Wednesday 13 January 2016

Process of condonation of delay in creation/modificaiton/satisfaction of charge charge

PROCESS OF CONDONATION OF DELAY IN CREATION/MODIFICATION /SATISFACTION OF CHARGE
 

CHARGE:
Section 77 states that Companies are required to register ALL TYPES OF
CHARGES, with ROC within 30 days of its creation.
• within or outside India,
• on its property or assets or any of its undertakings,
• whether tangible or otherwise, and
• situated in or outside India
TIME PERIOD FOR CREATION/MODIFICATION OF CHARGE:
For Creation of Charge Form CHG 1/CHG 9 will be filed with fees prescribed under Act within
30 days of Creation of Charge.
Extension of Time: Proviso to section 77(1) of CA, 2013
If Company fails to file within 30 days?
If Company fails to file CHG 1 within 30 days of creation of charge then Registrar of
Companies may allow such registration to be made within a period of 300 days of

such
creation on payment of such additional fees as may be prescribed.
Extension of Time: Proviso 2 to section 77(1) of CA, 2013
If Company fails to file within 300 days?
If company fails to file within 300 days then company shall seek 1extension of time in
accordance with section 87 from the Central Government.
TIME PERIOD FOR SATISFACTION OF CHARGE:
A Company shall give intimation to the Registrar in the prescribed form, of the payment of
satisfaction in full of any charge registered under this chapter within a period of 30 days from
the date of such payment or satisfaction.
1 Rule (4) of the Companies (Registration of Charges) Rules 2014 provides for a Condonation of delay by the
Registrar. Rule (4) is reproduced under the heading “Relevant Rules issued under Companies Act, 2013”.


If Company fails to file within 30 days?
If company fails to file within 30 days then company shall seek 2extension of time in
accordance with section 87 from the Central Government by filing application in CHG 8.
PROCESS FOR APPROVAL OF CENTRAL GOVERNMENT
Process for Approval of 3Central Government (Regional Director) where the instrument
creating or modifying a charge is not filed within a period of 300 days from the date of its
creation or modification and where the satisfaction of the charge is not filed within 30 days
from the date on which such payment of satisfaction.
If there is delay in filing form CHG 1 or CHG 9 and CHG 4 a petition for Condonation of
delay has to be filed with concerned Regional Director, Ministry of Corporate Affairs. The due
dates for filing of above forms are discussed above.
STEP –I
Filing of Relevant Form (CHG 1/9/4)
The Company will file form CHG 1/9/4 with additional fees for delay in filing of form.
However, a remark will appear in the challan that a delay of filing is of so many days and
Condonation of delay is required.
STEP –II
Holding of Board meeting and Passing of Resolution
a) Company will call a Board Meeting as per Secretarial Standard 1 and pass a Board
Resolution to authorization to any director of the Company to file petition along with
relevant documents with Regional Director.
b) Authorizing the engaging of a company secretary / chartered accountant / cost
accountant in practice or some other professional and to authorizing a director/s and/or
2 Rule (4) of the Companies (Registration of Charges) Rules 2014 provides for a Condonation of delay by the
Registrar. Rule (4) is reproduced under the heading “Relevant Rules issued under Companies Act, 2013”.
3 Power of Central Government has been delegated to Regional Director by circular dated: 21st May, 2014 circular
No. F. No. 1/6/2014-CL.-V.


secretary to sign a petition, application, affidavit, etc., which is to be presented to the
Regional Director?
STEP –III
Preparation of petition:
4Petition will be prepare in form for filling petitions to the Central Government (Regional
Director) – RD 2. Following are the points to be covered under petition:
Detail of Petition
Particular of petitioner
Particular of respondent
Jurisdiction of Regional Director
Limitation
5Facts of the Case
Matter not previously filed or pending with any other court
Relief(s) Sought
Interim order if any prayed for.
STEP –IV
Documents to be enclosed with Petition:
• Form CHG 1/4/9
• Copy of Challan of the above form
• 6Affidavit verifying the petition
• Certified true copy of Memorandum of Association & Article of Association.
• CTC of Balance-Sheet along with all annexure as on 31.03.2014.
• True copy of Board Resolution Dated 07 /05/2015 for authorization of
Director/Professional.
• Memorandum of Appearance to represent the company before RD (Authorize
PCS/PCA/Advocate or Directors) [Form -2]
 

4 Format of Petition can be get at csdiveshgoyal@gmail.com and on the following Link:
5 Reason for the delay must be specific. Don’t mention that mistake is made inadvertently. Please specify that the
officer entrusted with the work left the company or some other specific reason.
6 Affidavit shall be drawnup in the first person and shall state the full name, age, occupation and complete
residential address of the deponent and shall be signed by the deponent.


STEP –V
Process of filing of Petition:
These petitions with the relevant annexure should be file with ROC in e form CHG 8. But at
present CHG 8 is physical forms so the same should be file with ROC in form GNL 2 as an
attachment.
The following three forms will have to file with ROC
1. Form GNL 2 Company has to file GNL 2 with ROC
Attachments:
(i) Form CHG 8
(ii) RD Petition + Affidavit +Memorandum of appearance (all together in one document)
(iii) CHG 4/1/9 with Payment challan (which is filed earlier)
2. Form RD 2– once the GNL 2 filed, then the company has to file RD 2 form with MCA.
Attachments:
(i) Form CHG 8
(ii) RD Petition + Affidavit +Memorandum of appearance (all together in one document)
(iii) CHG 4/1/9 with Payment challan (which is filed earlier)
(iv) GNL2+Payment challan.
STEP –VI
Hearing before Regional Director:
After filing of above mentioned form Regional Director will call for hearing in the matter. In
the hearing regional director will levy additional fees for Condonation of delay. Company will
pay as directed by RD in miscellaneous payment with reference of Form CHG 1/4/9 SRN
number.
STEP –VII
Filing of copy of order with Regional Director:
Once the RD form approved or order released by the Regional Director, then the company has
to file such RD order in INC 28 form within 30 days.
Attachment: RD order.

Flow chart of the procedure under Condonation of delay:
Company will file CHG-1/4/9 relevant form with additional fees.

Calling of Board Meeting for passing of following resolutions.

Board Resolution for filing petition for Condonation of Delay and authorizing Practicing
professional / Director to file the petition

Petition shall be prepared explaining reason for delay along with affidavit verifying
petition by the director, MOA, AOA, Form CHG-1 or 4, Challan paid for Form CHG-1 or
4 and Memorandum of Appearance

File Form GNL-2 with petition and all other attachment

File Form RD-2 with petition and all other attachments

Hearing in the office of Regional Director.

Order will be issued by Regional Director mentioning prescribed fees for delay

After paying the fees as directed by RD in miscellaneous payment with reference of
Form CHG-1 or 4 SRN number, File Form INC-28 within 30 days of passing order by
paying requisite fees

While filing INC-28, MCA will show a remark to file the original order with ROC.
FEES PAYABLE
As per 2013 Act, applicable fees on CHG-1/4/9 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




(Author – CS Divesh Goyal, GOYAL DIVESH & ASSOCIATES Company Secretary in Practice
from Delhi and can be contacted at csdiveshgoyal@gmail.com)
Disclaimer: The entire contents of this document have been prepared on the basis of relevant
provisions and as per the information existing at the time of the preparation. The
observations of the author are personal view and the authors do not take responsibility of the
same and this cannot be quoted before any authority without the written


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