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Querist : Anonymous

Querist : Anonymous (Querist)

04 August 2011 While financing to a private limited company, besides endorsing the hypothecation over a movable asset (commercial vehicles ie trucks or commercial cash vans), do we need to create charge in ROC for such loans, please clarify.

Bhaskaran Chackrapani Warrier

Bhaskaran Chackrapani Warrier (Expert)

04 August 2011 Not compulsory. If lender insists, charge has to be created.

RG - A Helping Hand

RG - A Helping Hand (Expert)

04 August 2011 As per section 125(4)(e) in case of hypothecation of movable properties, creation of charge is compulsory and not optional.

So I would advise you to file form 8 with ROC.

Thanks

Bhaskaran Chackrapani Warrier

Bhaskaran Chackrapani Warrier (Expert)

04 August 2011 As per section 125(4)(e) of the Companies Act, 1956 a charge not being a pledge on
movable property of company is required to be registered under the said Act.
In the instant case, the vehicle has been hypothecated to the bank. In the case
of Ideal Bank Ltd.(in liq.) vs. Pride of India Pictures Ltd. (in liq.) it
was held that hypothecation amounts to pledge though constructive and hence
registration of charge is not required. However, such charge can
nevertheless be registered by the ROC ,if applied for, as per clarification
given by DCA. (refer pp 1495 -A. Ramaiya' guide to CA-2006 edn.)

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