Relaxation Scheme on Charges under Company Law during Covid-19

Relaxation Scheme on Charges under Company Law during Covid-19
18 October 2020

Relaxation Scheme on Charges under Company Law during Covid-19

The Companies Act, 2013 defines a Charge as an interest or lien created on the assets or property of a Company or any of its undertaking as security and includes a mortgage U/s 2(16). In the earlier Act of 1956, the word “Mortgage” was not mentioned. Section 124 to section 145 of the companies act, 1956 dealt with charges. Under the Companies Act, 2013 section 77 to section 87 deals with charges.

The company may borrow monies by providing security of its assets and may create a lien on the properties of the Company. The Company may also issue Debentures to raise funds that may carry a right/ interest in the Assets/Properties of the company. A charge is a way of security to the creditor/lender of his interest/right on the properties of the company for the amounts due to him by the company.

SECTION 77 OF THE COMPANIES ACT 2013 READ WITH THE RULES MADE THEREUNDER says that the charge created by the company on any of its assets whether tangible or intangible assets, located in India or outside India shall be registered by the company or the charge holder within 30 days of creation or modification in FORM NO. CHG-1 (for other than debentures) or FORM NO. CHG-9 (for debentures including rectification).

StepsParticularsTime PeriodApplicable Fees
1stRegistration of charge within 30 days of creation/modification
30 daysNormal Fees
2ndIf fails to file within 30 days, then upon the registration of charge within 60 days of creation/modification
30 + 30 daysNormal plus Additional Fees
3rdIf fails to file within 60 days, then upon the registration of charge within 120 days of creation/modification
30 + 30 + 60 daysNormal plus additional plus ad Valorem fees

After 120 days lapse of charge creation/modification, no condonation is available and the default is punishable under the act

Overview: “Scheme For Relaxation Of Time For Filing Forms Related To Creation Or Modification Of Charges Under The Companies Act, 2013”

Applicability of scheme- the scheme shall be applicable in respect of filing of form no. CHG-1 and form no. CHG-9 by a company or a charge holder, where the date of creation/modification of charge:

  1. Is before 01.03.2020, but the timeline for filing such form had not expired under section 77 of the act as on 01.03.2020, or
  2. Falls on any date between 01. 03.2020 to 30. 09.2020 (both dates inclusive).
Who is benefited?

The scheme benefit is available to each and every company or charge holder for charge created on any company’s assets, under the given relaxation timeline on charge related forms of creation or modification but not for satisfaction fillings.

What is the benefit?

This scheme is benefited in two ways:

  1. The charge is created/ modified before 01.03.2020 and the period of 120 days has not elapsed from the date of creation/ modification of charge as on 29-02-2020
  2. The charge is created or modified during the period starting from 01.03.2020 to 30.09.2020. (Inclusive of both the dates)
  1. In case of the first aspect, the CHG-1 and CHG-9 form can be filed during the period of 01.03.2020-30.09.2020 without any additional days being reckoned for a count of 120 days and at applicable fees as on 29.02.2020
  2. In the case of the second aspect, the CHG-1 and CHG-9 form can be filed during the period of 01.03.2020-30.09.2020 without any days being reckoned for a count of 120 days and at normal fees.
  3. Thus, the huge fees payable can be prevented and the default punishable can be prevented on failure to register charge within 120 days (no condonation after the expiry of 120 days). However, upon expiry of the period of grant relaxation, the 120 days count will be reckoned from 01.10.2020 onwards.
When will the benefit be implemented?

The benefit is available from 01st March 2020 to 30th September 2020 vide General Circular No. 23/2O2O dated 17/06/2020.

Why is the relaxation provided?

Relaxation provision- for the purpose of condoning the delay in filing form CHG-1 and CHG-9 related to the creation/ modification of charges.

On account of pandemic COVID-19, The Companies Fresh Start Scheme, 2020 was 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, MCA provided a window of compliance in filing of charge related documents as well.

Where is the benefit not applicable?

Below are the areas where the benefit is not applicable:

  1. For charge forms already filed
  2. The period of 120 days expired on 29.02.2020
  3. For the satisfaction of charge “CHG-4”
  4. No relaxation for charge forms filed after 30.09.2020