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NCLT Judgement on Treatment of CCD in case of Company goes under CIRP Process under IBC
M & A Critique
|May 2023
Agritrade Power Holding Mauritius Limited (Applicant) filed application with Hon'ble NCLT Mumbai Bench against rejection of its claim by the Respondent/Resolution Professional of SKS Power Generation (Chhattisgarh) Limited ("Corporate Debtor/SPGCL") as financial creditor by virtue of Holding Compulsory Convertible Debentures of Corporate Debtor.
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Facts of the case:-
i. The Applicant is holder of 38,05,576 Compulsory Convertible Debentures (CCD's) with face value of Rs.1000/- each carrying interest @ 11.5% per annum. The total face value of the CCDs is circa €380 Crores.
ii. The total interest payable on such debentures till 28.04.2022 amount to Rs.1,36,72,81,334.
iii. Corporate Insolvency Resolution Process (CIRP) Application against corporate debtor was admitted on 29.04.2022.
iv. The Corporate Debtor owed a sum of 517 Crores which includes the interest as financial debt to the Applicant. The Applicant submitted Form-C to the Respondent on 13.05.2022 and furnished clarification/ information from time to time.
v. The Applicant's claim was rejected by the Respondent stating that.
“The books of accounts reflect the CCDs as ‘Other Equity’ and not as debt, indicating that the same has been considered as an equity or quasi-equity instrument and not as a debt instrument. Further, the books of account of SPGCL also record the CCDs as ‘Other Equity’ and not debt.”
Appellant preferred appeal against Rejection of Claim before Hon’ble NCLT on following grounds: -
i. Referred to the Judgement of Hon'ble Principal Bench of NCLT at Delhi in the matter of "SGM Webtech Pvt. Ltd. Vs. Boulevard Projects Private Limited, CP(IB) 978 (PB)/ 2018" passed by the Principal Bench of this Tribunal wherein it was held that CCDs, till the time they do not mature, are to be considered as debentures and consequently qualified debt.
ii. It was also pleaded that characterization in the books of account of the Company cannot be conclusive of the nature of transaction.
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