Order : MUNNURI LAXMAN, J. 1) Heard on the stay application as well as the application for vacating the stay order. 2) The petitioner has filed the present writ petition challenging the Demand Notices dated 08.09.2023, 14.09.2023, and 26.09.2023 issued by the second respondent, demanding the deficit in the average monthly agreed remittance quoted by the bidder for the months of July, August, and September 2023, pursuant to the agreement entered into between the petitioner and the second respondent for the collection of toll tax and routine maintenance of the Bikaner-Phalodi Section of NH-11 from km 4+200 to km 163+370, which includes three toll plazas located at Salasar, Nokhra, and Kheerwa. The agreement resulted from the successful bid submitted by the petitioner, who quoted an annual bid amount of Rs. 43,86,40,000/- for the first year, with the bid amount to be increased by 5% in the second and third years. The contract duration was set for three years, commencing from 16.05.2021. The petitioner also submitted a Performance Bank Guarantee of Rs. 4 crores in favor of the second respondent on 23.04.2021, which was valid upto 30.06.2024, i.e., for the contract period of three years. The contract conditions stipulate payment of the monthly average remittance as agreed in the bid, and for any deficit resulting from lower collection, the petitioner (Contractor) is required to pay the deficit amount on or before the 15th day of the succeeding month 3) The highway under dispute was laid by the second respondent in pursuance of contract in between the first respondent and the second respondent entered in the year 2014. In the said contract, there is a condition in Clause No.6.3 of Article 6 of Concessional Agreement, which reads as follows:- “The Authority shall procure that during the subsistence of this Agreement, neither the Authority nor any Government Instrumentality shall, at any time before the 10 th (tenth) anniversary of the Appointed Date, construct or cause to be constructed any Competing Road: provided that the restriction herein shall not apply if the average traffic on the Project Highway in any year exceeds 90% (ninety percent) of its designed capacity specified in Clause 29.2.3. Upon breach of its obligations hereunder, the Authority shall be liable to payment of compensation to the Concessionaire under and in accordance with Clause 35.4, and such compensation shall be the sole remedy of the Concessionaire.” 4) The words ‘competing road’, which is found in the Clause 6.3 of Article 6 has been defined under Article 48 of the Concessional Agreement, which reads as under:- “ ‘Competing Road’ means a road connecting the two end points of the Project Highway and serving as an alternative route thereof, such road being an existing paved road, which has been widened by more than 2 (two) metres of paved road for at least 75% (seventy five percent) of the total length thereof at any time after the date of this Agreement, or a new road, which is constructed after such date, as the case may be but does not include any road connecting the aforesaid two points if the length of such road exceeds the length of the Project Highway by 20% (twenty per cent) thereof.” 5) In March 2019, NITs were floated for the laying of the Bharatmala Pariyojana by the National Highways Authority of India (NHAI), a project connecting the Amritsar-Jamnagar Express Highway, which substantially passes through the border districts of Rajasthan, namely Bikaner and Jaisalmer. As a result of the operation of the Bharatmala Express Highway, which runs parallel to the Bikaner-Phalodi Highway in Rajasthan, the toll collection has been decreased. 6) The second respondent, invoking Clause 6.3 of Article 6 and Article 48 of the Concessional Agreement, submitted a representation to the first respondent requesting compensation for the loss incurred due to the laying of the competing road, i.e., the Bharatmala Express Highway, which runs parallel to the Bikaner-Phalodi road. The petitioner on the strength of the above claim made by the second respondent to the first respondent, addressed a letter to the second respondent, requesting that the second respondent refrain from insisting on payment of the deficit remittance, which occurred due to the reduced traffic movement caused by the laying of the Bharatmala Express Highway. 7) In the said backdrop, the second respondent initially issued a notice dated 08.09.2023, demanding an amount of Rs. 1,44,64,721, which correlated with the average total amount agreed under the bid for the month of July 2023. 7) In the said backdrop, the second respondent initially issued a notice dated 08.09.2023, demanding an amount of Rs. 1,44,64,721, which correlated with the average total amount agreed under the bid for the month of July 2023. The petitioner had been submitting explanations seeking a rebate due to the laying of the competing road, as claimed by the second respondent with the first respondent. The second respondent further issued a demand notice dated 14.09.2023, demanding Rs.2,21,83,080, the due amount for the months of July and August. Finally, a further demand notice was issued on 29.09.2023, demanding Rs. 4,28,59,984, which includes the deficit amount for three months. In these circumstances, the present writ petition has been filed challenging these demand notices. 8) Initially, this Court granted an interim stay, suspending the effect and operation of the impugned notices, subject to the petitioner depositing a sum of Rs. 2,15,00,000/- with respondent No. 2 within a period of 30 days. It was made clear that if the said amount was not deposited within the stipulated period, the interim order granted by this Court would automatically stand vacated, and the stay application would stand dismissed without further reference to the Court. Admittedly, the amount has been deposited within the stipulated time. 9) The case set up by the respondents is that when the contract was entered into between the first and second respondents, there was no proposal to lay the Bharatmala Express Highway, which was only conceived later. Subsequently, tenders for the laying of the Bharatmala Express Highway were floated in March 2019. The second respondent raised a dispute seeking compensation for the loss incurred due to the laying of the Bharatmala Express Highway, which was not initially contemplated when the agreement was entered into between the first and second respondents for the laying of the Bikaner- Phalodi National Highway-11. Such dispute was raised in terms of Clause 6.3 of Article 6 and Article 48 of the Concessional Agreement. 10) The second respondent claimed that the NIT for toll collection and maintenance was issued on 23.01.2020, and the last date for submission of tenders was 03.12.2020. By the time of tender submission, the petitioner was aware of the tenders floated for the Bharatmala Express Highway, and with the conscious knowledge, the petitioner participated in the NIT. The letter of acceptance was issued on 16.04.2021, and the contract period commenced from 16.05.2021. By the time of tender submission, the petitioner was aware of the tenders floated for the Bharatmala Express Highway, and with the conscious knowledge, the petitioner participated in the NIT. The letter of acceptance was issued on 16.04.2021, and the contract period commenced from 16.05.2021. The second respondent’s contract with the first respondent was from 2014, and there was no contemplation of the proposed Bharatmala Express Highway when the contract was entered into between the first and second respondents. Due to the operational competing parallel road to the Bikaner-Phalodi road, a dispute was raised by the second respondent with the first respondent for compensation for the loss incurred because of the laying of the Bharatmala Express Highway, which runs parallel to the Bikaner-Phalodi road passing through Rajasthan. 11) According to the respondents, the terms of the petitioner’s contract do not contain any conditions similar to the clauses in the Concessional Agreement between the first and second respondents. Furthermore, as per the NIT floated by the second respondent, bidders were advised to visit the user fee collection and routine maintenance section toll plazas and assess the user fee revenue based on their own assessment, at their own responsibility and expense, and to obtain other relevant information from their own sources in order to prepare their bid and enter into a contract for user fee collection. The second respondent does not guarantee the extent of user fee revenue during the contract period. Before participating in the bid, the petitioner assessed the revenue based on their own analysis in accordance with various clauses contained in the NIT and consciously quoted an annual fee that was lower than the amount specified in the NIT. The petitioner cannot seek any benefit from the claim made by the second respondent with the first respondent for compensation arising from various clauses under the Concessional Agreement due to the laying of a parallel road to the highway constructed by the second respondent, which was not contemplated when the contract was entered into between the first and second respondents, as there are no similar clauses in the petitioner’s contract. The entire contract was entered into with the petitioner’s conscious knowledge of the user fee collection and routine maintenance expenses, which had been assessed prior to participating in the process. The entire contract was entered into with the petitioner’s conscious knowledge of the user fee collection and routine maintenance expenses, which had been assessed prior to participating in the process. It is also pleaded by the second respondent that the petitioner is raising a dispute before this Court, despite the fact that the agreement specifies forums for dispute resolution. Instead of approaching these designated forums, the petitioner cannot directly approach this Court and prevent it from enforcing the rights under the contract. Therefore, according to the second respondent, this Court should not have granted any stay in contradiction with the terms of the agreement. Accordingly, the second respondent prays for the vacation of the stay application. 12) Heard the learned counsel for the petitioner as well as the learned counsel appearing for the first and the second respondents. 13) The main contention of the learned Senior Counsel appearing for the petitioner is that the second respondent made a claim before the first respondent seeking compensation for the loss incurred due to the laying of the parallel road of the Bharatmala Express Highway, in terms of the Concessional Agreement. According to the learned Senior Counsel, this claim by the second respondent is an admission on his part that the traffic flow has been decreased due to the laying of the parallel road of the Bharatmala Express Highway, and consequently, the toll collection has also decreased. As a result, there is a deficit in the monthly agreed average payment. The second respondent cannot unjustly enrich himself by availing the concession from the first respondent without passing on such a benefit to the petitioner, even though there is no specific clause under the agreement between the petitioner and the second respondent. 14) The learned Senior Counsel also submitted that the petitioner could not be able to pay the monthly average bid amount agreed upon due to the decrease in traffic flow, which resulted in reduced revenue receipts. The petitioner should not be made to suffer on account of the laying of a parallel road to the existing Bikaner-Phalodi road. Despite the second respondent's own claim before the first respondent, admitting a loss of revenue due to the laying of the parallel Bharatmala Express Highway, allowing the second respondent to raise a demand and invoke the consequential bank guarantee for default in payments would amount to unjust enrichment and results injustice to the petitioner. Despite the second respondent's own claim before the first respondent, admitting a loss of revenue due to the laying of the parallel Bharatmala Express Highway, allowing the second respondent to raise a demand and invoke the consequential bank guarantee for default in payments would amount to unjust enrichment and results injustice to the petitioner. Therefore, the learned Senior Counsel prayed for the dismissal of the stay vacation application and sought the interim order be made absolute pending the writ petition. 15) Per contra, the learned counsel appearing for the second respondent has submitted that the ex parte stay order was obtained from this Court without valid grounds to challenge the demand notices. According to him, under the guise of the stay orders, the petitioner has stopped depositing the further deficit remittance for the monthly average remittance for the remaining period, which has accumulated to more than 20 crores. 16) The learned counsel for the second respondent has also submitted that the petitioner cannot take advantage of the dispute raised by the second respondent with the first respondent in terms of the Concessional Agreement, as such a dispute is yet to be decided. Further, the petitioner cannot reach a foregone conclusion before the adjudication of the dispute raised by the second respondent with the first respondent, is decided. 17) It is also his submission that even if the adjudication takes place in favor of the second respondent, the petitioner is still not entitled to seek the passing of such a benefit to it, as the petitioner was aware of the laying of the parallel road of the Bharatmala Express Highway when bid was submitted. Moreover, the bid amount was quoted based on the petitioner’s own assessment of revenue collections at the toll booths, considering the traffic movement on the Bikaner-Phalodi National Highway, unlike the second respondent, who was unaware of the laying of the parallel road of the Bharatmala Express Highway. According to him, the petitioner is required to comply with all the conditions of the contract and cannot take shelter under the dispute raised by the second respondent with the first respondent. 18) It is also the submission of the learned counsel for the second respondent that under the contract of guarantee, the second respondent is entitled to invoke the bank guarantee. 18) It is also the submission of the learned counsel for the second respondent that under the contract of guarantee, the second respondent is entitled to invoke the bank guarantee. However, due to the stay granted in respect of the demand notices, the second respondent is unable to invoke the bank guarantee for the violation of contractual terms by the petitioner. According to him, the petitioner could not make out any case for the grant of relief and by stay order, the second respondent’s right to encash the bank guarantee, has been deprived by implicit consequential relief. 19) The last contention of the learned counsel for the second respondent is that if the stay order is continued, the second respondent will be indirectly deprived of invoking the bank guarantee for the violation of the terms of the contract. Therefore, he seeks to vacate the interim order. 20) I have considered the pleadings and the contentions of the learned counsel appearing for both the parties. 21) A perusal of the pleadings and contentions reveals that it is undisputed that the second respondent raised a dispute with the first respondent regarding the payment of compensation for the loss incurred due to the laying of a parallel road of the Bharatmala Express Highway, which was not contemplated when the agreement was entered into between the first and second respondents in 2014. It is also undisputed that when the present agreement was entered into between the petitioner and the second respondent for the collection of toll for a period of three years commencing from 16.05.2021, a tender was floated in 2019 for laying the Bharatmala Express Highway. There are conditions in the NIT floated by the second respondent for the collection of toll fees and maintenance, warning bidders to make their own assessment of revenue collection at the proposed toll booths and verify from their own sources, and submit the bids accordingly. The second respondent does not guarantee the extent of user fee collection during the contract period. Prima facie, the petitioner entered into the contract based on his own assessment of revenue prior to the bid, and he was aware of the Bharatmala Express Highway tender, which was floated in 2019. The present contract, however, was entered into in May 2021. The second respondent does not guarantee the extent of user fee collection during the contract period. Prima facie, the petitioner entered into the contract based on his own assessment of revenue prior to the bid, and he was aware of the Bharatmala Express Highway tender, which was floated in 2019. The present contract, however, was entered into in May 2021. 22) It is also a fact that there is no clause, unlike the clause in the concessional agreement between the first and second respondents, for the payment of compensation for losses incurred due to the laying of any parallel road within the agreed period. The dispute raised by the second respondent with the first respondent would only indicate that the Bharatmala Express Highway, running parallel to the Bikaner-Phalodi road, for which the petitioner was the successful tenderer for the collection of toll tax and road maintenance, was a point of contention. The petitioner would only be entitled to a rebate to the extent of compensation, if any, awarded upon the conclusion of the dispute between the first and second respondents, provided there is such successful adjudication of dispute in his favour. 23) Prima facie, this Court finds that there is no such clause in the contract entered into between the petitioner and the second respondent, unlike the concessional agreement between the first and second respondents. The terms of the contract, prima facie, indicate that the petitioner is required to pay the monthly average remittance as agreed in the NIT. If the petitioner wishes to raise a dispute regarding his entitlement to pass on compensation, if any, obtained by the second respondent from the first respondent, he has remedies available before the appropriate forum, as indicated in the terms of the contract. The effect of the present stay granted by this Court would be the deprivation of the second respondent’s entitlement to invoke the bank guarantee indirectly. 24) The principles governing the grant of restraint order for encashment of bank guarantee has been clearly laid by the Apex Court in the case of Himadri Chemicals Industries Ltd. Vs. Coal Tar Refining Co. , reported in (2007) 8 Supreme Court Cases 110, which reads hereunder:- “14. 24) The principles governing the grant of restraint order for encashment of bank guarantee has been clearly laid by the Apex Court in the case of Himadri Chemicals Industries Ltd. Vs. Coal Tar Refining Co. , reported in (2007) 8 Supreme Court Cases 110, which reads hereunder:- “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.” 25) From a reading of the above principles, it is clear that a restraint order, either directly or indirectly, from exercising the right to invoke a bank guarantee can be passed only if fraud of an egregious nature exists within the knowledge of the bank. Other grounds for issuing a restraint order include situations where refusal to grant the order would result in irretrievable harm or injustice, in which case, orders restraining the encashment can be made. Other grounds for issuing a restraint order include situations where refusal to grant the order would result in irretrievable harm or injustice, in which case, orders restraining the encashment can be made. 26) The present interim order impacts the right of the second respondent to encash the bank guarantee, which can only be done upon proof of fraud, irretrievable harm, or injustice, which are absent. Though there is business loss due to various reasons, the terms of the agreement must be adhered to without acting upon losses and profits. Such loss cannot be said to be an act of injustice. In these circumstances, this Court finds that the interim order needs to be vacated. 27) In the result, application for vacation of stay is allowed and consequently, the application filed for grant of interim stay stands dismissed.