(b) the Interim Injunction is ordered under 11(1)(a) AA to “restore” the status quo pending the disposal of the arbitration. [42] Learned counsel for the Defendant submitted that the HCJ was wrong. According to counsel since the parties had agreed that any dispute under the Contract shall be determined by arbitration, the dispute concerning the validity of calls/demand made by the Defendant on the 2 BGs herein should therefore be made before the arbitrator and not before the Court. [43] Furthermore, counsel submitted that based on the same argument abovesaid, the Plaintiff cannot apply for the injunction against the Defendant to restrain the Defendant from making the call of the BGs or from receiving any proceeds from the BGs. Flowing therefrom, counsel argued that pending the commencement or disposal of the arbitration, the Court has no power to grant injunction to the Plaintiff. [44] Conversely, counsel for the Plaintiff submitted that a party can apply for such injunction under section 11 AA 2005. [45] The HCJ disagreed with the Defendant and is of the view that section 11(1)(a)/or (b) AA 2005 empowers the Court with discretion to do so. [46] Having considered the issue above, we are in concurrence with the finding/ruling of the HCJ. We agreed with the HCJ that the Court has wide powers and discretion to grant interim measures before or during arbitral proceeding pursuant to section 11(1) AA 2005. The reasoning of the Court’s interim measures however does not bind the arbitral tribunal nor are parties bound or estopped in the arbitral proceedings by the said reasoning of the Court. - Whether the Court should grant the injunctions [47] Moving on, we will next see if the HCJ, on the facts and in the circumstances of this case, has erred in granting the injunctions herein against the Defendant. The Defendant’s submission and Contention [48] Learned counsel for the Defendant submitted that the Plaintiff failed to show a strong prima facie case of unconscionability or mala fide. The learned HCJ has descended deeply into the facts and merits of the dispute which are matters within the realm of the arbitrator. [49] According to counsel the calls made on the BGs were to enable the Defendant to utilize the proceed of the BGs, to complete and to rectify/repair defects in the works of the Plaintiff. The calls made are also to enable the Defendant to recoup the advance payment made by the Defendant to the Consortium. Thus, the calls cannot in the circumstance be unconscionable. [50] Counsel submitted that the learned HCJ was plainly in error because the BGs were ‘Unconditional on Demand Guarantees’. According to counsel the purpose of the BGs is to guarantee the proper completion/execution of the works under the Contract by the Consortium. [51] As to the refusal to grant EOT, counsel stressed that under the Contract, there was delay on the part of the Consortium and based on the Plaintiff’s own admission, a month before the scheduled date for completion, works was only 86.27% completed. Counsel submitted that the refusal to grant EOT to the Plaintiff was justified because even if EOT was to be granted, the Consortium would still be unable to complete the works as per the contracted schedule. This is so because the extension asked for by the Consortium was only up until 21.08.2019 and there was still a delay of 171 days on the Plaintiff’s part until 8.2.2020 (date of Defendant’s termination of the Contract) even if the Defendant had granted an EOT. [52] According to counsel the HCJ did not consider the many breaches and defaults by Plaintiff as deposed in the Defendant’s Affidavit and which were not unrebutted by the Plaintiff. Due to the breaches and failure by the Consortium, the Defendant was constrained to terminate the Contract and consequentially to made demand on the BGs. Hence, counsel submitted that there is nothing unconscionable in the calls made by the Defendant. In fact, according to counsel, the fact that Hitachi did not raise any objection to the calls on the BGs proved that the calls/demand made were not unconscionable. [53] Pertaining to the issue of Delayed Damages, which the learned HCJ found had constrained the Plaintiff to enter into the Advanced Arrangement with the Defendant with unconscionable effect to the Plaintiff, counsel submitted that the matter is one to be determined at the Arbitration and is irrelevant to whether the demand made on the BGs is unconscionable or not. Nevertheless, counsel contended that the Arrangement was not unconscionable because the Consortium had entered into the said Arrangement agreement on its freewill. The Consortium was free to walk away but instead chose to enter the same. Based on the foregoing, counsel submitted that the HCJ was in error to grant the injunctions herein since the calls made on the BGs were neither fraudulent nor unconscionable. [54] Moving on, counsel next submitted that as the subject matter herein is purely monetary, damages are clearly adequate remedy and that the Defendant is in a financial position to pay them if so ordered. Counsel referred to American Cynamid Co. v Ethicon [1975] A.C 396, per Lord Diplock at p 510. According to counsel, purely on this ground, the injunctions ought to be dismissed/set aside. [55] Next, counsel submitted that the balance of convenience tilted in favour of dismissing/setting aside the injunctions, because the calls made cannot be said to unconscionable because any delay in releasing the BGs proceed to the Defendant would deprive its funding to complete the project. On the other hand, no prejudice will be caused to the Plaintiff if Appeal 579 and Appeal 581 are allowed as the Plaintiff can always recover the BGs and/or BGs proceed/sums at the arbitration. [56] Premised on the aforesaid counsel submitted Appeal 579 and 581 should to be allowed and the injunctions be dismissed/set aside. The Plaintiff’s Submission and Contention: [57] Conversely, learned counsel for the Plaintiff submitted that the HCJ was correct in granting the 2 injunctions and in finding that the calls were unconscionable and/or fraudulent. The HCJ found that the Defendant had deliberately “engineered” an excuse for the Defendant’s calls by wrongfully refusing to pay the Plaintiff for work done with regard to the on-shore portion. The Defendant then had unlawfully terminated the Contract and Defendant’s calls which were designed to prevent the Plaintiff from obtaining Work Done Certificates from the Defendant in respect of Milestones 10 and 11. [58] According to the Plaintiff, it had completed work in respect of “Milestone 9” on 14.03.2019. However, the Defendant had recommended in “Work Done Certificate No. 12” (Certificate 12) a negative sum of RM21,455,941-30 to the Defendant. [59] Furthermore, counsel submitted that the Defendant had also called on the BGs provided by Hitachi. The combined values of Hitachi’s BGs are approximately the same as the 2 BGs. The total for the 2 BGs and Hitachi’s BG’s is 53,200,000-00. According to counsel, the Defendant had only paid a total of RM59,496,440.30 to the Plaintiff. In other words, if the Defendant’s 2 calls are allowed by the Court, the Defendant would recoup substantially all the payments made by the Defendant to the Plaintiff. [60] As regard the EOT, counsel submitted that the HCJ found that “despite the hard rock problem the Defendant refused to grant an EOT to the Plaintiff and then imposed Delay Damages on the Plaintiff” and that “the Plaintiff was therefore constrained to enter into the Arrangement with the Defendant” which, according to the HCJ had unconscionable effect on the Plaintiff. Counsel submitted that the HCJ was correct in his Lordship’s ruling in allowing the 2 injunctions. Thus, counsel submitted that Appeals 579 and 581 should be dismissed. The learned HCJ’s Findings [61] Overall, the learned HCJ was not persuaded by the submission by the Defendant’s counsel. [62] In granting the injunctions to the Plaintiff as prayed for, the HCJ at paragraphs [32] his Lordship’s Judgment referred to the Federal Court case of Sumatec Engineering and Construction Sdn Bhd v Malaysian Refining Co Sdn Bhd [2012] 4 MLJ 1 which held as follows: “[33] It would seem from the modern authorities we have read, that in the case of on demand letters of guarantee or performance bonds the courts are now more willing to look beyond the fraud exception and consider unconscionability as a separate and independent ground to allow for a restraining order on the beneficiary.... [34]… [35]… [36] We are also in agreement with Mohamad Ariff bin Md Yusof JC in the case of Focal Asia Sdn Bhd when he expressed this opinion on these two exceptions and the test to be applied: If there is clear evidence of fraud in the underlying contract, or unconscionability, the court can interfere. In these two situations, the integrity and autonomy of the document will not be compromised, since the paying bank will not be directly prevented from acting on the document. It is the beneficiary that is prevented from making a call on the document on these grounds. Nonetheless, the evidence allowing intervention by the court must be clear. I accept the test of ‘seriously arguable that the only realistic inference is fraud’ as good law in an interlocutory application such as the present. [37]… [38]… [39] We are of the considered view that the ‘seriously arguable and realistic inference’ test as used by the learned judicial commissioner in Focal Asia is equally applicable to the extended exception of unconscionability. That test therefore needs to be applied to the relevant material facts before the court. The same test which results in a ‘strong prima facie case’ was utilized by the Court of Appeal at the intermediate appeal said this of the required burden now rested on the shoulder of Sumatec: As in the case of fraud, to establish ‘unconscionability’ there must be placed before the court manifest or strong evidence of some degree in respect of the alleged unconscionable conduct complained of, not a bare assertion. Hence, the respondent has to satisfy the threshold of a seriously arguable case that the only realistic inference is the existence of ‘unconscionability’ which would basically mean establishing a strong prima facie case. In other words, the respondent has to place sufficient evidence before the court so as to enable the court to be satisfied, not necessarily beyond reasonable doubt, that a case of ‘unconscionability’ being committed by the beneficiary (the appellant) has been established to an extent sufficient for the court to be minded to order injunction sought. This additional ground of ‘unconscionability’ should only be allowed with circumspect where events or conduct are of such degree such as to prick the conscience of a reasonable and sensible man. We are in agreement with those propositions.” (emphasis added). [63] According to the learned HCJ there are four possible grounds opened for the Plaintiff to challenge the calls on a BGs, namely that the calls were–