CS Pankaj Kumar Singhal
Charges denotes the security on the assets given to ensure the repayment of the loan etc. and sometimes is a pre-requisite conditions imposed by the granter to avail the said facility. It may on the present or future assets of the company.
However, this is also a truth that due to the least control and cost, some of the person/ corporate group has taken undue advantage and made fraud with the general public. Further, prior to the introduction of “The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (Referred herein after as SARFAESI), the banks was normally not very keen and take instant action for the recovery in case of default in payment. For the same reasons, percentage of Non Performing Assets was also increasing. Thanks to the government long vision and introduction of SARFAESI. Under SARFAESI, interest of the financial institutions have been duly cared and has given such rights as may enabled them to take instant action as well as relief.
Although, under The Companies Act, 2013, the provisions are on the same line of action as was in The Companies Act, 1956, however, some relaxation relating to period of submission has been provided in case of creation/ modification of charges.
To give complete understanding, initially author has tried to sum up the complete provisions in a chart form with a brief discussion on one case law. Author has also tried to the basic provisions of SARFAESI which may have an effect on the right and process of the charge holder under The Companies Act 2013.
The respective provisions of The Companies Act, 2013, in relation of Charges has been covered under Chapter VI (Covering Section 77 to Section 87) read with rules in relation to the same i. e. Companies (Registration of Charges) Rules, 2014. Various forms which have been provided are CHG 1 to CHG 10.
Definitions:-
Under the Companies Act, 2013:-
Section 2(9) “banking company” means a banking company as defined in clause (c) of section 5 of the Banking Regulation Act, 1949;
Section 2(16) “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;
Section 2(30) “debenture” includes debenture stock, bonds or any other instrument of a company evidencing a debt, whether constituting a charge on the assets of the company or not;
Section 2(39) “financial institution” includes a scheduled bank, and any other financial institution defined or notified under the Reserve Bank of India Act, 1934;
Section 2(72) “public financial institution” means—
(i) the Life Insurance Corporation of India, established under section 3 of the Life Insurance Corporation Act, 1956;
(ii) the Infrastructure Development Finance Company Limited, referred to in clause (vi) of sub-section (1) of section 4A of the Companies Act, 1956 so repealed under section 465 of this Act;
(iii) specified company referred to in the Unit Trust of India (Transfer of Undertaking and Repeal) Act, 2002;
(iv) institutions notified by the Central Government under sub-section (2) of section 4A of the Companies Act, 1956 so repealed under section 465 of this Act;
(v) such other institution as may be notified by the Central Government in consultation with the Reserve Bank of India:
Provided that no institution shall be so notified unless—
(A) it has been established or constituted by or under any Central or State Act; or
(B) not less than fifty-one per cent. of the paid-up share capital is held or controlled by the Central Government or by any State Government or Governments or partly by the Central Government and partly by one or more State Governments;
Section 2(74) “Register of Companies” means the register of companies maintained by the Registrar on paper or in any electronic mode under this Act;
Section 2(75) “Registrar” means a Registrar, an Additional Registrar, a Joint Registrar, a Deputy Registrar or an Assistant Registrar, having the duty of registering companies and discharging various functions under this Act;
Under Companies (Registration of Charges) Rules, 2014:-
Rule 2(e) “Regional Director” means the person appointed by the central government in the ministry of Corporate Affairs as a Regional Director.
Analysis (in tabular form) of the Provisions of “The Companies Act, 2013” is as under:-
Rule and Sub rule No.
Provides for
Section of Companies Act, 2013
Important Provision in Rules
3(1)- (4)
Registration of creation or modification of charge
Section 77,78,79
Section 77 – Duty to register charges etc.
Section 78- Application for registration of charge. Section 79- Section 77 to apply in certain matters.
Charge particulars duly signed with the Company and the charge holder with copy of instrument of charge for creation or modification shall be filed with Registrar in CHG-1 (for other than debentures) or Form CHG-9 (for debentures including rectification) within a period of 30 days from the date of creation/ modification of charge.
If, the Company fails register the above said form within the period of 30 days, charge holder itself can submit the said form.
If Company fails to register the charge within the period of 30 days, additional fee is to be paid.
4 (1)- (2)
Condonation of delay (By Registrar of Companies)
First proviso to sub-section (1) of Section 77 and Section 78
Section 77 – Duty to register charges etc.
Section 78- Application for registration of charge.
Registrar being satisfied that the company had sufficient cause for not
Filling the particulars of charge with in thirty days, allow such registration within three hundred days of creation of charge by paying additional fees.
Application for condonation shall be made in form CHG-10 and supported by a declaration by the secretary or director of the company that delay shall not affect the rights of creditors.
5
Application of Rules in Certain matters.
Section 79 – Application of section 77 in certain matters
Provisions of rule 4 shall apply to the property acquired under such charge or modification of charge.
6 (1)- (3)
Certificate of registration
Sub section (2) of section 77
Section 77 – Duty to register charges etc.
Registrar shall issue certificate of registration in form CHG-2, where charge is registered under section 77(1) or 78.
Registrar shall issue certificate of modification in form CHG-3, where charge is registered under section 79.
This certificate issued shall be conclusive evidence that all rules are compiled.
7 (1)- (2)
Register of charges
Section 81
Section 81 – Register of charges to be kept by the Registrar
The particulars of charge maintained on MCA portal at www.mca.gov.in/MCA21 shall be deemed to be register of charges for the purpose section 81 and shall be open to inspection by any person.
8 (1)- (2)
Satisfaction of charge
Sub section (1) of 82, 83
Section 82 – Company to report satisfaction of charge.
Section 83- Power of Registrar to make entries of satisfaction of charges and release in absence of intimation from company.
Company on payment or satisfaction of charge intimate registrar within thirty days of such payment made in Form CHG-4.
In case of delay same procedure is to be followed like incase of Register of charges.
Certificate of satisfaction of shall be issued by registrar in Form CHG-5.
9
Appointment intimation
Sub section (1) of section 84
Section 84 – Intimation of appointment of receiver or manager
Appointment or cessation of the receiver or manager subject to charge shall be intimated to Registrar by filing Form CHG-6.
10(1)-(4)
Company’s register of charges
Sub section (1) of section 85
Section 85 – Company’s register of charges
Register of charges is maintained in Form CHG-7 by every company at its registered office, in which all charges of the company are kept. Entries therein shall be made forthwith after the creation/ modification/satisfaction.
Entries in the said register are to be authenticated by Director or Secretary of the company or any person authorized by the board.
Register is to be maintained and preserved permanently.
Instrument creating/ modification of charge is to preserved for eight years from the date of satisfaction of charge.
11
Register open for Inspection
Sub section (2) of section 85
Section 85 – Company’s register of charges
Register of Charges and the Instrument of Charges kept by the company shall be open for inspection during business hours by (a) any member or creditor of the company without fees: (b) by any other person on payment of fees, (Amount has not been specified*)subject to such reasonable restrictions as the company may, by its articles, impose.
12(1)-(3)
Condonation of delay by Central Government
Section 87
Section 87 – Rectification by Central Government in register of charges
The Registrar shall not register the instrument creating/ modifying charges, if the same is filed after 300 days of its creation/ modification.
In case of satisfaction of charges, this period is 30 days.
Registrar shall register the same only if condoned by Central Government.
Application for condonation shall be made in form CHG-8
Order passed by the central government shall be submitted with the registrar in Form INC 28 as per the conditions stipulated in the said order.
Some specific notes including ambiguity for above purpose are as under:-
1) It is the prime responsibility of the availing facility to file form CHG; however, if the company does not file the same, the charge holder is also at liberty to file the said form. It is in the form of facility and not an obligation. As it is facility, Charge holder cannot be prosecuted for non submission of CHG form
2) No registration for charge by way of hypothecation of motor vehicles is required, however disclosures of such hypothecation charges with fact of not registration (as is not required) is to be mentioned in the balance sheet.
3) * Amount of fees may be decided by framing the policy by the company itself, however as per the opinion of the author, it must be justifiable.
4) The expression Mortgage has not been defined under the Act. 2013. Reference of the same needs to be taken from the Act, 1956 and Transfer of Property Act, 1882.
Case law:-
Corporation Bank vs Registrar of Companies and Ors (1998 93 Comp Cas 415 CLB)
ORDER
S. Balasubramanian, Chairman dated 17 February, 1997
1. The Corporation Bank (hereinafter referred to as “the petitioner”) has filed this petition under Section 141 of the Companies Act, 1956 (hereinafter referred to as “the Act”), seeking extension of time for filing the particulars of modification of charge executed with Dhanalakshmi Consolidated Industries Limited (hereinafter referred to as “the company”).
2. The facts alleged in the petition are that the company borrowed a sum of Rs. 50 lakhs from the petitioner against the security of vehicles, machinery and equipment belonging to the company which were to be let out by the said company to any party on hire or lease, by executing a hypothecation agreement dated February 12, 1987, and the same was duly registered with the Registrar of Companies, Tamil Nadu, Madras. The said charge was modified by executing two hypothecation agreements both dated May 20, 1988, by hypothecating (a) all the movables belonging to the company both existing and proposed to be purchased and thereby creating a floating charge and (b) all the present as well as the future book debts, outstanding monies, receivable claims, bills, contracts, engagements, securities, investments, etc., by way of first charge. The said modification of charges should have been filed with the Registrar of Companies as required under Section 135 of the Act within 30 days after execution. The second opposite party (“the company”) failed to submit Form No. 8 in spite of repeated requests by the petitioner. Under these circumstances, the petitioner was obliged to file the relevant Form No. 8 with the Registrar of Companies, Tamil Nadu, Madras, on March 20, 1989, after a delay of nine months. In view of the delay in filing the modification of charge, the Registrar of Companies did not take the same on record. Hence, this petition had been filed by the petitioner seeking extension of time to file the charges as envisaged under Section 141 of the Act.
3. On the basis of the notice published by the petitioner in this connection, the Syndicate Bank (SB) and the New Bank of India (NBI) have filed objections before the Company Law Board (CLB). According to NBI, the said bank had advanced a sum of Rs. 30 lakhs under a cash credit facility to the company on its executing necessary documents in favour of NBI and the company has failed to repay the dues to NBI and as such a suit was filed against the company by the NBI in the High Court of Judicature at Madras on February 20, 1990, and the said suit is still pending. According to NBI, all items of assets which have been included in the modification of charge filed by the petitioner had been included in the hypothecation deed executed in favour of NBI on February 29, 1988, by the company and as such if the delay is condoned it would affect the rights of the NBI.
4. The Syndicate Bank (hereinafter referred to as “SB”), has in its objection stated that it has created a charge for over Rs. 5 crores on certain valuable properties of the company and the extension of time if granted in this case, would adversely affect the SB. It has also submitted that under Section 135 of the Act it is only the company which is entitled to register a charge and not the petitioner. The company has also objected to the granting of extension of time, on the ground that the petitioner has already filed a winding up petition against the company in 1988 and the company has also filed a suit seeking certain declarations, against the petitioner. Further, the hypothecation agreements dated May 20, 1988, which are sought to be registered were not executed on the said date as there was nothing to warrant such executions of such documents. It is further averred that these documents have probably been obtained in blank forms while other documents were executed and the company never intended to create any fresh charge over any assets other than those that have already been given as security earlier. Accordingly, the company has prayed for dismissal ‘of the petition.
5. The matter was finally heard on February 15, 1996, when the advocates appearing on behalf of the objectors contended that if the extension of time is granted and the modification of charge is registered, it would affect their rights in terms of the charges created in their favour by the company and as such the extension should not be granted. Counsel for the company contended that when the company questions the authenticity/genuineness of the charge, the Company Law Board should not grant extension of time. The authorised representative of the petitioner stated that as long as the petitioner is in position to satisfy the Company Law Board the reasons for the delay in not registering the modification in time, the delay should be condoned irrespective of whether there are any objections or not from other alleged charge holders. The petitioner honestly believed that the company itself would register the modification in time and only when the petitioner realised that the company failed to do so, without any loss of time, the petitioner filed the modification of charges and as such there was no avoidable delay on the part of the petitioner in filing the modification and as such the delay be condoned.
6. I have gone through the pleadings and heard the arguments of the authorised representative of the petitioner bank and learned counsel for the objectors and the company. The issues that arise for consideration are (i) whether I should go into the validity of the charge which is denied to have been executed by the company; (ii) whether the petitioner has given sufficient justification for condoning the delay in filing the modification and (iii) if the extension is granted whether it would affect the interest of the objectors.
7. As far as the first issue regarding the contention of the company that it has not executed the modification of charge on the said date is concerned, I do not consider it necessary to go into the validity of the charge, A reading of Section 141 of the Act clearly shows that what the Company Law Board has to satisfy itself is that the delay in registering charges within the prescribed period was accidental or due to inadvertence or to some other sufficient cause or is not of a nature as to prejudice the position of creditors or shareholders of the company or on other grounds that are just and equitable. There is nothing in the section to indicate that the Company Law Board should also be satisfied about the validity of the charge. Reference may be made to the decision of Heathstar Properties Ltd., In re [1966] 36 Comp Cas 768 (Ch. D), wherein a similar case arose regarding validity of charge and the court held, with reference to Section 101 of the English Companies Act, which more or less contains the same provision as Section 141 of our Act that (page 776) :
“There is no reference there to the court being satisfied as to the validity of the charge, and it would have been very simple to insert such a reference if it had been intended. What Section 101 does, is to give the court power in certain circumstances to substitute its own time-limit for the time-limit in Section 95, but apart from that it leaves Section 95 to operate as if the application to register had been made in time.”
8. Thus, considering the legal position as explained above, I do not consider that it is necessary for me to go into the validity of the charge before granting extension of time. The company is always at liberty to challenge the validity in a proper forum and registration of the charge does not take away its right in this connection.
9. As far as the second issue is concerned, it is always the person who creates the charge who files the charge for registration and very rarely the charge holder files the charge for registration. In this case, it is the charge-holder viz., the petitioner who filed the modification after a delay of nine months on the ground that the company failed to do so in spite of repeated requests. Considering the facts and circumstances of the case, I am of the view that the grounds given by the petitioner seeking for condonation of delay in filing the modification are sufficient and as such I am inclined to condone the delay.
10. In regard to the third issue, it is seen that the hypothecation deed executed in favour of NBI on February 29, 1988, is prior in time to the modification of charge sought to be registered by the petitioner now. As far as Syndicate Bank is concerned, the hypothecation deed which is yet to be registered is dated April 27, 1989. This bank has already filed a petition under Section 141 for extending the time for filing the charges up to August 28, 1989 (the date on which charges were filed with the ROC). In other words, the charges created in favour of this bank by the company are yet to be registered. In view of the provision of Section 141(3) of the Act which reads:
“Where the Company Law Board extends the time for the registration of a charge, the order shall not prejudice any rights acquired in respect of the property concerned before the charge is actually registered.”
11. The extension of time sought to register the modification if granted will not in any way affect the rights of the objectors.
12. In view of the above, I am satisfied that it is just and equitable that the delay is condoned and the time for filing the modification of charge is extended as prayed for subject to payment of costs referred to herein.
13. This Bench therefore hereby order:
That the delay in filing the particulars of modification of charge on May 20, 1988, is hereby condoned and the time for filing the same is extended up to March 20, 1989, subject to payment of Rs. 1,000 (rupees one thousand only) as costs under Section 141(2) of the Act to the Registrar of Companies, Madras, Tamil Nadu.
Some basic provisions of SARFAESI:-
Section 5 of SARFAESI provides for Acquisition of rights or interest in financial assets as under:-
(1) Notwithstanding anything contained in any agreement or any other law for the time being in force, any securitisation company or reconstruction company may acquire financial assets of any bank or financial institution–
(a) by issuing a debenture or bond or any other security in the nature of the debenture, for consideration agreed upon between such company and the bank or financial institution, incorporating therein such terms and conditions as may be agreed upon between them; or
(b) by entering into an agreement with such bank or financial institution for the transfer of such financial assets to such company on such terms and conditions as may be agreed upon between them.
(2) If the bank or financial institution is a lender in relation to any financial assets acquired under sub-section (1) by the securitisation company or the reconstruction company, such securitisation company or reconstruction company shall, on such acquisition, be deemed to be the lender and all the rights of such bank or financial institution shall vest in such company in relation to such financial assets.
(3) Unless otherwise expressly provided by this Act, all contracts, deeds, bonds, agreements, powers-of-attorney, grants of legal representation, permissions, approvals, consents or no-objections under any law or otherwise and other instruments of whatever nature which relate to the said financial asset and which are subsisting or having effect immediately before the acquisition of financial asset under sub-section (1) and to which the concerned bank or financial institution is a party or which are in favour of such bank or financial institution shall, after the acquisition of the financial assets, be of as full force and effect against or in favour of the securitisation company or reconstruction company, as the case may be, and may be enforced or acted upon as fully and effectually as if, in the place of the said bank or financial institution, securitisation company or reconstruction company, as the case may be, had been a party thereto or as if they had been issued in favour of the securitisation company or reconstruction company, as the case may be.
(4) If, on the date of acquisition of financial assets under sub-section (1), any suit, appeal or other proceeding of whatever nature relating to the said financial assets is pending by or against the bank or financial institution, save as provided in the third proviso to sub-section (1) of section 15 of the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986) the same shall not abate, or be discontinued or be, in any way, prejudicially affected by reason of the acquisition of financial assets by the securitization company or reconstruction company, as the case may be, but the suit, appeal or other proceeding may be continued, prosecuted and enforced by or against the securitization company or reconstruction company, as the case may be.
(5) On acquisition of financial assets under sub-section (1), the securitization company or reconstruction company, may with the consent of the originator, file an application before the Debt Recovery Tribunal or the Appellate Tribunal or any court or other authority for the purpose of substitution of its name in any pending suit, appeal or other proceedings and on receipt of such application, such Debts Recovery Tribunal or the Appellate Tribunal or Court or Authority shall pass an orders for the substitution of the securitization company or reconstruction company in such pending suit, appeal or other proceedings. (* amended and inserted with effect from the date of publication in official gazette i. e. 04th January, 2013)
35. The provisions of this Act to override other laws
The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.
37. Application of other laws not barred
The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Companies Act, 1956 (1 of 1956), the Securities Contracts (Regulation) Act, 1956 (42 of 1956), the Securities and Exchange Board of India Act, 1992 (15 of 1992), the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) or any other law for the time being in force.
Process of Creation/ Modification of charge is as under:-
1) Conduct a Board meeting to arrive at a positive decision to avail the facility including security of Charges. In the said business of availing facility, authority to execute necessary documents is also required to be given.
2) File extracts of the said resolution with the Registrar of Companies in form MGT 14 within 30 days of its passing.
3) Execute necessary documents for availing the facility including the security being given.
4) Make entries in the register of Charges maintained in form CHG-7 forthwith after the creation/ modification/ satisfaction and get it authenticated by Director or Secretary of the company or any person authorized by the board.
5) Submit form CHG-1 (for other than debentures) or Form CHG-9 (for debentures including rectification) with the prerequisite fees within a period of 30 days from the date of creation/ modification of charge. After due compliance, Registrar shall issue certificate of registration in form CHG-2, where charge is registered under section 77(1) or 78 or in form CHG-3, where charge is registered under section 79.
6) If CHG-1 (for other than debentures) or Form CHG-9 (for debentures including rectification) is not being submitted within the period of 30 days, however within the period of 300 days, prepare an application for condonation in form CHG-10 which shall be supported by a declaration by the secretary or director of the company that delay shall not affect the rights of creditors. After due compliance, Registrar shall issue certificate of registration in form CHG-2, where charge is registered under section 77(1) or 78 or in form CHG-3, where charge is registered under section 79.
7) If CHG-1 (for other than debentures) or Form CHG-9 (for debentures including rectification) is after 300 days, prepare an application for condonation in form CHG-8 and submit the same with Regional Director having territorial jurisdiction over the registered office of the company under The Companies Act, 2013.
8) File the above said application in form GNL1 and after hearing, pay the requisite penalty imposed by the Regional Director having territorial jurisdiction over the registered office of the company. Normally 15 days time is being given for the payment of penalty.
9) After payment of requisite penalty, submit the Chalans with Regional director office with the covering letter containing request to issue and order allowing condonation of delay.
10) Submit the order issued by the regional director with the ROC within the stipulated time given in the order itself in form INC 28.
11) After the approval of the form INC 28, get the form CHG-1 (for other than debentures) or Form CHG-9 (for debentures including rectification) approved. After due compliance, Registrar shall issue certificate of registration in form CHG-2, where charge is registered under section 77(1) or 78 or in form CHG-3, where charge is registered under section 79.
Process of Satisfaction of Charge is as under:-
1) Gets the letter of satisfaction from the bank containing declaration that there are no dues towards the facility provided.
2) Conduct a Board meeting to consider the letter of satisfaction and after taking note of the same in the said board meeting pass the resolution containing authorization to file form CHG-4 with letter of satisfaction as an attachment. It must be noted that the said form CHG-4 is required to be submitted within 30 days of satisfaction. The period of 300 days is applicable in case of creation/modification of charges only and for satisfaction of charges, there is no relaxation of time period.
3) Make entries in the register of Charges maintained in form CHG-7 forthwith after the satisfaction and get it authenticated by Director or Secretary of the company or any person authorized by the board.
4) Submit form CHG-4. After due compliance, Registrar shall issue certificate of registration of satisfaction in form CHG-5.
5) If CHG-4 is not being submitted within the period of 30 days, prepare an application for condonation in form CHG-8 and submit the same with Regional Director having territorial jurisdiction over the registered office of the company under The Companies Act, 2013.
6) File the above said application in form GNL1 and after hearing, pay the requisite penalty imposed by the Regional Director having territorial jurisdiction over the registered office of the company. Normally 15 days time is being given for the payment of penalty.
7) After payment of requisite penalty, submit the Chalans with Regional director office with the covering letter containing request to issue and order allowing condonation of delay.
8) Submit the order issued by the regional director with the ROC within the stipulated time given in the order itself in form INC 28.
9) After the approval of the form INC 28, get the form CHG-4 approved. After due compliance, Registrar shall issue certificate of registration of satisfaction in form CHG-5.
Penal Provisions under “The Companies Act, 2013”:-
Section 86 of The Companies Act, 2013 provides the punishment as under:-
If any company contravenes any provision of this Chapter, the company shall be punishable with fine which shall not be less than one lakh rupees but which may extend to ten lakh rupees and every officer of the company who is in default shall be punishable with imprisonment for a term which may extend to six months or with fine which shall not be less than twenty-five thousand rupees but which may extend to one lakh rupees, or with both.
Further, Section 77(3) of The Companies Act, 2013 speaks about the non consideration of non registered charges by the liquidator or creditor and speaks as under:-
(3) Notwithstanding anything contained in any other law for the time being in force, no charge created by a company shall be taken into account by the liquidator or any other creditor unless it is duly registered under sub-section (1) and a certificate of registration of such charge is given by the Registrar under sub-section (2).
Compoundable Offence:-
Clearly, the non-compliance is a compoundable offence within the meaning of Section 441 of The Companies Act, 2013.
Conclusion:-
The author is of the view that the scope of compliance are on the same line of actions as were under the Companies Act, 1956, however, is also of the view that the implications of the SARFAESI should have been made more clear than of the present situations. Though, there is requirement of disclosure in the financial assets of the company, the same may help in determining the status about secured loans, the provisions might have been made more stringent keeping in view of the interest of the financial institutions and creditors.
Disclaimer: The entire contents of this document have been prepared on the basis of relevant provisions and as per the information existing at the time of the preparation. Though utmost efforts has made to provide authentic information, it is suggested to cross-check the relevant sections, rules under the Companies Act, 2013. The observations of the author are personal view and the author does not take responsibility of the same and this cannot be quoted before any authority.