Concept of Charge under companies Act, 2013

CHARGE- A COMPLETE OVERVIEW

A charge is stated in Section 2 (16) of the Companies Act, 2013 which expresses that charge could be –

- an interest or lien;
- created on the property or assets of a corporation; and
- any of its undertakings or both as security and includes a mortgage

NOTE: The financial institutions/banks do not lend their monies unless they are sure that their funds are safe and they would be repaid as per agreed repayment schedule along with payment of interest.

As consistent with Companies Act, corporations are required to file particulars of a charge within 30 days of the creation thereof; or else the charge is void against the liquidators and the creditors of the corporation.

There are mainly two classes that charges on a corporation fall into:

• Fixed Charges- Charge against a specific and identifiable property whose identity cannot change throughout the period of the loan

• Floating Charges – These charges are not against any specifically identifiable property as well as cover properties floating or uncertain such as stock-in trades, debtors etc.

Section 77: Registration of Charges

A company creating charge, shall, register the particulars of the said charge with the RoC within 30 days of its creation.

This charge could be Fixed or Floating:

• On its property or assets or
• Any of its undertakings
• Whether tangible or otherwise:-
• Situated in or outside India
• Signed by both the Company and the charge-holder
• Together with the instruments creating the charge

COMMENT: PROVIDED ALSO THAT ANY SUBSEQUENT REGISTRATION OF A CHARGE SHALL NOT PREJUDICE ANY RIGHT ACQUIRED IN RESPECT OF ANY PROPERTY BEFORE THE CHARGE IS ACTUALLY REGISTERED.

PROVIDED ALSO THAT THIS SECTION SHALL NOT APPLY TO SUCH CHARGES AS MAY BE PRESCRIBED IN CONSULTATION WITH THE RESERVE BANK OF INDIA.

Charge may be Registered by company or charge holder

After Companies (Amendment) Ordinance, 2018:-

CHARGE CREATED/MODIFIED BEFORE ORDINANCE

· If Charge is CREATED BEFORE DATE OF ORDINANCE i.e. 02.11.2018 in such case filling shall be according to new provisions or old provisions?

Explanation:

• As per Act before ordinance or after ordinance both states that company shall file form for registration of charge within 30 days of creation in E Form CHG-1 or CHG-9 for debenture.

• In case company fails to file the same within 30 days of Registration and date of creation of charge is before 02.11.2018 in that case:

• Provided that the Registrar may, on an application by the company, allow such registration to be made within a period of three hundred days of such creation on payment of such additional fees as may be prescribed.

• Provided further that if the registration is not made within the period specified i.e. 300 (30+270) days from such creation then the registration of the charge shall be made within six months from the date of commencement of the Companies (Amendment) Ordinance, 2018 on payment of such additional fees as may be prescribed and different fees may be prescribed for different classes of companies

Note: within 300 days or 6 months from creation, whichever is earlier from ordinance date i.e. 2nd Nov, 2018.

> If Charge is created after date of Ordinance i.e. 02.11.2018 in such case what shall be time period for filing of form for registration of charge with ROC.

If charge is created after 02.11.2018 in such case following shall be period for filing of charge form with ROC.

*ADVALORAM FEES: – 0.05 % of total value of charge to be register.

Section: 78 Charge Holder may register Charge:

Company fails to register a charge in 30 days → Charge Holder may make application

↓

To ROC in CHG-1/CHG-9

↓ Within 14 Days

On Satisfactory reply Roc allows registration → Roc issue Notice (SCN) to company

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.

Section: 79

Section 77 to Apply in Certain Matters

The provisions of section 77 relating to registration of charges shall, so far as may be, apply to:

o a company acquiring any property subject to a charge within the meaning of that section; or
o any modification in the terms or conditions or the extent or operation of any charge registered under that section.

Section: 80

Date of Notice of Charge

Where any charge on any property or assets of a company or any of its undertakings is registered under section 77, any person acquiring such property, assets, undertakings or part thereof or any share or interest therein shall be deemed to have notice of the charge from the date of such registration.

Section: 81

Register of Charges to be kept by Registrar

81. (1) The Registrar shall, in respect of every company, keep a register containing particulars of the charges registered under this Chapter in such form and in such manner as may be prescribed.

COMMENT: REGISTER OF CHARGES TO BE KEPT BY THE REGISTRAR

• THE PARTICULARS OF CHARGES MAINTAINED ON THE MINISTRY OF CORPORATE AFFAIRS PORTAL (WWW.MCA.GOV.IN/MCA21)SHALL BE DEEMED TO BE THE REGISTER OF CHARGES FOR THE PURPOSES OF SECTION 81 OF THE ACT.

• THE REGISTER SHALL BE OPEN TO INSPECTION BY ANY PERSON ON PAYMENT OF FEE.

(2) A register kept in pursuance of this section shall be open to inspection by any person on payment of such fees as may be prescribed for each inspection.

Section: 82

If charge is satisfied even before or after 02.11.2018 in such case following shall be period for filing of e-form CHG-4 for satisfaction of charge with ROC.

Table Stating facts in relation to satisfaction of charge;

NOTE:

• A COMPANY OR CHARGE HOLDER SHALL WITHIN A PERIOD OF THREE HUNDRED DAYS FROM THE DATE OF THE PAYMENT OR SATISFACTION IN FULL OF ANY CHARGE REGISTERED UNDER CHAPTER VI, GIVE INTIMATION OF THE SAME TO THE REGISTRAR IN FORM NO.CHG-4 ALONG WITH THE FEE.

• WHERE THE REGISTRAR ENTERS A MEMORANDUM OF SATISFACTION OF CHARGE IN FULL IN PURSUANCE OF SECTION 82 OR 83, HE SHALL ISSUE A CERTIFICATE OF REGISTRATION OF SATISFACTION OF CHARGE IN FORM NO.CHG-5.

Section: 83

(1) The Registrar may, on evidence being given to his satisfaction with respect to any registered charge,—

o that the debt for which the charge was given has been paid or satisfied in whole or in part; or

o that part of the property or undertaking charged has been released from the charge or has ceased to form part of the company’s property or undertaking,

enter in the register of charges a memorandum of satisfaction in whole or in part, or of the fact that part of the property or undertaking has been released from the charge or has ceased to form part of the company’s property or undertaking, as the case may be, notwithstanding the fact that no intimation has been received by him from the company.

(2) The Registrar shall inform the affected parties within 30 days of making the entry in the register of charges kept under sub-section (1) of section 81.

Section: 84

If a person appoints or obtains an order for the appointment of a Receiver to manage property then notice of the same is to be given to company as well ROC.

DETAILS REQUIRED

• Charge ID (only in case of modification of charge)
• Nature, description and brief particulars of the instrument(s) creating or modifying the charge
• Whether charge is created or modified within India or outside
• Type of charge (more than one option can be selected)
• Details of charge holder(s)
• Category
• Name
• Address
• Email-ID
• PAN
• Amount secured by the charge as per instrument of charge
• Brief particulars of the principal terms and conditions and extent and operation of the charge
• Rate of Interest
• Repayment term (in months)
• Terms of Repayment
• Nature of facility
• Date of Disbursement
• Margin
• Extent and operation of the charge

DOCUMENTS REQUIRED

Following are the attachments to be attached in the respective form

· Instrument(s) of creation or modification of charge i.e. Sanction letter and Loan Agreement
· Particulars of all joint charge holders(If any)

PROCEDURE

• Fill all the details in the form mentioned above along with the attachments

• Get the form digitally signed from Directors and thereafter attach DSC of the Charge Holder as declaration, and Practicing professional for verification.

• File form CHG-1 to Registrar of Companies.

• Thereafter the registrar will issue a certificate of registration of such charge in Form No.CHG-2 (Creation) and From No. CHG-3 (modification), as the case may be.

Section: 85

Every company shall keep at its registered office a register of charges in E Form CHG-7 and open for inspection in business hours for any members and creditors without payment or by any other person on payment of such fees as may be prescribed,

COMMENT:

Provided that a copy of the instrument creating the charge shall also be kept at the registered office of the company along with the register of charges.

The register of charges and instrument of charges, kept under sub-section (1) shall be open for inspection during business hours—

(a) by any member or creditor without any payment of fees; or
(b) by any other person on payment of such fees as may be prescribed,

subject to such reasonable restrictions as the company may, by its articles, impose.

Section: 86

Punishment for contravention of provisions related to charge Under Companies Act, 2013

(1) Company shall be punishable with 1,00,000 < fine < 10,00,000

Every officer

6 MONTHS < imprisonment
25,000< fine < 1,00,000

NOTE: If any person wilfully furnishes any false or incorrect information or knowingly suppresses any material information, required to be registered in accordance with the provisions of section 77, he shall be liable for action under section 447.

Section: 87

Rectification by Central Government in Register of Charges

The Central Government (R.D.) on being satisfied that:

(a) The omission to give intimation to the Registrar of the payment or satisfaction(NOT CREATION) of a charge, within the time required under this Chapter; or

(b) the omission or misstatement of any particulars, in any filing previously made to the Registrar with respect to any such charge or modification thereof or with respect to any memorandum of satisfaction or other entry made in pursuance of section 82 or section 83, was accidental or due to inadvertence or some other sufficient cause or it is not of a nature to prejudice the position of creditors or shareholders of the company, it may, on the application of the company or any person interested and on such terms and conditions as it deems just and expedient, direct that the time for the giving of intimation of payment or satisfaction shall be extended or, as the case may require, that the omission or misstatement shall be rectified.

DISCLAIMER: THE ARTICLE IS BASED ON THE RELEVANT PROVISIONS AND AS PER THE INFORMATION EXISTING AT THE TIME OF THE PREPARATION. IN NO EVENT I SHALL BE LIABLE FOR ANY DIRECT AND INDIRECT RESULT FROM THIS ARTICLE. THIS IS ONLY A KNOWLEDGE SHARING INITIATIVE.