Registration of charge with Registrar of Companies (ROC) under Companies Act, 2013

I. CHARGES THAT REQUIRE REGISTRATION IN ROC FOR COMPANIES

Earlier Companies Act, 1956 (“1956 Act”) cast an obligation on the Company to register with ROC only specified charges (these charges were specified 1956 Act itself) and not all charges created on property / undertaking of the Company.

The Companies Act, 2013 (“2013 Act”) on the other hand requires the company to register the particulars of a charge created by it on its property or assets or any of its undertakings with Registrar of Companies (ROC).

The 2013 Act defines ‘charge’ as an interest or lien created on property/ assets/ undertaking of the company as security. In view of this definition of ‘charge’ it appears that even pledges/ lien of moveable property will have to be registered with ROC under the 2013 Act since there are no charges specified in the Act.

II. TIME LIMIT

Charges are required to be registered with the ROC having jurisdiction over Registered Office of the company, under Section 77 of the Companies Act, 2013, within 30 days from the date of its creation.

III. FORMS FOR CREATION OR MODIFICATION OF CHARGE

Charges must be registered with the ROC by filing the particulars in Form No.CHG-1 (earlier Form-8) along with duly verified and certified copies of the documents/records/creating such charges with the requisite fee thereon.

IV. CONDONATION OF DELAY BY ROC

ROC may, on being satisfied that the company had sufficient cause for not filing the particulars and instrument of charge, if any, within a period of thirty days of the date of creation of the charge, allow the registration of the same after thirty days but within a period of three hundred days of the date of such creation of charge or modification of charge on payment of additional fee. [Please check the section “Additional fees” on calculation of additional fees]

Two important aspects which may be noted here:

a.Power of ROC to condone the delay is discretionary and there must be sufficient reason to for not registering the charge with specified period of 30 days.

b. Three hundred days shall be calculated from the date of creation of charge. It means effectively the Act provides for additional 270 days.

The application for delay shall be made in Form No.CHG-1 and supported by a declaration from the company signed by its secretary or director that such belated filing shall not adversely affect rights of any other intervening creditors of the company.

V. CERTIFICATE OF REGISTRATION

Where a charge is registered with ROC, he shall issue a certificate of registration of such charge in Form No.CHG-2.

This certificate holds utmost importance. Please see the section relation to “Effect of non-registration of charge” for more information.

VI. MODIFICATION OF CHARGES

Process for modification of charge is similar to that of creation of charge described above.

VII. SATISFACTION OF CHARGES

A company shall within a period of thirty days from the date of the payment or satisfaction in full of any charge registered under Chapter VI, give intimation of the same to ROC in Form No.CHG-4 along with the fee. ROC shall then issue a certificate of registration of satisfaction of charge in Form No.CHG-5.

VIII. EFFECT OF REGISTRATION OF CHARGE WITH ROC

Where any charge on any property or assets of a company or any of its undertakings is registered under the provisions of Companies Act, 2013, 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.

IX. CONSEQUENCES OF A CHARGE NOT BEING REGISTERED

It specifies that every charge created by a company is required to be registered unless such a charge is registered the charge shall be void against a liquidator or any subsequent charge.

The 1956 Act provided that the no charge created by a company shall be taken into account by the liquidator or any other creditor unless particulars thereof with copy of instrument creating charge have been filed with ROC within 30 days of creation of charge.

The 2013 Act contains more stringent provisions in this regard, i.e. no charge created by a company shall be taken into account by the liquidator or any other creditor unless it is duly registered and a certificate of registration of such charge is given by ROC.

X. PERSONS AUTHORISED TO CREATE CHARGE

It shall be the duty of every company creating a charge to register the particulars of the charge signed by the company and the charge-holder.

If a company fails to register the charge within the period of 30 days, the Charge holder may apply to the ROC for registration of the charge along with the instrument created for the charge. ROC 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 of charge. The charge holder in such case shall be entitled to recover from the company the amount of any fees or additional fees paid by him to ROC for the purpose of registration of charge.

XI. Fees payable

As per 2013 Act, applicable fees on CHG-1 correspond to the nominal share capital of the Company in the below manner:

Nominal Share Capital::: Normal fee payable
Less than 1,00,000::: Rs.200/-
1,00,000 to 4,99,999::: Rs.300/-
5,00,000 to 24,99,999::: Rs.400/-
25,00,000 to 99,99,999::: Rs.500/-
1,00,00,000 or more::: Rs.600/-

Additional Fees

Period of delays::: Fee applicable
upto 30 days::: 2 times of normal fees
More than 30 days and upto 60 days::: 4 times of normal fees
More than 60 days and upto 90 days::: 6 times of normal fees
More than 90 days and upto 180 days:: 10 times of normal fees
More than 180 days::: 12 times of normal fees

YOUR COMMENTS & SUGGESTIONS:
Comments and suggestions are read and very welcome. We really appreciate your time. Thanks in advance.

DISCLAIMER:
The opinions expressed herein are for informational purposes only. Nothing herein shall be deemed or construed to constitute legal advice or opinion. Discussions on, or arising out of this, blog between contributors and other persons shall not create any attorney-client relationship.

(I am thankful to my Seniors and friends for helping me to write this blog.)

Validity of Power of Attorney (POA): Death of Principal

One question which may validly arise in the mind of any person in relation to Power of Attorney (POA) is that what shall happen if the person executing POA has died? This is question of more importance for people working particularly in banking industry. There are many transactions in banking sector which is executed by the attorneys on behalf of the principal on the strength of POA on day-to-day basis. In this Article, we have tried to examine the legal aspect of validity of POA, after the death of its principal.

Power of Attorney as an Agency

A power of attorney is a delegation of authority in writing by which one person is empowered to do an act in the name of the other. The person who acts on behalf of another person (the principal) by his authority, express or implied, is called an agent and the relation between him and his principal is called agency.
A power of attorney holder is nothing but an agent as defined in S. 182 of the Indian Contract Act, 1872. The authority of an agent is his power to affect his principal’s position by doing acts on his behalf.

Termination of a Power of Attorney

Generally speaking, a power of attorney can be terminated or cancelled by the principal by revoking his authority or by the power of attorney holder renouncing his authority.

According to S. 201 of the Contract Act, an agency can be terminated by the principal by revoking his authority or by the agent renouncing his authority. S. 201 of the Contract Act also states that an agency terminates, inter alia, by death of principal or agent.

Judicial Pronouncements

Radhabai vs Mongia (AIR 1939 Nag. 274): If the power-of-attorney holder exceeds his limits as per the power granted to him, by the instrument, then the provision of 'indemnity' in case of an act done in good faith does not apply, even if he was unaware of the determination of his power in consequence of revocation of power by or death/insolvency of the principal.

A holder of a power-of-attorney or an agent cannot go beyond the principal [Mahendra Pratap Singh & Anr. v. Smt. Padam Kumari Devi, A.I.R. 1993 All. 143].

Conclusion

According to established case laws read with Section 3 of Power of Attorneys Act 1882 and S. 182, 201 of the Contract Act, due to the demise of the person executing power of attorney, the power of attorney becomes null and void.

Readers may post their query here in this regard. I will be happy to assist.

“Exclusive Jurisdiction” Clause and its application

A person involved in negotiation or drafting of any Agreement will definitely agree that jurisdiction clause is one of the most important clauses of any Agreement. Jurisdiction clause assumes more importance in cases where the scope of the Agreement expands to more than one area or jurisdiction. Generally, parties to the Agreement, while negotiating, try to restrict the jurisdiction to court which is more convenient for them to approach.

Before we delve further in the discussion, the first question which comes to our mind is that whether an agreement which purports to oust the jurisdiction of the Court is contrary to public policy and hence void? It is a settled principle of law and there is no ambiguity that an agreement which purports to oust the jurisdiction of the Court absolutely is contrary to public policy and hence void. Section 28 of Indian Contract Act, 1872 also contains statutory provision to the effect thereto and reproduced below:

Every agreement, by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent.

However, it is also a settled principle of law of that where two Courts or more have under the Code of Civil Procedure jurisdiction to try the suit or proceeding, an agreement between the parties that the dispute between them shall be tried in one of such Courts was not contrary to public policy and such an agreement did not contravene Section 28 of the Contract Act. Such clauses are valid as it does not amount to an absolute ouster of jurisdiction.

Now, we come to second question that how can the jurisdiction to deal with the disputes arising out of an Agreement be restricted to the identified courts? Generally, Parties to the Agreement tend to include exclusive jurisdiction clause in the Agreement, which reads as below:

The parties hereto agree that any matter or issues arising hereunder or any dispute hereunder shall be subject to the exclusive jurisdiction of the courts of situated at XYZ.

People use the wordings “only”, “exclusively”, “alone” etc. to explicit their intention that only identified court in the clause has the jurisdiction to try the matters connected or arising out of the concerned Agreement. As stated above, such ouster of jurisdiction do not amount to violation of public policy and did not contravene Section 28 of the Contract Act.

Now, we come to third and tricky question that what will happen if the jurisdiction clause does not use the word “only”, “exclusively”, “alone” etc. in the jurisdiction clause and simply includes below jurisdiction clause in the Agreement:

“The Agreement shall be subject to jurisdiction of the courts at XYZ”

The answer to the above question has been decided recently by Supreme Court in Swastik Gases Private Limited vs. Indian Oil Corporation Limited (Please click here to read full judgment)

In the present case, disputes arose between the parties and the appellant approached Rajasthan High Court for appointment of arbitrator in respect of the disputes arising out of concerned agreement. . The Respondent defended the application on the ground of lack of territorial jurisdiction of the Rajasthan High Court as the relevant clause related to jurisdiction of courts as per the agreement states that this agreement shall be subject to jurisdiction of the courts ar Kolkata. Relevant clause is reproduced herein below:-

“The Agreement shall be subject to jurisdiction of the courts at Kolkata.”

Supreme Court while deciding this case categorized the jurisdiction clause into two sets- (i) where the intention of the parties can be culled out from use of the expressions “only”, “alone”, “exclusive” and (ii) the other where such words like “only”, “alone” or “exclusively” are not used.

The present case falls under the second category where the maxim “expressio unius est exclusio alterius (expression of one is the exclusion of another)” would be applicable. It was held that the absence of words “alone”, “only”, “exclusive” is neither decisive nor does it make any material difference in deciding the jurisdiction of the court. The very existence of the clause clarifies the intention of the parties which is of utmost relevance.

Conclusion:

1) Parties to an Agreement may oust the jurisdiction of the Court. However, such ouster of jurisdiction of the Court should not be absolute. Such clauses do not amount to violation of public policy and does not contravene Section 28 of the Contract Act.

2) Usage of words “alone”, “only”, “exclusive” are not mandatory to oust the jurisdiction to one court. However, it is advised to use to use such wordings to avoid any confusion/ litigation related to territorial jurisdiction of the courts resulting into delays in adjudication of claims on merits

3) Where two or more courts have jurisdiction, if the parties by agreement have chosen one court, only the Court chosen in the agreement will have jurisdiction.

Stamp duty: Execution of document outside state

In this Article, I have tried to clarify the confusion prevailing on applicable stamp duty, if the documents have been executed outside the state but brought back in the state for different purposes including for the purpose of storage. Since Stap Duty is a state subject and most of the states have either passed their own stamp Act or have introduced a seperate schedule on stamp duty applicable in thier state. For the purpose of this Article I have taken the state of Maharashtra and Bombay Stamp Act, 1958 (applicable stamp act in the state of Maharashtra) for the purpose of illustration. we understand that the fundamental principle behind payment of stamp duty on documents executed in the state other than maharshtra (as explained in this Article below) shall remain the same for other states also, however, it is advised to the reader to check the provisions of stamp act applicable in their state.

Section 3 of the Bombay Stamp Act, 1958 (“Said Act”) being the charging section provides that where an instrument chargeable under schedule I to the Act which has been executed outside state of Maharashtra, is brought into the state of Maharashtra and relates to any property situated or to any matter or thing done or to be done in this State.

If an instrument chargeable under the said Act is executed outside the State of Maharashtra to which Section 3(b) applies, section 19 of the said Act will apply. Such an instrument will have to be stamped with the differential amount i.e. the amount to which such an instrument would be chargeable under Schedule I of the Said Act less the amount of stamp duty, if any, already paid under any law in force in India, excluding the state of Jammu and Kashmir, when such instrument was executed.

If an instrument is executed outside the state of Maharashtra and does not relate either to any property situated or to any matter or things done or to be done in this State, such instrument will not be liable to stamp duty under the said Act. If it is merely received in the State for the purpose of storage only, it would not attract stamp duty because it does not fulfill the ingredients of Section 3(b).

Unless both the ingredients of satisfied i.e. (i) the instrument relating to any property situate or to any matter or thing doe or to be done in this State; and (ii) the instrument being received in this State, section 3 (b) of the said Act will not be attracted. Mere receipt of the instrument in the State for storage without the other requisite conditions being satisfied will not result in the instrument being liable to stamp duty under the said Act in the State of Maharashtra.

In the matter of Antifriction Bearing Corporation v. State 1999 (1) Bom C.R. 13, it was observed by Bombay High Court that if an instrument is executed outside State of Maharashtra but whose filing is required with the Registration of Companies situated at Maharashtra under Companies Act, 1956 the such instrument would fall within Sec. 3(b) and would liable for stamp duty. If some stamp duty has already been paid in the state in which the instrument has been executed, the differential stamp duty as specified in Sec.19 of the said Act would have to be paid.

Another important aspect which is relevant to discuss here is that what will be the stamp duty, if an instrument has been executed by parties in different states. An instrument is said to be executed if it is signed by all persons who are required by the character of the instrument to sign it, in order to give that instrument effect according to the law. If the instrument is of such a character that only one party is required to sign it to give effect to it according to law, the instrument is executed when that paty signs the same. If, however, the instrument is of such a character that more than one party to the document is required to sign it to make it a binding instrument, it would be signed by all of them for the instrument to fall within the definition of execution under Section 2(i) of the said Act. The instrument will be deemed to be executed for the purpose of attracting stamp duty only when it is signed by the last last of the persons who are required to sign the same. Therefore, if an instrument required to be signed by two parties is signed first by one party in Maharashtra and thereafter by the second party who is required to sign it, outside the State of Maharashtra and would not attract stamp duty in Maharashtra unless it is received in the State of Maharashtra and conditions of Section 3(b) of the said Act are satisfied.

RIGHTS OF CREDIT CARD HOLDERS

Credit cards have become important part of our life. We use credit card for various things like- booking train/ bus tickets, online shopping, electricity/ phone bill payment etc. You may also find people cursing credit card companies for not disclosing the charges, non-redressal of their grievances or of using other unfair practices. Reserve Bank of India (“RBI”) is the authority which operates the operation of credit cards in India. RBI issues various guidelines to the credit card issuer bank/ companies to inter alia uniform credit card operations in India and protection of the rights of the customers. In this Article, I have reproduced the important extract of RBI guidelines, which a credit cardholder must know:

Rejection of Credit Card application

Banks should convey in writing the main reason / reasons of rejection of the credit card application.

Interest and Charges

Banks should publish on their website the interest rate charged and circumstances under which higher interest rate may be charged should be transparent.

Methodology of calculation of finance charges should be indicated with illustrative example.

Annualized percentage rates should be quoted with examples.

Minimum payment disclaimer should be added in the statement.

MITC (Most Important Terms and Conditions) should explain that free credit period is lost if balance is pending.

No additional charge without express consent.

Change of charge (other than interest) can be made only after giving notice of one month.

In June 2012, District Consumer Forum, Mumbai levied fine of Rs.25,000/- on HSBC Bank for recovering inapplicable surcharge from a customer on the basis of vague or misleading information as it amounts to unfair trade practice according to provisions of the Consumer Protection Act, 1986. (Click here to read the entire article.)

Pitfall of paying only minimum payment

Cardholders should understand that if minimum amount has been paid, the interest will be charged on amount after the due date of payment. Thus, RBI instructs card issuers to prominently display in all monthly statements following statements so as to cuation customers about the pitfalls in paying only the minimumamount due:

"Making only the minimum payment every month would result in the repayment stretching over years with consequent interest payment on your outstanding balance"

Insurance

Insurance for liability arising out of lost card should be optional.

In case of insurance cover, bank should obtain details of nominee and should indicate details of insurance company.

Wrongful biling

I guess this is the major reason of dispute between card issuing bank/ NBFC and the cardholder. It is the duty of card issuing bank/ NBFC to ensure that wrong bills are not raised. In case, if a customer protests any bill, the card issuing bank / NBFC should provide explanation along with necessary documentary evidence, if required.

Recovery Agents or any other third party

The card issuing bank / NBFC would be responsible as principal for all acts of amission or commission of their agents (DSAs / DMAs and recovery agents)

Grievance redressal

Grievance redressal machinery should be constituted at Bank and the details of concerned officer should be given on the Bill.

60 days time should be given to customer for raising grievance.

Escalation of unresolved complaint should be given on the website of the bank.

There should be a system of acknowledging customer’s complaint.

Block of lost card should be done immediately and should be followed by FIR within reasonable period.

Dedicated PIN Code for Supreme Court of India

The Supreme Court of India got the dedicated PIN code 110201 by postal department to celebrate 41 years of introduction of the system. With such dedicated PIN Code, delivery of petition, notices etc. to Supreme Court will be easier and faster. Welcoming the allotment of dedicated PIN code for Supreme Court, Chief Justice of India (CJI), P Sathasivam asked postal Department to consider providing the same facility to all the High Courts across the country and the same can be initiated by extending it to the high courts situated in metro cities.

Postal Department further clarified in press note released by it that all mails addressed to the court carrying the pin code 110001 would also be delivered without a hitch.

Such customized dedicated pin codes can be extended to other bulk recipients (ex.- UPSC ) as it will reduce the transit time of mail delivery as well as cut effort and costs for India Post while improving the satisfaction level of the bulk recipients.

Now you may send your correspondence to Supreme Court at below address:

To,
The Supreme Court of India
PIN: 110201

Affixing of Common Seal

INTRODUCTION

Common seal is the signature of the company to any document on which it is affixed and binds the company for all obligations undertaken in the document. Companies Act, 1956 provides that, the company shall have a common seal from the date of its incorporation. However, Companies Act, 1956 does not describe the form, mode of affixing common seal or its custody etc. To remove the ambiguity and to prescribe best and uniform practices with respect to affairs pertaining to common seal, Council of the Institute of Company Secretaries of India has issued Secretarial Standard-8 (SS-8): “Affixing of Common Seal”.

In this Article we have thrown light on provisions pertaining to Common seal contained in Companies Act, 1956 and SS-8.

A company shall have only one common seal. The Articles of Association provides the procedure relating to affixing of common seal. Companies Act, 1956 requires affixation of the common seal on certain documents, share certificates and share warrants issued by the company.

APPROVAL

The common seal should be adopted by a resolution of the Board. The common seal is generally adopted at the first Board meeting. The impression of the common seal should be made part of the minutes of the meeting in which it is adopted.

FORM AND CONTENT

The common seal should be made of metal and capable of being manually operated. The common seal should have the name of the company and state in which the registered office is situated engraved in legible characters.

AUTHORITY AND MODE OF AFFIXATION

The common seal should be affixed to any instrument only by authority of a resolution of the Board or a committee authorized by the Board.

The common seal should be affixed in the presence of managing director or any two directors, and the company secretary or any other person as the Board may authorize for the purpose. The Articles of Association may provide for affixing of common seal in any other manner.

The persons in whose presence the seal is affixed should sign every instrument to which the seal of the company is so affixed.

REGISTER OF DOCUMENTS EXECUTED UNDER COMMON SEAL

Every company should maintain a register containing description of documents on which the common seal of the company has been affixed along with date and number of the resolution authorizing the affixation of common seal; date of affixing seal on the document; name(s) of person(s) who attested the affixation; and the place at which the document was so sealed. The register should be maintained at the registered office of the company.

The common seal should be kept at the registered office or at any other office of the company authorized by the Board. The common seal should be kept in the custody of a director of the company or the company secretary or any other official, as authorized by the Board.

CUSTODY OF COMMON SEAL

In the modern era, where the parties to an agreement are constantly travelling or if a company has operation in different parts of the country, below question arises

"whether Board Resolution needs to be passed or any other formality needs to be done, if common seal is proposed to be affixed outside the state/ city where the registered office is situated?”

Please note that there is no prohibition on moving the common seal out of registered office in Companies Act, 1956 or Secretarial Standard. However, to avoid any ambiguity and troubles at later stage, the companies normally pass the resolution for carrying the common seal outside registered office. However, it would be prudent if a clause may be inserted in the resolution authorizing the affixing of common seal itself. A sample Board Resolution has been given below for reference:

RESOLVED that the common seal be affixed on all the necessary documents executed/to be executed for availing the above mentioned credit facilities and Shri ……………….. and ………………. of the company be and hereby jointly and severally authorized to counter-sign wherever the common seal is affixed.

RESOLVED FURTHER that the common seal be kept in the custody of Shri ……………….. Secretary of the company and may be carried at such place outside registered office if required for execution of documents pertaining to the aforesaid activities.

SEAL OF COMPANY FOR USE OUTSIDE INDIA: OFFICE SEAL

A company whose objects require or comprise transactions of business outside India may have for use in any territory, district or place not situated in India an official seal.

The office seal shall be a facsimile of the common seal of the company. Official seal should have engraved in it the name of the territory, district or place where it is to be so used in addition to the name and state in which the registered office of the company is situated.

Use of official seal requires an enabling provision in the Articles. A company may have more than one official seal. However, each territory, district or place not situated in India should not have more than one official seal. A deed or other document to which an official seal is duly affixed shall bind the company as if it had been sealed with the common seal of the company.

JUDICIAL VIEW ON AFFIXING OF COMMON SEAL

In Panchanan Dhara & Others vs Monmatha Nath Maity (Decd.) thru L.RS. [2006] 131 Comp Cas 577 (SC), the Supreme Court observed that, “it is a relic of the days when mediaeval barons, who could not read or write, used their rings to make a characteristic impress. Even in absence of a seal, the company may still be held to be liable having regard to the nature of a transaction and the authority of those who had executed it. If the act of the directors is not ultra vires or no public policy is involved, the parties acting thereupon cannot be left at large.”

ALTERNATIVE OF AFFIXING COMMON SEAL

While executing any agreement, deed etc. below execution clause may be used in place of common seal:

For XYZ Limited


(Authorised Signatory)