Every companyregistrationis needed to keep at its registered office of all charges register (including mortgages) affecting specially the company property and therein enter specially all charges affecting the company property and all charges floating on the undertaking or on any company property giving in each case, the property charged short description, the amount charge and the name of the person entitled to it (Section 143). Every company further must keep at its registered office, every instrument copy creating any charge (Section 136). The Register of Charges Inspection and of the instrument charges creating can be permitted only during to any creditor business hours or the company member without fee and to any other person of a fee payment of ten rupees (Section 144)
Registrar’s Charges register.
As per Section 130 of the Act, the Registrar shall , with each company respect cause to be kept containing register all the charges registration required and on payment shall of the prescribed fee on the payment, cause to enter in the Register in accordance to full such charge the particulars following;
- Its creation date.
- The amount by the charge secured.
3. The property charged full particulars .
4. Entitled to the person the charge
In the charge case to the benefit of which a series holders and debentures are entitled, the entered particulars in the Registrar are
- The full amount by the whole series secured.
- The resolutions date authorizing the series issue and the covering deed date, if any, by which created security or defined.
- A general description of the charged property.
- The name of the trustee, if any, for the debentures holders and
- The commission rate percent or the amount or if any discount to any person paid subscribing or subscriptions procuring for any debentures of the company.
- The pages of register shall be numbered consecutively and the registrar shall (a) cause in such register to be kept in the form prescribed , the charged file documents in such manner and form as may be prescribed; and sign or initial such all page register.
- After the entry making, the instrument shall return by the registrar, if any, or the copy thereof verified, as the case may be, to filing the same person
- The register is also open by anyone to inspection on payment of Rs. 10 during business hours each inspection. The company is needed to submit to the statutory form register along with the charges instrument or its copy certified, which will be returned along with the certification of registration after registration. The registrar must also keep a Chronological Index of charges for ready reference so registered, in Form No. 12 of the companies (Central Government’s) General forms and Rules.
- As already mentioned, Form No.13 needed to be filed along with Form No. 8 or 10 or 17, as may be the case. On the question raised by the Institute of Company secretaries of India whether delay in filing Form No.13 would attract the provisions of Section 141 of the Act, delay needed con-donation by the law of Company Board the Department has notification vide dated 21st March, clarified 1990 in filing of Form. No 13 pursuant that pursuant to the provisions of the companies Act of Section 130, 1956 does not impress the Section 141 of the Act provisions . Form No 13 is required to be filed, however along with Form Nos. 8/10/2017, as the case may be, which impress the provisions of Section 141 of Act if those are filed after the prescribed period in the relevant sections respectively.
- Register of charges index:
- The registrar shall maintain a chronological index, in the form prescribed and with the particulars of the registered charges with him in pursuance of the Section 125 of the requirement Act.
- Time Extension and Rectification of Charges of Register.
- As earlier defined, Section 125 of the Act needed charges filing which needs registration within 30 days of its creation after the date. However, may allow thirty days the registrar immediately further following the 30 days expiry on such additional fee payment not exceeding the fee amount ten times the specified fee amount in Schedule X as may determine as the Registrar, for filing the charge , if the company satisfies the Registrar that it had cause sufficient for the particulars not filing and copy or instrument of 30 days within the permitted period.
- When a firm avoid to file with the Registrar any charge particulars created by it or of subject of any charge to which any property has been acquired by it or of any such charge of modification or of any issue of a debentures series, or of the payment or of a satisfactions of a charge, within the time required, it has to make petition before the Company Law Board for time extension as given under Section 141 of the Act.
- The petition should be made as per the procedure under the company laid down Law Board Regulations, 1991. According to these regulations, the petition shall be prepared in Form No. 1 given in Annexure II to these regulations and the petition shall be prepared in Form No.1 given in Annexure II to these regulations and shall be presented to the concerned Company Law Board Bench, where the office registered of the company is situated either in person by the petitioner or through his representative authorized or may be sent with acknowledgement by registered post due to the Security or Bench Officer of the bench concerned. The petition should set forth the company name with its status, incorporation date, its registered office address, authorized capital, in brief main objects for which the company was formed, the company recent business activities etc. The petition shall also mention clearly, under distinct heads, for such petition the grounds and the relief nature prayed for.
- The petition should be accompanied by:
- a, the agreement copy creating or modifying as the case may be the charge.
- b, The resolution copy envisaged by Section 292(1)(b) or (c) and Section 293 (1)(a), as may be applicable.
- The petition verifying the affidavit.
- Bank draft evidencing the application fee prescribed of payment of Rs.200.
- Memorandum of Appearance for resolution of board with a copy or the executed Vakalatnama as may be the case.
- If the Company Law Board is fulfilled that the omission to file with the particulars of the registrar of any charge or thereof any modification or the intimation of charge satisfaction was accidental or due to inadvertence or due to some other cause sufficient or is not a prejudice nature the creditors position or the company shareholders or if the Company Law Board is fulfilled that on other grounds it is just and to grant relief an equitable, it may direct for charge filing that time or for intimation satisfaction of charge shall be extended.
- The extension effect or registration time and actual registration within the time extended is that the charge becomes a charge which is valid form its execution date.
- The final order certified copy passed by the bench the time extending shall by the company be filed with the registrar as an Annexure to Form No. 21, under the companies prescribed (Central Government’s) General Forms and Rules, 1956.
- Delay condonation by the Central Government under Section 637B.
- When extension relief of time is not permitted by the Company Law Board a application further under section 637B, may be made to the Central Government who for reasons in writing to be recorded the delay may writing the condone. On con-donation of delay the charge or other document which would otherwise be null gets revived.
- Charges satisfaction
- Section 138 of the Act needed that the company shall give the registrar intimation of the payment or in full satisfaction of any charge to the company related within 30 days from such payment date or satisfaction. The company shall intimate of the charge satisfaction in Form No.17 under the companies prescribed (Central government’s) General Rules and accompanied Forms by fees appropriate , prescribed in schedule X of the Act (which depends on the company nominal capital). In this case no time extension can be permitted by the registrar of companies. The power to extend the time for filing the charges satisfaction lies with the Company Law Board, under Section 141 for which a petition has to be filed before it as prescribed in those Study earlier of filing of charges in case.
- In Form NO. 17 is signed by the parties both and is filed in triplicate with registrar, the charge satisfaction can be registered on the spot without any notice issuing to the creditor.
- Under section 139 of the companies Act, 1956, Registrars have been empowered to record memorandum of a charge satisfaction in the registrar of Charges, on evidence being to him to his satisfaction in accordance to a charge registered that the debt for which charge has been paid was created or satisfied.
- When the registrar makes of charge of an entry of satisfaction, he will furnish the company with the memorandum copy of satisfaction (Section 140).
- Charges Modification:
- As per section 135 of the Act whenever the conditions or terms, or the extent, or operation, of any registered charge are or is modified, it shall be the company duty to send to the registrar of such modification particulars within 30 days. For modification of charges registration also Form No.8 (details of which were given earlier ) with the registrar has to be filed. Under Section 134 of the charge modification by the company can also be filed.
- Purchase or of a property acquisition subject to charge:
- It has already been mentioned that when any person purchase or any property acquires which is under charge already and was duly registered the charge with the Registrar, it will be deemed that the acquirer or buyer had the charge notice. Therefore, when a company gets a property which is subject to a requiring charge registration with the registrar the acquiring company shall cause the particulars prescribed of the charge with a duly instrument certified copy creating or the charge evidencing to be delivered to the registrar for registration within thirty days of the process completion of acquisition.
- But where a charge registrable is not registered. It was held in the State Bank of India V. vishwaniryat (p) Ltd (1987) 3 Comp LJ 171 (Ker. DB) that the purchaser shall be deemed to have the property purchased subject to charge. It is because a charge under section 125 becomes null only against the liquidator and the company creditor and not against any other person including thereof the purchaser.
- Properties situated abroad and subject to charge.
- There may be situations in-accordance of creation of charge on located properties abroad.
- These may be as under:
- 1. Property located out of India and created charge also out of India — This needs registration with the registrar in terms of Section 125 with the difference only in the time for registration allowed. The thirty days period will begin from the day by which the creating instrument or evidencing the charge would have reached reasonably India through post.
- Property located abroad but charge is created in India—- In this case the creating instrument or purporting the charge to create or a duly verified copy thereof for registration may be filed within the normal time of thirty days permitted under Section 125 (1), notwithstanding compliance with procedure further being important to make the valid charge or effective according to the country law where the property is located.
- A property purchase located abroad but already subject to charge—– This case is same to the one under (1) above. The thirty days period for filing the instrument copy with the registrar shall be counted from a day within which the copy in the course which is normal would have reached India through post.
- Definition and Mortgage nature.
- According to Section 58 of the Transfer of property Act, 1882, a mortgage is an interest transfer in specific property immovable for the purpose of securing the advanced money payment advanced or to be advanced by way of loan, an existing or debt of future or an agreement performance which may give rise to liability pecuniary.