Amitava Lala, J. - (1.) This is an application under Section 9 of the Arbitration & Conciliation Act, 1996. Section 9 speaks as follows:- Interim measures by Court. - A party may, before, or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a Court- (i) For the appointment of a guardian for a minor or person of unsound mind for the purpose of arbitral proceedings; or (ii) For an interim measure of protection in respect of any of the following matters, namely:- (a) The preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement; (b) Securing the amount in dispute in the arbitration; (c) The detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; (d) Interim injunction or the appointment of a receiver; (e) Such other interim measure of protection as may appear to the Court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to any proceedings before it.
(2.) By making this application, in effect, the petitioner wanted to restrain the respondent from invocation of the Bank Guarantee No. 29-223 dated 7th February, 1996 issued by the petitioner's bankers i.e. State Bank of India, Chowringhee Branch, 38-B, Chowringhee Road, Calcutta - 700 071.
(3.) Initially, the petitioner obtained the limited order from this Court on the ground that the bank guarantee is conditional one. In this respect, it is to be noted down hereunder that there is a gulf difference in between invocation of unconditional bank guarantee and conditional bank guarantee. There is no chance of injuncting the respondent or the banker from invocation and/or encashment of unconditional bank guarantee. But when the bank guarantee is conditional one, court has to look into the question of fraud and irretrievable injustice, in other words special equity.;