Extension of time and rectification of register of charges
As specified earlier, section 125 of the act needs of filing of charges within 30 days of registration after the date of its creation. When a company excludes to file with the registrar the details of any charge developed by it or of any changes of such charge of any matter of debentures of a progression or the satisfaction of a charge or the payment within the time needed.
The request should be made as per the method laid down under the companies act and it is developed in Form No.1. The request should set forth the company name with its status, date of registration, address of its registration office, authorized capital, major things in details for which the company was registered, present business activities of the company etc.
The request shall also state obviously, under defined heads, the grounds for such appeal and the nature of reliefs prayed for.
The extension of appeal should be followed by:
- The agreement copy modifying or creating the charge as the case may be.
- Copy of the statement proposed by section 292(1) (b) or (c) as may be applicable.
- Official document is confirming by the petition.
- The result of extension of time for registration and true registration within the increased time is that the charge becomes a proper charge from the date of its performance.
Condonation of delay by the government
When comfort of additional time is not offered by the company law board a further application under section 637B, may be create to the government who for cause to be recorded in writing may accept the delay.
Modification of charges
The section 135 act whenever the terms or conditions or the operation or extent, of any charge registered or modified. It shall be duty of the company to send to the registrar the details of such change within thirty days. For company registration of modification of charges and form 8 has to be filed with the registrar.
Acquisition or purchase of a property subject to charge
It has already been declared that when any person buys or gets any property which is already under charge and the rate was properly registered with the registrar. It will be considered which the buyer or a person had notice the charge. Hence, when a company needs a property which is subject to a charge involving registration with the registrar the acquiring company shall make the specified details of the charge with a properly verified copy of the instrument evidencing or creating the charge to be provided to the registrar for registration.
Properties placed abroad and subject to charge
There may be conditions in respect of creation of charge on properties placed in abroad.
Property located out of Chennai and charge developed also out of India – this needs registration with the register in terms of section 125 with only variation in the time enabled for registration. The term of 30 days will begin from the day by which the instrument evidencing or creating the charge would have practically reached India through post.
Property established abroad but charge is created in India- In this type, the instrument creating or purporting to make the charge or properly verified copy may filed for company registration within the normal time of 30 days assigned under section 125(1). So concession with further method being compulsory to create the charge effective or valid according to the law of the country.
Definition and nature of mortgage
Corresponding to section 58 of the transfer of property act 1882, a mortgage is the transfer of a matter in particular immoveable property for the reason of acquiring the amount of money advanced or to be advanced by a method of loan.
The transferee is a mortgagee and the transferor is called a mortgagor. The primary money and interest the payment of which is obtain for the time being are called the mortgage money and the act by which the transfer is managed is called as the mortgage deed.
Important of a mortgage
Transfer of interest
The first thing to consider is that a mortgage is a transfer of interest in the particular immovable property. The mortgagor as an holder of the property owns all the interests in it and when he mortgages the property to secure a loan, he only parts with a section of the interest in that property in approval of the mortgagee. After mortgage, the notice of the mortgagor is decreased by the interest which has been transferred to the mortgagee.
Specific immovable property
The second point is which the property must be particularly specified in the mortgage deed. For example, the mortgagor called “all of my property” in the mortgage deed, it was held by the court which was not a mortgage.
To secure the payment of a loan
Another specific of a mortgage is which the transaction is for the purpose of gaining the payment of a loan or the execution of a function which may provide rise to financial liability. It may be for the reason of getting a loan, or if a loan has already been allowed to secure the repayment of such loan.
Types of mortgages
There are six types of mortgages in immovable property namely:
- English mortgage
- Anomalous mortgage
- Simple mortgage
- Usufructuary mortgage
- Mortgage by conditional sale
- Mortgage by deposit of equitable mortgage or title deeds.
Difference between mortgage and charge
- A mortgage is produced by the act of the parties and a cost may be developed either through the operation of law or act of parties.
- charge is produced by operation of law does not need the registration as specified for mortgage under the transfer of property act. But a charge is produced by act of parties needs registration.
- A mortgage is for a decided term, but the charge may be in permanency.
- An easy mortgage transfers personal liability unless omitted by express contract. But in case of charge no personal liability is formed. However, a charge is the result of a contract may be a personal treatment.
- charge only provides a right to get payment out of a specific property, a mortgage is a transfer of an involvement in particular immovable property.
- mortgage is a transfer of an involvement in a particular immovable property, however there is no such transfer of involvement in the case of a charge. The charge does not perform as transfer of an interest in the property. A transferee of the property gains the property free from the charge assigned he obtains it for value without notice of the charge.