Dear All,
Individual person have borrowed money by way of Mortgage Loan from a Banker. For due repayment of the said loan, a Pvt Ltd Company has given a Corporate Guarantee and also mortgaged its property in favour of the Bank. Money has not come to the Pvt Ltd Company and hence they are not the borrower. My question is whether Form 8 has to be filed with ROC for creation of Charge. Bank is asking to file Form 8 with ROC.
Response/Replies from learned professional is highly solicited asap
Joshi
Sec.125 requires charge to be registered if charge has been created on the property of the company, irrespective of the person who has taken the loan. Hence in this case charge has to be registered.
Dear Agarwal Sir,
I do appreciate your reply.
Sir, but on the MCA portal, under index of charges, the charge ID will be displayed for the amount but in factual the Company has not received any amount in its accounts from the Bank. So in future if the Company wants to borrow any secured loans from the Bank and a search report is insisted by the bank then it will be very difficult for the Company to borrow.
Pl rvt
Joshi
Index of charges indicates amount secured by the charge and not necessarily amount of loan taken by the company. Charge document can clearly mention that the security is being given for loan taken by XYZ individual.
You may have to take consent of your existing bankers for creating charge on property of the company. Further, if you take loan in future from any bank, the bank may exclude these properties from the security for your loan since these specific properties have already been given as security for loan to others. Alternatively, bank may agree for pari-passu charge or second charge on such assets. You have to consider this difficulty before giving security.
Fully agree with the veiws of learned member.
Dear Mr Joshi
The question asked by you is very relevant since lot of times the same has been asked by the company to respective Bankers since the property doesnot belong to the company .If we talk about the governing act there is no requirement of creating it but practically many chartered accountants and comapny secretaries are creating a charge on the corporate guarantee and property mortgaged of the other comapny and for seeking a loan you have to be part of such a process.As per Comapnies Act 2013 it is form chg1 and form 8 was in old comapnies act 1956 and as far taking a loan is considered for other company bank will consider how much collateral exposure they are having on it after subtracting the dues of 1st charge holder and then they can have second charge on it in case of multiple Bank arrangement and pari passu charge in case of consortium
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