ORDER : Mr. Pankaj Bhandari, J. - Applicant - M/s. Continental Engineering Corporation has filed this Application under Section 9 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as 'the Act') with a prayer for restraining the non-applicant/respondent - M/s. Jaipur Metro Rail Corporation Limited from invoking the bank guarantee. During the pendency of the application under Section 9 of the Act, the applicant filed an SLP before the Apex Court bearing Special Leave Petition (Civil) Diary No.47858/2023, which was decided by the Apex Court on 20.11.2023 and following order was passed: "9. We accordingly pass the following order: (i) The Single Judge of the High Court is requested to take up the application under Section 9, namely, SB Arbitration Application No. 130 of 2023 on 22 November 2023; (ii) Both the parties have agreed to the above course of action and state that they will cooperate in the hearing of the application for the grant of injunctive relief; (iii) Till the High Court takes up the application for ad interim relief on 22 November, 2023, and bearing in mind that there was a protection in operation of guarantees till 17 November 2023, we extend the protection as indicated in (iv) below; (iv) Since the first respondent has in the meantime invoked the bank guarantees, the proceedings of the bank guarantees shall not be encashed till 22 November, 2023, subject to such further directions as may be issued by the High Court after hearing the parties. 10. All rights and contentions of the parties are kept open. This Court has not entered any finding on the merits of the rival contentions." 2. Preliminary objection as to the maintainability of the application under Section 9 of the Act is raised by Mr. R.P. Singh, Senior Advocate, assisted by Mr. Sandeep Pathak, Advocate, appearing for respondent/non-applicant on the ground that the applicant has already approached the International Chamber of Commerce ("ICC") under Article 29 of ICC Arbitration Rules seeking mandatory relief for release of Bank Guarantee without having asked for interim relief for restraining invocation of Bank Guarantee, which could have been asked under Article 29 of the ICC Arbitration Rules, 2021, applicable in the matter of International Commercial Arbitration, to which, Mr. Gopal Jain, Senior Advocate, assisted by Mr. Gopal Jain, Senior Advocate, assisted by Mr. Samudra Sarangi has serious objection and contends that before the Apex Court, both the parties agreed to the hearing of the application under Section 9 of the Act and also agreed before the Apex Court that they will cooperate in the hearing of the application for grant of injunctive relief and as such, preliminary objection to this effect cannot be raised by the non-applicant. 3. In counter, Mr. R.P. Singh, Senior Advocate, contends that in Para 10 of the order passed by the Apex Court, it was clearly mentioned that all rights and contentions of the parties are kept open and that the Apex Court has not entered any finding on the merits of the rival contentions. Thus, the non-applicant is entitled to raise any objection. Court will be dealing with the above objection in the later part of this order. 4. Succinctly stated the facts of the case are that in 2013, applicant was awarded the works for carrying out design and construction of Tunnel (Contract) between Chandpole and Badi Chauper and reversal line by Shield TBM and construction of Underground Metro Stations at Choti Chauper and Badi Chauper to the non-applicant by Cut & Cover Method on East-West Corridor of non-applicant's project. The bid was accepted in favour of the applicant and a letter of acceptance was issued on 09.09.2013 for a value of INR 507,36,81,960/- only with a stipulated time for completion of 36 months from the date of commencement. The applicant submitted Performance Security and Retention Bank Guarantee, the details of which, are as under:- 1 Performance Bank Guarantee 9021GBG132760004 INR 47,37,02,290/- 2 Performance Bank Guarantee 9021GBG132760002 USD 403,200 3 Performance Bank Guarantee 9021GBG132760001 EUR 120,000 4 Retention Bank Guarantee 820-02-0067186 INR 11,84,30,709/- 5 Retention Bank Guarantee 802-02-0067220 USD 100,839 6 Retention Bank Guarantee 820.-02-0067202 EUR 29,904 5. The non-applicant extended the Defect Notification Period and the applicant filed an application under Section 17 of the Act in April, 2021 before the Arbitral Tribunal praying for inter-alia restraining the non-applicant from encashing the bank guarantee as well as seeking release of the same. The Arbitral Tribunal vide order dated 20.10.2023 restrained the non-applicant from encashing the bank guarantee. The non-applicant moved an application for recalling of the interim order. The applicant also moved an application seeking release and return of the bank guarantee. The Arbitral Tribunal vide order dated 20.10.2023 restrained the non-applicant from encashing the bank guarantee. The non-applicant moved an application for recalling of the interim order. The applicant also moved an application seeking release and return of the bank guarantee. The Arbitral Tribunal after hearing detailed arguments held that the issue of bank guarantee was beyond the scope of reference to arbitration and consequently, vacated the interim order granted in favour of the applicant vide order dated 31.10.2023. SLP was preferred by the applicant challenging the order dated 31.10.2023 passed by the Arbitral Tribunal. The Hon'ble Supreme Court observed that filing of SLP was gross abuse of process of law, at which applicant unconditionally withdrew the SLP on 09.11.2023. The applicant herein has approached the Arbitrator with a claim on account of extension of Defect Notification Period whereas, the non-applicant has claimed Rs. 218 crores arising out of incomplete work and un-rectified defects notified by the Engineer. 6. As per Mr. Gopal Jain, Senior Advocate, appearing for the applicant, project was completed on 15.03.2020. The non-applicant praised the works vide its letter dated 18.04.2020 and Taking Over Certificate was also issued on 21.07.2020. The Defect Notification Period was also over and the non-applicant was not entitled to invoke the bank guarantees. 7. It is contended by Mr. Gopal Jain, Senior Advocate, that the project was completed on 15.03.2020 and the defect notification period expired on 31.03.2021 and the extended defect notification period, which was illegally extended, also expired on 14.03.2023 and in view of the fact that the contract was terminated, there was no justifiable cause to invoke the bank guarantee. It is argued that the right of the applicant for release of the bank guarantee has been crystallized and therefore, the relief sought for in the application ought to be granted. It is also argued that there is no valid reason for invoking or encashing the bank guarantee as the purpose for which it was given stands fulfilled as Taking Over Certificate certifying completion of the works under the contract has already been issued and the extended defect notification period has also expired. 8. It is contended by Mr. Gopal Jain, Senior Advocate, that the Courts have on the basis of the Principle of Special Equities granted injunction on invoking of bank guarantees. 8. It is contended by Mr. Gopal Jain, Senior Advocate, that the Courts have on the basis of the Principle of Special Equities granted injunction on invoking of bank guarantees. In this regard, reliance is placed on Hindustan Construction Company Limited v. State of Bihar & Ors.: (1999) 8 SCC 436 ; Continental Construction Ltd. and Anr. v. Satluj Jal Vidyut Nigam Ltd.: 2006 SCC Online Del 56; BSES Ltd. v. Fenner India Ltd. & Anr.: (2006) 2 SCC 728 ; Standard Chartered Bank v. Heavy Engineering Cooperation Ltd. & Anr. (2020) 13 SCC 574 ; Ansal Engineering Projects Ltd. v. Tehri Hydro Development Corporation Ltd. & Anr. (1996) 5 SCC 450 ; KSE Electricals (P) Ltd. v. Project Director, Bangladesh Rural Electrification Board & Anr. 2021 SCC Online Cal 2986; Ocean Sparkle Ltd. v. ONGC & Anr. 2022 SCC Online Bom 1138; Rahee GPT (JV) & Ors. v. Union of India & Ors. 2017 SCC Online Cal 17244; Crest Communications Ltd. v. State Bank of India & Anr. 1999 SCC Online Bom 794; Furnance Fabrica (India) Ltd. v. Makina Ve Kimya Endustrisi Kurumu & Ors.: 2019 SCC Online Bom 12487 and Hindustan Construction Company Limited v. National Hydro Electric Power Corporation Ltd.: 2023/DHC/001006 - O.M.P.(I) (COMM.) 39/2020 & I.A. 13305/2021 & I.A. 12009/2022 decided on 13.02.2023 by the Delhi High Court. 9. It is next contended by Mr. Gopal Jain, Senior Advocate, that performance bank guarantee cannot be retained after due performance of the contract. In this regard, reliance is placed on Union of India v. RCCIVL-LITL (JV): 2022 SCC Online Del 4340; GAIL India Limited v. Triveni Engineering & Industries Limited; Bharat Sanchar Nigam Limited v. Teracom Limited: O.M.P. (COMM) 431/2019 and I.A. 14326/2019 and Chennai Metro Rail Limited v. Transtonnelstroy-Afcons (JV) & Ors.: 2021 SCC Online Mad 5637. 10. It is also contended that merely because arbitration proceedings have been initiated, it does not debar the Court from entertaining and adjudicating an application under Section 9 of the Act. Reliance in this regard is placed on Arcelor Mittal Nippon Steel (India) Ltd. v. Essar Bulk Terminal .: 2021 SCC Online SC 718 and Srei Equipment Finance Limited v. Karur Vysya Bank: 2023 SCC Online Cal 2295. 11. Mr. R.R Singh, Senior Advocate, has vehemently opposed the application under Section 9 of the Act. Reliance in this regard is placed on Arcelor Mittal Nippon Steel (India) Ltd. v. Essar Bulk Terminal .: 2021 SCC Online SC 718 and Srei Equipment Finance Limited v. Karur Vysya Bank: 2023 SCC Online Cal 2295. 11. Mr. R.R Singh, Senior Advocate, has vehemently opposed the application under Section 9 of the Act. It is contended that the applicant filed this application under Section 9 of the Act seeking injunction on invocation of bank guarantees on 03.11.2023. On 04.11.2023, the applicant filed an application before the Emergency Arbitrator under Article 29 of the ICC Arbitration Rules claiming refund of the bank guarantees. It is argued that the applicant has resorted to forum shopping and therefore, the application under Section 9 of the Act deserves to be dismissed on this ground alone. It is also argued that the applicant could have sought for the relief of injunction with regard to invocation of the bank guarantee before the Emergency Arbitrator under Article 29 of the ICC Arbitration Rules, but the applicant chose to seek the relief of release of the bank guarantee only. It is contended that since prayer for release of bank guarantee has been dismissed by the Emergency Arbitrator on 21.11.2023, it implies that the applicant has no case for grant of injunction with regard to invoking of bank guarantee. 12. It is next contended by Mr. R.P. Singh, Senior Advocate, that bank guarantees is a separate contract and injunction cannot be granted to restrain the party from invoking the bank guarantee. In this regard, reliance is placed on Chemicals Industries Ltd. v. Coal Tar Refining Co.: (2007) 8 SCC 110 ; Gujarat Maritime Board v. Larsen and Toubro Infrastructure Development Projects Limited and Another-. (2016) 10 SCC 46 ; Standard Chartered Bank v. Heavy Engineering Corporation Limited and Another: (2020) 13 SCC 574 and P.R. Deshpande v. Maruti Balarm Haibatti-. (1998) 6 SCC 507 . 13. It is argued by Mr. R.P. Singh, Senior Advocate, that invocation of bank guarantee can only be stayed in cases of fraud or special equities. However, in the present case in hand, there is no allegation of fraud and there is no special equity. (1998) 6 SCC 507 . 13. It is argued by Mr. R.P. Singh, Senior Advocate, that invocation of bank guarantee can only be stayed in cases of fraud or special equities. However, in the present case in hand, there is no allegation of fraud and there is no special equity. It is argued that the applicant had committed major defects during construction of the Tunnel, as a result of which, life of the Tunnel is reduced from 100 years to 70 years and in fact, the non-applicant is entitled to recover a huge amount from the applicant due to the defects pointed out in the project. It is also argued that defect notification period was extended and from the letter written by the applicant on 08.04.2021, it is evident that the defects were rectified. Following portion of the letter has been relied upon:- "The Contractor is currently clearing the wreckage accumulated during remedying the defect from the cover-level area of Badi Chouper Station and this is expected to be completed on 08.04.2021. The Contractor respectfully requests the Engineer to verify and sign off the defects closure at the earliest." 14. It is contended that in the claim raised before the Emergency Arbitrator, the applicant has produced documents, which point to giving of illegal gratification to the public servants, which is contrary to the terms and conditions of the contract. A notice for termination of contract was issued, but no reply was filed to the said notice and therefore, the contract was terminated on 10.03.2023. 15. It is also contended that in the arbitration proceedings, which have been initiated, the applicant has not claimed any relief with regard to the bank guarantee and since there is no relief sought for with regard to the bank guarantee, any interim measure cannot be passed in favour of the applicant under Section 9 of the Act. 16. It is also argued that Taking Over Certificate does not point towards completion of the project and as per Clause 11.9 of the Conditions of the Contract, Performance Certificate is required to be issued by the Engineer and only the Performance Certificate shall be deemed to constitute acceptance of the works. It is contended that the works have not been completed as stated by learned counsel for the applicant and thus, the bank guarantee can be invoked by the non-applicant. It is contended that the works have not been completed as stated by learned counsel for the applicant and thus, the bank guarantee can be invoked by the non-applicant. Attention of this Court is drawn towards Sub-Clause 4.2 - Performance Security of the Conditions of Contract for Plant and Design-Build, as per which, Performance Security shall be in the form of an irrevocable unconditional bank guarantee from a branch in India of a scheduled foreign bank or from a scheduled commercial bank in India acceptable to the Employer for an amount of ten per cent of the Accepted Contract Amount in types and proportions of the currencies mentioned in 'Schedule of Currencies' for Bill No. 1 of BOQ. It is argued that since it is an irrevocable unconditional bank guarantee, the bank is under a legal obligation to pay the amount and no relief can be granted under Section 9 of the Act, restraining the non-applicant from invoking the Bank Guarantee. 17. I have considered the rival submissions and have scanned the record carefully. 18. The present Arbitration Application has been filed under Section 9 of the Act. For the purpose of ready reference Section 9 of the Act is reproduced hereunder:- "9. 17. I have considered the rival submissions and have scanned the record carefully. 18. The present Arbitration Application has been filed under Section 9 of the Act. For the purpose of ready reference Section 9 of the Act is reproduced hereunder:- "9. Interim measures, etc., by Court.- (1) A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court- (i) for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or (ii) for an interim measure of protection in respect of any of the following matters, namely:- (a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement; (b) securing the amount in dispute in the arbitration; (c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; (d) interim injunction or the appointment of a receiver; (e) such other interim measure of protection as may appear to the Court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it. (2) Where, before the commencement of the arbitral proceedings, a Court passes an order for any interim measure of protection under sub-section (1), the arbitral proceedings shall be commenced within a period of ninety days from the date of such order or within such further time as the Court may determine. (3) Once the arbitral tribunal has been constituted, the Court shall not entertain an application under subsection (1), unless the Court finds that circumstances exist which may not render the remedy provided under section 17 efficacious." 19. The applicant also approached under Article 29 of the ICC Arbitration Rules before the emergency arbitrator. (3) Once the arbitral tribunal has been constituted, the Court shall not entertain an application under subsection (1), unless the Court finds that circumstances exist which may not render the remedy provided under section 17 efficacious." 19. The applicant also approached under Article 29 of the ICC Arbitration Rules before the emergency arbitrator. Article 29 of the ICC Arbitration Rules, which is dealing with the provisions of Emergency Arbitration reads as under:- "Article 29 - Emergency Arbitrator :- 1. A party that needs urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal ("Emergency Measures") may make an application for such measures pursuant to the Emergency Arbitrator Rules in Appendix V. any such application shall be accepted only if it is received by the Secretariat prior to the transmission of the file to the arbitral tribunal pursuant to Article 16 and irrespective of whether the party making the application has already submitted its Request for Arbitration. 2. The emergency arbitrator's decision shall take the form of an order. The parties undertake to comply with any order made by the emergency arbitrator. 3. The emergency arbitrator's order shall not bind the arbitral tribunal with respect to any question. Issue or dispute determined in the order. The arbitral tribunal may modify, terminate or annul the order or any modification thereto made by the emergency arbitrator. 4. The arbitral tribunal shall decide upon any party's requests or claims related to the emergency arbitrator proceedings, including the reallocation of the costs of such proceedings and any claims arising out of or in connection with the compliance or non & compliance with the order. 5. Articles 29(l)-29(4) and the Emergency Arbitrator Rules set forth in Appendix V (collectively the "emergency Arbitrator Provisions") shall apply only to parties that are either signatories of the arbitration agreement under the Rules that is relied upon for the application or successors to such signatories. 6. The Emergency Arbitrator Provisions shall not apply if; a) the arbitration agreement under the Rules was concluded before 1 January 2012; b) the parties have agreed to opt out of the Emergency Arbitrator Provisions; or c) the arbitration agreement upon which the application is based arises from a treaty. 7. 6. The Emergency Arbitrator Provisions shall not apply if; a) the arbitration agreement under the Rules was concluded before 1 January 2012; b) the parties have agreed to opt out of the Emergency Arbitrator Provisions; or c) the arbitration agreement upon which the application is based arises from a treaty. 7. The emergency Arbitrator Provisions are not intended to prevent any party from seeking urgent interim or conservatory measures from a competent judicial authority at any time prior to making an application for such measures, and in appropriate circumstances even thereafter, pursuant to the rules. Any application for such measures from a competent judicial authority shall not be deemed to be an infringement or a waiver of the arbitration agreement. Any such application and any measures taken by the judicial authority must be notified without delay to the Secretariat." 20. The applicant herein resorted to two forums, one before this High Court under Section 9 of the Act and another before the Emergency Arbitrator under Article 29 of the ICC Arbitration Rules. Objection to the maintainability of the application before the Emergency Arbitrator was also raised. The Emergency Arbitrator vide order dated 21.11.2023 held that the Emergency Arbitrator has the jurisdiction to hear the application. However, the application by applicant - M/s Continental Engineering Corporation for an order directing the release and return of the performance bank guarantee and the retention of bank guarantee was dismissed. The Emergency Arbitrator also held that the petition filed before the Rajasthan High Court on 03.11.2023 does not rob the Emergency Arbitrator of jurisdiction to hear and determine the application. The Emergency Arbitrator disagreed with the respondent's submission that the claimant has sought same effective relief in the application filed before the Rajasthan High Court, as the relief sought from the Emergency Arbitrator was for release and return of the bank guarantees, whereas the relief sought before the Rajasthan High Court is an injunction to restrain the respondent from invoking and encashing the bank guarantees. 21. As far as the objection pertaining to maintainability of an application under Section 9 of the Act is concerned, suffice to say that Section 9 of the Act has within its ambit all international disputes and the provisions of Section 9 of the Act can be invoked prior to, during or even after an award is passed. 21. As far as the objection pertaining to maintainability of an application under Section 9 of the Act is concerned, suffice to say that Section 9 of the Act has within its ambit all international disputes and the provisions of Section 9 of the Act can be invoked prior to, during or even after an award is passed. Clause 7 of Article 29 of the ICC Arbitration Rules, which deals with emergency arbitrator also makes it clear that the emergency arbitrator provisions are not intended to prevent any party from seeking urgent, interim or conservatory measures from a competent judicial authority at any time prior to making an application for such measures and in appropriate circumstances, even thereafter pursuant to the Rules. Thus, there is no bar under the provisions of the ICC Arbitration Rules, which bar the jurisdiction of the judicial authority, if an application is moved seeking urgent, interim order conservatory measures. In view of the above as well as in view of the orders passed by the Apex Court wherein both the parties agreed that they will cooperate in the hearing of the application for grant of injunctive relief, this Court does not find any justification in the objection being raised by Mr. R.R Singh, Senior Advocate, with regard to maintainability of an application under Section 9 of the Act. 22. In the judgments, that have been cited by learned counsel for both the parties, it has been held by the Apex Court that a confirm bank guarantee/irrevocable letter of credit cannot be interfered with unless there is established fraud or special equity so as to prevent irretrievable injustice involved in the case. It was also held by the Apex Court that an irretrievable injury has to be of the nature noticed in the case of Corporation v. The First National Bank of Boston: 566 F. Supp. 1210 (1983). In Itek Corporation case, an exporter in USA 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 Iranian Bank as part of the contract. The relief was sought on account of situation created after the Iranian Revolution when the American Government cancelled the export licenses in relation to Iran and the Iranian Government had forcibly taken 52 American citizens as hostage. The relief was sought on account of situation created after the Iranian Revolution when the American Government cancelled the export licenses in relation to Iran and the Iranian Government had forcibly taken 52 American citizens as hostage. 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, any realization of the bank guarantee/letter of credit would cause irreparable harm to the plaintiff. To avail of this exception, therefore, exceptional circumstances, which make it impossible for the guarantor to reimburse himself, if he ultimately succeeds, will have to be decisively established. A mere apprehension that the other party will not be able to pay is not enough. 23. As held by the Apex Court and various other High Courts in a catena of judgments, it is a settled proposition of law that bank guarantee is a separate contract and invocation of bank guarantee can be kept in abeyance only if there is an allegation of fraud or special circumstance exists. In the present case in hand, there is no allegation with regard to fraud. I am only required to see whether any special circumstance exists for keeping invocation of bank guarantee in abeyance. Special circumstances, as pointed out by Mr. Gopal Jain, Senior Advocate, is that the contract was completed, the project was handed over, it was put to commercial use and since the contract was over and was performed, the bank guarantee could not be invoked. However, as per Mr. R.P. Singh, Senior Advocate, only Taking Over Certificate was issued and Performance Certificate was not issued as many defects were notified and even after the defects were rectified, the life of the tunnel was reduced by at least 30 years due to defects in the installation and completion of the project. The contention of Mr. Gopal Jain, Senior Advocate that Taking Over Certificate implies performance of the Contract is clearly contrary to the Contract. As per the Contract, the Contract stands concluded on issuance of Performance Certificate by the Engineer under Clause 11.9 of the Conditions of the Contract and only the Performance Certificate shall be deemed to constitute acceptance of the works. 24. Gopal Jain, Senior Advocate that Taking Over Certificate implies performance of the Contract is clearly contrary to the Contract. As per the Contract, the Contract stands concluded on issuance of Performance Certificate by the Engineer under Clause 11.9 of the Conditions of the Contract and only the Performance Certificate shall be deemed to constitute acceptance of the works. 24. This Court is of the considered view that the bank guarantee is a separate contract between the bank and the non-applicant, the encashment of the bank guarantee can only be stayed, if the bank guarantee has been obtained by fraud or there are special equities to do so or exceptional circumstances exist to do so. 25. It is pertinent to note that in the arbitration proceedings between the parties, there is no claim with regard to the encashment of the bank guarantees. Further, in the application filed under Article 29 of the ICC Arbitration Rules before the Emergency Arbitrator also, there was no prayer with regard to the injunction on the invoking of the bank guarantees and the prayer was only with regard to the release of the amount under the bank guarantee to the applicant. The prayer in this regard has been rejected by the Emergency Arbitrator and the application under Article 29 of the ICC Arbitration Rules stands dismissed. The Arbitral Tribunal has also held that the bank guarantee was beyond the scope of the reference vide order dated 31.10.2023. 26. Since the bank guarantee is an independent contract and the non-applicant has terminated the contract on account of breach of the conditions of the agreement and also since there were defects notified to the applicant, which were also rectified by the applicant as is apparent from the letter dated 08.04.2021 written by the applicant to the non-applicant. Thus, as far as invocation of the bank guarantees is concerned, the Performance Security is an irrevocable unconditional bank guarantee, which is operational and the non-applicant is entitled to invoke the bank guarantee and get it encashed. 27. In U.P. State Sugar Corporation v. Sumac International Ltd.: (1997) 1 SCC 568 , the Apex Court held that if a bank guarantee is sought to be encashed by a beneficiary, the bank giving such a guarantee is bound to honour it. 27. In U.P. State Sugar Corporation v. Sumac International Ltd.: (1997) 1 SCC 568 , the Apex Court held that if a bank guarantee is sought to be encashed by a beneficiary, the bank giving such a guarantee is bound to honour it. It was also held that the Courts should be slow in granting an order of injunction to restrain the realization of such a bank guarantee. It was further held 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, the Apex Court marked out 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; and (ii) injustice of the kind which would make it impossible for the guarantor to reimburse himself. In Svenska Handelsbanken v. Indian Charge Chrome'. (1994) 1 SCC 502 , it was 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 Himadri Chemicals Industries Ltd. v. Coal Tar Refining Co. (supra), the Apex Court laid down certain principles for grant or refusal to grant of injunction to restrain enforcement of a bank guarantee. It was held as under:- "(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. (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 the enforcement of Bank Guarantees or letters of credit." Keeping these principles in mind and applying the same on the facts of this case, I am of the clear view that no good ground has been made out by the applicant to restrain the non-applicant from invoking and encashing the bank guarantee. 28. It is not the case of the applicant that in case bank guarantee is encashed, they will not be able to recover the claim that may be awarded by the Arbitrator, rather it is the case of the non-applicant that even after encashment of the bank guarantee, they have further claims against the applicant. The applicant himself has mentioned in the application that the non-applicant is raising a claim of Rs. 200 crores before the Arbitral Tribunal. Be that as it may, I am of the considered view that no special equities or exceptional circumstance exists in favour of the applicant so as to restrain the non-applicant from invoking and encashing the bank guarantees. 29. The Bank Guarantee being a separate contract, the applicant is not having a prima facie case. As far as balance of convenience is concerned, the applicant's prayer for release of Bank Guarantee has been rejected by the Emergency Arbitrator and the Arbitral Tribunal has also dismissed the application of the applicant. Thus, the balance of convenience lies in favour of the non-applicant because as per the Bank Guarantee, they are entitled to invoke the same and the bank is bound by the terms of the Bank Guarantee and has to release the amount in favour of the non-applicant. 30. As far as question of irreparable loss is concerned, the applicant has not even pleaded that he will suffer irreparable loss, if the bank guarantee is encashed. 30. As far as question of irreparable loss is concerned, the applicant has not even pleaded that he will suffer irreparable loss, if the bank guarantee is encashed. The question of irreparable loss also does not arise in favour of the applicant for the very reason that the non-applicant's claim is to the tune of Rs. 200 crores as mentioned in the application filed by the applicant whereas, the applicant is only claiming money on account of extension of the Defect Notification Period. There is no pleading that in case the applicant succeeds in the arbitration, he will not be able to recover the amount from the non-applicant. That being so, the question of irreparable loss also does not weigh in favour of the applicant, rather irreparable loss would be caused to the non-applicant, who would not be able to encash the bank guarantee. Consequently, since none of the factors are established in favour of the applicant, the applicant is not entitled to any relief under Section 9 of the Act. Consequently, the application filed by the applicant deserves to be and is accordingly, dismissed. Costs made easy.