Answer the following questions.
1. Briefly explain the provisions of Companies Act, 2013 for issue of debentures.
Ans: Section 2 (30) of the Companies Act, 2013 define debenture as “debenture” includes debenture stock, bonds or any other instrument of a company evidencing a debt, whether constituting a charge on the assets of the company or not.
Following are some of the provisions of the Act which a company has to comply, while issuing debentures:
1. No voting rights: A company cannot issue debentures with voting rights. Debenture holders are creditors of the company and so they do not have any voting rights except in matters affecting them.
2. Types of Debentures : A company can issue secured or unsecured debentures and fully or partly convertible debentures or non-convertible debentures. To issue convertible debentures, a Special Resolution has to be passed in the General Meeting. All debentures are redeemable in nature.
3. Payment of interest and redemption: A company interest as per the terms and conditions of their issue shall redeem the debentures and pay
4. Debenture Certificate: Company has to issue a Debenture certificate to the debenture holders within 6 months of allotment of Debentures.
5. Create Debenture Redemption Reserve: Company has to create a Debenture Redemption Reserve account out of profits of the company available for payment of dividends. This money can be used only for the redemption of debentures. As per Companies (Share Capital and Debentures) Amendment Rules 2019, MCA has removed the Debenture Redemption Reserve requirement for Listed companies, NBFCs and Housing Finance Companies.
6. Appoint of Debenture Trustees: If the company issues prospectus or invites more than 500 people, (either to Public or its Member) company has to appoint one or more Debenture Trustees. Debenture trustees protect the interest of the debenture holders. The company has to appoint trustees by entering into a contract with them called as Debenture Trust Deed.
7. Debentures Trustee can approach NCLT: Debenture Trustees have to redress the grievances of debenture holders. If the company defaults in repaying the principal amount, on maturity or defaults in paying interest there on, the Debenture Trustees can approach the National Company Law Tribunal for redressal. NCLT can direct a defaulting company to repay the principal amount or interest.
8. Impose restrictions: When the Debenture Trustee is of the opinion that the assets of the company are insufficient or likely to become insufficient to redeem the principal amount of debentures, it may approach the NCLT. NCLT can order a company to restrict incurring further liabilities so as to protect the interest of the debenture holders.
9. Punishment for contravention of provisions of the Companies Act: If the company fails to comply with any provisions of the Act, then the company and its officers shall be liable to pay fine or imprisonment or both as prescribed in the Act.
2. Explain briefly the procedure for issue of debentures.
Ans : Section 2 (30) of the Companies Act, 2013 define debenture as “debenture” includes debenture stock, bonds or any other instrument of a company evidencing a debt, whether constituting a charge on the assets of the company or not.
Following is the procedure to be followed by a company issuing debentures –
1. Pass resolution in Board Meeting: In the Board Meeting following resolution will have to be passed :
i) amount and type of debentures to be issued and the terms and conditions for issue.
ii) approve prospectus or offer letter or letter of offer.
iii) approve appointment of Debenture Trustees and get their written consent.
iv) authorize Board to create charge on assets of the company.
v) call Extra-ordinary General Meeting if the Board’s borrowing powers need to be increased.
vi) authorizes Board to open a separate bank account for receiving money from applicants
2. Hold Extra-ordinary General Meeting (EGM) : If the borrowing powers of the Board is to be increased, EGM must be held to get the shareholders’ approval through a Special Resolution.
3. Filing with Registrar of Companies: Secretary has to file the Special resolution and copy of Prospectus, offer letter / Letter of offer with Registrar of Companies within 30 days of the Board Meeting.
4. Obtain Credit Rating: Company gets its debentures rated by one or more Credit Rating Agencies. The ratings must be mentioned in the prospectus/offer letter/Letter of the offer.
5. Enter into underwriting agreement: Company enters into an underwriting agreement for underwriting its debenture issue.
6. Issue prospectus / letter of offer/offer letter: Company issues prospectus, if it is inviting the public to buy its debentures. An offer Letter is issued if a company makes a private placement and Letter of an offer for Rights Issue.
7. Open Separate Bank Account: The company opens a separate bank account in a scheduled Bank to receive the money from the applicants.
8. Receiving application money: Subscribers will submit their application along with the required amount to the specified bank within the time period mentioned in the prospectus or letter of offer / Offer Letter
9. Hold Board Meeting: After the issue closes, a Board Meeting is held to decide and approve allotment of debentures. Board also approves the creation of charges on the company’s assets.
10. Issue of Debenture certificate: The allotment procedure has to be completed within 60 days from the receipt of application money. The company has to issue a Debenture certificate within 6 months of allotment of debentures.
11. Make entries in Register of Debenture holders: Secretary has to make entries in the Register of Debenture holders within 7 days after the Board approval of allotment. However, if debentures are issued in Demat form, the company does not maintain the Register of Debenture holders.