Registration of Creation/Modification and Satisfaction of Charges under the Companies Act, 2013
As per the Companies Act 2013, the Registrar of Companies has to compile a register that has records of all charges concerning each company. These registers can be reviewed and inspected by the public on payment of a fee.
Provisions of the Companies Act which illustrate these charges
- Section 77 to 87 of the Companies Act, 2013.
- Companies (Registration of Charges) Rules, 2014.
- Section 125 to 145 of the Companies Act, 1956.
These provisions were notified on 1st April 2014 and apply to all kinds of companies.
Meaning of ‘Charges’ as per Companies Act, 2013
According to section 2(16) of the Companies Act, 2013, any lien or interest created on asset or property of a company or its subsidiaries or both as security involves a mortgage.
Listing of charges under the Companies Act, 2013
To register the particulars of charge with Registrar of Companies, Section 77 impresses a duty mainly on the company which has created the charge –
· Outside or inside India
· On its assets or property or any undertakings
· Be it tangible or non-tangible
To get the particulars of the charge signed by the holder of the charge and the company along with instruments of the ROC. Charge holder is given power by Section 78 to apply to ROC to register the charge with an instrument where the company has not been able to register under Section 77(1). Within fourteen days from such an application made, once the notice has been given to the company, except if the company has registered the charge by itself or has shown enough causes as to why such charge does not have to be registered, permit such registration on payment of required fees. In this case, the expenses can be recovered by the charge holder from the company.
Forms filed for Registration of Creation Charge
e-Form CHG-1 (other than Debentures) or e-Form CHG-9( for Debentures along with rectification) have to be filed for registration of charge. This form has to be signed by the holder of charge and the company.
Time Duration for filing forms regarding Registration of Creation Charge
Both forms i.e. e-Form CHG-1 or CHG-9 has to be duly signed and filed within 30 days from the date of creation of charge with the ROC along with prescribed fees. Particulars of the charge can be filed after 30 days from the date of creation of charge but before 300 days from the date of creation of the charge. In this case, an application has to make stating that there is a delay and form CHG – 10 has to be filed along with a declaration duly signed by the director or secretary of the company making it clear that such a delay will not affect the rights of the creditors. Prior permission has to be taken by the Central Government as per Section 87 if the delay in registration of charge goes beyond 300 days.
According to Section 79, the provisions laid down under Section 77 regarding registration charges shall apply to:
- Any company which has acquired a property subjected to charge within the provisions of the section or;
- An extent, modification in terms and conditions or operation of registration charge as per this section.
Satisfaction of Charge
ROC shall be intimated by the company through e-Form CHG-4 regarding satisfaction or complete payment of registered charges as per this chapter within 30 days starting from the date of such satisfaction or payment.
On an application made by the charge holder or company, the ROC may permit such intimation of satisfaction or payment being made within 300 days from the date of such satisfaction or payment along with the additional prescribed fee.
Condone of delay further than 300 days
The Central Government has the power to condone a delay beyond 300 days in case modification/creation/satisfaction of charge has not been filed. As per Section 87, Form CHG-8 has to be filed with the Central Government along with the prescribed fee in case of delay beyond 300 days. The order passed by the Central Government as per Section 87 has to be filed with the ROC in e-Form INC-28 with the prescribed fee according to the stipulated conditions in the mentioned order. (Ch 6, Rule 12)
Certificate issued by ROC
ROC will issue a certificate once registration of modification/creation/satisfaction of the charge has been done as per the provisions of the Act.
- Certificate of registration of Charge in Form CHG-2 for Creation of Charge.
- Certificate of registration of modification of charge in Form CHG-3 for modification in charge which has already been registered.
- Memorandum of satisfaction of charge in Form CHG-5 for the satisfaction of registered charge.
- Certificates being issued by ROC are decisive evidence of the requirements and rules of the Act being fulfilled about registration of modification or creation of charge.
Outcomes of Non-registration
The liquidator being appointed as the Act or IBC,2016 shall not take into account charge which has not been registered as per Section 77. Nevertheless, while the company is going concern, even though the charge is not registered, it shall be liable according to the instrument creating a charge.
Register of charges
Each company has to have a registered office:
- CHG-7 which maintains a register of charges
- An instrument of charge creation
Both register and instrument of charge have to make available for inspection during working hours by:
- Creditor or members without charging any fee.
- Any person who pays the prescribed fee, but this shall be subject to the restriction as per the Articles of the Company.
Penalty for Contravention (Section 86)
- If contravention has been made by a company then it shall be fined for minimum Rupees One Lakh which can go up to Rupees Ten Lakh.
- If contravention has been made by an office then there is imprisonment for at least six months or/and a fine of minimum Rupees Twenty Five Thousand which can go up to Rupees One Lakh.
What is Form CHG-1?
Each charge being modified or created by a company has to be filed in e-Form CHG-1 with respective Registrar of Companies if it is an Indian Company and in case of a foreign company the same form has to be filed with the Registrar of Companies at Delhi. This provision has been laid by Form 8 of the Companies Act, 1956.
What is meant by the satisfaction of charge?
The satisfaction of charge means when the interest in the property of the company is paid to the creditor or lender of the company.
What is meant by charge?
A charge is any interest being created on the property or assets of a company as security which includes mortgage as per Section 2(16).
Consequences in case charges are not registered?
If the charges of a company are not registered then the creditors are exposed to losses as charges are not registered and the company shall be liable to repay the debts.