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Bijnor, Uttar Pradesh towards the invocation amount."

As on 28th November 1995 respondent no.1 had already obtained and ex parte injunction restraining the encashment of bank guaranteee, no payment was made to the appellant by the bank.

Respondent no.1 then filed another injunction application dated 12th January, 1996 with regard to the second bank guarantee dated 24th November, 1994 which was for a sum of Rs.33 lacs. It obtained an Ex parte injunction in respect thereto on the same day. Being ignorant of this the appellant wrote a letter dated 16th January, 1996 to the respondent bank invokeing the said bank guarantee no. 40/47. In the said letter it was stated that respondent no.1 had failed to deliver the equipment as per the terms of the agreement and that the appellant had bought equipment from various markets due to which the advance amount which had been paid to respondent no.1 in respect of which this bank guarantee had been issued, remained unadjusted. The bank was accordingly required to pay the said amount of Rs.33 lacs.

Respondent no.1 then filed another injunction application dated 12th January, 1996 with regard to the second bank guarantee dated 24th November, 1994 which was for a sum of Rs.33 lacs. It obtained an Ex parte injunction in respect thereto on the same day. Being ignorant of this the appellant wrote a letter dated 16th January, 1996 to the respondent bank invoking the said bank guarantee no. 40/47. In the said letter it was stated that respondent no.1 had failed to deliver the equipment as per the terms of the agreement and that the appellant had bought equipment from various markets due to which the advance amount which had been paid to respondent no.1 in respect of which this bank guarantee had been issued, remained unadjusted. The bank was accordingly required to pay the said amount of Rs.33 lacs.

(emphasis supplied) The aforesaid passage was approved and followed by this court in U.P. coooperative Federation Ltd. Vs. Singh consultants and Engineers (P) Ltd. [(1988) 1 SCC 174].

The secondly exception to the rule of granting injunction, i.e., the resulting of irretrievable injury, has to be such a circumstance which would make it impossible for the guarantor to reimburse himself, if he ultimately succeeds. This will have to be decisively established and it must be proved to the satisfaction of due Court that there would be no possbility whatsoever of the recoverv of the amount from the beneficiaIy. by way of restitution.

Coming to the allegation of fraud, it is an admitted fact that in the plant itself, there was no such allegation was initially only in the first application for the grant of injunction that in a paragraph it has been mentioned that the appellant therein had invoked the bank guarantee arbitrarity. this application contains no facts or particulars in support of the allegation of fraud. A similar bald averment alleging fraud is also contained in the second application for injunction relating to bank guarantee No. 40/47. This is not a case where defendant no. 1 had at any time alleged fraud prior to the filing of injunction application. The main contract, pursuant to which the bank guarantees were issued, was not sought to be avoided by alleged fraud, nor was it at any point of time alleged that the bank guarantee was issued because any fraud had been played by the appellant. We have no manner of doubt that the bald assertion of fraud had been made solely with a view to obtain an order of injunction . In the absencce of established fraud and not a mere allegation of fraud and that also having been made only in the injunction application , the court could not, in the present case have granted an injunction relating to the encashment of the bank guarantees.