JUDGMENT : SUGATO MAJUMDAR, J. 1. The instant suit is filed by the Plaintiff praying for decree of delivery and cancellation of bank guarantee, mandatory injunction and permanent injunction as well as decree for recovery of damages. 2. The Plaintiff is a company registered under the Companies’ Act 1956 having registered office at Room No. 22, Stephen House, B.B.D. Bag (East), Kolkata-700001, within jurisdiction of this Court. The Plaintiff carries on business of trading in wood and bamboo materials. 3. In or around 22/07/1997, the Defendant no. 2 invited tenders for sale of sixty lots of industrial cut bamboo lying at various depot of its Forest Department. In accordance with the terms of tender, the Plaintiff inspected the goods, prior to submission of its offer and the same were found to be in good condition. It was represented by the Defendant no. 2 that necessary contract would be executed immediately on acceptance of the successful offer; goods would be stored and stacked properly using proper scientific methods in order to preserve the same, until delivery and the goods would be delivered after payment of consideration amount. The Plaintiff submitted its offer dated 08.08.1997 for purchase of sixty lots with the Defendant no. 2. The Plaintiff also submitted a sum of Rs. 20,00,000/- as 5% of the tender amount, being the earnest money. 4. The offer of the Plaintiff was accepted as the highest bid. The offer was accepted by a letter dated 05/11/1997 for purchase of sixty lots of the said industrial cut bamboo. Several agreements were executed between the Plaintiff and the Defendant no. 2. In terms of the contract the Plaintiff furnished eight bank guarantees amounting to a sum of Rs. 40,00,000/-. The bank guarantees were furnished by Defendant no. 1 within jurisdiction of this Court at 14, Netaji Subhas Road, Kolkata-700001. Pursuant to the agreement, the Plaintiff made payment of Rs. 3,25,01,961/- to the Defendant no. 2 and took delivery of 43 lots of industrial cut bamboo from Lanji Depot and Garra Bansagar Depot belonging to the Defendant no. 2. Payments were made through the Defendant no. 1. The aforesaid two depot of the Defendant no. 2 were specialized bamboo storage depot manned by trained staff. 3,25,01,961/- to the Defendant no. 2 and took delivery of 43 lots of industrial cut bamboo from Lanji Depot and Garra Bansagar Depot belonging to the Defendant no. 2. Payments were made through the Defendant no. 1. The aforesaid two depot of the Defendant no. 2 were specialized bamboo storage depot manned by trained staff. Though there was a heavy rainfall, goods lifted from these depot were in good condition, and fit for the purpose for which they were purchased that is for manufacture of paper pulp. But the Defendant no. 2 stored sixteen lots of goods in Garra Kastagarh Depot which was meant for storing timber. The said depot was not manned by the trained staff and goods were not stored in proper and scientific manner. Apprehending damage, the Plaintiff wrote to the Defendant no. 2 in terms of letter dated 31.12.1997 to stock and store the said goods namely industrial cut bamboo in proper condition to prevent any damage but the Defendant no. 2 failed to do so. The Plaintiff also requested the Defendant no. 2, in terms of several letters to, allow the Plaintiff to inspect the goods prior to make payment and delivery but the Defendant no. 2 neglected and failed to do so. The Plaintiff made payment of Rs. 28,33,356/- against taking delivery of lot numbers 17, 18, 19 and 20 from Garra Kastagarh Depot. On payment being made, the Defendant no. 2 allowed delivery of the said goods. Only then it became manifest that goods of the said lots were rotted and spoilt in its entirety and could no longer be classified as industrial cut bamboo. In the meantime, by or on 26/02/1998 the Plaintiff duly applied for extension of time for taking delivery of the goods and for waiver of interest for the extended period from the Chief Conservator of Forest. During pendency of approval, election was declared in the State of Madhya Pradesh resulting in delay in approval. The Defendant no. 2, in terms of the letter dated 31.12.1998 stated, that time for execution of the agreement expired and threatened the Plaintiff to invoke bank guarantees. 5. The case of the Plaintiff is that the later paid Rs. 28,33,356/- for goods which were unfit for use and wholly wasted for lack of proper preservation, which is failure of the Defendant no. 2. 5. The case of the Plaintiff is that the later paid Rs. 28,33,356/- for goods which were unfit for use and wholly wasted for lack of proper preservation, which is failure of the Defendant no. 2. As a result the aforesaid sum of money went to astray and the Plaintiff also suffered loss because the same could not be sold to the prospective customers. Loss and damage suffered exceeding rupees thirty two lacs. Accordingly the Plaintiff is entitled to a sum of Rs. 60,33,356/- with interest. It is further pleaded that special equalities exist in favour of the Plaintiff against invocation of bank guarantees. 6. Hence the Plaintiff instituted the present suit. 7. In terms of the order dated 17/02/2014 leave was granted to file written statement to the Defendant no. 1 within four weeks. No written statement was filed by the Defendant no. 1 inspite of the leave. Summons was served upon the Defendant no. 2 on 12/02/15. But the Defendant no. 2 also did not file any written statement. Therefore, the suit was fixed for hearing as undefended suit in terms of the Order dated 02/02/2023. 8. The Plaintiff adduced oral as well as documentary evidences. 9. Ext. C and C/1 is the tender document dated 22/07/1997 floated by Defendant no. 2 inviting tenders for sale of 60 lots of industrial bamboo kept in various depot of the Forest Department of Defendant no. 2. It is in evidence that the Plaintiff inspected the goods, prior to submission of offer and the same were found in good conditions. Ext. D (the letter dated 8/08/1997 is the offer letter) and the Ext. E, namely, letter dated 05/11/1997 is the letter of acceptance. Ext. G to N are several agreements executed between the Plaintiff and the Defendant no. 2. Copies of bank guarantee are also adduced in evidence. Ext. U is the letter dated 23/12/1997 written by the Plaintiff to the Conservator of Forest of Defendant no. 2 complaining decay and deterioration of the materials and that bamboo cuts were smaller in length. Ext.X is another letter dated 20/09/1998 whereby and whereunder the Plaintiff complained rotten, damage and unsuitable quality of the goods. Ext. Z is another letter to this effect. Plaintiff adduced evidence that all the disputes, cropped up between the parties are in respect of decay of goods kept in lot no. 17, 18, 19 and 20. Ext.X is another letter dated 20/09/1998 whereby and whereunder the Plaintiff complained rotten, damage and unsuitable quality of the goods. Ext. Z is another letter to this effect. Plaintiff adduced evidence that all the disputes, cropped up between the parties are in respect of decay of goods kept in lot no. 17, 18, 19 and 20. It is stated in the evidence by P.W. that he had made payments against the lots and necessary direction was passed to take delivery of the goods from those lots. Documentary evidences showing payment and delivery orders are adduced in respect of lot no. 18, 19 and 20. However, it is stated by the Plaintiff’s witness that documents related to payment against delivery from lot no. 17 was lost. Ext. K is the agreement executed between the parties in respect of lot no. 16 & 17 at Garra Kastagarh Depot of the Defendant no. 2. Ext. L is similar agreement for lot no. 18, 19 & 20 at Garra Kastagarh Depot. 10. Special officer was appointed by this Court for inspection of the goods which were lying at Balaghat for ascertaining the condition of the goods with assistance of a person of special knowledge. It is in the report that bamboos were lying on ground in open space and were stacked in various lots. All the bamboos were infested with termites. The report is in evidence as CC1. 11. The suit is undefended and evidences of the Plaintiff are uncontroverted. Uncontroverted evidences of the Plaintiff have proved that the Plaintiff paid consideration amount for industrial cut bamboo to the tune of Rs. 28, 33, 356/- from lot no. 17, 18, 19 and 20 but goods could not be delivered to the Plaintiff as the same where decayed and rotten for negligence of the Defendant no. 2. Because of devouring by termites, goods no longer answered the description as contemplated in the agreements. Therefore, the Plaintiff is entitled to refund of the amount, namely, Rs. 28,33, 356/- with interest payable at the rate of 10% per annum from the date of institution of the suit till payment. 12. Ext. FF is a document under which Mysore Paper Mills placed order for supply and transportation of bamboo to them. Therefore, the Plaintiff is entitled to refund of the amount, namely, Rs. 28,33, 356/- with interest payable at the rate of 10% per annum from the date of institution of the suit till payment. 12. Ext. FF is a document under which Mysore Paper Mills placed order for supply and transportation of bamboo to them. PW-1 stated in evidence that there was a contract for supply of 15,000 metric tonnes oral testimony of P.W. is that he could not sale industrial cut bamboo to Mysore Paper Mills which the Plaintiff was supposed to supply from lot no. 17 to 20. The actual supply was 15,000 metric tonnes. The Plaintiff, accordingly, shall also be entitled to loss of profit. The Plaintiff made claim at a rate of Rs. 93.33p per metric ton for 15,000 metric tonnes. This should be allowed. However, claim on account of transport should not be considered as loss of profit and this part of claim is refused. Loss of profit shall be calculated at a rate of Rs. 93.33p per metric ton for 15,000 metric ton that is Rs. 13,99,950/-. 13. The next question which should be addressed and considered is whether the Plaintiff is entitled to relief by way of injunction against invocation of the bank guarantees, as mentioned in prayers (a) to (e) of the plaint. It is settled law that bank guarantee is an obligation of the bank. It represents an independent contract between the bank and the beneficiary and both the parties are bound by the terms. Injunction against invocation of bank guarantee is sparingly allowed by the courts except in case of established fraud or irretrievable injury, as observed by the Supreme Court of India in Hindustan Construction Co. Ltd. vs. State of Bihar and Others, (1999) 8 SCC 436 . The case in hand is one where invocation of bank guarantee would add to the woes of the Plaintiff who has already suffered damage and detriment, as stated above. Therefore, the Plaintiff is entitled to a decree of permanent injunction in terms of the prayer (a). 14. In nutshell, the instant suit is allowed. 15. It is ordered that the Plaintiff do get a decree of Rs. 28,33,356/- with interest payable at a rate of 10% per annum from the date of institution of the suit till payment as refund of money; the Plaintiff do get a decree of Rs. 14. In nutshell, the instant suit is allowed. 15. It is ordered that the Plaintiff do get a decree of Rs. 28,33,356/- with interest payable at a rate of 10% per annum from the date of institution of the suit till payment as refund of money; the Plaintiff do get a decree of Rs. 13,99,950/-, further, on account of loss of profit. The Defendants are injuncted by decree of permanent injunction, hereby, from invoking or giving any effect to the bank guarantees bearing nos. BG/24/97-98 dated October 25, 1997, BG/25/97-98 dated October 25, 1997 and BG/26/97-98 dated October 25, 1997. The Plaintiff do get a decree of cancellation and delivery of the bank guarantees as mentioned herein and the Defendant No. 1 is directed to cancel and deliver the bank guarantees to the Plaintiff. 16. Let the decree be drawn up. 17. In case the decree is not satisfied within a period of three months from the date of drawing up of the same, the Plaintiff shall be at liberty to put the same in execution. The suit is disposed of along with pending applications, if any.