Thursday 1 December 2016

Condonation of Delay For Satisfaction of Charge

Draft Documents For Condonation of Delay For Satisfaction of Charge

When the question for such condonation arises ?

 

The issue for condonation of delay arises only in two circumstances:
  1. When the company has failed to register the charges with the Registrar of Companies within 300 days from the creation or the modification of such charges. The provision is that the company needs to file form CHG-1 within 30 days from the date when such charge is created or modified, failing to which the company has another chance to file the form within 300 days from the date of such creation or modification but with some additional charges. If the company fails to file within such time period also, then there would be not alternative available with the company but to file the condonation of delay with the Central Government. 
  2. Second alternative when the condonation of delay needs to be filed is when the company fails to file form CHG-4 within 30 days of the satisfaction of the charge. The provision says that the companies require to file form CHG-4 within 30 days from the date of satisfaction of the charge, failing to which the company needs to apply for the condonation of delay. There is no provision such as time limit extended to 300 days in case of satisfaction of charges, you have to directly apply for the condonation to the Central government.


 Process For Condonation of Delay



Step 1
When full payment on account of principal and interest has been made and ‘No dues certificate’ has been obtained from the charge holder, in respect of charges created and registered under Section 77(1),  a company shall give intimation to the concerned Registrar of Companies.


Step 2
Issue notice in accordance with the provisions of section 173(3) of the Companies Act, 2013, (not less than 7 days in writing) for convening a meeting of the Board of Directors.


Step 3
Board Meeting
Hold Board meeting and pass the resolution and authorize any Director or secretary for filing form CHG 4 with the Registrar of Companies.


Step 4

E-form to be filed.

File the particulars of satisfaction of charge with the concerned Registrar of Companies within 30 days from the date of payment or satisfaction in full of any charge, registered under Section 77 of the Companies Act 2013, in Form CHG-4on payment of prescribed fees with the following attachments.
·        No Dues Certificate from charge holder.
·        Other optional attachments as required. 


Step 5

Check in respect of the following:
·        Charge Creation Identification number.
·        Particulars of charge holder.
·        Particulars of creation of original charge and subsequent modification, if any.
·        Date of satisfaction of charge in full


Step 6
E-form is digitally signed by the authorised signatory of the banker or charge holder along with the authorised signatory of the company (Managing Director or director or secretary) and certified by Company Secretary in whole time practice or Chartered Accountant in whole time practice or Cost Accountant in whole time practice.


Step 7
Condonation of Delay by Central Government.
Where the satisfaction of the charge is not filed within a period of 30 days from the date of satisfaction, then the Registrar shall not register the same unless the delay is condoned by the Central Government. The application for condonation of delay by Central Government shall be filed with the Central Government in Form CHG-8 along with the fee. The order passed by the Central Government shall be required to be filed with the Registrar in Form INC-28 along with the fee as per the conditions stipulated in the said order.


Step 8
Memorandum of Satisfaction
Where the satisfaction of charge is registered with the Registrar, he shall issue a memorandum of satisfaction of charge in Form CHG- 3 which shall be conclusive evidence that the requirements of Chapter VI of the Act and the rules made thereunder have been complied with.


Step 9
Entry in the Register.
The particulars of the satisfaction of charge registered with the Registrar shall be entered in the register of charges in Form No. CHG-7.






DRAFT FORMAT




AFFIDAVIT VERIFYING THE APPLICATION





AFFIDAVIT



APPLICATION UNDER SECTION 87 OF THE COMPANIES ACT, 2013 

READ WITH THE COMPANIES (REGISTRATION OF CHARGES) RULES 2014

 FOR CONDONATION OF DELAY IN REGISTRATION OF CHARGES



BEFORE THE REGIONAL DIRECTOR, SOUTH EAST REGION, HYDERABAD






In the matter of the Companies Act, 2013, Section 87 of the said Act for Condonation of delay in registration of charges.



AFFIDAVIT VERIFYING THE APPLICATION

 




I, ________________ S/o. _______________, residing at ________________,    City : __________, Pin Code :______, Director of _______________ Private Limited having its registered office at ________________,    City : __________,                              Pin Code :______,do solemnly affirm and say as follows:-




1) I am the Director of _____________Private Limited and duly authorized to make
this Affidavit on its behalf.



2) The statements made in paragraphs mentioned under point No. 1 to 8 of the enclosed 
application are based on information derived from records of the Company, which i believe to
be true and correct to best of our knowledge and belief and at last paragraph is a prayer to
this Hon’ble Bench.



3) I do solemnly affirm that this declaration is true that it conceals nothing and that no part
of it is false.




Verification:



I solemnly declare that no part of the contents of this affidavit is false.











Signature:

Name: ____________________

Director

DIN: ___________

Address: ________________, 
City :_______, Pin Code : ______,





Date:

Place:


APPLICATION


APPLICATION
BEFORE THE REGIONAL DIRECTOR, HYDERABAD
IN THE MATTER OF __________________ PRIVATE LIMITED
having its registered office at_____________________

Sl.No.
Particulars of Documents
Page No.
Memorandum of Association
Articles of Association
Annual Report of the company for the year ended March 31,_______
Affidavit verifying the petition
Common deed of hypothecation agreement
Form GNL-1 filed with the Registrar of Companies, Karnataka and the acknowledgement



APPLICATION UNDER SECTION 87 OF THE COMPANIES ACT 2013 READ WITH THE COMPANIES (REGISTRATION OF CHARGES) RULES 2014 FOR CONDONATION OF DELAY IN REGISTRATION OF CHARGES.

Details of Petition

APPLICATION UNDER SECTION 87 OF THE COMPANIES ACT 2013, FOR CONDONATION OF DELAY OF ______ DAYS IN REGISTRATION OF CHARGE.

Particulars of the Applicant (s)
_______________ PRIVATE LIMITED
Address : _______________

Represented by its Director Mr. ______________ residing at ______________, City : _________, Pin Code : __________.

Main objects of the company are To undertake business venture in construction and development of township, condominiums, layouts, Construction of Conventional hall, malls, highway , elevated highways and infrastructure.



To undertake the business of holding ,owing, managing, operating, controlling the assets , properties, Intellectual property rights, licenses, permits ,approvals, permissions ,sanctions, shares of all the businesses of the group, whether of Companies ,proprietary concerns ,firms or such other entities withinthe group and to act as facilitators, managers, holders, advisors, consultants of the business in the group.



To Purchase, take on lease, or in exchange, or otherwise, hold, transfer and dispose off, lands or interest therein, buildings, structures and to manage the buildings, homes, dwelling, flats, offices, factories, warehouses, resorts,HOTELS, educational institutions, laboratories, libraries of all the business entities within the group.

The Authorized share capital of the company as on March 31, ________ is Rs. ___________ divided into __________ Equity shares of Rs. 10 each and the paid up share capital of the company is Rs. _____________ divided into _________ equity shares of Rs. 10 each.
Particulars of respondent(s) need not be stated where company is the respondent)
(Name, description, father’s /husband’s name, occupation, capacity, i.e. qua depositor and address of the Applicant(s)

Not Applicable.

Jurisdiction of the Regional Director/Registrar of Companies


The registered office of the company (Applicant) is situated in the state of Karnataka and hence the jurisdiction for hearing the matter falls under the jurisdiction of the office of the Regional Director, Hyderabad.

Limitation
The Applicant further declares that the petition is within the limitation laid down under the provisions of the Companies Act, 2013

Facts of the case are given below
  1. The company [on the first Part] and the (Name of Second Party) [on the second part] have entered into a common deed of hypothecation on Month Date, Year.

  2. With effect from Month Date, Year the company has created a charge on its book debts and receivables.

  3. (Name of Second Party)  (second Party) is the charge holder.

  4. The amount secured by the charge is Rs. ______________.

  5. The company was required to register the charge within a period of thirty days from the date of execution of common deed of hypothecation, (i.e. within Month Date, Year) however, the company has filed the Form CHG 1 for registration of charge on Month Date, Year, which amounts to a delay of ________ (In Words) days.

  6. The status of the Form CHG 1 filed with the Registrar of Companies as on signing the date of this petition is Work in Progress.

  7. The directors of the company vide Board resolution dated Month Date, Year resolved to move the office of the Regional Director, for condonation of the delay.

  8. The company and directors of the company inadvertently and accidentally omitted to make an application for registration of the charge. And also this charge being the first charge by the company, the directors of the company did not get the right advice on registration of the charges and were not aware of the provisions of section 125 of the Companies Act, 1956 and at the same time the accounting systems in the company were crashed and were not operating properly hence there is a delay from the company and directors and such delay was not intentional and there is no mens reain committing a delay in registration of the charge.


Matters not previously filed or pending with any other court.
The Applicant further declares that he had not previously filed any application, writ petition or suit regarding the matter in respect of which this petition has been made, before any court of law or any other authority or any other bench or the board and not any such application, writ petition or suit is pending before any of them.

Relief(s) sought.
In view of the facts mentioned in Para 6 (Six) Above, the Applicant humbly prays for the following relief(s)

  1. To condone the delay in registration of charge and to allow the Registrar of companies, Bangalore to register and approve the Form CHG 1 filed vide SRN ___________ on Month Date, Year.


_____________________________
Signature of the Applicant



Board Resolution for Borrowings



____________________________ PRIVATE LIMITED

CIN: ____________________
Reg.Off: _____________________________, City __________________, Pin Code : ___________, 
State : ___________
_________________________________________________________________________________

CERTIFIED TRUE EXTRACT OF THE RESOLUTION PASSED AT THE MEETING OF THE BOARD OF DIRECTORS OF COMPANY HELD ON ___________, (Month) Date, 2016AT THE REGISTERED OFFICE OF THE COMPANY AT ___________________, CITY : ____________, PIN CODE : ____________



  AVAILING FINANCE FACILITY FROM (Name of Second Party)





“RESOLVED THAT the approval of the Board be and is hereby given to the Company to avail finance facility from (Name of Second Party), Address of Second Party: _________, City : __________ for value up to Rs. ___________/- (Rupees ___________ only).”




“RESOLVED FURTHER THAT Mr. ______________, Director of the Company be and is hereby authorized to sign, execute and deliver all the documents as may be necessary for the proper availing of the said facility and as may be required by the Bank/Financial Institution and further to furnish, sign, execute and deliver such indemnities and/or declarations and/or affidavits on behalf of the Company in favour of the Bank/Financial Institution as may be required by the Bank/Financial Institution in any matter related hereto and generally to do all such acts and deeds as may be necessary for the availing the said financial facility and for all matters connected therewith and/or incidental thereto, including delegating the powers to execute documents by way of a Power of Attorney, if necessary.”



“RESOLVED FURTHER THAT the approval of the Board be and is hereby given to affix the common seal of the Company on any or all documents, as may be required by the Bank/Financial Institution, in the presence of Mr. __________________, Director and Mr. _______________, Directors of the Company who shall sign the same in token thereof.”



“RESOLVED FURTHER THAT the account opening form and other documents relating to loan account opening be signed by Mr. ________________.”




For _______________ India Private Limited







_____________________

Director

DIN: ______________



Date: ______________

Place:___________




 Board Resolution for making an Application



____________________________ PRIVATE LIMITED

CIN: ____________________
Reg.Off: _____________________________, City __________________, Pin Code : ___________, 
State : ___________
_____________________________________________________________________________

CERTIFIED TRUE EXTRACT OF THE RESOLUTION PASSED AT THE MEETING OF THE BOARD OF DIRECTORS OF COMPANY HELD ON ___________, (Month) Date, 2016AT THE REGISTERED OFFICE OF THE COMPANY AT ___________________, CITY : ____________, PIN CODE : ____________




APPLICATION TO THE REGIONAL DIRECTOR, HYDERABAD FOR CONDONATION OF DELAY UNDER SECTION 87 OF COMPANIES ACT, 2013.



“RESOLVED THAT pursuant to the provisions of Section 87 the Companies Act, 2013 approval of the Board of Directors of the company be and is hereby accorded for making an application before the Regional Director, Hyderabad for the purpose of condonation of delay in registration of Charge.”



“RESOLVED FURTHER THAT Mr. ___________________, Director of the company (DIN: ________) be and is hereby authorised to do all acts and deeds to give effect to the above resolution including but not limited to signing and filing an application before the Regional Director Hyderabad.”



“RESOLVED FURHTER THAT M/s. ___________________, Company Secretaries, Address : ______________, City : _____________ be and are hereby appointed to represent the company before the Regional Director and to apploint any other professional as their representatives.”





For _________________ Private Limited




_____________________

Director

DIN: ______________





Memorandum of Appearnace Format



Form-2


[See Rule 6F (3)]


Memorandum of Appearance




To

The Regional Director
________________,
________________,

______________ District,

City : ________, Pin Code : ______
State : __________




Dear Sir,


Please take notice that, I, ________________, Practicing Company Secretary, duly authorized to enter appearance, and do hereby enter appearance, on behalf of _____________ Private Limited, Petitioner before the Regional Director in the above mentioned petition.


A copy of resolution passed by the Board of Directors authorized me to enter appearance and to act for every purpose connected with the proceedings for the said party is enclosed, duly signed by me for identification.



Date: ______________                                                                                       Yours Sincerely,









___________________

Company Secretary

M/s _____________________
                                                                                                           Address : _______________ 
City:_________, Pin Code : _______

Ph: +91-__________

E-mail:__________________




Thanks & Regards,
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