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    ROC Charge

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    ROC Charge

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    ROC Charge Compliance
    ROC Charge

    INTRODUCTION

    In layman’s terms, a charge under ROC is a right created by a person including a company. The company shall be known as a “borrower” on the property and assets of the company that can either be present or future assets. To attain financial assistance from the bank, referred to as the “lender” the charge is created and that is what we term as Creation of Charge under ROC.

    As per the legal world, as mentioned in Section 2 (16) of the Companies Act 2014, a charge is defined as “an interest or lien created on the property or assets of a company or any of its undertaking or both as security and includes a mortgage.

    For creating a charge, some essentials are mentioned that is must-have for starting over with the charges. The essentials are as follows:-

    • Two parties must exist in order to complete the transaction of the charge created. One as a creator of the charge and other as the charge holder.
    • The existence of the subject matter of charge is necessary that can either be current or future assets and other properties of the borrower.
    • The borrower must be fully prepared beforehand to offer one or more of its company’s assest as a security of the repayment of the money borrowed from the lender along with the interest at the agreed rate. The borrower and lender must have an agreement to comply with. A charge can vary as a charge can either be a fixed charge or a floating charge.

    PARTICULARS OF CHARGE

    Here is the list of information that is required to be filed :-

    1. date and description of instrument creating charge;
    2. total amount secured by the charge;
    3. date of the resolution authorizing the creation of the charge; (in case of issue of secured debentures only;
    4. a general description of the property charged;
    5. a copy of the deed/instrument containing the charge duly certified or if there is no such deed, any other document evidencing the creation of the charge to be enclosed;
    6. list of the terms and conditions of the loan; and
    7. name and address of the charge holder.

    LIST OF eFORMS FOR CHARGE

    All of these forms are required to be filed:-

    • CHG-1 : Creating or modifying the charge (for other than Debentures)
    • CHG-2 : Certificate of registration
    • CHG-3 : Certificate of modification of charge
    • CHG-4 : Intimation of the satisfaction to the Registrar
    • CHG-5 : Memorandum of satisfaction of charge
    • CHG-6 : Notice of appointment or cessation of receiver or manager
    • CHG-7 : Register of charges
    • CHG-8 : Application for condonation of delay shall be filed with the Central Government
    • CHG-9 : Creating or modifying the charge in (for debentures including rectification)
    • CHG-10 : Application for delay to the registrar

    TIME LIMIT FOR CREATION OF CHARGE

    As per the law, within thirty days of the creation of charge and after the payment is made as prescribed by the law, the charge must be registered with the Registrar of Companies (ROC). There are different forms for the purpose of creating or modifying the charge.

    Condonation of Delay by Registrar

    The registration of charge is allowed within three hundred days of creation, modification of charge on payment of additional fee by the Registrar of Companies (ROC). After the registrar is satisfied with the sufficient cause for not filing the charge properly then, within the time period of thirty days, allow registration of the same within thirty days. However, within a period of hundred days of such creation of charge or modification of charge on payment of an additional fee.
    In the Form No. CHG-10, the application for delay shall be made. And, it must be supported by a declaration from the company signed by the secretary or director that such belated filing shall not adversely affect rights of any creditor.

    Condonation of Delay by the Central Government

    Where the Company is not able to register the charge even after the time extension of three hundred days, then in that case again the company has the chance to seek further extension of time in accordance with Section 87 from the Central Government

    Registration of Charge by the Charge Holder

    Where the company is unable to register the charge within the time given, then as per Section 78, the person in whose favour the charge is named, shall apply to Registrar for Registration of Charge in Form No. CHG-1 or Form CHG-9. It must be adequately signed and paid. A notice is required to be prepared and sent to the company about application.

    NON REGISTRATION OF CHARGE

    As per the compliance under Section 77 of the Companies Act 2013, it is an obligation to register the charge. Where the registration of charge is not done, it shall be considered void as against the liquidator and any other creditor of the company. This does not, however, mean that the charge is altogether void and the debt is not recoverable. So long as the company does not go into liquidation, the charge is good and may be enforced.

    Void against the liquidator means that the liquidator on winding up of the company can ignore the charge and can treat the concerned creditor as unsecured creditor. The property will be treated as free of charge i.e. the creditor cannot sell the property to recover its dues.

    Void against any creditor of the company means that if any subsequent charge is created on the same property and the earlier charge is not registered, the earlier charge would have no consequence and the latter charge if registered would enjoy priority. In other words, the latter charge holder can have the property sold in order to recover its money.

    Thus, non-filing of particulars of a charge does not invalidate the charge against the company as a going concern. It is void only against the liquidator and the creditors at the time of liquidation. The company itself cannot have a cause of action arising out of nonregistration.

    SATISFACTION OF CHARGE

    As per Section 82 read with rules as under the Companies Act, the company is complied to send an intimation to the Registrar (ROC) within the time period of 30 days from the date of payment made in the Form No. CHG-4 along with the fee. In case, satisfaction of charge is not done within the time period of 30 days, then the Register will not register the charge filed by you unless the delay is condoned by the Central Government.

    After the intimation, a notice is issued to the charge holder by the ROC calling a show cause notice that should not exceed fourteen days as to why payment or satisfaction in full should not be recorded as intimated.

    If no cause is presented by the charge holder, the registrar shall order that a memorandum of satisfaction shall be entered in the register of charges maintained as under Section 81.

    COMPANY's REGISTER OF CHARGES

    Form No. CHG. 7 :- a register of charge must be maintained in the form that shall contain therein all charges and floating charges affecting any property or assets of the company or any of its undertakings, indicating in each case such particulars as may be prescribed.

    Whenever there is creation or modification or satisfaction of charge, the entries in the register of charges is necessary to be maintained by the company. The register must contain the particulars of all the charges registered with the Registrar on any of the property, assets or undertaking of the company and the particulars of any property acquired subject to a charge as well as particulars of any modification of a charge and satisfaction of charge.

    All these entries must be verified by a director or a secretary of the company or any person authorised by the board for the purpose. Also, the registers must be permanently preserved. The instrument that are for creation or modification shall be preserved for a period of eight years from the date of satisfaction of charge. It must be kept at the registered office of the company.

    Inspection of Charges: The register of charges and instrument of charges shall be kept open for inspection during business hours by members, creditors or any other person subject to reasonable restriction as the company by its article impose. The register of charges and the instrument of charges kept by the company shall be open for inspection-
    (a) by any member or creditor of the company without fees;
    (b) by any other person on payment of fee.

    Notice of Charge

    According to Section 80, where any charge on any property or
    assets of a company or any of its undertakings is registered under
    section 77, any person acquiring such property, assets, undertakings
    or part thereof or any share or interest therein shall be deemed to have
    notice of the charge from the date of such registration. The section
    clarifies that if any person acquires a property, assets or undertaking
    for which a charge is already registered, it would be deemed that he has
    complete knowledge of the charge from the date the charge is registered.

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    Register of Charge

    In accordance with section 81 and the rules the Registrar of
    Companies shall maintain a register containing particulars of the
    charges registered in respect of every company. The particulars of
    charges maintained on the Ministry of Corporate Affairs portal
    (www.mca.gov.in/MCA21) shall be deemed to be the register of charges
    for the purposes of section 81 of the Act.
    This charge register shall be open to inspection by any person on
    payment of fee for each inspection.

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    Intimation of Appointment of Receiver or Manager

    Section 84 provides that if any person obtains an order for the
    appointment of a receiver of, or of a person to manage, the property,
    subject to a charge, of a company or if any person appoints such receiver
    or person under any power contained in any instrument, he shall,
    within a period of thirty days from the date of the passing of the order
    or of the making of the appointment, give notice of such appointment
    to the company and the Registrar along with a copy of the order or
    instrument and the Registrar shall, on payment of the prescribed fees,
    register particulars of the receiver, person or instrument in the register
    of charges.

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    Frequent Asked Questions

    ROC Charge Compliance

    The Authorized Share Capital of the company is the maximum amount of share capital for which shares can be issued by the company. It is the capital specified in the Memorandum of Association (MOA) of the company.  

    As per Section 2(8) of the Companies Act 2013, “Authorized Capital” is the capital that is actually authorized by the memorandum of the company. In simple words, the maximum amount of share capital that is allowed to be authorised. Authorized Capital is the capital which when increased helps the company to expand its business to the level of the authorised capital increased.

    The maximum amount that company is legally authorised to issue to the shareholders and on which the stamp duty is paid by the company is termed as “Authorised Capital”. Whereas, the paid up capital is the amount that is actually paid by the shareholders of the company.

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