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Issue of Debentures| Complete Guide

CS Annu Sharma 
on 08 September 2020

LinkedIn


If a company needs funds for extension and development purpose without increasing its share capital, it can borrow from the general public by issuing certificates for a fixed period of time and at a fixed rate of interest. Such a loan certificate is called a debenture. But there is one more hidden benefit is there that a debenture can be issued at a Zero 0% interest rate.

Debentures are offered to the public for subscrip­tion in the same way as for issue of equity shares. The Companies Act does not provide for an exhaustive definition of debentures but an inclusive definition. Let get started for a simplified understanding of debentures.

Governing Laws:

As per the definition of debenture given in Section 2(30) of the Companies Act 2013 "Debenture includes debenture stocks, bonds or any other instruments of a Company evidencing a debt, whether constituting a charge on the assets of the Company or not".

This section proves that the company has right to issue bonds or debenture which are instruments as a debt, which can be both secured or unsecured by the way of creating a charge on the assets of the company.

Section 71 of the Companies Act, 2013  permits a company to issue debentures with an option to convert such debentures into shares, either wholly or partly at the time of redemption; Provided that, the issue of debentures with an option to convert such debentures into shares, wholly or partly, shall be approved by a special resolution passed at a general meeting.

Some Hit-shots about Debenture:

A debenture is a movable property. It is in the form of a certificate of indebtedness of the company and issued by the company itself. It generally creates a charge on the undertaking or undertakings of the company. There is usually a specific date of redemption.

The debenture holders are creditors to the company and they don't have any claim of ownership of the company, unlike shareholders. The company is only under a debt of the debenture holders.

The debenture holder need not be concerned with the profits or loss of the company, they have a fixed rate of interest on the principal amount which they get every year irrespective of the financial condition of the company.

As the debenture holders are not the owner of the company so they are not entitled to the administration and management of the company.

Debentures usually have a charge on the assets of the company, which means that if the company on liquidation is not able to repay the amount the debenture holders can sell of property of the company to recover money.

The debenture holders cannot claim the privilege to vote in any meeting of the company.

There is an undertaking given by the company to repay debenture holders the principal amount along with the interest at the state time.

When the company is winding up, the first priority of the company is to repay to the debenture holders of the company hence, there is no risk involved of loss of money of the debenture holders. (Subject to certain Condition)

There is a series with pari passu clause which is usually a part of the debentures being issued and it would be equally as security and if the security is being enforced, the amount shall be discharged relate ably. If there is a deficiency of assets, the division will be proportionate.

Issue of Debentures  Complete Guide

Kinds of Debenture:

Debentures are generally classified into different categories on the basis of:

(1) Convertibility of the instrument

(2) Security of the instrument

(3) Redemption ability

(4) Registration of Instrument

Fully Convertible

Partly Convertible

Optionally Convertible

Non-Convertible

Secured

Unsecured

Redeemable

Perpetua Redeemable.

Registered

Bearer

Guidelines for Issue of Debentures:

The manner of issuing of debentures is usually similar to that of issuing share, it is through prospectus inviting applications for debentures, the money is to be paid in instalments on application, allotment and on specific dates.

Debentures can be issued in the following three ways.

AT PAR

AT PREMIUM

AT DISCOUNT

When the amount collected for it is equal to the nominal value of debentures, it is said to have been issued at par. e.g. the issue of debentures of Rs. 100/- for Rs. 100/-

A debenture is said to be issued at a premium when the price charged is more than its nominal value. e.g., the issue of debentures of Rs. 300 each for Rs. 320, the excess amount over the nominal value i.e., Rs. 20 is the premium on issue of debentures. 

When the amount collected is less than the nominal value, a debenture is said to have been issued at discount. For e.g., the issue of debentures of Rs. 300/- for Rs. 270/-. The difference of Rs. 30/- is the discount and is called discount on issue of Debentures.

Note: The debentures issued on discount will amount to Capital loss and issue of debentures at Premium is Capital gain.

Steps to Issue Debentures:

Convene Board Meeting to approve type of debentures and Calling of EGM.

And in case of Private Placement of Debentures approval of PAS 4 offer letter and Approval of PAS 5 record of the private placement.

Drafting and Approval of Debenture Subscription Agreement.

According to the agreement, the company shall create a Debenture Redemption Reserve account from the profits of the company available for payment of dividend. Also, the amount credited to such account should be utilized only for the redemption of Debentures.

Dispatch Notice of General Meeting to the members of the company. The Notice period should be of at least 21 clear days in accordance with Section 101(1) of the Companies Act and Secretarial Standard -2.

In case of secured debentures, following additional approvals shall also be required to be taken:

  • Consent of Debenture Trustee to act as a debenture trustee.
  • Approval of Terms and conditions for appointment of Debenture Trustee and agreement thereof.
  • Authorise creation of charge to secure debentures.
 

Convene General Meeting of Shareholders for approval of the issue of Debentures.

In case, the money to be borrowed, together with the money already borrowed, exceeds the limits specified under section 180(1)(c), approval to increase the said limit shall also be taken.

Dispatch Letter of Offer and Opening of Bank account to receive subscription money from investors to the debenture issue.

Forms to be submitted with the Registrar of Companies:

PAS 4 And PAS 5 to be submitted by attaching it to GNL 2

MGT-14 for Filing Special Resolution.

CHG 9 for creation of charge in case of issue of secured debentures.

Convene and hold a Board meeting to consider and approve the following items:

The Board shall make allotment of debentures issued to the applicants and file return of allotment with the Registrar of Companies, in PAS-3.

Time Limit to Issue Debenture Certificate:

As per Section 56(4) of the Companies Act, 2013 debenture certificate must be issued within a period of 6 months from the date of allotment.

As per Section 56 (6) If a Company failed to issue Debenture Certificate withing prescribed time limit then it shall be made liable to pay a fine minimum of 25,000 rupees which may extend to 5,00,000 rupees. The officer who is in default shall by punished with a fine which is 10,000 rupees minimum and extending to 1,00,000 rupees.

 

Conclusion

With a wide array of specifications in this form of security while investing in such security investor should take the precaution of background check of the company as there are a number of shell companies issues debenture collect amount and withdraw the same.

Investor left with no option except NCLT but that may not guarantee of Complete return of investment, this generally happens when the company fails to pay the interest at the initial stage.

Mrs Annu Sharma is a Company Secretary by profession as well as a Certified CSR Professional along with Graduation in Law. She has Vast Experience of 3 years in Corporate and other Allied Laws. Being a Writer by Passion she has penned many articles on corporate laws till now which are published on prominent websites.


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