Sunday 20 April 2014

(12.10.10) Remedies of Debentureholders

In case of default by the company in repayment, the remedies of a debenture holder vary according to whether he is secured or unsecured.

An unsecured debentureholder is in exactly the same position as a creditor and he
has the same remedies. Thus, (1) he may sue for the principal and interest; or (2) he may present a petition for the winding up of the company and prove his debt as unsecured creditor.

A secured debentureholder has both the above remedies, but in addition he has
the following courses also open to him:

            (I)  Where a trust deed has been executed

            1.  Sale of assets. The power of sale by trustees is one of the express powers usually contained in the debenture or debenture trust deed. If no such power is given, an application may be made to the Court for an order to sell.

            2.  Foreclosure. The trustees may make an application to the Court for an   order of foreclosure, the effect of which is that the borrowers' interest in the     assets charged is completely extinguished and the lender becomes the owner of them. For an action of foreclosure, it is necessary that all debentureholders         of the class concerned join hands [Wallance v. Evershed (1899) 1 Ch. 891].

            3.  Appointment of a receiver. Where there is a trust deed, it often provides that the trustees may appoint a receiver. If no such power is given, application   to appoint one may be made to the Court in a debentureholders' action. On the appointment of a Receiver, the assets become specifically charged in favour of  the debentureholders and the power of the company to deal with them in the  ordinary course of business ceases, although the company continues to exist  until it is wound up.

            (II)  Where no deed has been executed

Debentureholders' action: Where no trust deed had been executed in favour of debentureholders, a debentureholder may, on default in payment of principal or interest, bring an action (called a debentureholders' action) on behalf of himself and other debentureholders of the same class asking for: (i) a declaration that the debentures have a charge on the assets; (ii) an account of what is owed to the debentureholdes; the amount of assets; prior claims, etc; (iii) an order of foreclosure or sale; (iv) the appointment of a Receiver.

If a debentureholder owes a debt to the company which is insolvent, the holder cannot set off his debt against the liability he owes to the company. The rule is that a person who claims a share in a fund must first pay up every thing he owes to the fund before he can claim a share [Re Borwn and Gregory Ltd. (1904) 1 Ch.627].

SEBI has also issued guidelines for disclosure and investor protection pertaining to debentures.

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