Condonation of delay of satisfaction of charge

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Querist : Anonymous

Querist : Anonymous (Querist)

25 June 2013 Hi

PLease provide me detail procedure for condonation of delay for satisfaction of charge. Check list & format.
Company has not filed form 17 for morethan 2 years.

Ajay Mishra

Ajay Mishra (Expert)
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26 June 2013 Hi

Condonation of Delay for Delayed Filing of Form 8 / Form 17 Procedures under The Companies Act
Now condonation of delay for late filing of Form 8 and form 17 under the Companies Act, 1956, requires a petition to be filed with Regional Director, Ministry of Corporate Affairs and earlier the same was required to be made to Company Law Board. The procedure for making the petition for condonation of delay under Section 141 of the Companies Act, 1956 is given below.
1. Call for a board meeting to decide to file a petition under Section 141 for condonation of delay in respect of form 8 and form 17 filed after due date. Form 8 can be filed within 30 days from the date of creation or modification and if it is not possible additional period of 30 days is allowed that is within 60 days and in case of Form 17 within 30 days from the dated of satisfaction of charge.
2. In the Board meeting authorize the Practicing Company Secretary / Practicing Chartered Accountant to appear on behalf of the company.
3., File 8 / Form 17 with ROC. One time filing fees will be required to be paid and remark will be appearing challan of the Form 8 / Form 17 regarding number of delays.
4. Prepare a petition for condonation of delay. A format of the petition is annexed.
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. Prepare the petition and file it with form 24AAA. Form 24AAA is filing of form with Regional director. The charges for filing form is Rs. 1000/-
7. File Form 61 and file it with ROC. The charges for filing form is depending upon the Authorised Share Capital of the Company varying from Rs. 200 to Rs. 500
8. The petition is required to be enclosed with the following documents. There is no need to file any demand draft along with the petition.
• Certified copy of Form 8 filed along with challan
• MOA and AOA copy
• Copy of the Board resolution
• Copy of Form 61 along with challan
• Copy of form 24AAA
• Memorandum of Appearance in case it is filed by a Practicing Professional.
• An affidavit verifying the petition on a non judicial stamp paper Rs. 20 which is notarized shall be attached.
9. The petition has to be filed with the Regional Director with the Regional Office of the Ministry of corporate Affairs in the jurisdiction where the existing registered office is situated. The following are the jurisdiction of Regional directors.

Ajay Mishra

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26 June 2013
FORMAT OF PETITION:

BEFORE THE REGIONAL DIRECTOR, SOUTHERN REGION, DEPARTMENT OFCORPORATE AFFAIRS,5TH FLOOR, SHASTRI BHAWAN, 26, HADDOWS ROAD, CHENNAI

COMPANY PETITION NO. OF 2013

IN THE MATTER OF THE COMPANIES ACT, 1956

IN THE MATTER OF SECTION 141 OF THE COMPANIES ACT, 1956 AND

IN THE MATTER OF XYZ PRIVATE LIMITED HAVING ITS REGISTERED OFFICE AT NO.6, GANDHIJI STREET, TIRUVANNAMALAI DISTRICT, TAMILNADU – 606601, INDIA

IN THE MATTER OF XYZ PRIVATE LIMITED

PETITIONER

THE REGISTRAR OF COMPANIES, TAMILNADU

RESPONDENT

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Ajay Mishra

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26 June 2013 1. DETAILS OF THE PETITIONER
XYZ PRIVATE LIMITED is the petitioner company (hereinafter referred to as “the Company”) was incorporated as a Private Limited Company vide Certificate of Incorporation No. X00000XX0000XXX00000 dated ……… issued by The Registrar of Companies, Tamil Nadu, in the name of XYZ PRIVATE LIMITED.
The Registered Office of the company is at present situated at NO.6, GANDHIJI STREET, TIRUVANNAMALAI DISTRICT, TAMILNADU – 606601, INDIA
The Authorized share Capital of the Company as on date is Rs. 5,00,00,000 /- divided into 50,00,000 equity shares of Rs. 10/- each and the paid-up capital as on date is Rs.500,00,000 / -divided into 50,00,000 equity shares of Rs. 10/- each.
2. THE OBJECTS FOR WHICH THE COMPANY WAS INCORPORATED
1. To carry on the business of hoteliers, restaurants, café, tavern, beer house, subject to the law of the State, refreshment rooms and lodge house keepers, motels, auto courts, vehicle hirers, holiday camps and apartment house keepers, licensed victuallers, manufacturers of and dealers in aerated, mineral artificial waters and other drinks, purveyors and caterers for public amusements and to the extent permitted by law, wine, beer and spirit merchants, brewers, malters and distillers.
2. To carry on the business of bakers, confectioners, milk sellers, dairy men, grocers, butchers, poulterers, farmers, ice merchant and ice cream makers, and to buy, sell, import, and produce, manufacture or otherwise deal in food and food products, meat, groceries, fruits, biscuits, confectionery, linen, furniture and furnishings and other articles required in connection with the main business and to the extent permitted by law in wine, spirit, beer and alcoholic beverages.
3. To build, make, construct, purchase, equip, maintain and improve, alter, lease and work concert halls, bail rooms and music halls, cinema theatre, lodging restaurant house, chattels cottages, etc., and provide them with television, radio, gramophone and other amusements.
4. To carry on the business of travel agents, recognized dealers of foreign exchange and as proprietors and managers of motors and other vehicles, garage proprietors, dealers in curios etc, and to develop and promote tourism.
5. To carry on, either in connection with the business aforesaid or as distinct and separate business, the business of ice makers, ice vendors, manufacturers, hirers of and dealers in refrigerators, Air-conditioners, refrigerating chambers and apparatus relating thereto, warehouse keepers and stores of all commodities, good articles in refrigerators, ice chambers, or otherwise.
3. PARTICULARS OF THE PETITIONER
Petitioner viz. XYZ PRIVATE LIMITED is a Company registered under the provisions of the companies Act, 1956 and having its Registered Office at NO.6, GANDHIJI STREET, TIRUVANNAMALAI DISTRICT, TAMILNADU – 606601, INDIA .
4. PARTICULARS OF THE RESPONDENT
The Registrar of Companies, Tamil Nadu is the Respondent.
5. JURISDICTION OF THE REGIONAL DIRECTOR
The petitioner declares that the subject mater of the petition is within the jurisdiction of the REGIONAL DIRECTOR, Southern Region, Chennai as the Registered Office of the Company is situated in the State of Tamilnadu.
6. LIMITATION
The Petitioner Company further declares that section 141 of the Companies Act, 1956 has not laid down any limitation for filing petition under the said section.

Ajay Mishra

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26 June 2013
FACTS OF THE CASE

XYZ PRIVATE LIMITED is the petitioner company (hereinafter referred to as “the Company”) was incorporated as a Private Limited Company vide Certificate of Incorporation No. X00000XX0000XXX000000 dated ……… issued by The Registrar of Companies, Tamil Nadu, in the name of XYZ PRIVATE LIMITED.
a. Power to borrow and charge the assets
Sub Clause 29 of Clause III (B) of the Memorandum of Association of the Company provides necessary powers, inter alia to borrow or raise or secure the payment of money by mortgage or charge the properties of the Company towards security against such borrowing as the company may think fit.
The above-mentioned sub clause is reproduced below:
“To borrow money at interest or otherwise from any person or persons company, local authority or government and advance, lend or deposit any such money or other moneys of the company for the time being, on such securities or otherwise as the company may deem expedient”.
b.Creation of Charge
Based upon such powers, ABC FINANCE LIMITED, having REGISTERED OFFICE AT NO 21, PATTULLOS ROAD, CHENNAI – 600002, TAMILNADU a Non-Banking Financial Company from the State of Tamil Nadu constituted under The Companies Act, 1956, sanctioned secured loan of Rs. 5,00,00,000 (Rupees Three Crores only) on 30/06/2012 and Form 8 for creation of charge was filed on 12/03/2013 with Registrar of Companies, Tamil Nadu, vide SRN No. B69972628 dated 12/03/2013 and payment was deposited through credit card for registration of Creation of charges with Registrar of companies, Tamil Nadu.
c. Delay in filing the particulars of Creation of Charge
As per the provisions of Section 138 of the Companies Act, 1956, the Petitioner Company ought to have sought the registration of memorandum of the above mentioned charge dated 30.06.2012 with The Registrar of Companies, Tamil Nadu on or before 30/07/2012 i.e. within the statutory period of 30 days from the date of the above said creation of charge.
The petitioner company actually filed the particulars of charge in Form 8 with Registrar of Companies, Tamil Nadu on 12/03/2013 vide SRN No. X00000000 dated 12/03/2013 and payment was made through credit card on 12/03/2013 in AXIS Bank, Chennai resulting in a delay of 225 days.
The delay in filing the particulars of charge was occasioned due to the reason that the officer of the company looking after company affairs left the services of company without informing the status of various jobs assigned to him. And also the company was in dormant status and by filing the Annual Forms upto date which took time to bring the company from active in progress to active status. Hence the company could not file the form with in due date. The company file this petition wit the Regional Director for obtaining necessary order for condonation of delay and extension of time for filing the particulars of charge up to and inclusive of the actual date of filing on 12-03-2013.
Certified true copy of the relevant Form 8 and filing fee receipt in SRN No. X000000000 dated 12/03/2013 are enclosed and marked as annexure A1 and A2 respectively.

Ajay Mishra

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26 June 2013 Board Resolution

TRUE EXTRACT OF THE RESOLUTIONS PASSED BY THE DIRECTORS AT THEIR MEETING HELD ON Tuesday, 12-03-2013 AT 10.00 A.M AT THE REGISTERED OFFICE OF THE COMPANY

RESOLVED THAT the consent of the Board of Directors be and is hereby given to Mr. AAA, Managing Director or Mr. BBB Practicing Company Secretary, having his Office at Flat B, Brindha Flats, Old No. 27 New No. 67, Nethaji Street, West Mambalam Chennai – 600033 who shall be severally authorized to do the following:
1. Prepare, sign and submit petition u/s 141 of the Companies Act, 1956 and such other documents, applications, affidavits, Memorandum of Appearance as may be required by the Regional Director, Southern Region, Department of Corporate Affairs, Chennai-600006.
2. Make any alterations, corrections, additions, deletions, modifications in the aforesaid petition and documents as may be necessary for the effective admission of the petition, application etc.
3. Represent in person or through attorney before the Regional Director , Southern Region, Ministry of Corporate Affairs, Chennai, on behalf of the company and make such submission, written and/or oral as may be deemed expedient and in the interest of the company.
4. To agree on behalf of the Company to implement any directions as may be imposed by the said petition, application etc.
5. To collect the order from the Regional Director, Southern Region, Ministry of Corporate Affairs, Chennai, on behalf of the company with or without any payment as may be directed by the Regional Director, Southern Region, Ministry of Corporate Affairs, Chennai 600006.
6. To do all other acts, deeds and things as may be necessary in this regard.

Querist : Anonymous

Querist : Anonymous (Querist)

26 June 2013 sir if you have word copy, will you please attach

Ajay Mishra

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26 June 2013 send email id.

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Querist : Anonymous

Querist : Anonymous (Querist)

26 June 2013 My mail id is : divyeshvanparia@gmail.com

Ajay Mishra

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