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2021 (11) TMI 478 - CALCUTTA HIGH COURTNon-viability of the financial arrangement between the Corporate Creditors and the Corporate Debtor - Requirement to wait any further for the appellant No. 1/ the Company to resolve the Review process initiated by the Appellant Company seeking Review by the West Bengal Electricity Regulatory Commission (Commission), of the Tariff Order of the Commission dated the 31st of May 2021 - HELD THAT:- The settlement of the tariff or, the Tariff Order, being a pre-condition towards the restructuring arrangement arrived at in the meeting dated the 17th of February, 2021, with the pronunciation of the Tariff Order by the Commission on the 31st day of May 2021, such pre-condition stood answered. It is not within the domain of R3 and R4 acting as lenders to wait any further beyond the Tariff Order pronounced by the Commission. It is evident that the restructuring exercise arrived at the said Consortium Meeting dated 17th of February, 2021 has not worked out. It is not the domain of the Writ Court to explore whether, following the collapse of the restructuring exercise, R3 and R4 could be prodded to extend further concessions in favour of the Appellant No. 1/ the Company. The issue between the parties is at a stage now when the non-viability of the financial arrangement between the Corporate Creditors and the Corporate Debtor subsumes, arguably if any, the public law element which can be attributed to either the RBI Framework of 2019 or, to the nature of the business of the Appellant No.1/ the Company, i.e. to generate an essential service such as electricity. Admittedly, having regard to the commercial arrangement arrived at between the parties at the said Consortium Meeting dated 17th February, 2021, there is no legal flaw in R3 and R4 taking the next logical step under the IBC. The Tariff Order dated 31st May, 2021 being fundamental to both the Corporate Debtor and the Corporate Creditor, its failure necessitated that the parties re-visit their positions or, at least brief each other of their respective positions, prior to embarking upon exercising their respective legal options. It would be thus open to the parties to keep the Tariff Order dated 31st May, 2021 one last time on the table and, on failure to reach a commonality of perceptions, either of the parties could then proceed with their chosen legal remedies. This Court is not at all unmindful of the primacy of the IBC proceedings. This Court is also not at all unmindful of the fact that the survival of the corporate entity, viz. the Appellant No.1/the Company, as distinguished from its Promoter Group, shall be given due and deep consideration under the IBC. At the same time this Court must record the fact that a select Audit placed before the said Consortium Meeting dated 17th February, 2021, did not suspect the Appellant No.1/the Company of any mala fide financial action. The Commission to adjudicate the Review Petition of the Appellant No.1/the Company on its own merits not later than a period of six weeks from the date of communication of this order - application disposed off.
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