JUDGMENT : Satyen Vaidya, J. By way of instant petition, filed under Section 9 of the Arbitration and Conciliation Act, 1996 (for short, the Act), the petitioner has sought a stay against communication dated 16.3.2023 (AnnexureP-7), whereby, respondent has invoked bank guarantees, furnished by the petitioner. 2. Petitioner was awarded certain civil works vide award letter dated 28.8.2012, issued by the respondent. The total cost of the works was Rs. 38,76,98,396.24/-. Formal agreement between the parties was executed. The time allotted to the petitioner for completion of the works was twenty four months. 3. In compliance to the conditions of the agreement, petitioner had furnished two separate bank guarantees in favour of the respondent in the sums of Rs. 1,25,11,000/- and Rs. 68,74,000/- respectively. The first bank guarantee was renewed from time to time and had its validity till 7.3.2023 and the second bank guarantee was valid till 30.3.2023. The claim period in both the bank guarantees was twelve months after the expiry of its validity date. 4. Vide communication dated 16.3.2023 (Annexure P-7) (colly) respondent invoked both the bank guarantees and submitted a demand on the Punjab National Bank to remit the secured amount in favour of the respondent. 5. Petitioner has made specific averments in the petition that on 16.3.2023, the respondent at one hand directed the petitioner to extend both the bank guarantees and on the other, issued communication to the bank for invoking the said bank guarantees. It is also submitted that 90% of the work has been completed. Rest of the work remained to be completed on account of reasons, viz, circumstances created by Covid-19 Pandemic etc. As per petitioner, an amount of Rs. 1,55,62,218/- also was wrongly withheld by the respondent, resulting in serious cash crunch for the petitioner. On such grounds, the petitioner prayed for the relief, as noticed above. 6. On notice, respondent has contested the claim of the petitioner. The petitioner has been accused of having not approached this Court with clean hands. It is further alleged that the petitioner doctored an e-mail dated 16.3.2023 (Annexure P-6) to use the same to file and maintain the present petition. As per respondent, it was on 28.2.2023, when respondent had required petitioner to extend the bank guarantees. The representative of the petitioner, for ulterior purpose, re-circulated the same e-mail from one of his mail account to another on 16.3.2023. As per respondent, it was on 28.2.2023, when respondent had required petitioner to extend the bank guarantees. The representative of the petitioner, for ulterior purpose, re-circulated the same e-mail from one of his mail account to another on 16.3.2023. The reasons for non completion of work have also been attributed to the petitioner. As per respondent, only 75% of the work was complete. Despite default of the petitioner to complete the work within the stipulated period, respondent had extended the period of completion from time to time and last such extension was granted till 30.6.2023 in favour of the petitioner. Since the petitioner had defaulted in completion of the work, respondent had suffered loss and finally, the respondent proceeded to cancel the contract by issuing a notice to the petitioner on 10.3.2023. 7. In its rejoinder, petitioner admitted that the respondent had not issued any communication on 16.3.2023, requiring the petitioner to extend the bank guarantees. The reason for incorporating averments in the petition to above effect has been assigned to over site on part of counsel to verify the contents of relevant documents. Further, the petitioner has tried to carve out a case of existing dispute between the parties capable of reference to arbitration under Clause 56 of the agreement. It is alleged that though the petitioner had completed 95% of the work, respondent had withheld substantial amount from the petitioner, which prevented the petitioner from completing the work. It is also alleged that the petitioner was ready to complete the work even after 30.6.2022, but it was prevented by the respondent. 8. I have heard the learned counsel for the parties and have also gone through the record carefully. 9. During the course of hearing of the petition, it was informed by both the sides that steps for appointment of arbitrator have already been taken by filing an application under Section 11 of the Act before the Court of competent jurisdiction. 10. The respective stands of the parties reveal the existence of probable dispute between the parties, arising from the terms of the agreement executed between them. Both the parties have attributed delay in completion of works to each other. Such disputes, if any, undoubtedly are subject to the adjudication by arbitrator. 11. This Court while dealing with an application under Section 9 of the Act will not enter into the disputed question of facts. Both the parties have attributed delay in completion of works to each other. Such disputes, if any, undoubtedly are subject to the adjudication by arbitrator. 11. This Court while dealing with an application under Section 9 of the Act will not enter into the disputed question of facts. The only issue that requires adjudication by this Court is whether the respondent is justified in invoking the bank guarantees? 12. It is more than settled that in order to seek injunction against invocation of bank guarantee, the petitioner has to qualify the test by proving the fraud or/and by proving irretrievable loss suffered by it on account of invocation of bank guarantees. 13. In U.P. State Sugar Corporation vs. Sumac International Ltd. 1997 (1) SCC 568 , the legal position has been summarized by the Hon’ble Supreme Court, as under:- “12. 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 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. The two grounds are not necessarily connected, though both may co-exist in some cases. The two grounds are not necessarily connected, though both may co-exist in some cases. In the case of U.P. Cooperative Federation Ltd. v. Singh Consultants and Engineers (P) Ltd. (988 [1] SCC 174), which was the case of works contract where the performance guarantee given under the contract was sought to be invoked, this Court, after referring extensively to English and Indian cases on the subject, said that the guarantee must be honoured in accordance with its terms. The bank which gives the guarantee is not concerned in the least with the relations between the supplier and the customer; nor with the question whether the suppler has performed his contractual obligation or not, nor with the question whether the supplier is in default or not. The bank must pay according to the tenor of its guarantee on demand without proof or condition. There are only two exceptions to this rule. The first exception is a case when there is a clear fraud of which the bank has notice. The fraud must be of an egregious nature such as to vitiate the entire underlying transaction. Explaining the kind of fraud that may absolve a bank from honouring its guarantee, this Court in the above case quoted with approval the observations of Sir John Donaldson, M.R. in Bolivinter Oil SA v. Chase Manhattan Bank. "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". This Court set aside an injunction granted by the High Court to restrain the realisation of the bank guarantee. 13. The same question came up for consideration before this Court in Svenska Handelsbanken v. M/s Indian Charge Chrome & Ors. (1994 [1] SCC 502). This Court set aside an injunction granted by the High Court to restrain the realisation of the bank guarantee. 13. The same question came up for consideration before this Court in Svenska Handelsbanken v. M/s Indian Charge Chrome & Ors. (1994 [1] SCC 502). The Court once again reiterated that a confirmed bank guarantee/irrevocable letter of credit cannot be interfered with unless there is established fraud or irretrievable injustice involved in the case. Irretrievable injury has to be of the nature noticed in the case of Itek Corporation v. The First National Bank of Boston etc. (566 Fed Supp. 1210). On the question of fraud this Court confirmed the observations made in the case of U.P. Cooperative Federation Ltd. (supra) and stated that the fraud must be that of the beneficiary, and not the fraud of anyone else. 14. On the question of irretrievable injury which is the second exception to the rule against granting of injunctions when unconditional bank guarantees are sought to be realised the court said in the above case that the irretrievable injury must be of the kind which was the subject-matter of the decision in the Itek Corporation case (supra). In that case an exporter in the U.S.A. entered into an agreement with the Imperial Government of Iran and sought an order terminating its liability on standby letters of credit issued by an American bank in favour of an Iranian Bank as part of the contract. The relief was sought on account of the situation created after the Iranian revolution when the American Government cancelled the export licences in relation to Iran and the Iranian Government had forcibly taken 52 American citizens as hostages. The U.S. Government had blocked all Iranian assets under the jurisdiction of United States and had cancelled the export contract. The court upheld the contention of the exporter that any claim for damages against the purchaser if decreed by the American Courts would not be executable in Iran under these circumstances and relisation of the bank guarantee/Letters of credit would cause irreparable harm to the plaintiff. This contention was upheld. To avail of this exception, therefore, exceptional circumstances which make it impossible for the guarantor to reimburse himself if the ultimately succeeds, will have to be decisively established. Clearly, a mere apprehension that the other party will not be able to pay, is not enough. This contention was upheld. To avail of this exception, therefore, exceptional circumstances which make it impossible for the guarantor to reimburse himself if the ultimately succeeds, will have to be decisively established. Clearly, a mere apprehension that the other party will not be able to pay, is not enough. In the Itek case (supra) there was a certainty on this issue. Secondly, there was good reason, in that case for the court to be prima facie satisfied that the guarantors i.e. the bank and its customer would be found entitled to receive the amount paid under the guarantee. 15. Our attention was invited to a number of decisions on this issue -- among them, to Larsen & Turbro Ltd. v. Maharashtra State Electricity Board & Ors. (1995 [6] SCC 58) and Hindustan Steel Workers Construction Ltd. v. G.S. Atwal & Co. (Engineers) Pvt. Ltd. (1995 [6] SCC 76) as also to National Thermal Power Corporation Ltd. v. Flowmore Pvt. Ltd. & Anr. The latest decision is in the case of State of Maharashtra & Anr. v. M/s National Construction Company, Bombay & Anr. where this Court has summed up the position by stating, "The rule is well established that a bank issuing a guarantee is not concerned with the underlying contract between the parties to the contract. The duty of the bank under a performance guarantee is created by the document itself. Once the documents are in order the bank giving the guarantee must honour the same and make payment ordinarily unless their is an allegation of fraud or the like. The courts will not interfere directly or indirectly to withhold payment, otherwise trust in commerce internal and international would be irreparably damaged. But that does not mean that the parties to the underlying contract cannot settle the disputes with respect to allegations of breach by resorting to litigation or arbitration as stipulated in the contract. The remedy arising ex-contractu is not barred and the cause of action for the same is independent of enforcement of the guarantee." The other recent decision is in Hindustan Steelworks Construction Ltd. v. Tarapore & Co. & Anr. 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. & Anr. 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 the 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. The High Court has also refereed to the conduct of the appellant in invoking the bank guarantees on an earlier occasion on 12th of April, 1992 and subsequently withdrawing such invocation. The court has used this circumstance in aid of its view that the time was not of the essence of the contract. We fail to see how an earlier invocation of the bank guarantees and subsequent withdrawal of this invocation make the bank guarantees or their invocation tainted with fraud in any manner. Under the terms of the contract it is stipulated that the respondent is required to give unconditional bank guarantees against advance payments as also a similar bank guarantee for due delivery of the contracted plant within the stipulated period. In the absence of any fraud the appellant is entitled to realise the bank guarantees”. 14. Similar reiteration has been made by the Hon’ble Supreme Court in Himadri Chemicals Industries Ltd. vs. Coal Tar Refining Co. 2007 (8) SCC 110 , as under:- “The law relating to grant or refusal to grant injunction in the matter of invocation of a Bank Guarantee or a Letter of Credit is now well settled by a plethora of decisions not only of this court but also of the different High Courts in India. In U.P. State Sugar Corporation Vs. Sumac International Ltd. [ (1997) 1 SCC 568 ], this court considered its various earlier decisions. In U.P. State Sugar Corporation Vs. Sumac International Ltd. [ (1997) 1 SCC 568 ], this court considered its various earlier decisions. In this decision, the principle that has been laid down clearly on the enforcement of a Bank guarantee or a Letter of Credit is that in respect of a Bank Guarantee or a Letter of Credit which is sought to be encashed by a beneficiary, the bank giving such a guarantee is bound to honour it as per its terms irrespective of any dispute raised by its customer. Accordingly this Court held that the courts should be slow in granting an order of injunction to restrain the realization of such a Bank Guarantee. It has also been held by this court in that decision that the existence of any dispute between the parties to the contract is not a ground to restrain the enforcement of Bank guarantees or Letters of Credit. However this court made two exceptions for grant of an order of injunction to restrain the enforcement of a Bank Guarantee or a Letter of Credit. (i) Fraud committed in the notice of the bank which would vitiate the very foundation of guarantee; (ii) injustice of the kind which would make it impossible for the guarantor to reimburse himself. 11. Except under these circumstances, the courts should not readily issue injunction to restrain the realization of a Bank Guarantee or a Letter of Credit. So far as the first exception is concerned, i.e. of fraud, one has to satisfy the court that the fraud in connection with the Bank Guarantee or Letter of Credit would vitiate the very foundation of such a Bank Guarantee or Letter of Credit. So far as the second exception is concerned, this court has held in that decision that it relates to cases where allowing encashment of an unconditional bank guarantee would result in irretrievable harm or injustice to one of the parties concerned. While dealing with the case of fraud, this court in the case of U.P. Coop. Federation Ltd. Vs. Singh Consultants and Engineers (P) Ltd. (1988) 1 SCC 174 held as follows: The fraud must be of an egregious nature such as to vitiate the entire underlying transaction. While coming to a conclusion as to what constitutes fraud, this court in the above case quoted with approval the observations of Sir John Donaldson, M.R. in Bolivinter Oil SA Vs. Singh Consultants and Engineers (P) Ltd. (1988) 1 SCC 174 held as follows: The fraud must be of an egregious nature such as to vitiate the entire underlying transaction. While coming to a conclusion as to what constitutes fraud, this court in the above case quoted with approval the observations of Sir John Donaldson, M.R. in Bolivinter Oil SA Vs. Chase Manhattan Bank (1984) 1 All ER 351 at p. 352 which is as follows: 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 banks 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 banks 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) 12. In Svenska Handelsbanken Vs. Indian Charge Chrome [ (1994) 1 SCC 502 ], it has also been held that a confirmed Bank Guarantee/irrevocable Letter of Credit cannot be interfered with unless there is established fraud or irretrievable injustice involved in the case. In fact, on the question of fraud, this decision approved the observations made by this court in the case of U.P. Coop. Federation Ltd Vs. Singh Consultants and Engineers (P) Ltd. 13. So far as the second exception is concerned, this court in U.P. State Sugar Corporation Vs. Sumac International Ltd. [ (1997) 1 SCC 568 as considered herein earlier, at para 14 on page 575 observed as follows: “14. On the question of irretrievable injury which is the second exception to the rule against granting of injunctions when unconditional bank guarantees are sought to be realized the court said in the above case that the irretrievable injury must be of the kind which was the subject matter of the decision in the Itek Corpn. Case (566 Fed Supp 1210). On the question of irretrievable injury which is the second exception to the rule against granting of injunctions when unconditional bank guarantees are sought to be realized the court said in the above case that the irretrievable injury must be of the kind which was the subject matter of the decision in the Itek Corpn. Case (566 Fed Supp 1210). In that case an exporter in USA entered into an agreement with the Imperial government of Iran and sought an order terminating its liability on stand by letter of credit issued by an American Bank in favour of an Iranian Bank as part of the contract. The relief was sought on account of the situation created after the Iranian revolution when the American Government cancelled the export licences in relation to Iran and the Iranian government had forcibly taken 52 American citizens as hostages. The US Government had blocked all Iranian assets under the jurisdiction of United States and had cancelled the export contract. The court upheld the contention of the exporter that any claim for damages against the purchaser if decreed by the American courts would not be executable in Iran under these circumstances and realization of the bank guarantee/letters of credit would cause irreparable harm to the Plaintiff. This contention was upheld. To avail of this exception, therefore, exceptional circumstances which make it impossible for the guarantor to reimburse himself it he ultimately succeeds, will have to be decisively established. Clearly, a mere apprehension that the other party will not be able to pay, is not enough. In Itek case, there was certainty on this issue. Secondly, there was good reason, in that case for the Court to be prima facie satisfied that the guarantors i.e. the bank and its customer would be found entitled to receive the amount paid under the guarantee. (Emphasis supplied) 14. In Itek case, there was certainty on this issue. Secondly, there was good reason, in that case for the Court to be prima facie satisfied that the guarantors i.e. the bank and its customer would be found entitled to receive the amount paid under the guarantee. (Emphasis supplied) 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 realize 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 realization 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. 15. Keeping these principles in mind and applying the same on the facts of this case, we can only draw this conclusion that no good ground has been made out by the appellant to interfere with the impugned order. As noted herein above, there are two exceptions when courts can grant an order of injunction in favour of an aggrieved party in the matter of encashment of a Bank Guarantee or a Letter of credit. Condition Nos. As noted herein above, there are two exceptions when courts can grant an order of injunction in favour of an aggrieved party in the matter of encashment of a Bank Guarantee or a Letter of credit. Condition Nos. (v) and (vi), as noted herein above, are two such exceptions. For this reason, let us first deal with the case of fraud pleaded by the appellant in their application for injunction. The particulars of fraud have been pleaded in paragraph 45 of the application for injunction filed by the appellant in the High Court. From a close scrutiny of the facts pleaded in the said paragraph of the application for injunction, in our view, it cannot be held that such facts have constituted fraud for which an order of injunction in the matter of encashment of Letter of Credit could be passed by the courts. The facts pleaded in paragraph 45 of the application for injunction would only show that although the respondent had agreed to remove the defects in the goods by saying that it shall take steps to reduce the ash content of the goods to 0.3 % before the payment date of the Letter of Credit as extended, but they deliberately and with ulterior motive had not fulfilled their intention to do so. It is not in dispute that the particulars of the fraud prima facie were restricted to 10,000 metric tones of the goods supplied by the respondent in respect of which documents were not negotiated by the appellant. The entire consignment which was admittedly shipped by M.V.Iran Takhti was 12,503 metric tones out of which 2503 metric tones were negotiated and payments released by the Central Bank of India. Admittedly, as noted herein above, a case of fraud was alleged only in respect of a part of the consignment of the second shipment. It has been rightly held by the High Court that this could not constitute fraud as fraud must be in respect of the whole consignment and not in respect of a part of the same. Admittedly, as noted herein above, a case of fraud was alleged only in respect of a part of the consignment of the second shipment. It has been rightly held by the High Court that this could not constitute fraud as fraud must be in respect of the whole consignment and not in respect of a part of the same. In this view of the matter, we are, therefore, in agreement with the High Court that the pleadings made relating to fraud in paragraph 45 of the application for injunction were not sufficient nor any strong prima facie case of fraud could be made out in the petition which would warrant a continuance of the order of status quo. That apart, as noted herein earlier, in the matter of invocation of a bank guarantee or a letter of credit, it is not open for the bank to rely upon the terms of the underlying contract between the parties.” 15. Reverting to the facts of the case, it is clearly decipherable from the material placed on record by the petitioner that no case of fraud has either been pleaded or established. Petitioner is simply relying upon the stand that in case of invocation of bank guarantees, it will be put to irretrievable loss, which will be beyond compensation. 16. Both the bank guarantees have almost identical terms and in order to appreciate the nature of its terms and respective liabilities of the parties arising therefrom, it will be expedient to reproduce the relevant extract of the bank guarantees involved in the instant case, as under:- Bank Guarantee No. 4615ILG003415 for Rs. 1,25,11,000/- In consideration of the NTPC Ltd. having its registered office at NTPC Bhawan, Scope Complex, Lodi Road New Delhi 110003 (hereinafter called the "Corporation" which expression shall unless repugnant to the subject or context including its administrators, successors and the subject or context Include its administrators, successors and assigns) having agreed under the terms and conditions of the Award letter bearing No KD/C&M/CS/11425102/2675 dated 28.08.2012 Issued by TPC, which has been unequivocally accepted by the Contractor M/s Supreme infrastructure India Ltd. (a company registered under companies act 1956 having its registered office at Supreme House, Plot no. -94/C Pratap Gad, Powal Mumbai- 400076) work of: Implementation of offsite buildings Administrative Building along with VSAT Building, Construction of Trainee Hostel, CISF Barracks, Armory, Canteen, Mess, Recreation Centre etc CISF Complex (CISE A,B,C Type Quarters, Internal Roads/Pathways/Culverts/Internal Water supply System, Sewerage System, Boundary Wall, Gate Complex, Storm Water Drainage System), Permanent Stores, CISF Office & fire Station Building at Koldam H.PP. (hereinafter called the said Contract) to accept a Deed of Guarantee as herein provided for Rs 1,25,11,000/-only (Rs. One Crore twenty five lac eleven thousand only) from a Nationalised Bank In lieu of the security deposit to be made by the Contractor on in lieu of the deduction to be made from the Contractor's bills, for the due fulfament by the said Contractor of the terms and conditions contained in the said Contract. We, the Punjab National Bank (hereinafter referred to as "the said Bank") and having our registered office at 7, Bhikaji Cama Place, New Delhi do hereby undertake and agree to indemnity and keep Indemnified the Corporation from time to time to the extent of Rs. 1,25,11,000/- Rs. One crore twenty five lac eleven thousand only) against any loss or damage, costs charges and expenses caused to or suffered by or that may be caused to or suffered by the corporation by reason of any breach or breaches by the said Contractor of any of the terms and conditions contained In the said Contract and to unconditionally pay the amount claimed by the Corporation on demand and without demur to the extent aforesaid. We Punjab National Bank, further agrees that the Corporation shall be the sole judge of and as to whether the said Contractor has committed any breach or breaches of any of the terms and conditions of the said Contract and the extent of loss, damage, costs, charges and expenses caused to or suffered by or that may be caused to or suffered by the Corporation on account thereof and the decision of the Corporation that the said Contractor has committed such breach or breaches and as to the amount of amounts of loss, damage, costs, charges and expenses caused to or suffered by or that may be caused to or suffered by the Corporation from to time shall be final and binding on us.” Bank Guarantee No.4615ILG000513 for Rs. 68,74,000/- “In consideration of the National Thermal Power Corporation Ltd. having its registered office at NTPC Bhawan, Scope Complex, Lodhi Road, New Delhi-110003 (hereinafter I called the "Corporation" which expression shall unless repugnant to the subject or context including its administrators, successors and the subject or context includes its administrators, successors and assigns) having agreed under the terms and conditions of the Award Letter bearing No KD/C&M/CS/11425102/1368 dated 09.08.2012 issued by NTPC, which has been unequivocally accepted by the Contractor M/s Supreme Infrastructure India Ltd. work of Implementation of Offsite Buildings: Administrative Building along with VSAT Building, Construction of Trainee Hostel, CISF Barracks, Armory, Canteen, Mess, Recreation Centre etc., CISF Complex (CISF A, B, C Type Quarters, Internal Roads/ Pathways/Culverts/Internal Water Supply System, Sewerage System, Boundary Wall, Gate Complex,, Storm Water Drainage System), Permanent Stores, CISF Office & Fire Station Building at Koldam Hydro Power Project". (hereinafter called the said Contract) to accept a Deed of Guarantee as herein provided for Rs. 68,74,000.00 (Rupees Sixty Eight Lacs Seventy Four Thousand Only) from a Nationalized Bank in lieu of the security deposit to be made by the Contractor on in lieu of the deduction to be made from the Contractor's bills, for the due fulfillment by the said Contractor the terms and conditions contained in the said Contractor. We, the Punjab National Bank, Large Corporate Branch, Plot No.83, U&l Building, Sector-29, Citi Centre, Gurgaon having its registered office at 7, Bhikhaiji Cama Place, New Delhi (herein referred to as "the said Bank.) do hereby undertake and agree to indemnify and keep indemnified the Corporation from time to time to the extent of Rs 68,74,000.00 (Rupees Sixty Eight Lacs Seventy Four Thousand Only) against any loss or damage, cost charges and expensed caused to or suffered by or that may be caused to or suffered by the Corporation by reason of any breach or breaches by the said Contractor of any of the terms and conditions contained in the said Contract and to unconditionally pay the amount claimed by the Corporation on demand and without demur to the extent aforesaid. 2. 2. We Punjab National Bank at Large Corporate Branch, 83, U&l, Building, Sector-29, Citi Centre, Gurgaon further agree that the Corporation shall be the sole judge of and as to whether the said Contractor has committed any breach or breaches of any of the terms and conditions of the said Contract and the extent of loss, damage, costs, charges and expenses caused to or suffered by or that may be caused to or suffered by the Corporation on account thereof and the decision of the Corporation that the said Contractor has committed such breach or breaches and as to the amount or amounts of loss, damage, costs, charges, and expenses caused to or suffered by or that may be caused to or suffered by the Corporation from to time shall be final and binding on us.” 17. Thus, by way of first bank guarantee, the amount in lieu of security deposit to be made by contractor or in lieu of the deduction to be made from the contractor’s bill and for the due fulfillment by the said contractor of all the terms and conditions contained in the contract, the guaranteed amount was secured. The bank had undertaken to indemnify the respondent to the extent of Rs. 1,25,11,000/- against any loss or damage, cost, charges and expenses caused to or suffered by the respondent by reasons of any breach or breaches by the contractor of any of the terms and conditions of the contract. The bank further had undertaken to unconditionally pay the amount claimed by the respondent on demand without demur. To similar effects were the commitments of the bank towards the respondent under the second bank guarantee. 18. Undoubtedly, the bank guarantees in question were unconditional. The bank had bound itself to pay to the respondent the amount secured by guarantee on demand for the purpose of indemnification of respondent against loss, damage or cost suffered by it at the hands of petitioner. It was also committed that the respondent would be sole judge to decide whether contractor had committed any breach or breaches of any of the terms and conditions of the contract and had caused loss, damage, cost etc. to the respondent. 19. As noticed above, the petitioner can succeed in obtaining injunction against invocation of bank guarantees by respondent by proving fraud or irretrievable loss. No case of fraud has been made out. to the respondent. 19. As noticed above, the petitioner can succeed in obtaining injunction against invocation of bank guarantees by respondent by proving fraud or irretrievable loss. No case of fraud has been made out. As regards irretrievable loss, I am of the considered view that petitioner has again failed to prove the same. Admittedly, the claims and counter claims of the parties are subject to final adjudication. In case petitioner is able to prove all its claims against the respondent, still it cannot be said that petitioner will not get its due. Respondent is a public sector undertaking and there is not even a whisper or averment that the respondent is in process of liquidating its assets with a view to avoid liabilities. 20. Mere existence of a dispute between the parties is no ground to grant relief under Section 9 of the Act, especially in respect of invocation of bank guarantee. 21. In light of above discussion, I have found no merit in the petition and the same is accordingly dismissed. Pending applications, if any, also stand disposed of.