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query on charge

CS Ekta (Company Secretary) (309 Points)

29 June 2009

A Company is granted working capital loan from a bank. The loan amount is secured by the charge on the assets of the Company and the corporate guarantee from the associate companies. As a collateral security, mortgage has been created on the properties of the company and the associate companies.

Tell me whether the associate companies also has to file form 8?

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16 Replies

MAYANK GUGLANI (CA ) (124 Points)
Replied 29 June 2009

hiii ekta.

no, i dont think that the associate company should file form 8 as the loan is taken by the company and only guarantee is given on their behalf

sudhir gautam (CA Final) (145 Points)
Replied 29 June 2009

I think that associates companies need not to file form 8 for creation of charge because associates company have given only collateral security. for collateral security form 8 is not to be file

Malav Shah (Company Secretary and AVP Legal) (171 Points)
Replied 29 June 2009

Dear Ms. Ekta

Does the associate company has given any of its properties as security as for the loan of your company. Please see sec 125 to check whether do assocaite company fall in any of category on which charge is requiredto be registered. Merely giving Corporate gauranttee doesnot mean that a charge is created by the associate company.

CS Ankur Srivastava (Company Secretary & Compliance Officer) (17858 Points)
Replied 29 June 2009

if the mortgage is created on the assets of Associated Company, it has also to file form 8 for creation of Charge. And provisions of section 372A also become applicable.

Vaibhav Shukla (Company Secretary) (142 Points)
Replied 29 June 2009

Section 125 of the Companies Act, 1956 deals with the kinds of Charges which are required to be registered with Registrar of Companies and Companies are under obligation to file the charges and prescribed particulars of charge together with instrument, by which charge is created or evidenced, within thirty days after the date of its creation.

The Registrar of Companies is bound to register the charge under Section 132 of the Companies Act, 1956. The associate company as above has neither provided any security nor there is any instrument evidencing charge on any property relating to Corporate Guarantee.

Therefore, furnishing of mere Corporate Guarantee for another body corporate is not registerable, meaning thereby that the corporate guarantee cannot appear in the records maintained by the Registrar of Companies. While I am parting with the opinion, if the banker insist on filing form 8 by the associate companies on security basis, form 8 may be filed .

Filing of Form 8 regading Corporate guarantee is not mandatory on the part of Associate Companies but the amount of Corporate Guarantee shall be accounted for under Section 372 A (in case of Public Cos.)

CASE: associate companies need not file form 8

CS Ekta (Company Secretary) (309 Points)
Replied 29 June 2009

Dear All,

Let me confirm that the associate companies are providing for collateral security by the creation of mortgage on their properties.

Vaibhav Shukla (Company Secretary) (142 Points)
Replied 30 June 2009

Then in that case the associate Companies must file form 8 since creation of mortgage on the properties are registrable under Section 132 of the Companies Act, 1956.

CS Ankur Srivastava (Company Secretary & Compliance Officer) (17858 Points)
Replied 01 July 2009

Now Miss Ekta, i think you should be confirmed with above replies.

RAHUL (Company secretary ) (226 Points)
Replied 09 July 2009

Dear friend

If the mortgage is created on the assets of Associated Company, it has also to file form 8 for creation of Charge.otherwise I think you have no requirement for filing form 8 for associates company.

regard

CS NITIN

Basab (CA) (32 Points)
Replied 07 August 2009

Originally posted by :vaibhavshukla

As per the requirements of the Companies Act, Form 8 is required to be filed when a charge is created on the assets of a company. The essence of this is to Register the said charge.

In case of Corporate Guarantee, though there is no charge on any specific asset, there definitely is a floating charge on the assets of the issuer of the Corporate Guarantee. It is thus not optional, but mandatory to file Form 8. References may be drawn from several English case laws in this subject,

P C Agrawal (Registered independent director Past Ch) (8229 Points)
Replied 07 August 2009

A charge has been created on the assets of the associate company by way of mortgage and hence it has to file form 8. However, form 8 is not required for corporate guarantee.

KEYUR SHAH (Company Secretary) (34 Points)
Replied 08 August 2009

When the associate company has given gurantee and bank has increased the loan amount on that gurnatee in the modification of chagre than definately form : 8 must be filed.

CS MD Osman Akthar (Company Secretary & CA(Final)) (78 Points)
Replied 10 August 2009

Dear Frnds,

-Meaning of Collateral security is extra security provided by a borrower to back up his/her intention to repay a loan.

-In Form -8 if you mention the amount in clause (12.(a) *Amount secured by the charge”) including the value of assets of Associated Companies Then Form -8 is to be filed by Associated Companies.

-When Holding company assets itself can secure Loan by 100%, Collateral security is an additional security only. In my opinion Form-8 by Associated Companies is not required.

CourseCart.in (Mentor at SHAYVIDZ Academy) (3756 Points)
Replied 10 April 2010

Originally posted by : Basab
	Originally posted by :vaibhavshukla " As per the requirements of the Companies Act, Form 8 is required to be filed when a charge is created on the assets of a company. The essence of this is to Register the said charge. In case of Corporate Guarantee, though there is no charge on any specific asset, there definitely is a floating charge on the assets of the issuer of the Corporate Guarantee. It is thus not optional, but mandatory to file Form 8. References may be drawn from several English case laws in this subject, "