fact are involved. 34.4. Above mentioned issues are such which would necessitate evidence and consideration of various aspects including the provisions under the contract between the petitioner and the bank. In this backdrop we would, at this stage refrain from recording any conclusion or even make any remark because when we, while not accepting the petition, consider it proper to keep petitioner's right (to agitate the issue, claim and grievance) open but before trial Court it would not be proper and in fitness of things to make any remark lest it should affect either side. 35. Learned Senior Counsel for Petitioner has relied upon judgment of this Court in case of Ahmedabad Cotton Mfg. Co. Limited v. Union of India reported in 1977(0) GLHEL-HC 200226 has held that the interpretation of amended provision of 226 on pending petitions was discussed. 35. Learned Senior Counsel for Petitioner has relied upon judgment of this Court in case of Ahmedabad Cotton Mfg. Co. Limited v. Union of India reported in 1977(0) GLHEL-HC 200226 has held that the interpretation of amended provision of 226 on pending petitions was discussed. It is held that where the challenge is on the ground that the order is ultra vires, the question of exhausting alternative remedy could hardly arise. The petition can be entertained under the amended Article 226(3) if alternative remedy is not sufficiently efficacious. There is no reason to disagree with the proposition laid down in this case but considering the factual aspect as regards to the contract of guarantee, wherein breach of conditions are alleged, which require to lead evidence. Moreover, the civil court is the alternative remedy sufficiently efficacious. Therefore, considering ratio laid down by the Hon'ble Apex Court, ratio laid down in this judgment is not applicable to the facts of the present case. 36. Learned Senior Counsel for the Petitioner has further relied upon the judgment of the Calcutta High Court delivered in the case of Tantia Constructions Limited v. Union of India in T. No. 12 of 2017 wherein the court has observed as under: "In my opinion, the first point is most important. The bank guarantee has to be invoked according to its terms. In the invocation or demand letter it had to be stated that there was breach by the petitioner and loss suffered by the Government. This statement was not there. Mrs. Banerjee submits that the Railways had mentioned these points in the termination of agreement letter. In my opinion that will not do. Such a statement had to be contained in the notice of demand. That is not the case here. I make it absolutely clear that only this statement was required and not proof of any loss as it was an unconditional bank guarantee. For this solitary reason, the invocation of the bank guarantee by the said letter dated 24th July, 2017 was bad in law. It is set aside. All stps taken in furtherance thereof are to be reversed." 36.1. This judgment is arising out of arbitration proceedings. Therefore, it can be said that the parties have led their evidence before the Arbitral Tribunal. That the petitioner has filed writ directly under Article 226 of the Constitution of India before this Court. It is set aside. All stps taken in furtherance thereof are to be reversed." 36.1. This judgment is arising out of arbitration proceedings. Therefore, it can be said that the parties have led their evidence before the Arbitral Tribunal. That the petitioner has filed writ directly under Article 226 of the Constitution of India before this Court. Hence, the said judgment is not applicable to this case. 36.2. So far as the decision by Hon'ble Calcutta High Court is concerned, it is relevant to note that the said decision does not reflect that the Court rendered the said decision and passed the direction after taking into account the fact that the agreement between the parties was terminated and that the agreement of Guarantee was executed by the Bank and the guarantee was issued on the basis of a separate contract between the Bank and the petitioner. In the said case the Bank also did not claim that before discharging the guarantee and its obligation and before making the payment it had given intimation to the petitioner and any reply or representation much less objection against Board's demand and/or against the invocation and manner/method of invocation by the Board and in absence of any objection and action by the Petitioner it paid the amount. Thus, the case on hand stands on different footing and the facts of present case, the position of Bank and its reply are different. Thus, same course cannot be mechanically followed in present case. 37. Learned Advocate for Petitioner has relied upon the judgment of the Hon'ble Apex Court in case of M/s. Gangotri Enterprises Ltd. v. Union of India and Ors. reported in AIR 2016 SC 2199 has observed as under: "42. On perusal of the record of the case, we find that firstly, arbitration proceedings in relation to the contract dated 22.08.2005 are still pending. Secondly, the sum claimed by the respondents from the appellant does not relate to the contract for which the Bank Guarantee had been furnished but it relates to another contract dated 22.08.2005 for which no bank guarantee had been furnished. Thirdly, the sum claimed by the respondents from the appellant is in the nature of damages, which is not yet adjudicated upon in arbitration proceedings. Fourthly, the sum claimed is neither a sum due in praesenti nor a sum payable. Thirdly, the sum claimed by the respondents from the appellant is in the nature of damages, which is not yet adjudicated upon in arbitration proceedings. Fourthly, the sum claimed is neither a sum due in praesenti nor a sum payable. In other words, the sum claimed by the respondents is neither an admitted sum and nor a sum which stood adjudicated by any Court of law in any judicial proceedings but it is a disputed sum and lastly, the Bank Guarantee in question being in the nature of a performance guarantee furnished for execution work of contract dated 14.07.2006 (Anand Vihar works) and the work having been completed to the satisfaction of the respondents, they had no right to encash the Bank Guarantee. 43. We have, therefore, no hesitation in holding that both the courts below erred in dismissing the appellant's application for grant of injunction. We are indeed constrained to observe that both the courts committed jurisdictional error when they failed to take note of the law laid down by this Court in Union of India (DG Sand D) ( AIR 1974 SC 1265 ) (supra) which governed the controversy and instead placed reliance on Himadri Chemicals Industries Ltd. v. Coal Tar Refining Company, AIR 2007 SC 2798 and U.P. State Sugar Corporation v. Sumac International Ltd., (1997) 1 SCC 568 : ( AIR 1997 SC 1644 ), which laid down general principle relating to Bank Guarantee. There can be no quarrel to the proposition laid down in those cases. However, every case has to be decided with reference to the facts of the case involved therein. The case at hand was similar on facts with that of the case of Union of India (DGS and D) (supra) and hence the law laid down in that case was applicable to this case. Even in this Court, both the learned counsel did not bring to our notice the law laid down in Union of India (DGSandD) case (supra)" 37.1. This judgment is not applicable to present case. Reasons are obvious; (i) The work has not been started and completed. (ii) Contract of Bank Guarantee is between the Respondent No. 1 and Respondent No. 2. (iii) The Petitioner has entered upon contract of mortgage with Respondent No. 2. (iv) The Bank Guarantee is unconditional. (v) No proceedings before the Arbitrator is pending. 38. Reasons are obvious; (i) The work has not been started and completed. (ii) Contract of Bank Guarantee is between the Respondent No. 1 and Respondent No. 2. (iii) The Petitioner has entered upon contract of mortgage with Respondent No. 2. (iv) The Bank Guarantee is unconditional. (v) No proceedings before the Arbitrator is pending. 38. In view of the ratio laid down by the Hon'ble Apex Court in the above referred judgment, fact and circumstances of the case, fact that the Bank Guarantee is already invoked/encashed, no fraud of an egregious nature in connection with the Bank Guarantee established; irretrievable harm or injustice to Petitioner shown and unconditional nature of Bank Guarantee, we are not inclined to grant ad-interim relief as prayed for by the Petitioner. 39. Considering the conditions mentioned in the LoI, terms and conditions of the bank guarantee, correspondences taken place between the parties which are produced on record, the ratio laid down by the Hon'ble Supreme Court in the above referred to judgments, facts and circumstances of the case, we are of the view that this is not the case wherein the writ jurisdiction is required to be exercised. Hence, we do not entertain the petition. Accordingly, we dismiss the petition.