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2020 (3) TMI 1058 - Tri - Insolvency and BankruptcyDirections to liquidator to restrain from invoking or encashing the bank guarantee - section 60(5) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The burden is on the applicant to establish fraud in invoking bank guarantee. Admittedly, the bank guarantee is being invoked which is in terms of bank guarantee. It is not the case of applicant that any fraud was played in obtaining bank guarantee. Similarly, there is also no material to come to a conclusion that any fraud was played on the applicant in invoking the bank guarantee. It is also not the case of the applicant that any fraud was involved in invoking bank guarantee. It is true any disputed question of fact cannot be decided in a summary way. It is the case of applicant that it has not committed any breach of the performance of the obligations covered by the contract. Thus, it is clear, no material before the Adjudicating Authority that invocation of bank guarantee by corporate debtor in the present case is a fraudulent action and that the applicant will sustain irreparable injury. The only grievance of the applicant that it has completed the contract work assigned to it. The question whether applicant failed to perform its part of the contract or not, is a question to be determined by way of evidence. Application dismissed.
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