REGISTRATION
OF CHARGES UNDER THE COMPANIES ACT, 2013
Chapter
VI of the Companies Act, 2013, containing section 77 to 87 deals with
registration of charges in the ROC. The said provisions replace the sections 124
to 145 of Chapter V of the Companies Act, 1956. As per the new provision
section 77 of the Companies Act 2013, every company creating a charge on its
property or assets has to register the particulars of charge signed by the
Company and charge holder together with instruments with in thirty days of its
creation. As per clause (3) of Section
77 of Companies Act 2013, no charge created by a company shall be taken into
account by the liquidator unless it is duly registered.
On 31.03.2014, Government
of India has notified rules which is called The Companies (Registration of
Charges) Rules, 2014 in exercise of the powers conferred under Sections 77, 78,
79, 81, 82, 83, 84, 85, 87 read with Section 469 of the Companies Act,
2013. The same was published in the
gazette and came into force on 01.04.2014.
The following are
the gist of the above provisions:
·
Form No CHG -1 has to be filed
for creation or modification of charges other than debentures with in thirty
days of creation of the charges along with instrument creating charge.
·
Form No CHG -9 has to be filed
for creation or modification of charges for debentures with in thirty days of
creation of the charges along with instrument creating charge.
·
Particulars of charge not filed
with in thirty days, but filed within three hundred days of its creation or
modification an additional fee shall be levied and as per Rule 4 delay may be
condones up to three hundred days by the Registrar.
·
The instrument evidencing
creation or modification of charge certified by the Company Secretary or any
director or an authorized officer of a charge holder should be filed along with
the form.
·
As per Rule 6, once charges
registered, Registrar shall issue a certificate of registration of charge in
FORM – CHG – 2. The certificate issued by the Registrar is conclusive evidence that
the Chapter VI of the Companies Act 2013 is complied with.
·
As per Section 81 the Registrar
shall keep register containing registered charges and as per Rule 7, the
particulars of charges maintained at the Ministry of Coporate affairs portal www.mca.gov.in/MCA21
shall be deemed to be the register of charges for the purpose of section 81 of
the Companies Act, 2013.
·
As per Rule 8, the Company
shall with in thirty days of receipt of payment or satisfaction in full of any
charge intimate Registrar the same in form CHG- 4 and after filing of satisfaction form in CHG –
4, the registrar shall issue certificate of satisfaction in form CHG – 5.
·
As per the rules, up to 300 days
of delay for registration can be condoned but as per sub section 2 of section
87, any other charge is created before delay condoned then the same shall takes
priority over the charges registered after condonation.
Registration of Charges by the
Creditor of the Company in the ROC as per Companies Act, 2013:
As per the new provision under
section 78 of Companies Act, 2013, where a company fails to register the charge
within the thirty days, the person in whose favour the charge is created may
apply to the Registrar for registration of the charge along with the instrument
created for the charge in Form No.CHG-1(form for other than debentures) or Form
No.CHG-9 (form for debentures), as the case may be, duly signed along with fee.
The registrar may, on such application, give notice to the company about such
application. The company may either itself register the charge or shows
sufficient cause why such charge should not be registered. On failure on part
of the company, the Registrar may allow registration of such charge within
fourteen days after giving notice to the company, shall allow such
registration. Where registration is affected on application of the person in
whose favour the charge is created, that person shall be entitled to recover
from the company, the amount of any fee or additional fees paid by him to the
Registrar for the purpose of registration of charge.
The relevant provision of law
is reproduced hereunder:
78.
Application for registration of charge
Where a
company fails to register the charge within the period specified in section 77,
without prejudice to its liability in respect of any offence under this
Chapter, the person in whose favour the charge is created may apply to the
Registrar for registration of the charge along with the instrument created for
the charge, within such time and in such form and manner as may be prescribed
and the Registrar may, on such application, within a period of fourteen days after
giving notice to the company, unless the company itself registers the charge or
shows sufficient cause why such charge should not be registered, allow such
registration on payment of such fees, as may be prescribed:
Provided
that where registration is effected on application of the person in whose favour
the charge is created, that person shall be entitled to recover from the
company the amount of any fees or additional fees paid by him to the Registrar
for the purpose of registration of charge.
Therefore Bank of financial
institutions may file form CHG -1 or CHG – 9, in the event of creditor fails to
register the charges with in thirty days from the date of creation or
modification of charges under the New Companies Act, 2013.
No comments:
Post a Comment