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2014 (9) TMI 1252 - ANDHRA PRADESH HIGH COURTSeeking to grant injunction - whether there is a ‘clear fraud’ of which the 2nd respondent has noticed and the fraud of the 1st respondent from which it seeks to benefit and the other exception whether there are any ‘special equities’ in favour of granting injunction? - HELD THAT:- There is complete denial by the 1st respondent as to the allegations levelled against it touching the alleged fraud on its part by attributing total lapses on the part of the appellant that had compelled the 1st respondent to get the balance of work done through the third party – contractors with the consent of the appellant. The vital aspect that touches the conduct of the appellant is, according consent to the 1st respondent to make payments directly to the third party-contractor by getting the work carried out which was left over by the appellant by even demobilising its resources from the site. It is not as though, a mere consent by the appellant was given for getting the balance work executed through other sub-contractor, which the appellant was supposed to execute, but even the payments were made by the 1st respondent, through the appellant. This circumstance attains greater significance since it affects vitally not only the fraud alleged by the appellant, but even it disfavours the appellant in proving the ‘irretrievable injury’ or ‘irretrievable injustice’ and further disfavours the appellant from seeking equitable relief of injunction based on ‘special equities’. The attempt made by the appellant to take shelter under Clause – 8.1 relating to sub-contracting the works, gets completely condemned when the purport of the said sub-clause is examined - the attempt of the appellant to deprive advantage under the said clause, in our view, is a concrete attempt to take undue advantage of the said clause to wriggle itself out of the obligations cast on it and consequences thereof. The case of the appellant neither falls in the first exception nor in the second exception nor the appellant is successful in establishing ‘special equities’ favouring it to seek the equitable relief of injunction in these two appeals. Concerning the other allegations touching the outstanding amounts to be paid by the appellant at ₹ 28.19 crores, as ad-hoc advances were made by the 1st respondent, with the object of getting the work executed within the time frame or even earlier also, stands adverse to the case of the appellant. No doubt, the appellant has initially stated that the loss it sustained was to the tune of ₹ 175.00 crores and in its reply affidavit, it has expanded the alleged quantified loss to the tune of ₹ 421.80 crores, but these aspects have to be gone into by the arbitral Tribunal. Even the other aspects which the appellant has pressed into service constitute the subject before the arbitral Tribunal. Thus, the appellant failed to establish not only the ground of ‘established fraud’, but also the ground of ‘special equities’ in its favour. Therefore, the common order under challenge cannot be withheld, as such, while confirming the same, appeal dismissed.
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