Preference shares occupy a uniquely ambiguous space in the architecture of corporate finance. They are neither purely equity nor purely debt they are, in essence, a hybrid instrument, carrying the fixed-return expectations of a creditor while retaining the legal character of a shareholder. An investor who subscribes to preference shares does so on the promise of priority: priority in dividend distribution and, critically, priority in the return of capital upon redemption. This promise is not merely commercial it is statutory, and increasingly, it is being recognized as judicially enforceable.
The practical allure of preference shares for institutional investors banks, financial institutions, and sophisticated private capital lies precisely in this quasi-debt character.They offer a defined rate of return, a fixed redemption date, and a degree of priority over ordinary shareholders.
For the issuing company, preference shares provide capital without the immediate obligation of debt repayment, without diluting voting control, and with the flexibility of redeeming the capital at a pre-agreed future date.
However, this seemingly balanced arrangement breaks down when companies often under financial stress fail to redeem preference shares on schedule. The investor is left in an uncomfortable limbo: too equity-like to claim as a creditor, and too powerless under the statute to compel the company to act. This article examines that gap the legal vacuum between a preference shareholder's contractual expectation and the statutory mechanisms available for its enforcement and traces the significant judicial evolution that has worked to bridge it.
|| Preference shares are not merely instruments of investment they are instruments of trust. When a company issues redeemable preference shares, it makes a promise. The question that courts have been asked to answer is: what happens when that promise is broken?
Section 55 of the Companies Act, 2013 is the legislative cornerstone governing the life-cycle of preference shares in India. Its most fundamental rule is contained in sub-section (1): no company limited by shares shall, after the commencement of the Act, issue preference shares that are irredeemable. This was a deliberate and decisive departure from the position under the Companies Act, 1956, under which irredeemable preference shares were permissible, leaving investors perpetually exposed to the risk of non-payment.
The prohibition on irredeemable preference shares reflects a considered legislative policy choice: that preference share capital should, over time, be returned to the investors who provided it. The statute thus casts an ongoing obligation upon the issuing company one that does not diminish with time and cannot be indefinitely deferred without consequence.
Sub-section (2) of Section 55 permits companies to issue redeemable preference shares, provided they are redeemed within twenty years of the date of issue (extendable for infrastructure projects). The conditions for redemption are stringent: shares must be redeemed only out of profits available for dividend or from the proceeds of a fresh issue of shares specifically made for that purpose; they must be fully paid-up before redemption; and appropriate transfers must be made to the Capital Redemption Reserve Account where redemption is effected out of profits. These conditions are not procedural formalities they are safeguards that preserve capital maintenance and protect the broader interests of creditors.
Sub-section (3) is perhaps the most significant provision for the purposes of this article. It addresses the situation where a company 'is not in a position to redeem' its preference shares or pay the dividend thereon. In such cases, the company 'may', with the consent of holders of three-fourths in value of such preference shares and with the approval of the Tribunal upon a petition made by it, issue further redeemable preference shares equal to the amount due thereby extending the redemption obligation forward in time.
Crucially, the proviso to Section 55(3) requires the Tribunal to order forthwith redemption of preference shares held by those shareholders who have not consented to the further issue. This provision, while protective in intent, creates a procedural bottleneck: the entire mechanism under Section 55(3) is company-initiated. The company files the petition; the company seeks the Tribunal's approval. The shareholder's role is limited to consenting or dissenting.
Section 245 of the Companies Act, 2013 introduced into Indian corporate law the concept of a class action suit a mechanism borrowed from jurisdictions such as the United States, where collective shareholder litigation has long been a powerful instrument of corporate accountability. Under this section, a requisite number of members or depositors may approach the Tribunal if they are of the opinion that the affairs of the company are being conducted in a manner prejudicial to their interests.
The reliefs available under Section 245 are broad. They include orders to restrain the company from committing acts ultra vires its constitution, declarations voiding resolutions passed by suppression of material facts, claims for damages or compensation against the company or its directors for fraudulent or wrongful acts, and most pertinently any other remedy that the Tribunal may deem fit.
However, Section 245 comes with its own procedural thresholds. The minimum requisite number for a class action by members is not less than one hundred members, or such percentage of the total number of members as may be prescribed, whichever is less or alternatively, members holding not less than a prescribed percentage of the issued share capital. For individual preference shareholders or small institutional investors, these numerical thresholds can be a formidable barrier.
A careful reading of Sections 55 and 245 reveals a critical structural gap in the enforcement framework. Consider the following scenario one that is far from hypothetical in Indian corporate practice: a company issues cumulative redeemable non-convertible preference shares to a bank or financial institution; the redemption date arrives; the company, citing financial distress, fails to redeem; it also fails to pay the accumulated dividend; and crucially, it takes no steps whatsoever to file a petition under Section 55(3) for relief.
What remedy does the preference shareholder have in this situation? The statute, read literally, offers a troubling answer: very little. Section 55(3) is activated by the company, not the shareholder. The shareholder cannot compel the company to file a petition. Section 245, in theory, offers a class action route but only if the numerical thresholds are met, and only where the conduct can be characterised as prejudicial to the affairs of the company. A single institutional investor holding a block of preference shares, or a small group of investors, might find themselves procedurally excluded.
The NCLT, as originally conceived, reinforced this narrow reading. In early decisions, tribunals took the position that the language of Section 55(3) which says the company 'may' file a petition with the consent of three-fourths of preference shareholders imposes no obligation on shareholders to approach the forum. Similarly, the threshold requirements of Section 245 were applied strictly, leaving individual preference shareholders without locus standi.
|| The structural gap is not a drafting oversight it reflects the general assumption, carried over from older law, that a preference shareholder is in all things a shareholder and in no sense a creditor. But the economic reality of modern preference share instruments has outpaced this assumption.
This gap is particularly stark when viewed against the backdrop of India's evolving investment landscape. Preference shares are extensively used as instruments for structured finance by banks providing mezzanine funding, by venture capital funds investing in startups, and by infrastructure lenders seeking capital preservation with defined returns. For these investors, the enforceability of redemption rights is not merely a legal technicality; it is a fundamental assumption underlying the investment thesis.
The turning point in the judicial narrative around preference shareholder remedies came when appellate tribunals began to look beyond the literal text of Section 55(3) and ask a deeper question: what was the legislature's purpose in enacting a prohibition on irredeemable preference shares? The answer, clearly, was to ensure that capital once raised as preference share capital would eventually be returned to the investor. The legislature did not intend to create a situation where a company could indefinitely defer redemption while the shareholder sat remediless.
This purposive reasoning led appellate forums to an important conclusion: even where Section 55(3) does not explicitly confer standing on preference shareholders to file a petition, the absence of such a provision cannot be read as a legislative intention to leave shareholders without any remedy. To do so would be to defeat the very purpose of the prohibition on irredeemable preference shares. A preference share that can never practically be redeemed is, in effect, an irredeemable preference share the very thing the statute forbids.
Applying this logic, appellate tribunals recognised that preference shareholders as members of the company within the meaning of Section 2(55) read with Section 88 of the Companies Act, 2013 are entitled to approach the Tribunal for appropriate relief when the company fails to redeem. The use of the word 'may' in Section 55(3) was interpreted as permissive with respect to the company's procedural options, not as an exclusive conferral of standing upon the company to the exclusion of shareholders.
A significant development in this line of reasoning has been the invocation of the Tribunal's inherent powers under Rule 11 of the NCLT Rules, 2016. Rule 11 provides that nothing in the NCLT Rules shall be deemed to limit or otherwise affect the inherent powers of the Tribunal to make such orders as may be necessary for meeting the ends of justice or to prevent abuse of the process. This provision which has analogues in civil procedure rules across jurisdictions has emerged as a powerful tool for preference shareholders.
The logic of inherent powers is straightforward and compelling: no statute can anticipate every factual situation that comes before a court or tribunal. Where a legislative scheme is silent on a particular remedy but the broader purpose of the scheme demands that a remedy exist, the tribunal may invoke its inherent powers to fill the gap. In the context of preference share redemption, where Section 55 establishes a clear statutory obligation on companies and the broader policy of the Act is investor protection, the case for invoking inherent powers is strong.
Appellate tribunals have confirmed that when a company defaults on redemption and fails to take steps under Section 55(3), the aggrieved preference shareholder is not without recourse. The Tribunal, exercising inherent powers, can entertain an application and pass appropriate orders including, in appropriate cases, directing the company to take steps towards redemption or providing other equitable relief.
Appellate forums have also re-examined the availability of class action proceedings under Section 245 for preference shareholders. The key insight here is that preference shareholders are 'members' of the company as defined under the Act. Section 2(55) defines 'member' broadly, and Section 88 requires the register of members to include preference shareholders. If preference shareholders are members, they are, prima facie, eligible to invoke Section 245 subject to meeting the numerical thresholds.
The appellate reasoning has been that a preference shareholder, or a group of preference shareholders meeting the requisite threshold, can legitimately characterise the company's failure to redeem as conduct prejudicial to their interests as members. The non-redemption of preference shares, particularly where the company continues to pay equity dividends or deploys capital for other purposes while preference shareholders wait in line, is precisely the kind of conduct that Section 245 was designed to address.
The judicial trajectory described above has received a significant endorsement at the highest level of the Indian judiciary. The Supreme Court of India, in civil appellate proceedings arising from an NCLAT order that remanded a matter back to the NCLT for fresh consideration of preference shareholder remedies, declined to interfere with the appellate tribunal's approach. The Court dismissed the appeal, thereby allowing the NCLAT's reasoning that preference shareholders are not remediless and may approach the Tribunal under both Section 55(3) and Section 245 to stand.
Importantly, the Supreme Court left the questions of interpretation of Section 55(3) and Section 245 open for future consideration. This nuanced position reflects judicial statesmanship: the Court did not foreclose further development of the law, but equally, it did not disturb the principle that preference shareholders have access to remedies. The dismissal of the appeal was, in effect, an endorsement of the NCLAT's purposive and investor-protective reading of the statutory provisions.
|| The Supreme Court's refusal to interfere with the appellate tribunal's approach is significant not for what it decided, but for what it declined to undo. It left standing the proposition that a preference shareholder may not be turned away at the door of the Tribunal.
The question of locus standi who may stand before a forum to seek relief is often treated as a threshold procedural matter. But in the context of preference shareholders, it carries deeper jurisprudential significance. It asks: what is the identity of a preference shareholder in law? Are they a passive investor waiting on the company's grace, or are they an active stakeholder with enforceable rights?
The traditional view reflected in older case law and academic commentary treated the preference shareholder as entirely dependent on the company for the exercise of redemption rights. In Lalchand Surana v. Hyderabad Vanaspathy Ltd., the Andhra Pradesh High Court held that an unredeemed preference shareholder does not become a creditor and cannot file a creditor's petition for winding up. A Ramaiya's Guide to the Companies Act articulated the position classically: preference shareholders are only shareholders and not in the position of creditors; they cannot sue for money due on shares to be redeemed.
This position, however, must be understood in its historical context. It was developed under older company law regimes where the legislative policy was less explicit about mandatory redemption. Under the Companies Act, 2013, the prohibition on irredeemable preference shares and the elaborate framework of Section 55 represent a qualitatively different legislative stance. The preference shareholder's expectation of redemption is no longer merely contractual it is backed by statutory policy.
The evolution in judicial thinking around locus standi reflects a recognition that preference shareholders particularly institutional investors cannot be adequately protected by a framework that treats them as entirely passive. Tribunals have increasingly recognised that the right to approach a forum for enforcement of a statutory obligation is an incident of the right created by the statute itself, and that the absence of an explicit provision conferring standing should not be read as a prohibition.
This reasoning aligns with broader developments in Indian corporate law, where the NCLT and NCLAT have progressively expanded access to justice for shareholders. The NCLAT, in the context of oppression and mismanagement proceedings under Sections 241-242, has demonstrated a willingness to waive numerical thresholds in exceptional circumstances and to read locus standi provisions expansively where justice so demands. The same spirit has now permeated the preference share redemption context.
The role of inherent powers in Indian procedural and quasi-judicial law deserves a more focused examination, because it is through this doctrine that much of the remedial architecture for preference shareholders has been constructed in the absence of explicit statutory provisions.
Rule 11 of the NCLT Rules, 2016, which confers inherent powers on the Tribunal, is not a novelty. It has analogues in Order 1 Rule 10 of the Code of Civil Procedure (dealing with parties who should be joined to proceedings), in the Supreme Court's interpretation of its own powers under Article 142 of the Constitution, and in the common law doctrine that courts of equity have inherent jurisdiction to prevent injustice that would otherwise fall outside the strict letter of the law. The common thread is that the institutional authority to dispense justice cannot be confined within the four corners of express provisions.
In the preference share context, the application of inherent powers rests on a simple proposition: the Companies Act, 2013 establishes a clear statutory duty on companies with respect to preference share redemption; a company that refuses to act on its duty and also refuses to invoke the relief mechanism under Section 55(3) leaves the shareholder in a legislative void; and the Tribunal, as a creature of statute but also an institution of justice, cannot be a bystander in such circumstances.
The invocation of inherent powers does not override the statute it gives effect to it. The Tribunal is not creating a new remedy out of whole cloth; it is recognising that the purpose of the statute demands that shareholders have recourse, and that the failure to provide explicit procedural machinery for that recourse is a gap that can be filled by the Tribunal's own authority.
This approach has attracted some academic commentary questioning whether inherent powers can be used to confer standing that the statute does not expressly provide. The concern is legitimate: if statutory bodies could routinely use inherent powers to expand their jurisdiction, the discipline of jurisdictional boundaries could be undermined. However, the better view is that the use of inherent powers in this context is narrow and principled it does not expand the Tribunal's subject-matter jurisdiction, but merely ensures that those with a genuine stake in the subject matter are not procedurally excluded from accessing it.
The evolving judicial landscape has significant practical consequences for investors in preference shares. The most important is this: the investment in redeemable preference shares is no longer entirely dependent on the company's willingness to act. Where a company defaults on redemption and takes no steps to remedy the default, the investor now has a credible path to the Tribunal whether through Section 55(3), through Section 245 as a class action, or through the Tribunal's inherent powers.
This development should materially improve the risk-return calculus for preference share investments, particularly for banks and financial institutions that use preference shares as instruments of structured finance. The enforceability of redemption rights or at least the availability of a forum to assert those rights is a key determinant of the credit quality of such instruments. To the extent that judicial developments have strengthened enforceability, they have also strengthened the case for preference shares as a viable financing instrument.
That said, investors should be realistic about the limits of judicial relief. The Tribunal can direct the company to take steps; it can pass orders for redemption; but where the company genuinely lacks the financial resources to redeem, the enforcement of those orders faces real-world constraints. The availability of a remedy in law does not automatically translate into recovery in fact.
For companies that have issued redeemable preference shares, the judicial evolution described in this article should serve as a clear signal. The days of treating non-redemption as a low-risk default assuming that preference shareholders have no practical recourse are over. The Tribunal has shown itself willing to entertain applications from preference shareholders, and the highest court has declined to disturb that willingness.
Companies should therefore be proactive about preference share redemption obligations. Where financial constraints make timely redemption impossible, the appropriate course is to engage with preference shareholders early, explore consensual extension arrangements under Section 55(3), and communicate transparently about the company's financial position and redemption timeline. A company that is seen to be actively working towards redemption will be in a much stronger position before the Tribunal than one that has simply ignored its obligations.
The broader implication for corporate compliance is that preference share redemption must now be treated as a material obligation not merely a contractual one but a statutory one that is subject to regulatory and judicial scrutiny. Boards and management teams should ensure that redemption obligations are tracked, disclosed, and addressed in financial planning.
The developments discussed in this article open up new strategic possibilities for legal practitioners advising preference shareholders in default situations. The choice between Section 55(3), Section 245, and inherent powers is not merely a procedural one it is a strategic decision that turns on the facts of the specific case, the number and concentration of preference shareholders, the nature of the company's default, and the relief sought.
Section 55(3) may be the most appropriate route where the investor can demonstrate that the company is not in a position to redeem and has made no effort to file the petition itself. Section 245 may be more appropriate where the preference shareholder is part of a larger class that can collectively meet the numerical threshold, and where the company's conduct particularly if it involves preferential treatment of equity shareholders while preference shareholders remain unpaid can be characterised as prejudicial. Inherent powers may be the route of last resort where neither statutory provision squarely applies, but the equities strongly favour relief.
A brief comparative perspective illuminates the distinctiveness of India's preference share enforcement challenge and suggests a possible direction for legislative reform.
Under the UK Companies Act, 2006, preference shareholders enjoy a broader arsenal of remedies. The unfair prejudice remedy under Section 994, inherited from Section 459 of the Companies Act, 1985, allows any member of a company to petition the court on the ground that the company's affairs are being or have been conducted in a manner unfairly prejudicial to the interests of members generally or of some part of its members. This provision, in contrast to India's Section 245, does not impose a numerical threshold. A single preference shareholder can bring an unfair prejudice petition.
UK courts have further confirmed, through a line of cases involving preference share class rights, that the protection of contractual and statutory rights attached to preference shares is a matter of serious judicial attention. In cases involving the variation or abrogation of preference share rights without consent including recent decisions on conversion of preference shares into ordinary shares UK courts have applied Section 630 and 633 of the Companies Act, 2006, which deal with variation of class rights, to protect preference shareholders from unilateral changes to their rights.
The key lesson from the UK experience is that effective preference shareholder protection does not require an elaborate class action framework it requires a flexible, individually accessible remedy that can be invoked without numerical thresholds. India's Section 245, with its threshold requirements, is structurally ill-suited to protecting individual institutional investors holding preference shares. The judicial solution of using inherent powers is valuable, but it is also fragile it depends on the disposition of the particular tribunal and can be overturned on appeal.
A more durable solution would be legislative reform: either a specific amendment to Section 55 conferring standing on individual preference shareholders to petition the Tribunal, or a modification to Section 245 that reduces the threshold for class actions involving preference share redemption defaults. Until such reform occurs, the judicial evolution chronicled in this article remains the primary if imperfect protection available to preference shareholders.
The journey of preference shareholder remedies under the Companies Act, 2013 is, in many ways, the story of a legal system catching up with economic reality. The legislature, in prohibiting irredeemable preference shares and establishing the redemption framework under Section 55, clearly intended that preference shareholders should ultimately receive their capital back. But the procedural machinery provided for that purpose was incomplete it assumed company initiative and overlooked the scenario where the company simply defaults and does nothing.
The courts and appellate tribunals have stepped into this breach with a purposive and investor-protective approach. By recognizing preference shareholders' standing to petition under Section 55(3), by opening the doors of Section 245 to preference shareholders as members, and by invoking inherent powers to fill legislative gaps, the tribunals have ensured that the statutory promise of redemption is not a hollow one. The Supreme Court's endorsement of this approach implicit in its refusal to interfere with the appellate tribunal's reasoning adds institutional weight to this trend.
Yet the solution remains imperfect. It relies heavily on judicial creativity rather than clear statutory text. It is inconsistently applied across benches. And it leaves preference shareholders dependent on case-by-case adjudication rather than clear, accessible rights. The need for legislative clarity is urgent — both to codify the judicial developments discussed here and to provide a cleaner, more accessible enforcement framework for preference shareholders.
In the meantime, the legal and commercial community must work within the framework that has been judicially constructed. Investors should treat the availability of tribunal remedies as a real but uncertain backstop, and should continue to negotiate robust contractual protections including redemption covenants, step-in rights, and cross-default provisions at the time of investment. Companies should treat preference share redemption obligations with the same seriousness they accord to debt obligations. And legislators should take note: the gap between the statute's ambition and its machinery is one that only they can permanently close.
|| The ultimate test of an investor protection framework is not the elegance of its provisions, but the effectiveness of its remedies. On that test, Indian preference share law has made significant progress — but still has considerable ground to cover.