1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION (LODGING) NO. 709 OF 2009 IVRCL Infrastructure & Projects Ltd. ...Petitioner. Vs. Maharashtra State Electricity Distribution Co. Ltd. ...Respondents. Ms. Shakuntala Joshi with Mr. Sanjay Anubhavane i/by M/s. S.I.Joshi for the Petitioner. Mr. Vikas Singh, Sr. Advocate with Mr. Chandra Prakash with Mr. Rahul Sinha with Mr. Ravi Prakash i/by Kavita Kannan for the Respondents. CORAM :- ANOOP V. MOHTA, J. DATED :- 20th AUGUST, 2009. P.C.- 1 The Petitioner has invoked Section 9 of the Arbitration and Conciliation Act, 1996 (for short, the Act) for interim protection/ relief preventing the Respondents from encashing the Bank Guarantee dated 31/10/2007 by letter dated 27/07/2009. The Bank guarantee is unconditional and unequivocal towards the security for compliance with the obligations in accordance with contract and; the demand without cavil or argument; and further pleadings to prove or to show the reasons for 2 demand for the sums specified therein i.e. Rs.12,32,80,400/-. These commercial documents once executed and signed by the parties, need to be respected. The submission is made by the learned counsel appearing for the Petitioner that, if this bank guarantee is encashed, as demanded, the Petitioner will suffer a great irreparable injury or loss specially when there is a fraud committed by the Respondents. The averments/ requirements of fraud and or irreparable injury need detail material and the prima facie evidence, on record. Mere allegations are insufficient. 2 So far as the law in this regard, there is no much quarrel about that. The only thing is, whether such case is made out or not, in the present facts and circumstances of the case. 3 Admittedly, though the contract was for 112 feeders for the worth of Rs.123.28 crore, which was executed on 10th October, 2007, for various reasons restricted to 50 feeders only. The Petitioners have also confirmed and agreed to complete the same up to June, 2009. Even that part is incomplete. Further completion of 31 Feeder by August, 2009 is the only portion which remained to be performed by the Petitioner, only if they are in position to do the same. Therefore, the submission with reference to the letters/documents and the events which took place after the agreement in question since October 2007, till the confirmation by the Petitioner and now reduction of the contract work i.e. only 50 or 31 feeders, which are also in no way can be stated to be a case of fraud. All these facts and 3 circumstances are well within the knowledge of the parties, throughout this period till the partial termination of the contract in question. The Respondents are entitled to terminate the contract in full or in partial and can invoke the bank guarantee. There is no bar of anything in view of agreed terms itself. 4 In the commercial contract, the parties for whatever may be the reason may allege so called respective defaults, still that breaches or defaults, can be termed as fraud. The law is also settled with this regard that the breaches of terms and conditions between the parties have nothing to do and or no way prevent or to overlook the bank guarantee like this. 5 The reason for reduction of capacity and feeder number, may require various details, inquiry and evidence. i.e. again a matter of full trial. That itself, in noway sufficient to overlook this binding documents. 6 The submission, that the Petitioner may be permitted to deposit the amount in Court based upon the agreement, has in my view, no force. This would practically amount to re-writing the basic agreement between the parties i.e. the bank guarantee, specially when the other side is not ready to accept the same. 7 The irretrievable injury and/ or loss or damages, even if any, because of the alleged defaults and or breach of terms and conditions by the Respondents are again the matter of trial and evidence and ultimately if the Petitioner able to prove the case, they will be entitled for the respective 4 compensation and or damages. On this additional factor also, I am inclined to reject the Petition. 8 Resultantly, the Petition is dismissed. No order as to costs. 9 The learned counsel appearing for the Petitioner is seeking status- quo as per the order dated 28th July, 2009. In view of above, I am not inclined to grant such request and same is also rejected. (ANOOP V. MOHTA, J.)