Section 77 of Companies Act, 2013 – Duty to Register Charges, etc.

  • Updated Till : December 03, 2022

SECTION 77. DUTY TO REGISTER CHARGES, ETC.

[Effective from 1st April, 2014]

(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, 2018, within a period of three hundred days of such creation; or

(b) in case of charges created on or after the commencement of the Companies (Amendment) Ordinance, 2018, 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, 2018, 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.][5]

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.

[3] [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 favour 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 [2] [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.

Companies (Registration of Charges) Rules, 2014

[Effective from 1st April, 2014]

Rule 2. Definitions.—(1) In these rules, unless the context otherwise requires,—

(a) “Act” means the Companies Act, 2013 (18 of 2013);

(b) “Annexure” means the Annexure appended to these rules;

(c) “Fees” means the fees as specified in the Companies (Registration offices and fees) Rules, 2014;

(d) “Form” or “eforms” means form set forth in Annexure to these rules which shall be used for the matter to which it relates;

(e) “Regional Director” means the person appointed by the Central Government in the Ministry of Corporate Affairs as a Regional ‘Director;

(f) “section” means the section of the Act.

(2) Words and expressions used in these rules but not defined and defined in the Act or in Companies (Specification of definitions details) Rules, 2014 shall have the meanings respectively assigned to them in the Act and said rules.

Rule 3. Registration of creation or modification of charge.—(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 [4] [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.

[6] [(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. CHG9 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 [under the seal, if any, of the company][1], 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.

[7] [Rule 4.Application to Registrar-(1) For the purposes of the first proviso and clause (b) of the second proviso to sub-section (1) of section 77, the Registrar 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 including modification thereto, allow the registration of the same after thirty days but within the period as specified in the said provisos, on payment of fee, additional fee or advalorem fee, as may be applicable, as prescribed in the Companies (Registration Offices and Fees) Rules, 2014.

(2) The application under sub-rule (1) shall be made in Form No.CHG-l and Form No.CHG-9 supported by a declaration from the company signed by its company secretary or a director that such belated filing shall not adversely affect the rights of any other intervening creditors of the company.]

Rule 6. Certificate of registration.—(1) Where a charge is registered with the Registrar under sub-section (1) of section 77 or section 78, he shall issue a certificate of registration of such charge in Form No. CHG-2

(2) Where the particulars of modification of charge is registered under section 79, the Registrar shall issue a certificate of modification of charge in Form No. CHG-3

(3) The certificate issued by the Registrar under sub-rule (1) and sub-rule (2) shall be conclusive evidence that the requirements of Chapter VI of the Act and the rules made thereunder as to registration of creation or modification of charge, as the case may be, have been complied with.

[1] Substituted for “under the seal of the company” by the Companies (Registration of Charges) Amendment Rules, 2015 vide Notification F No. 1/10/ 2013-CL-V dated 29th May, 2015

[2] Inserted by the Insolvency and Bankruptcy Code, 2016,(31 of 2016), S. 255 & Eleventh Schedule.

[3] Inserted by the Companies (Amendment) Act 2017 vide Notification No. S.O. 1833(E) dated 7th May, 2018.

[4] Substituted for the words ” and filed” by Companies (Registration of Charges) Amendment Rules, 2018 vide Notification F No. 1/10/ 2013-CL-V dated 5th July, 2018 effective from 15th August, 2018.

[5] Substituted by The Companies (Amendment) Ordinance , 2019 dated 12th January, 2019 effective from 2nd November, 2018. Prior to substitution it read as under:-

“Provided that the Registrar may, on an application by the company, allow such registration to be made within a period of three hundred days of such creation on payment of such additional fees as may be prescribed:

Provided further that if registration is not made within a period of three hundred days of such creation, the company shall seek extension of time in accordance with section 87:”

[6] Substituted by the  Companies (Registration of Charges) Amendment Rules, 2019 vide Notification No. F.No. 01/10/2013, Part-I CL-V dated 30th April, 2019.Prior to substitution it read as under:

“(2) If the particulars of a charge are not filed within the aforesaid period, but filed within a period of three hundred days of the date of such creation or modification, the additional fee shall be levied.

(3) If the company fails to register the particulars of the charge with the Registrar within the period of thirty days of its creation or modification, the particulars of the charge together with a copy of the instrument, if any, creating or modifying such charge may be filed by the charge-holder, in Form No. CHG-1 or Form No. CHG-9, as the case may be, duly signed along with fee.”

[7] Substituted by the  Companies (Registration of Charges) Amendment Rules, 2019 vide Notification No. F.No. 01/10/2013, Part-I CL-V dated 30th April, 2019. Prior to substitution it read as under:

“Rule 4. Condonation of delay by Registrar.—(1) The Registrar 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.

(2) 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.”

Applicable Circulars

Scheme for relaxation of time for filing forms related to creation or modification of charges under the Companies Act, 2013

General Circular No. 23/2020 dated 17th June 2020

  1. The companies are required to file forms related to creation or modification of charges within the timelines provided in section 77 of the Companies Act, 2013 (Act), i.e. a total of 120 days of the creation or modification of charge. In case, the company fails to register the charge within the period of thirty days referred to in sub-section (1) of section 77, thecharge holder may file the form related to creation or modification of charges under section 78 of the Act, within the overall timelines for filing of such form under section 77.
  2. On account of the pandemic caused by the COVID-19, representations have been received in this Ministry, requesting that the timelines related to filing of certain charge related forms may be suitably relaxed so as to provide a window of compliance for the registration of charges. Under the Companies Fresh Start Scheme, 2020 as laid out in the General Circular No. 12/2020, dated 30.03.2020, the benefit of waiver of additional fees was not extended to the charge related documents. Therefore, it has been suggested that some dispensation may be provided for filing of charge related documents as well.
  3. In view of the above, the Central Government in exercise of its powers under section 460 read with section 403 of the Act and the Companies (Registration Offices and Fees) Rules, 2014 (Fees Rules) has decided to introduce a Scheme, namely “Scheme for relaxation of time for filing forms related to creation or modification of charges under the Companies Act, 2013” for the purpose of condoning the delay in filing certain forms related to creation/ modification of charges.
  4. The details ofthe scheme are as under:—

(i) The scheme shall come into effect from the date of issue of this Circular.

(ii) Applicability: The scheme shall be applicable in respect of filing of Form No. CHG-l and Form           No. CHG-9 (both referred as ‘form’or‘forms’) by a company or a charge holder, where the date of               creation / modification of charge:

(a) is before 01.03.2020, but the timeline for filing such form had not expired undersection 77 of                       the Act as on 01.03.2020, or

(b) falls on any date between 01.03.2020 to 30.09.2020 (both dates inclusive).

(iii) Relaxation of time:

(a) In case a form is filed in respect of a situation covered under sub-para (ii)(a) above, the period    beginning from 01.03.2020 and ending on 30.09.2020 shall not be reckoned for the purpose of counting the number of days under section 77 or section 78 of the Act. In case, the form is not filed within such period, the first day after 29.02.2020 shall be reckoned as 01.10.2020 for the purpose of counting the number of days within which the form is required to be filed under section 77 or section 78 ofthe Act.

(b) In case a form is filed in respect of a situation covered under sub-para (ii)(b) above, the period beginning from the date of creation/modification of charge to 30.09.2020 shall not be reckoned for the purpose ofcounting of days under section 77 or section 78 of the Act. In case, the form is not filed within such period, the first day after the date of creation/ modification of charge shall be reckoned as 01.10.2020 for the purpose of counting the number of days within which the form is required to be filed under section 77 or section 78 of the Act.

(iv) Applicable Fees:

(a) In regard to sub-para (iii)(a) above, if the form is filed on or before 30.09.2020, the fees payable as on 29.02.2020 under the Fees Rules for the said form shall be charged.If the form is filed thereafter, the applicable fees shall be charged under the Fees Rules after adding the number of days beginning from 01.10.2020 and, ending on the date of filing plus the time period lapsed from the date of the creation of charge till29.02.2020.

(b) In regard to sub-para (iii)(b) above, if the form is filed before 30.09.2020, normal fees shall be payable under the Fees Rules. If the form is filed thereafter, the first day after the date of creation/modification of charge shall be reckoned as 01.10.2020 and the number of days till the date of filing of the form shall be counted accordingly for the purposes of payment of fees under the Fees Rules.

(v) The Scheme shall not apply, in case:

(a) The forms i.e.CHG-1 and CHG-9 had already been filed before the date of issue of this Circular.

(b) The timeline for filing the form has already expired under section 77 or section 78 of the Act                      prior to 01.03.2020.

(c) The timeline for filing the form expires at a future date, despite exclusion of the time provided in            sub-para (iii) above.

(d) Filing of Form CHG-4 for satisfaction of charges.

 

Extension of time – Scheme for relaxation of time for filing forms related to
creation or modification of charges under the Companies Act, 2013- reg.

General Circular No.32/2020, dated 28th September, 2020

In continuation to this Ministry’s General Circular No.23/2020 dated 17.06.2020 [G.C] and after due examination and it has been decided to extend scheme till 31.12.2020. Accordingly, the figures “30.09.2020” and “01.10.2020” wherever they appear in the G.C. shall be substituted with figures “31.12.2020” and “01.01.2021” respectively.

  1. The other requirements as mentioned in the said circular shall remain unchanged.

 

Relaxation of time for filing forms related to creation or modification of charges
under the Companies Act, 2013

General Circular No. 07/2021, dated 3rd May, 2021

On account of the resurgence of COVID-19 pandemic, representations have been received in this Ministry requesting relaxation of timelines related to filing of certain charge related forms. The representations have been examined and the Central Government has, in exercise of its powers under section 460 read with section 403 of the Companies Act, 2013 (Act) and the Companies (Registration Offices and Fees) Rules, 2014, decided to allow relaxation of time and condone the delay in filing forms related to creation/modification of charges as per details given in para 2 of this Circular.

  1. (i) Applicability:-This Circular shall be applicable in respect of filing of Form No. CHG-1 and Form No. CHG-9 (both referred as ‘form’ or ‘forms’) by a company or a charge holder, where the date of creation/modification of charge:

(a) is before 01.04.2021, but the timeline for filing such form had not expired under section 77 of the Act as on 01.04.2021, or

(b) falls on any date between 01.04.2021 to 31.5.2021 (both dates inclusive).

(ii) Relaxation of time:

(a) In case a form is filed in respect of a situation covered under sub-para (i)(a) above, the period beginning from 01.04.2021 and ending on 31.05.2021 shall not be reckoned for the purpose of counting the number of days under section 77 or section 78 of the Act. In case, the form is not filed within such period, the first day after 31.03.2021 shall be reckoned as 01.06.2021 for the purpose of counting the number of days within which the form is required to be filed under section 77 or section 78 of the Act.

(b) In case a form is filed in respect of a situation covered under sub-para (i)(b) above, the period beginning from the date of creation/modification of charge to 31.05.2021 shall not be reckoned for the purpose of counting of days under section 77 or section 78 of the Act. In case, the form is not filed within such period, the first day after the date of creation/modification of charge shall be reckoned as 01.06.2021 for the purpose of counting the number of days within which the form is required to be filed under section 77 or section 78 of the Act.

(iii) Applicable Fees:

(a) In regard to sub-para (ii)(a) above, if the form is filed on or before 31.05.2021, the fees payable as on 31.03.2021 under the Fees Rules for the said form shall be charged. If the form is filed thereafter, the applicable fees shall be charged under the Fees Rules after adding the number of days beginning from 01.06.2021 and ending on the date of filing plus the time period lapsed from the date of the creation of charge till 31.03.2021.

(b) In regard to sub-para (ii)(b) above, if the form is filed before 31.05.2021, normal fees shall be payable under the Fees Rules. If the form is filed thereafter, the first day after the date of creation/modification of charge shall be reckoned as 01.06.2021 and the number of days till the date of filing of the form shall be counted accordingly for the purposes of payment of fees under the Fees Rules.

(iv) The Circular shall not apply, in case:

(a) The forms i.e.CHG-1 and CHG-9 had already been filed before the date of issue of this Circular.

(b) The timeline for filing the form has already expired under section 77 or section 78 of the Act prior to 01.04.2021.

(c) The timeline for filing the form expires at a future date, despite exclusion of the time provided in sub-para (ii) above.

(d) Filing of Form CHG-4 for satisfaction of charges.

 

Relaxation of time for filing forms related to creation or modification of charges
under the Companies Act, 2013- Extension of time- reg.

General Circular No. 12/2021, dated 30th June, 2021

In continuation of this Ministry’s General Circular No.07/2021 dated 03.05.2021 on the captioned subject cited and after due examination of the requests received from stakeholders, it has been decided to substitute the figures “31.05.2021” and “01.06.2021” wherever they appear in the said circular with the figures “31.07.2021” and “01.08.2021” respectively.

2.The other requirements as mentioned in the said circular shall remain unchanged and this Circular shall be without prejudice to any belated filings that may have already been made alongwith additional fees/ advalorem fee.

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