Process Note On Charge Creation And Modification Of Charge (E-Form Chg-1)

LAW(S) GOVERNING THE E-FORM CHG-1:

E-Form CHG-1 is required to be filed pursuant to Section 77, 78 and 79 and Section 384 and Rule 3 of the Companies (Registration of Charge) Rules, 2014.

MEANING OF 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.

SECTION 77 OF COMPANIES ACT 2013:

(1) It shall be the duty of every company creating a charge within or outside India, on its property or assets or any of its undertakings, whether tangible or otherwise, and situated in or outside India, to register the particulars of the charge signed by the company and the charge-holder together with the instruments, if any, creating such charge in such form, on payment of such fees and in such manner as may be prescribed, with the Registrar within thirty days of its creation:

Provided that the Registrar may, on an application by the company, allow such registration to be made:

(a) 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 including particulars of modification of charge by Asset Reconstruction Company in terms of Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002.

(b) 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 such additional fees as may be prescribed:

Provided further that if the registration is not made within the period specified

(a) 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;

(b) in clause (b) to the first proviso, the Registrar may, on an application, allow such registration to be made within a further period of sixty days after payment of such advalorem fees as may be prescribed. Provided also that any subsequent registration of a charge shall not prejudice any right acquired in respect of any property before the charge is actually registered. Provided also that this section shall not apply to such charges as may be prescribed in consultation with the Reserve Bank of India.

 (2) Where a charge is registered with the Registrar under sub-section (1), he shall issue a certificate of registration of such charge in such form and in such manner as may be prescribed to the company and, as the case may be, to the person in whose favor the charge is created.

 (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 appointed under this Act or the Insolvency and Bankruptcy Code, 2016, as the case may be, 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).

 (4) Nothing in sub-section (3) shall prejudice any contract or obligation for the repayment of the money secured by a charge.

SECTION 78 OF COMPANIES ACT 2013:

Where a company fails to register the charge within the period of thirty days referred to in sub-section (1) of section 77, without prejudice to its liability in respect of any offence under this Chapter, the person in whose favor the charge is created may apply to the Registrar for registration of the charge along with the instrument created for the charge, within such time and in such form and manner as may be prescribed and the Registrar may, on such application, within a period of fourteen days after giving notice to the company, unless the company itself registers the charge or shows sufficient cause why such charge should not be registered, allow such registration on payment of such fees, as may be prescribed:

Provided that where registration is effected on application of the person in whose favor the charge is created, that person shall be entitled to recover from the company the amount of any fees or additional fees paid by him to the Registrar for the purpose of registration of charge.

SECTION 79 OF COMPANIES ACT 2013:

The provisions of section 77 relating to registration of charges shall, so far as may be, apply to:

(a) a company acquiring any property subject to a charge within the meaning of that section; or

(b) any modification in the terms or conditions or the extent or operation of any charge registered under that section.

SECTION 384 OF COMPANIES ACT 2013:

(1) The provisions of section 71 shall apply mutatis mutandis to a foreign company.

(2) The provisions of section 92 shall, subject to such exceptions, modifications and adaptations as may be made therein by rules made under this Act, apply to a foreign company as they apply to a company incorporated in India.

(3) The provisions of section 128 shall apply to a foreign company to the extent of requiring it to keep at its principal place of business in India, the books of account referred to in that section, with respect to monies received and spent, sales and purchases made, and assets and liabilities, in the course of or in relation to its business in India.

(4) The provisions of Chapter VI shall apply mutatis mutandis to charges on properties which are created or acquired by any foreign company.

(5) The provisions of Chapter XIV shall apply mutatis mutandis to the Indian business of a foreign company as they apply to a company incorporated in India.

RULE 3 OF THE COMPANIES (REGISTRATION OF CHARGE) RULES,2014:

(1) For registration of charge as provided in sub-section (1) of section 77, section 78 and section 79, the particulars of the charge together with a copy of the instrument, if any, creating or modifying the charge in Form No.CHG-1(for other than Debentures) or Form No.CHG-9 (for debentures including rectification), as the case may be, duly signed by the company and the charge holder shall be filed with the Registrar within a period of thirty days of the date of creation or modification of charge along with the fee.

(2) If the particulars of a charge are not filed in accordance with sub-rule (1), such creation or modification shall be filed in Form No. CHG-l or Form No. CHG- 9 within the period as specified in section 77 on payment of additional fee or advalorem fee as prescribed in the Companies (Registration Offices and Fees) Rules, 2014.

(3) Where the company fails to register the charge in accordance with sub-rule . (1) and the registration is effected on the application of the charge-holder, such charge-holder shall be entitled to recover from the company the amount of any fees or additional fees or advalorem fees paid by him ‘to the Registrar for the purpose of registration of charge.]

(4) A copy of every instrument evidencing any creation or modification of charge and required to be filed with the Registrar in pursuance of section 77, 78 or 79 shall be verified as follows-

(a) where the instrument or deed relates solely to the property situated outside India, the copy shall be verified by a certificate issued either 1[under the seal, if any, of the company,] or under the hand of any director or company secretary of the company or an authorised officer of the charge holder or under the hand of some person other than the company who is interested in the mortgage or charge;

(b) where the instrument or deed relates, whether wholly or partly, to the property situated in India, the copy shall be verified by a certificate issued under the hand of any director or company secretary of the company or an authorised officer of the charge holder.

PURPOSE OF THE E-FORM CHG-1:

All the companies are required to file particulars for registration of charges created or modified within specified period to concerned Registrar of Companies. The charge can be created on various types of assets situated in or outside India and may be created in favor of lenders such as Banks or financial institutions. Every charge that is created or modified by the company is required to be filed in eForm CHG-1 to concerned ROC in case of Indian Company and ROC Delhi in case of a foreign company.

Filing of form CHG-1 for registration of charges shall be regulated as per the following table:

Note: ‘T’ refers to the date of charge creation/ modification

*Dates computed as per the provisions of Section 77 as amended by the Companies (Amendment) Ordinance, 2019.

Fee Rules:

NORMAL FEE :

In case of Indian company having share capital

In case of Indian company not having share capital: Rupees 200

In case of foreign company: Rupees 6,000

ADDITIONAL FEES:

A. Charges created or modified before 02.11.2018, and allowed to be filed within a period of 300 days of such creation or six months from 02.11.2018 (i.e. 1st May 2019), whichever is later:

2. CHARGES CREATED OR MODIFIED ON OR AFTER 02.11.2018

a) The following additional fees or advalorem fees, as the case may be, shall be payable up to 31st July, 2019, by all companies:-

b) the following additional fees or advalorem fees as the case may be, shall be payable with effect from 1st August, 2019:-

E-FORM PROCESSING TYPE:

The form will be auto approved (STP)in case the e-Form is signed by the company and charge holder and processed by the office of Registrar of Companies in case form is filed by Charge holder beyond 30 days of charge creation or modification (Non STP).

ATTACHMENTS REQUIRED FOR FILING CHG-1:

1.Board Resolution for creation or modification of charge.

2. Instrument(s) of creation or modification of charge is a mandatory attachment in all cases.
3. Particulars of all joint charge holders. It is mandatory if number of charge holder is more than one.
4. Any other information can be provided as an optional attachment(s).

SIGNING OF THE E-FORM- CHG-1:

1.This E-form needs to be signed by any of the director of the company if so authorized by the Board Resolution.

2.Ensure the e-Form is digitally signed by the charge holder.

3.In case charge is modified in favor of ARC or assignee, then ARC or assignee needs to digitally sign the e-Form.

4.This form can be certified by the practicing professionals such as either Chartered Accountant in whole time practice/ Cost Accountant in whole time practice / Company Secretary in whole time practice.

NOTE:- E-Form CHG-9 is  Application for registration of creation or modification of charge for debentures or rectification of particulars filed in respect of creation or modification of charge for debentures.

Punishment for Contravention. As per Section 86 of companies Act 2013.

(1) 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.

(2) If any person wilfully furnishes any false or incorrect information or knowingly suppresses any material information, required to be registered in accordance with the provisions of section 77, he shall be liable for action under section 447.