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8. The fulcrum of the argument pressed upon by Learned Advocate for the appeallant is that the learned Commercial Court below passed the impugned order (a) without considering the principles of law relating to and as applicable to the invocation and encashment of unconditional bank guarantees (b) the Respondent on the basis of the allegations made in the Petition under Section 9 of the Act, has failed to show the existence of egregious fraud, irretrievable injustice or injury or special equity in their favour (c) In any case, the dispute or the clauses of the contract dated 13.10.2020 entered between the parties are wholly immaterial and irrelevant while considering the relief claimed by the Respondent to restrain the Appellant from invoking and encashing unconditional bank guarantees.

9. The Learned Counsel appearing for UPEIDA has taken this court to the averments made by the Respondent in the pending section 9 petition to buttress his point that a dispute exists between the parties. It has been vehemently contended by the Learned Counsel that the so called special equities pleaded by the respondent in their petition relates to a single ground that invocation of Bank Guarantee would drive to financial ruins. According to him the threat to encash the bank guarantees is wholly unfounded and the pleadings regarding egregious fraud or Irretrievable Injustice also relates merely to adversely affecting the commercial viability of the respondent. In any case, the Learned Counsel contends that the special equity as claimed by the respondent towards Covid pandemic for the relief was also considered & granted by the Appellant, however the respondent claimed further amounts which has been denied by the appellant and since this was a dispute on the quantum of money/relief to be granted to the respondent, which is a disputed fact, the same cannot be a ground for interdicting the performance Bank guarantee, which are unconditional and irrevocable in nature.

10. It is the further case of the Appellant that there was a short remittance of Rs. 39,21,09,614/- even after giving the force majeure relief of Rs. 11,38,11,932- to the respondent and as such the present case was neither a case of irretrievable injustice or egregious fraud. Further, the Bank Guarantee secured the amount to the tune of Rs. 33.53 Crores only while the short remittances were more than Rs. 39 Crores and as such even after invocation of the Bank Guarantee the entire outstanding would not be recoverable, inspite of the fact that an undertaking affidavit had been given by them before the Learned Commercial court that the Bank Guarantee would not be encashed towards the recovery of stamp Duty.

30. The Bank Guarantee in unequivocal terms says that any demand made by the Appellant on the Bank shall be conclusive and binding notwithstanding any difference between the Appellant and the respondent or any dispute pending before any Court, Tribunal, Arbitrator or any other authority. It is very much contained in the BG that the Bank has agreed that the Guarantee contained shall be irrevocable and shall continue to be enforceable till the Appellant discharges this guarantee.

31. Having said so, it has to be understood that the jurisdiction of the Court to interfere, in such cases, is, however, not irrevocably foreclosed and as such the exceptions of egregious fraud, irretrievable injustice, or special equities have been devised by the court to injunct the invocation of the bank guarantee(s). As to what follows from egregious fraud, the meaning and implications thereof are settled. The Hon'ble Supreme court as far back as some 50 years ago in the case of Union of India Vs. Chaturbhai M. Patel & Co (1976) 1 SCC 747 relying on the judgement of Lord Atkin in A.L.N. Narayanan Chettyar v. Official Assignee, High Court, Rangoon, AIR 1941 PC 93 held that "fraud like any other charge of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonable doubt." The aspect was further clarified by holding that "however suspicious may be the circumstances, however strange the coincidences, and however grave the doubt, suspicion alone can never take the place of proof." The Supreme court in Svenska Handelsbanken v. Indian Charge Chrome ( 1994) 1 SCC 502 , went on to say that mere pleadings do not make a strong case of prima facie fraud, which had to be shown by "material and evidence". Thus, fraud must be pleaded and proved and it cannot be presumed.