Charge and Mortgage
Charges and Mortgages under Companies Act
The Companies Act, 1956 prescribes for registration of charges with the Registrar of Companies, and also gives a list of assets a charge on which must be registered. Registration of charges identifies the assets which are subject to the charge. It becomes a source of knowledge, and, therefore, operates as constructive notice and a protection, to all classes of persons interested in knowing the assets position of the company. It makes charge effective against all quarters including the liquidator. The method of registration devised by the Act is filing of particulars of charge along with instrument creating charge with the Registrar within the period prescribed. Lest the failure of the company to file particulars within time cause hardship to any quarter, any interested person can get the charge registered and the Company Law Board is empowered to order registration even if applied for after the prescribed period. This is known as ‘rectification of the register of charges,’ and is liberally allowed so long as the company is a going concern, but no charge can be made in the status of creditors after commencement of winding up. Charges are temporary phenomena. The company may overcome them and free its assets. The memorandum of satisfaction is also required to be brought on the Register so that the register may at all times reflect only the true position of the company’s assets.
‘Charge’ as defined under section 100 of the Transfer of Property Act, 1882: Where immovable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge. Nothing in this section applies to the charge of a trustee on the trust-property for expenses properly incurred in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.
‘Charge’ includes a lien and also an equitable charge whether created or evidenced by an instrument in writing or by deposit of title deeds or by an agreement to deposit. A charge may be ‘fixed’ or ‘floating’. When the charge is fixed, a company which has created the charge, can only deal with the property subject to the charge. But when the charge is floating, the company may, in the ordinary course of business, deal with the property in any manner until the charge attaches.
Charges are of 2 types:
- Fixed Charge: Such a charge is against a specific clearly identifiable and defined property. The property under charge is identified at the time of creation of charge. The nature and identity of the property does not change during the existence of the charge. The company can transfer the property charged only subject to that charge so that the charge holder or mortgage must be paid first whatever is due to him before disposing off that property.
- Floating Charge: Such a charge is available only to companies as borrower. A Floating charge does attach to any definite property but covers the property of a circulating and fluctuating nature such as stock-in-trade, debtors, etc. It attaches to the property charged in the varying conditions in which happens to be from time to time. Such a charge remains dormant until the undertaking charge ceases to be a going concern or until the person in whose favour charge created takes steps to crystallise the floating charge. A floating charge on crystallisation becomes a fixed charge.
Crystallization of floating charge:
When the charge holder takes steps to enforce his charge, a floating charge becomes a fixed charge on the assets covered by that charge. Until a floating charge becomes a fixed charge, the company is free to deal with the property charged in any manner it deems fit. But once the floating charge crystallises, the company cannot dispose off the charged assets without paying of the charge-holder. Otherwise, the charge-holder can recover his dues from the proceeds. A floating charge crystallises or becomes the fixed in following situations:
§ When the Company ceases to be going concern and charge holder intervenes/ appoints Receiver: A floating charge becomes fixed or crystallized when the debtor company ceases to carry on business or goes into liquidation or the debenture-holder or creditor, in whose favour the charge is created, intervenes by getting a receiver appointed or doing some other act which affects the company’s power of disposition over the assets charged.
§ Crystallization on event specified in the charge: A floating charge may also crystallize on the happening of an event specified in the charging deed. If the charge contract so provides, when the chargee gives notice that the charge is converted into a fixed charge on whatever assets of the charged class are owned by the company at the time the notice is given.
§ When winding up of company commences.
‘Mortgage’ as defined under Sec 58 of the Transfer of Property Act, 1882: (a) A mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.
The different types of Mortgage are:
- Simple mortgage- Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.
- Mortgage by conditional sale- Where, the mortgagor ostensibly sells the mortgaged property-
- on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or
- on condition that on such payment being made the sale shall become void, or
- on condition that on such payment being made the buyer shall transfer the property to the seller,
- the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale.
Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.
· Usufructuary mortgage- Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest or in payment of the mortgage-money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee.
· English mortgage-Where the mortgagor binds himself to repay the mortgage-money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage.
· Mortgage by deposit of title-deeds-Where a person in any of the following towns, namely, the towns of Calcutta, Madras, and Bombay, and in any other town which the State Government concerned may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immovable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds.
· Anomalous mortgage- A mortgage which is not a simple mortgage, a mortgage by conditional sale, a usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds within the meaning of this section is called an anomalous mortgage.