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12. Mr. Dharmadhikari, learned Counsel for the Petitioners in Writ Petition No.631/2015 who are the Senior officials of BGR Energy Systems Limited, submitted that, there was no dispute that, the firm of the Complainant and the firm of the Petitioners entered into a contract and service orders are issued in favour of the Complainant's firm. Against the said service orders, four bank guarantees by way of security was furnished. As the Complainant could not complete the work, the 10 CRI. WP.609-2015 & ANR.JUDGMENT.odt said contract was terminated. The firm BGR Energy Systems Limited, issued the communication to the Bank of India during the validity period for the invocation of guarantee. As the communication was issued by the BGR Energy Systems Limited and bank guarantees were not invoked grievance was made by the officials of the BGR Energy Systems Limited, stating that despite the request the Bank has not credited the amount in the account of BGR Energy Systems Limited. The said communication was addressed to the Zonal Office also. During investigation the communication by the Zonal Manager also shows that, they have received the communication and in view of that communication the bank guarantees were invoked in favour of M/s BGR Energy Systems Limited. Subsequently, there was a settlement between the Aradhya Infratech Pvt. Ltd., and M/s BGR Energy Systems Limited, and they entered into the full and final settlement and the cheque of remaining amount of Rs. 47,35,198/- is already issued in favour of the Complainant firm. But this fact was concealed by the Complainant and after two years of this settlement, the FIR came to be lodged. In the said FIR the Complainant has not narrated about the settlement. Though the Complainant has filed civil suit bearing S.C.S 11 CRI. WP.609-2015 & ANR.JUDGMENT.odt No. 213/2013, wherein also he has not brought to the notice of the Court about the said settlement. Even accepting the allegations as it is no offence is made out against the Petitioners, and therefore, Petitions deserve to be allowed.

30. The Hon'ble Apex Court has occasion to consider the aspect of bank guarantee in the case of Hindustan Construction Co. Ltd., (supra), wherein also it was observed in para 9, which reads as under:

"9. What is important, therefore, is that the Bank Guarantee should be in unequivocal terms, unconditional and recite that the amount would be paid without demur or objection and irrespective of any dispute that might have cropped up or might have been pending between the beneficiary under the Bank Guarantee or the person on whose behalf the Guarantee was furnished. The terms of the Bank Guarantee are, therefore, extremely material. Since the Bank Guarantee represents an independent contract between the Bank and the beneficiary, both the parties would be bound by the terms thereof. The invocation, therefore, will have to be in accordance with the terms of the Bank Guarantee; or else, the invocation itself would be bad."

33. In the above said judgment also it is held that a bank guarantee constitutes an independent contract. What is important, therefore, is that the bank guarantee should be in unequivocal terms, unconditional and recite that the amount would be paid without demur or objection and irrespective of any dispute that might have cropped up or might have been pending between the beneficiary under the bank guarantee or the person on whose behalf the guarantee was furnished. The terms of the bank guarantee are, therefore, extremely material. Since the bank guarantee represents an independent contract between the bank and the beneficiary, both the parties would be bound by the terms thereof. The invocation, therefore, will have to be in accordance with the terms of the bank guarantee, or else, the invocation itself would be bad.

(xii) Equally, it is not permissible, either, for the Court to interdict the invocation of a bank guarantee on the ground that the stage for such invocation, as per the contract, has not been reached, or that the exigency in which the bank guarantee could be invoked as per the contract, does not exist, unless that stage, or that the exigency, is incorporated as a condition for invocation in the bank guarantee itself.

(xiii) Interdiction of invocation of unconditional bank guarantees would be justified, where the invocation is 29 CRI. WP.609-2015 & ANR.JUDGMENT.odt otherwise in terms of the covenants in the bank guarantees, only where there is found to exist egregious fraud, or special equities, or where irretrievable injustice would ensue were invocation not to be injuncted."