Creation & Modification of Charge as per Companies Act, 2013
Charge as per section 2(16) of Companies Act, 2013 refers to creation of interest or a right on a property or asset of a company or any of its undertaking as a security against loan provided to the company in respect of such interest. Charge is created by Companies who are in need of financial assistance for making their companies productive and in doing so creating any right or interest in assets of companies. Charge also includes mortgage. Charge is created so that the financial institutions such as banks have security for the loans provided by creation of charge on assets of company and having it registered with the Registrar. What is a Charge? As per Section 2(16) of Companies Act 2013, “charge” means an interest or lien created on the property or assets of a company or any of its undertakings or both as security and includes a mortgage. According to Section 100 of the Transfer of Property Act, 1882, where an immovable property of one person is by act of parties or operation of law made security for the payment of money to another and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property, and all the provisions which apply to a simple mortgage shall, so far as may be, apply to such charge. How is it related to Pledge and Hypothecation? As per section 172 of the Indian Contract Act, 1872, “pledge” means the bailment of goods as security for payment of a debt or performance of a promise. As per Section 2 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, “hypothecation” means a charge in or upon any movable property, existing or future, created by a borrower in favour of a secured creditor without delivery of possession of the movable property to such creditor, as a security for financial assistance and includes floating charge and crystallisation of such charge into fixed charge on movable property. Charge is where immovable property of one person is made security for the payment of money to another. It refers to the security for securing the debt, by way of pledge, hypothecation and mortgage. In the pledge, the possession of the asset is transferred, but in the case of hypothecation, possession lies with the debtor only. Type of Charges Fixed Charges: Charge created on Fixed Assets of the company. Floating Charges: Charge created on Current Assets or the Stock of the company. Essential Features of the Charge There should be two parties to the transaction, the creator of the charge and the charge holder. The subject-matter of charge must be current or future assets and other properties of the borrower. Both the parties to the transaction must enter into a legal agreement specifying assets or properties kept as security for the repayment of money, interest rate charged etc. A charge may be fixed or floating depending upon its nature. What is Modification of Charges? The term ‘modification’ includes variation of any of the terms of the agreement including variation of rate of interest which may be by mutual agreement or by operation of law.Even if the rights of a chargeholder are assigned to a third party ,it will be regarded as a modification. The provisions applicable to the registration of a charge under Section 77 shall apply to modification of the charge. Time Limit for Registration of creation or modification of ChargesA company creating charge, shall register the particulars of the said charge with the Registrar of Companies (ROC) within 30 days of its creation. According to Companies (Registration of Charges) Rules, 2014 e-forms prescribed for the purpose of creating or modifying the charge are as follows: For other than debentures: Form No.CHG-1 For Debentures including any rectification: Form No.CHG-9 Who is liable to register Charge? As per Section 77 of the Companies Act, 2013 every company creating a charge shall register the particulars of charge signed by the company and its charge – holder together with the instruments creating.Any charge created within or outside India on property or assets or any of the company’s undertakings Whether tangible or otherwise, situated in or outside India shall be registered. Hence all types of charges are required under the Act to be registered whether created within or outside India. Certification of Registration of Charge When a charge is registered with the Registrar, Registrar shall issue a certificate of registration of charge in Form No.CHG-2 and for registration of modification of charge in Form No.CHG-3 to the company and to the person in whose favour the charge is created. The certificate issued by the Registrar shall be the conclusive evidence that the charge is registered. Delay in Registration of Charges If Charge is created before 02.11.2018: Within A period of 300 days from the creation of charge If charge is created after 02.11.2018: Within a period of sixty days of creation of charge. However, additional fees is applicable in this case Register of Charges to be kept by Registrar (ROC) The Registrar shall, in respect of every shall keep a register containing particulars of Charges registered, in such form and in such manner as may be prescribed Register shall be kept open for inspection by any person on payment of such fees as may be prescribed Duty of CompanyEvery company shall maintain at its registered office a Register of Charges in e-form CHG-7 which shall be open for inspection by: Any member and creditor Without any payment By any other person on payment of such fees as may be prescribed Provisions under Companies Act 2013 & Companies (Registration of Charges) Rules, 2014 Section 77 with Rule 3 & Rule 6Duty to Register Charges – Every company shall register the charge with Registrar of Companies (ROC) within 30 days of the date of creation or modification of charge along with the fee. Purpose Form Attachments Creation/Modification of charge other thanDebenture CHG-1 Particulars of chargeCopy of Instrument evidencingany creation or modification ofcharge Creation/Rectification of charge for Debenture CHG-9 The ROC on receipt of Application
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