2025 (4) TMI 670 - AT - IBC

Rejection of Section 7 application filed by the Appellant - allotment of Cumulative Redeemable Preference Shares - Preference Shareholder is a Creditor of a Company or not - existence of ebt and default or not - HELD THAT - The present is a case where Respondent s consistent case is that after allotment of CRPS to the Appellant Respondent Company never declared dividend or earned profit to redeem the preferential shares. If the preferential shares allotted to the Appellant could not have been redeemed no debt became due. The finding of the Adjudicating Authority is that the preferential shares being not redeemable the company having not earned profit nor there were any proceeds of fresh issue of shares made for the purpose of such redemption - there was no existence of default on the part of the Respondent so as to admit Section 7 application. The present is a case where both the parties are relying on written correspondence including the letter dated 26.08.2015 by which 25 Crore CRPS were allotted to the Appellant - When the CRPS have been allotted in favour of the Appellant submission of the Appellant has to flow from the said shares and it is precluded to lead any other evidence or material to show or reflect on the nature of transaction. Conclusion - The Appellant who is holder CRPS is holder of shares which is in the nature of equity in capital which is part of preferential share capital as defined in Section 43. Preferential shares being part of the preferential share capital of the Company shall not transfer any debt so as to initiate any Section 7 proceeding. Further the Company having not earned any profit nor any dividend having been declared no redemption was permissible by the statutory provision hence no debt was due on basis of which Section 7 application could be filed by the Appellant. There is also no material that any proceeds of a fresh issue of shares made for the purpose of such redemption was available. Appeal dismissed.

Summary

ISSUES PRESENTED and CONSIDERED

The core legal issues considered by the Tribunal were:

(i) Whether a Preference Shareholder is a Creditor of a Company.

(ii) Whether an application under Section 7 of the Insolvency and Bankruptcy Code (I&B Code) filed by a Preference Shareholder is maintainable.

(iii) Whether Cumulatively Redeemable Preference Shares ("CRPS") was in the nature of an investment or a financial debt having the commercial effect of borrowing.

ISSUE-WISE DETAILED ANALYSIS

Issue (i): Whether a Preference Shareholder is a Creditor of a Company.

Relevant legal framework and precedents: The Tribunal referred to the definitions under the Companies Act, 2013, particularly sections relating to shares and debentures, and the provisions of the I&B Code. It also considered various judgments, including those from the Supreme Court and High Courts, which clarified the nature of preference shares.

Court's interpretation and reasoning: The Tribunal noted that preference shares, as defined under the Companies Act, do not inherently constitute a debt. They are part of the company's share capital and only assume the character of a debt when they become due for redemption under specific conditions outlined in the Companies Act.

Key evidence and findings: The Tribunal found that the CRPS issued to the Appellant did not become a debt because the conditions for redemption, such as the company making profits or issuing new shares, were not met.

Application of law to facts: The Tribunal applied the provisions of the Companies Act and the I&B Code to determine that the Appellant, as a holder of CRPS, was not a creditor since the shares had not become due for redemption.

Treatment of competing arguments: The Appellant argued that the CRPS were issued in lieu of a debt, thus making them a financial debt. However, the Tribunal held that the conversion of a debt into equity extinguishes the debt, as supported by precedents.

Conclusions: The Tribunal concluded that a preference shareholder does not become a creditor unless the shares are due for redemption, which was not the case here.

Issue (ii): Whether an application under Section 7 of I&B Code filed by a Preference Shareholder is maintainable.

Relevant legal framework and precedents: The Tribunal examined Section 7 of the I&B Code and relevant case law to assess the criteria for maintainability of such applications.

Court's interpretation and reasoning: The Tribunal reasoned that for a Section 7 application to be maintainable, there must be a financial debt and a default. Since the CRPS did not constitute a financial debt, the application was not maintainable.

Key evidence and findings: The Tribunal found no evidence of a financial debt or default, as the CRPS had not become redeemable under the conditions specified by law.

Application of law to facts: The Tribunal applied the I&B Code's definitions and the Companies Act's provisions to conclude that the Appellant's Section 7 application was not maintainable.

Treatment of competing arguments: The Appellant's argument that the CRPS constituted a financial debt was rejected based on the statutory definitions and lack of redemption conditions being met.

Conclusions: The Tribunal concluded that the Section 7 application was not maintainable as the Appellant was not a financial creditor.

Issue (iii): Whether Cumulatively Redeemable Preference Shares ("CRPS") was in the nature of an investment or a financial debt having commercial effect of borrowing.

Relevant legal framework and precedents: The Tribunal referred to the definitions under the Companies Act and the I&B Code and considered judgments that distinguished between equity and debt.

Court's interpretation and reasoning: The Tribunal interpreted that CRPS are part of the company's share capital and do not constitute a financial debt unless they become due for redemption.

Key evidence and findings: The Tribunal found that the CRPS issued to the Appellant were not redeemable as the company had not made profits nor issued new shares for redemption.

Application of law to facts: The Tribunal applied the statutory definitions and precedents to determine that the CRPS were not a financial debt.

Treatment of competing arguments: The Appellant's contention that the CRPS had the commercial effect of borrowing was rejected, as the shares were part of the company's capital and not a debt obligation.

Conclusions: The Tribunal concluded that the CRPS were an investment and not a financial debt.

SIGNIFICANT HOLDINGS

Preserve verbatim quotes of crucial legal reasoning: The Tribunal observed, "Preference Shares are not defined in the I&B Code. Therefore, one must then look into its definition and meaning assigned to preference shares under the Companies Act."

Core principles established: Preference shares do not constitute a financial debt unless they are due for redemption. The conversion of a debt into equity extinguishes the debt.

Final determinations on each issue: The Tribunal determined that the Appellant, as a holder of CRPS, was not a creditor, the Section 7 application was not maintainable, and the CRPS were not a financial debt.