DR.

SHAKUNTALA MISRA REHABILITATION NATIONAL UNIVERSITY

LAW OF INVESTMENT AND SECURITIES

DEBENTURE AND DEBENTURES HOLDERS

SUBMITTED TO: SUBMITTED BY .

PROF.SHAIL ShAKYA SIR VIMAL SINGH

Roll No. 49

(FACULTY OF LAW)

B.COM LLB 8​TH​ ​ ​SEM.

DATE:09-04-2019
Acknowledgement

I would like to thank my subject TEACHER ​PROF. SHail Shakya ​his support and cooperation
to our group for preparation of this project ​Also, we are very thankful to library staff, ​DSMNRU
FACULTY OF LAW for providing me all the relevant material easily. Lastly, friends and
family is thanked by me for their help

TABLE OF CONTENTS

Abstract ……………………………………….…………………… 3 

Introduction………………………………………………………… 4 

Debenture: Meaning and Characteristics …….. 6 

Classification of Debentures……………………………. 8 

Advantages and Disadvantages………………………… 11 

Legal Compliances………………………………………………… 16 

Issue in private companies………………………………… 24 

Debentures and Debt Market: Indian Context 27 

Conclusion……………………………………………………………….. 30 

Abstract

Being a qualified Company Secretary, it was an interesting task to take up topics

from corporate world. Having worked under various circumstances, one thing was
clear that a project shall be based on some real time experiences that author has
faced during her professional tenure. The concept of debenture struck in mind of
author because she has seen that there is a lack of organized debt market in India
and also, during her work experience, she has faced some challenges in legal
compliance in issuing and listing of long term debt instruments: Debentures.

Introduction:

Finance is the lifeblood of every business. It is perhaps the most crucial factor in deciding fate of

any business enterprise. Finance is required in day-to-day transactions of business as well as for
carrying out capital (long term) investments of the business. Keeping this in view, it is the most

important function of a financial manager that is to arrange funds for the business from different

sources. This becomes necessary under the fact that pre determined goals of business could only

be achieved when a business does not suffer from lack of finance. It is evident in daily lives too

that a person cannot carry on his daily tasks without having financial support. Other than this,

just like daily lives, a business cannot run smoothly in absence of finance.

This therefore is the most crucial decision that a financial manager needs to take up- composition

of capital structure of an organization. Following diagram shows capital structure and its various

components:

Let us get a brief introduction of each of components of capital structures:

Equity Capital: Shareholders' equity (or stockholders' equity, shareholders' funds,

shareholders' capital employed) is the interest in remaining assets, spread among individual

shareholders of common or preferred stock. At the start of a business, owners put some funding

into the business to finance assets. Businesses can be considered to be, for accounting purposes,

sums of liabilities and assets; this is the accounting equation. After liabilities have been

accounted for, the positive remainder is deemed the owner's interest in the business.

Preference Capital: ​Preferred stock, also called preferred shares or preference shares, is

typically a 'higher ranking' stock than voting shares, and its terms are negotiated between the

corporation and the investor. Preferred stock usually carries no voting rights, but may carry

superior priority over common stock in the payment of dividends and upon liquidation. Preferred

stock may carry a dividend that is paid out prior to any dividends being paid to common stock

holders. Preferred stock may have a convertibility feature into common stock. Preferred

stockholders will be paid out in assets before common stockholders and after debt holders in

bankruptcy. Terms of the preferred stock are stated in a "Certificate of Designation".

Debt Capital: ​Debt capital is the capital that a business raises by taking out a loan. It is a loan

made to a company that is normally repaid at some future date. Debt capital differs from equity

or share capital because subscribers to debt capital do not become part owners of the business,

but are merely creditors, and the suppliers of debt capital usually receive a contractually fixed

annual percentage return on their loan, and this is known as the coupon rate.

Debt capital ranks higher than equity capital for the repayment of annual returns. This means that

legally, the interest on debt capital must be repaid in full before any dividends are paid to any

suppliers of equity.
 Main part of Analysis:

Our analysis will be based on long-term sources of funds: most specifically debt finds. In India,

it is important to understand that, there is no bond market. Companies and government most

often come up with issue of a long-term debt instrument known as debenture. Let us move

forward and understand meaning of term debenture, especially in context of Indian financial

markets.

Debentures: Meaning and Nomenclature:

A debenture is defined as a certificate of agreement of loans which is given under the company's

stamp and carries an undertaking that the debenture holder will get a fixed return (fixed on the

basis of interest rates) and the principal amount whenever the debenture matures.

In finance, a debenture is a long-term debt instrument used by governments and large companies

to obtain funds. It is defined as "a debt secured only by the debtor’s earning power, not by a lien

on any specific asset." It is similar to a bond except the security conditions are different. A

debenture is usually unsecured in the sense that there are no liens or pledges on specific assets. It

is, however, secured by all properties not otherwise pledged. In the case of bankruptcy,

debenture holders are considered general creditors. The advantage of debentures to the issuer is

they leave specific assets burden free, and thereby leave them open for subsequent financing.

Debentures are generally freely transferable by the debenture holder. Debenture holders have no

voting rights and the interest given to them is a charge against profit.

Definition of Debentures by Indian Companies Act, 1956:

The term debenture includes debenture stocks, bonds and any other security of a company,

whether constituting a charge on the assets of a company or not.

Features of Debentures as a long-term financial (Debt) instrument:

Following are the basic features of debentures that differentiate them from other sources of

finance. After understanding meaning of different capital structures, we need to understand

peculiar characteristics of debentures that make them different from commonly used finance

sources:

● Investors who invest in the debentures of the company are not the owners of the

company. They are the creditors of the company or in other words, the company borrows

the money from them.

● Funds raised by the company by way of debentures are required to be repaid during the

life time of the company at the time stipulated by the company. As such, debenture is not

a source of permanent capital. It can be considered as a long-term source.

● In practical circumstances, debentures are generally secured i.e. the company offers some

of the assets as security to the investors in debentures.

● Return paid by the company is in the form of interest. Rate of interest is predetermined,

but the company can freely decide the same. The interest on debenture is payable even if

the company does not earn the profits

● In financial terms, debentures prove to be a cheap source of funds from the company’s

point of view

So this thing needs to be kept in mind by a company that an investor is expected to invest in

debentures only when liquidity and financial position of company is very sound. An investor is

always careful before investing in any company, especially in debt instruments where there is

hardly any chance of capital appreciation. So, a company that is very much sure about it financial
well-being could very well come up with issue of debentures. Debentures are also ideal for

companies, which do not want any kind of dilution in control of management. That means,

organizations, which do not want to issue shares, could come up with issue of debentures.

Apart from that, financial manager must make sure that company is in sound enough position to

make periodic interest payments and also, repayment of principal amount at the right time.

Classification of debentures

In India, debentures could be classified in basically two categories: on the basis of security and

on the basis of convertibility. Following diagram shows details of classification of debentures in

Indian context:
Let us now discuss each of the types of debentures, which are issues in market by companies to

raise funds.

On the basis of convertibility:

● Fully convertible Debentures (FCD): These are fully convertible into Equity

shares at the issuer's notice. The issuer decides the ratio of conversion. Upon conversion

the investors enjoy the same status as ordinary shareholders of the company.

● Partly Convertible Debentures (PCD): A part of these instruments are converted

into Equity shares in the future at notice of the issuer. The issuer decides the ratio for

conversion. This is normally decided at the time of subscription.

● Non-Convertible Debentures (NCD): These instruments retain the debt character

and cannot be converted in to equity shares.

● Optionally Convertible Debentures (OCD): The investor has the option to

either convert these debentures into shares at price decided by the issuer/agreed upon at

the time of issue.

On the basis of security:

● Secured Debentures: These instruments are secured by a charge on the fixed assets

of the issuer company. So if the issuer fails on payment of either the principal or interest

amount, his assets can be sold to repay the liability to the investors.
 ● Unsecured Debentures: These instruments are unsecured in the sense that if the

issuer defaults on payment of the interest or principal amount, the investor has to be

along with other unsecured creditors of the company.

Along the dimension of security, we have seen that debenntures have been classified into

unsecured(Straight) and secured (mortgage) debentures. Unsecured debentures do not carry any

cahrge on specific assets of the company while secured debentures carry a fixed or floating

charges on assets of company.

The distinction between secured and unsecured debentures becomes relevant in case the issuer

defaults in payment of interest and principal amount so taken from investors. Secured debenture

holders are entitled to take possession of security given to them and realize their dues by selling

these assets, which are most commonly- land, buildings, plant, machinery of business. This right

is valuable to debenture holders provided security is valuable, easily saleable and has not been

simultaneously given as security to other creditors as well. All these factors have to be examined

while evaluating debenture. Unsecured debenture are not backed by any such security, but an

investor needs not worry about that if he has a belief that company is doing financially and

chances of default are very bleak.

 Advantages of Debentures

Continuing the classification of debentures, next step to be undertaken during course of our

analysis is to look at fact as to how debentures have an advantage over other sources of

long-term finance. In this section of our study, we shall look as to what are the pros and cons of

debentures that make it one of the most reliable sources of long-term finance and also create a

huge scope in Indian financial markets.

Following are advantages of debentures that make them a reliable source of finance as compared

to other long-term finance sources:

Let us divide our analysis into three major points i.e., division of advantages of debentures by

different prospective:
Let us now take a look at the description of above-mentioned topics in brief. During course of

description, efforts will be made to make sure that a reader understands relative advantage of

debentures and conclusions could be drawn out as to how under utilized this very source of

finance has been in Indian context:

General Advantages:

These advantages are highly dependable on the success rate of the current interest rate and

economic situation of society.

● Greater Returns on Corporate Debentures​: ​Corporate bonds and debentures

are usually much more rewarding than government debentures or bank investments and

provide a higher rate of financial return for their investors. If a company is selling

debentures to people, it means that they definitely need the money and are willing to pay

you quite a bit of additional money to use it. The fact of receiving a greater return on

corporate debentures is a great advantage to these types of investment.

● Financially Convertible: Another great advantage to debentures is that at the end of

the lending period companies usually offer the assets in the form of stock, which can

ultimately be very valuable. Stocks are another great form of investment and are

sometimes better than receiving immediate cash in return. Although the advantages of

debentures can be clearly seen, there are a number risks and disadvantages to investing in

corporate debentures.

● Success or Failure: You are taking a great risk when investing in a corporate

debenture because the success of the company will determine how valuable your
 debenture is. A company debenture is only valuable when the company is successful and

profitable, but if it fails, then you will lose a great amount of money. Debentures and

bonds hold greater risks because the company could eventually go out of business, so this

type of investment should be done very carefully.

Debentures can be a very attractive form of investment, but only should be taken advantage of

with companies that have a very high probability of being successful. Large and already

successful businesses are smart forms of investments when considering buying corporate

debentures.

Advantages to investors:

● They have the possibility to acquire shares at a lower price to that of the market- by way

of investment in convertible debentures with embedded options of conversion into equity

shares.

● They have the right for subscription of shares at a lower price to that of the market.

● They are less exposed to the risks of inflation.

● The price of conversion is always lower to that of the market so the effects of a possible

inflation are mitigated. This inflation effects causes a rise on the stocks quotations.

● Investors get better returns as compared to bank deposits.

● Debentures are less volatile as compared to equity shares.

● At times, companies come up with offers like principal guarantee.

● Due to SEBI guidelines, chances of default by corporate are very less.

Advantages to issuing institutions:

● There is an improvement in the financial structure of the company, because the extra

resources (debentures) are transformed into own resources (shares). It transforms debt

into capital.

● The financial cost is lessening, because if the investor chooses for the conversion they

don’t have to obey the requisites from the debentures: to pay interests and to refund the

capital. On the other side, the interests from the debentures or bonds are usually lower

than that on the market, this way, in case of not converting, the company will finance

itself with cheap debt.

● The sooner the conversion is made, the greater are the discounts, so the lesser are the

numbers of shares that you can obtain with each debenture.

After talking about advantages of debentures, lets take a look on various demerits this source of

finance suffers from. No doubt that there are few cons from which debentures suffer, but these

demerits are small enough to overlook and advantages always override the disadvantages:

General Disadvantages:

● By issuing the debentures, the company accepts the risk of two types. These are payment

of the interest at a fixed rate, irrespective of the non-availability of profits and repayment

of principal amount at the pre-decided time. If earnings of the company are not stable or

if the demand for the products of the company is highly elastic, debentures prove to be a

very risky proposition for the company. Any adverse change in the earnings or demand

may prove to be fatal for the company.

 ● Debentures are usually a secured source for raising the long-term requirement of funds

and usually the security offered to the investors is the fixed assets of the company. A

company, which requires less investment in fixed assets, such as a trading company, may

find debentures as a wrong source for raising the long-term requirement of funds, as it

does not have sufficient fixed assets to offer as security.

Disadvantages for the Investor

● They don’t pass immediately through the quotations.

● The securities have a less quotation price due that temporarily they have lesser rights.

● They are less liquid, due that there is a lesser amount of them.

● You can’t dispose of money soon due to the former explanation. Usually the type of

interests that they offer is inferior to that of the ordinary debentures due that they offer

the additional advantage of placing them as shares on the market.

Disadvantages for the Issuing Institution

● You can’t foresee an exact dividend distribution politic due that existing amounts of

shares swill depend on the number of debentures that will exercise their option of

conversion.

● There are doubts when you can’t calculate the interests of the debentures. Again, the

number of securities to be converted is unknown or unknown of the amount of funds to

be returned with the amortizations.

 Legal Compliance while making issue of debentures:

The next step in our analysis will be to take a look at legal complications and compliances that

have to be kept in mind while issuing debentures. Being a company secretary, one needs to keep

in mind that this very professional is responsible for complying all the legal and mandatory

implications involved here. Being a part of good corporate governance, a company secretary

shall make efforts to make sure that no point of law is not missed out by anyway possible. Other

than this, a company secretary shall be responsible for any discrepancies that might arise after

issuance of debentures. As a huge amount of public savings is involved in debentures,

government and SEBI have been stringent enough while formulating procedures and policies for

issuing guidelines. More than company’s interests, interests of investors have been given much

more weight while formulating rules and regulations of debenture issue. We shall look at them in

brief and that will help us in understanding role of a company secretary in complying with

directives issued by concerned authorities.

Issue of debentures to public:

Debentures which, include fully convertible debentures (FCDs), partly convertible debentures

(PCDs) or non-convertible debentures (NCDs) may be offered to the public by prospectus by:

● An existing listed company

● Unlisted public company or a private company proposing to convert itself into public

company.

● A partnership firm proposing to transfer its business to a new public company.

Appointment of Merchant Banker and filing of draft prospectus:

For managing whole issue of debentures, a company is required to appoint a merchant banker.

As per the SEBI guidelines, a company is required to file a draft prospectus with the SEBI

though an eligible merchant banker, at least 21 days prior to filing of the same with the registrar

of companies. Any offer of securities to public shall be in DEMAT mode. for this purpose,

company shall enter into an agreement with a depository before public issue is made.

Requirement of Credit Rating:

For issue of all types of debentures, credit ratings from a credit rating agency of not less than

investment grade shall be obtained from not less than two registered credit rating agencies and

disclosed in the offer documents.

In the case of public issue of debentures, there would be a large number of debenture holders on

the register of the company. As such it shall not be feasible to create charge in favour of each of

the debenture holder. A common methodology generally adopted is to create Trust Deed

conveying the property of the company. A Trust deed is an arrangement enabling the property to

be held by a person or persons for the benefit of some other person known as beneficiary. The

Trustees declare the Trust in favour of the debenture holders. The Trust Deed may grant the

Trustees fixed charge over the freehold and leasehold property while a floating charge may be

created over other assets. The Company shall allow inspection of the Trust Deed and also

provide copy of the same to any member or debenture holder of the company on payment of

such sum as may be prescribed. Failure to provide the same would invite penalties by way of fine

under the Act. Any provision contained in the Trust Deed, which exempts a Trustee from

liability for breach of Trust, is void.

As per Section 125 (4) of the Indian Companies Act, registration of a charge for purpose of issue

of debentures is mandatory. Section 128 stipulates that where a company issues series of

debentures which is secured by charge, benefit of which will be available to all debenture holders

pari passu, the company shall file the prescribed particulars in Form 10 and 13 with the Registrar

of Companies for registration of charge. These forms shall be filed within 30 days after the

execution of the deed.

Appointment and Duties of Debenture Trustees

In terms of Section 117 B, it has been made mandatory for any company making a public/rights

issue of debentures to appoint one or more debenture trustees before issuing the prospectus or

letter of offer and to obtain their consent which shall be mentioned in the offer document.

Following will be eligible to act as debenture trustee if it is registered with SEBI:

● Scheduled Commercial Bank carrying on commercial activity.

● Public financial institution as per Section 4A of Indian Companies Act.

● Insurance company.

● Body Corporate.

The Debenture Trustees shall not:

a) Beneficially hold shares in a company.

b) Be beneficially entitled to monies, which are to be paid by the company to the debenture

trustees.

c) Enter into any guarantee in respect of principal debt secured by the debentures or interest

thereon.

This section also lists the functions that shall be performed by the Trustees. These include:
 I. Protecting the interests of the debenture holders by addressing their grievances.

II. Ensuring that the assets of the company issuing debentures are sufficient to discharge

the principal amount.

III. To ensure that the offer document does not contain any clause which is inconsistent

with the terms of the debentures or the Trust Deed.

IV. To ensure that the company does not commit any breach of the provisions of the

Trust Deed.

V. To take reasonable steps as may be necessary to undertake remedy in the event of

breach of any covenant in the Trust Deed.

VI. To convene a meeting of the debenture holders as and when required.

VII. If the debenture trustees are of the opinion that the assets of the company are

insufficient to discharge the principal amount, they shall file a petition before the

Central Government and the latter may after hearing the parties pass such orders as is

necessary in the interests of the debenture holders. As per the SEBI (Debenture

Trustees) Regulations, 1993, a Debenture Trustee can be a scheduled bank, an

insurance company, a body corporate or a public financial institution.

Debenture Trust Deed

A Debenture Trust Deed shall, inter-alia, include the following:

a) An undertaking by the company to pay the Debenture holders, principal and interest.

b) Clauses giving the Trustees the legal mortgages over the company's freehold and leasehold

property.
c) Clauses that may make the security enforceable in the event of default in payment of principal

or interest i.e. appointment of receiver, foreclosure, sale of assets etc.

d) A clause giving the Trustees the power to take possession of the property charged when

security becomes enforceable.

e) Register of Debenture holders, meeting of all debenture holders and other administrative

matters may be included in the Deed.

In addition thereto, the SEBI regulations have laid format of the Trust Deed in Schedule IV to

the regulations. Some of the important provisions would include

f) Time limit of creation of security for issue of debentures.

g) Obligations of the body corporate towards the debenture holders.

h) Obligations towards the debenture holders - equity ratio and debt service coverage ratio.

i) Procedure for the inspection of charged assets by the Trustees.

Creation of debenture Redemption Reserve

Section 117 C of the Act casts an obligation on the company to create a Debenture Redemption

Reserve. This account will be credited with proceeds from the profits of the company arrived at

every year till redemption of the debentures. The Act, however, does not stipulate the time period

for creation of security. SEBI regulations provides for creation of security within six months

from the date of issue of debentures and if a company fails to create the security within 12

months, it shall be liable to pay 2% penal interest to the debenture holders. If the security is not

created even after 18 months, a meeting of the debenture holders will have to be called to explain

the reasons thereof. Further, the issue proceeds will be kept in escrow account until the

documents for creation of securities are executed between the Trustees and the company.
Compliances under Registration Act and Stamp Duty Act

In the case of English Mortgage, the trust deed will attract ad valorem stamp duty. After

execution, such deed will be registered with the sub registrar of Assurances. Registration charges

will have to be paid in addition to the stamp duty. While in case of an equitable mortgage, if no

document, deed etc. is signed then nothing is required to be registered with the sub registrar of

Assurances. If however, a note or letter is made then it will attract stamp duty. It is pertinent to

mention that once a mortgage is created by registration then no further stamp duty is payable on

registration.

Listing of Debentures as per Section 73 of the Companies Act, 1956

A Listed Company, which proposes to issue debentures to the public, shall make the debentures

enlisted in a recognised Stock Exchange. It shall, before issuing the prospectus for such issue,

make the application to the Stock Exchange concerned and the permission must be obtained

before the expiry of ten weeks from the date of the closing of the subscription.

Issue of Non Convertible Debentures and Approval of the Board

According to Section 292 of the Companies Act 1956, the proposal of a company to issue

debentures and issue the same to the public needs the prior approval of its Board of Directors

accorded by the resolution passed in the meeting of the Board. Such power cannot be exercised

by the resolution passed by the Directors by circulation, nor delegated by the Board.

Issue of Partly Convertible Debentures or Fully Convertible Debentures requires

other approval
In this case approval of shareholders by special resolution and of the central government

pursuant to the provisions in Section 81 (3) (b) is required.

Conversion of Debentures into Equity Shares

In the normal course of conversion of Debentures into equity shares of the Company, a company

is needed to follow Section 81(3)(b) of the Companies Act,1956. On the other hand, in the

following cases the approval of Central Government will not be necessary:

● The Debentures are issued either raised through private subscription or issue of a

prospectus to the public

● A public financial institution or scheduled bank either underwrites the above issue or

subscribes to the issue of debentures, either wholly or in part or sanctions the whole or

part of the debenture; and

● The right of conversion may be at par or at a premium not exceeding 25% of the nominal

value of the shares.

Default

In the event of failure on the part of the company to redeem the debentures on the date of

maturity, the Company Law Tribunal may, on the application of any debenture holder, direct

redemption of debentures forthwith by payment of principal and interest due thereon. If a default

is made in complying with the orders of the Tribunal, every officer of the company who is in

default shall be punishable with imprisonment for a term, which may extend to three years and

shall also be liable to fine of not less than Rs.500/- for every day during which the default

continues. (Section 117C) Further this offence is not compoundable under section 621A of the

Act.
There are contradictions between the Companies Act and the SEBI regulations on issues relating

to:

a) Utilisation of Debenture Redemption Reserves. The Act provides that the Debenture

Redemption Reserve will be used towards redemption of debentures only whereas the SEBI

regulation states that these will be a part of the General Reserves, which can be utilised for the

purpose of bonus issues.

b) Any debentures issued with a maturity period of 18 months or less is exempted from the

creation of Debenture Redemption Reserve Account, whereas no such exemption is provided

under the Companies Act.

c) No Public Issue/Rights Issue of Debentures shall be made by a company unless it has

appointed one or more Debenture Trustees for such debentures whereas under SEBI guidelines,

appointment of Debenture Trustees is compulsory only in case of debentures with maturity of 18

months or more.

A listed company though subjected to SEBI regulations must comply with stringent norms

between the two legislations / regulations made there under.

 Issue of Debentures in Private Companies

It is more often than naught experienced that modules, guidelines and study materials are filled

with all information relating to issue of debentures by a public company. Interestingly, one fact

is often neglected or overlooked that debentures are a documentary evidence of a loan taken by

company. A public company has an option of going to public for raising funds by way of

ownership and loans. A private company cannot contact public for raising money as loans but it

does not matter anyway that a private company is refrained from issuing debentures as a debt

instrument. Private company can very well privately place debentures to financial institutions,

commercial banks, mutual funds and board of directors of that particular company. A secretarial

professional often finds himself in a dilemma when such kind of case comes before him. In most

often cases, a Company Secretary has to resort to bare acts-, which is indeed a tedious task in its

own self. Moreover, a company secretary shall not be confused with basic functions he needs to

perform during tenure of his work. Both as a practising company secretary and as a financial

manager in a corporate, he has to take care of the fact that issuance of debentures in private

company is one of the prime jobs he needs to undertake.

Some of the provisions that are to be followed while making issue of debentures, in case of a

private company are listed as follows:

1) A private company cannot issue unsecured debentures: ​Under the Companies

(Acceptance of Deposit) Rules, 1975 “any amount raised by issue of debentures (including

convertible debentures) secured by the mortgage of any immovable property of the company and

that the market value of the immovable property secured is higher than the amount of debentures
issued” is not considered to be a Deposit. Under Section 3(1)(d) of the Act, a Private Company is

prohibited from accepting Deposit from persons other than its Directors, Members and their

relatives. Hence, the Private Company must issue Debentures only as a Secured Debenture.

2) Approvals to be taken before proceeding for the issue: ​The following approvals are

required to be obtained by the Company:

● Board for issue of Debentures under Section 292(1)(b).

● Board Creation / Declaration of Trust: Board Appointment of Debenture Trustees

(Section 117B)

● Board Approval of Draft Trust Deed

● Board Approval of the Form of Debenture Certificate.

● Letter from Trustees Consent from the Debenture Trustees to act as Trustees.

● No approvals are required to be obtained under Section 293(1)(a) and (d) since, the

Section does not apply to Private Limited Companies, unless it is a Subsidiary of a Public

Company.

3) Allotment: Since, the Company proposes to place the Debenture privately, it is suggested

that a Letter of Offer is also made which would be circulated amongst the target buyers. The

draft letter of offer is also required to be approved by the Board. The conditions relating to the

payment for subscription, the Security, the rate of interest on the Debentures and the period by

which the Debentures would be redeemed would have to be specified.

4) Equitable Mortgage: ​The security is to be created by way of Equitable Mortgage by way

of deposit of title deeds of the immovable property of the Company. The deposit is required to

made with the Trustees. The procedure relating to this is as follows:

5) Filing of modification of charge with the registrar of Companies: ​After creation

of the Equitable Mortgage the Company should file Form 10.

6) Time Limit For Issue Of Debenture Certificate: The time limit for the issue of

Debenture Certificate is 3 months from the date of allotment. If the Company is of the opinion

that it might not be able to issue the Debenture Certificate within 3 months, then it is suggested

that an application is made to the CLB requesting for extending the time- limit for issue of

Debenture

Certificate.

​ s per Section 117C of the Companies

7) Creation of debenture redemption reserve: A

Act, 1956, a Debenture Redemption Reserve (DRR) needs to be created. From the profits of the

Company each year, adequate amounts need to credited, which should be utilised for redemption,

and not for any other purpose.

8) No necessity to file form 2 for allotment of debentures: ​We would like to clarify

that Form 2 -`Return of Allotment’ being a requirement under Section 75 of the Companies Act

is limited to allotment of shares and it does not in its scope cover Allotment of Debentures.

9) Maintenance Of Register Of Debenture-Holders: ​Under Section 152 of the Act, the

Company is required to maintain a Register of Debenture-holder and we append herewith the

format of the Register:

10) Payment of stamp duty on the debentures: ​The stamp duty as prescribed under the

Stamp Act, as in force in state, required to be affixed to the Debenture Certificate on the face of

the same or in the form of attaching a separate sheet of paper and affixing the stamps on the
same. The fact that the stamps so affixed forms part of the Certificate with the Certificate

Number should be mentioned on the sheet so attached.

Alternative method:

Instead of affixing stamps on the debenture certificate or by attaching a separate sheet, there is

also a provision to pay consolidated stamp duty. For this purpose, intimation is needed to be

given to concerned authorities by writing them official letters.

 Debentures and Debt market in Indian context:

After understanding in brief some of legal compliances related with issue of debentures in public

as well as private companies, we should conclude our analysis by taking a look at current

economic conditions and implications of debentures in Indian financial structure.

It is very discouraging to see that debt market in India is not as organized as in other advanced

economies. Taking example of the US, where debt market (bonds) has a size, which is more that

thrice the size of equity markets. In India, companies have been issuing debentures to public as

well as to financial institutions, but the level of issue has not been as large as equity issue. Also

there is no organization in Indian secondary debt markets as compared to organized equity

markets. In India, public at large averse themselves from investing in debentures issued by large

corporate houses. In most cases, it is financial institutions, which invest in debentures of

corporate bodies. Public at large is interested in investing in debentures which are issued by

financial institutions. In Indian markets there are about 8000 companies, which come up with

issues of securities. Out of them, only about 2000 are traded on stock exchanges on a regular

basis. Most often, there is a lack of liquidity in Indian stock markets that lead to a disinterest by

investors in debt instruments. This difference in Indian scenario with that of advanced economy

(USA) will become more clear by way of following case analysis.

In this case illustration, we will take two companies from each nation: Reliance Industries

Limited from India and Wal-Mart Inc. from USA. We will see that both the companies have

significant effect on their respective economies and in a way they reflect financial structure and

pattern followed by investors in that nation. We will take into account respective contribution of

debt- bonds and debentures in total capital as well as total liabilities of these companies. After
this analysis, we will be in a position to draw conclusions of illustration as well as make our

recommendations on project and debentures’ scenario in Indian market.

Wal-Mart Inc. USA:

Long term Debt:​ $ 27,799 millions

Shareholder’s Equity:​ $64,608 millions

Total assets of continuing operations:​ $163,514 millions

(Sources of finance: Wal-Mart Inc. USA)

It is shown by way of above pie chart that Wal-Mart uses about 30% of debt in total sources of

finance raised by various methods. It means that bond markets in USA are much more liquid and

organized as compared to Indian markets whose condition will be clear with help of following

illustration:

Reliance Industries Limited: India

Shareholder’s Funds:​ Rs. 81,448.60 crores

Debentures:​ Rs. 4118.12 Crores

(Reliance Industries Limited: Sources of Long Term Finance)

This very illustration shows that debentures and bonds have not been able to win confidence of

investors in context of Indian Financial Market.

Conclusion of Analysis

It is not just about a single company, whole debt market of India needs reorganization and that

too at a rapid rate. In today’s context when due to recession, equity markets have fallen

drastically in India, debentures could just help in saving day for all troubled financial markets of

India. Apart from that, government should take account of SEBI’s advices when the authority

has constantly urged them to work for organization of debt market in India. This is necessary
because in an emerging economy, it is important that there is an active participation of public in

corporate world activities. Role of a Company Secretary is important because in this condition

he’s the one who has to maintain equilibrium between interest of investors, company and

government of India. This is perhaps real challenge that a Company Secretary will have to face

in some years to come.