Compulsory
Registration of the charge:
Under Section 125(4) of the Companies Act, 1956, the following are
the assets of a company, if any charge or mortgage created, must be registered
with the Registrar of Companies:
1. A charge for the purpose of
securing any issue of debentures;
2. A charge on uncalled share
capital of the company;
3. A charge on any immovable
property, wherever situate or any interest therein;
4. A charge on any book debts of
the company;
5. A charge, not being a pledge,
on any moveable property of the company;
6. A floating charge on the
undertaking or any property of the company including stock in trade;
7. A charge on calls made, but
not paid;
8. A charge on a ship or any
share in a ship;
9. A charge on goodwill, or a
patent or a license under a patent, on a trademark, or on a copyright or a license
under a copyright.
Procedure for
registration, Modification and Satisfaction of charges:
Procedure of Registration
A charge which is not created by a company does not require
registration. Under Section 127(1) of the Companies Act, 1956, where a company
acquires any property which is subject to a charge of any such kind as would,
if it had been created by the company after the acquisition of the property,
have been required to be registered under Part V of the said Act. The steps to
be followed in registration of charge are mentioned below:
Ø The
prescribed particulars together with copy of the instrument creating the charge
or modification thereof or satisfaction of charge shall be filed with the
Registrar in Form 8, or form 10, or Form 17 as the case may be, in triplicate
Ø A copy
of every instrument evidencing any charge or modification of charge and
required to be filed with the Registrar in pursuance of sections 125, 127, 128
and 135 shall be verified as follows:
1.
Where the
instrument or deed relates solely to property situate outside India, a copy shall
be verified by a certificate either under the seal of the company, or under the
hand of a responsible officer of the company, or under the hand of some person
interested in mortgage or charge on behalf of any person other than the
company, stating that it is a true copy.
2.
Where the
instrument or deed relates, whether wholly or partly, to property situate in
India, the copy shall be verified by a certificate of a responsible officer of
the company stating that it is true copy or by a certificate of public officer
given under and in accordance with the provisions of Section 76 of the Indian
evidence Act, 1872.
Ø Form
13 shall be filed in triplicate, along with the relevant Form 8, or Form 10, or
Form 17, as the case may be, with a fee of rupees ten.
Ø Form
8, or Form 10, or Form 17, as the case may be, shall be signed on behalf of the
company and the charge-holder.
Ø For
the purposes of Section 132, the Registrar shall affix stamp on the relative
Forms and accompanying instruments with the word “Registered” under his
signature with date and a copy thereof be delivered to the company and the
charge-holder.
Ø The
register kept in pursuance to sub-section (3) of Section 130 shall be open for
inspection by any person on payment of a fee of rupees ten for each inspection
The particulars of charges in connection with issue of
debentures of a series shall be filed with Registrar of Companies in Form 10,
along with copy of instrument creating the charge and with the required filing
fees as per Schedule X to the Companies Act, 1956, within a period of 30 days
after the execution of deed containing the charge or if there is no such deed,
after the execution of any debentures of the series, failing which the company and
every officer of the company who is in default, shall be punishable with fine
which may extend to five thousand rupees. However, the Registrar may extend the
time up to the next thirty days, if he is convinced of the sufficiency of the
cause for the default.
Modification of
charge [Section 135]
Whenever
the terms or condition or extent and operation, of any charge registered are
modified, it shall be duty of the company to send the registrar the particulars
of such modification in form No.8 within 30 days of modification.
Satisfaction of charge [Section 138]
Ø
The
Company is required to give intimation to the registrar of the payment or
satisfaction, in full, of any charge relating to the company and requiring
registration under the companies Act, within 30 days from the date of payment
or satisfaction.
Ø
On
receipt of information regarding satisfaction of charge, the Registrar shall
invite objection, if any, within specified time (not exceeding 14 days).
Ø
If
no objection is received, the Registrar shall order that a memorandum of
satisfaction be entered in the resister of charges.
Ø
Notwithstanding
that no intimation has been received from the company the Registrar can, under Section
139 of the Act, register satisfaction with respect to any registered
charge if he is satisfied on the evidence produced before him that:
(a)
the debt for which the charge was given has been paid or satisfied in whole or
in part; or
(b)
part of the property of undertaking charged has been realised from the charge
or has been released from the charge of has ceased to form part of the
company's property or undertaking.
Power of Central Govt. to extend time for Registration
Under
Section 141 of the Act, the Central govt. has powers to grant
extension of time for filing of particulars of any charges or any modification
thereof or for giving of any intimation about the payment or satisfaction of
change, if the board is satisfied that the omission to do so within the
prescribed time.
(i)
Is accident; or
(ii)
Is due to inadvertence; or
(iii)
Is not of a nature as to prejudice the position of creditors or shareholders of
the company; or
(iv)
It is just and equitable to grant relief on other grounds.
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