Charge Creation under Companies Act, 2013

Background:

Section 2(16) of the Companies Act, 2013 defines charges also as to mean 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.

• Types of Charges:

1. Fixed or specific Charge: it’s a charge on the assets which are either definite in nature or capable of being ascertained and defined at the time of creating the charge.

Example: Land, Buildings, plants or machinery.

2. Floating Charge: it’s a type of charge that doesn’t create on any definite property, but creates on a fluctuating type like stock-in-trade.

• Registration of charges under the Act

Section 77 of Companies Act, 2013 deals with registration of Charges.

Section 77(1) Charge may be created:

• Within or outside India.
• On its property or assets or any of its undertaking.
• Whether tangible or otherwise and situated in or outside India.

Shall be registered.

• All the particulars relating to charge which is being filled with the Registrar of companies shall be signed by the company (Creating the charge) and the charge holder in form CHG-1(other than debentures) or Form CHG-9(For Debentures).

Section 77 – It is the duty of every corporation creating charge in any such form, on payment of such fees and in such manner as might be prescribed, with the Registrar within 30 days of its creation.

• Registration of Charge beyond 30 days:

After Companies Amendment Ordinance, 2019 with effect from 2 November, 2018 with all earlier versions of the ordinance, provide that the Registrar may, on an application by the company, allow such registration to be made-

• In case of charges created before the commencement of the Companies(Amendment) Ordinance,2019, within a period of three hundred days of such creation; or
• In case of charges created on or after the commencement of the Companies (Amendment) Ordinance, 2019, within a period of Sixty days of such creation on payment of additional fees.

Charge beyond 60 Days:

• In clause (a) to the first proviso, the registration of the charge shall be made within six months from the date of commencement of the Companies (Amendment) Ordinance, 2019, on payment of such additional fees as may be prescribed and different fees may be prescribed for different classes of Companies.
• In clause (b) to the first proviso, the Registrar may, on an application, allow such registration to be made within further period of sixty days after payment of ad-valorem fees.

• Notice of Charge:

Section 80 of Companies Act, 2013 states whenever charges created on any of its assets or any of its undertaking than any person acquiring such assets or undertakings it is assumed that the subsequent person acquiring any of its assets or undertakings has complete knowledge of charge registered.

• Consequences of Non-Registration of Charges:

As per Section 77, if the charge is not registered with the ROC, the charge would not be taken into account by the liquidator or any creditor, not only in winding up case also when corporation is indebted towards repaying the money even if the charge was not registered.

The punishment for violating any provision of the Companies Act, 2013 is that the corporation would be punishable with a fine which would not be less than Rs. 1 Lakh and may extend to Rs. 10Lakhs and every officer punishable with a fine which would not be less than Rs.25000 which might extend to Rs. 1 Lakh or with an imprisonment of a term which may extend to 6 months or both.

> Register of charges

Registrar must maintain a register of charges for every corporation and must keep it open for inspection by any individual on payment of prescribed fees.

The corporation must maintain a register of charges in form CHG-7 with instrument creating charge at its registered office and keep it open for inspection in the course of business hours by members or creditors without fees.

• E-Forms to be filed:

Author- CS Aakansha Negi and contracted at [email protected]

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