2-wp.4227-08 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4227 OF 2008 Oman International Bank SAOG. ..Petitioner. Versus Iridium India Telecom Limited and another. ..Respondents. .... Mr.F.Devitre, Sr. Advocate with Mr.Vivek Menon, Rafiq Pir Mohaddin, M.S. Bodhanwalla, Ajay Khaire and Mrs.Prachi Mhatre, i/b. M.S. Bodhanwala & Co. for the Petitioner. Mr.Aspi Chinoy, Sr.Advocate with Mr.Gaurav Shah, Mr.Vishal Lohire, i/b. M/s. Negandhi Shah & Himaytullah, for respondent No.2. Dr.B.B. Saraf, Advocate i/b. Ms.L. Vohra, Advocate for respondent No. 1. .... CORAM : D.K. DESHMUKH, AND K.K. TATED, JJ. DATED : 9TH NOVEMBER, 2009 P.C.:- 1. By this Petition, the petitioner challenged the concurrent findings recorded by the D.R.T. & D.R.A.T. that the letter of support dated 7th April, 1999 does not create any obligation on respondent No.2 to pay to the petitioner the debt which is due to the petitioner from respondent No.1 Company. The learned Counsel appearing for the petitioner relying on the words of the letter of support dated 7th April, 1999 submitted that as 2-wp.4227-08 2 respondent No.2 by that letter of support has undertaken to take all steps to ensure the repayment of the debt by the company, the respondent No.2 becomes liable to pay the debt. 2. The learned Counsel also relied upon certain observations made in a passage from "Cheshire, Fifoot and Furmston's Law of Contract", to claim that the law laid-down by the Court of appeal in the case of Kleinwort Benson Ltd. v. Malaysia Mining Corpn. Bhd. has been criticized by the Supreme Court of New South Wales in Bonque Brussels Lambert v. Australian National Industries Ltd. reported in (1989) 21 NSWLR 502. 3. The learned Counsel for the petitioner submits that the letter of support does create a legal obligation. The learned Counsel appearing for respondent No.2 on the other hand submits that there is no any room to interfere with the concurrent findings recorded by the two Courts below on interpretation of the document i.e. letter of support. The learned Counsel for respondent No.2 also objected that this Writ Petition can not be entertained because the order of D.R.A.T. which is challenged in this Petition is dated 31.10.2002 and the Petition has been filed in the year, 2008 and the explanation that has been given for the laches in para-36 of the Petition is absolutely vague and 2-wp.4227-08 3 incapable of being accepted. In our opinion, even accepting that there is some explanation for the laches, there is no room to interfere with the concurrent findings recorded by both the Courts below. 4. Both the Courts below have interpreted the letter of support and have held that it is merely a declaration of policy and that the letter of support cannot be said to have created any liability on respondent No.2 to repay the debt owed by respondent No.1 to the petitioner. The interpretation of the document by the Courts below is a possible interpretation. Therefore, there is no room for this Court to interfere with the impugned orders. We also find that it was never the intention of the petitioner to advance a secured debt to respondent No.1. The petitioner advanced the debt on a promissory note. It was an unsecured debt on promissory note. Initially it was proposed to take post-dated cheques but the requirement of giving post-dated cheques was dispensed with because of the letter of support. In our opinion, therefore, it cannot be said that the letter of support has a result of converting the unsecured debt into a secured debt. The petitioner had gone to the Debt Recovery Tribunal, which is a special forum created under the Recovery of Debts Due to Banks 2-wp.4227-08 4 and Financial Institutions Act, 1993 for recovery of debts owed by persons to the bank. In our opinion, on the basis of the document of letter of support, it cannot be said that any debt was owed by respondent No.2 to the petitioner. Taking overall view in the matter, therefore, in our opinion, this is not a fit case where this Court should interfere in its extraordinary jurisdiction under Article 226 or supervisory jurisdiction under Article 227 of Constitution of India, 1950. 5. Writ Petition is disposed of finally. (D.K.DESHMUKH,J) (K.K. TATED,J)