CHAPTER 1
Registration
of Mortgages and Charges
1.
What are
mortgages and charges?
As defined in section 58 of the Transfer of Property Act
1882, a mortgage is the transfer of
an interest in specific immovable property for the purpose of securing the
payment of money advanced or to be advanced by way of loan, an existing or
future debt or the performance of an engagement which may give rise to a
pecuniary liability.
A charge is security for the payment of a debt or other
obligation that does not pass ‘title of the property’ or any right to its
possession to the person to whom the charge is given.
2.
What
mortgages and charges must be registered?
Section 121 of the Companies Ordinance lists the following
mortgages and charges to be registered under the Companies Ordinance, 1984:-
(a)
a mortgage or charge for the purpose of securing any
issue of debentures; or
(A
debenture is
an instrument issued by a company as evidence of a debt or other obligation. It
includes debenture stock, bonds and any other securities of a company, whether
or not it forms a charge on the assets of the company.)
(b)
A mortgage or charge on uncalled share capital of the
company; or
(Uncalled
share capital is the balance owing for shares that are issued partly paid.)
(c)
a mortgage or charge on any immovable property wherever
situate, or any interest therein; or
(d)
a mortgage or charge on any book debts of the company;
or
(Book
debts are debts that in the ordinary course of a company’s business are
commonly entered in its books.)
(e)
A mortgage or charge, not being a pledge, on any
movable property of the company; or
(f)
A floating charge on the undertaking or property of the
company, including stock-in-trade; or
(A
floating
charge is a charge that does not affect the assets charged until some event
crystallizes the charge fixing it to a certain point in time.
3.
Which
documents are required to be filed for registration of mortgage or charge?
The following documents are required to be filed for
registration of a mortgage or charge:
•
Form 10 containing particulars of
mortgage/charges etc.
•
Copy of instrument(s) creating the mortgage or
charge.
•
An Affidavit to the effect that the copy(ies) of
the instrument(s) is/are the true copy(ies).
•
Bank challan evidencing the payment of Rs. 7,500
being filing fee for submission in physical form or Rs. 5,000 for submission
through eServices as the case may be.
4.
How much
does each registration cost?
There is a fee of Rs. 7,500 for filing each Form 10, 11, 13
and 14 with the Registrar concerned for submission in physical form or Rs.
5,000 for submission through eServices, as the case may be.
Same fee is applicable for filing of Modification in the
Particulars of Mortgage or charge on Form 16 or Memorandum of satisfaction of
mortgage or charge on form 17. These forms are available on SECP’s web site: www.secp.gov.pk
5.
What do
‘instrument’ and evidence’ mean in this chapter?
An ‘instrument’ is usually a document evidencing creation of
mortgage or charge which should be in legible form but it can also exist in
electronic form.
‘Evidence’ means to provide proof of the existence of
something.
6.
Which form
should be used?
Different forms are required to be used for different
purposes as per details given hereunder. The form numbers in this table
correspond to the relevant sections of the Companies Ordinance, 1984 and rules
contained in the Companies (General Provisions and Forms) Rules, 1985:-
|
Form
|
Description
|
Section
|
|
Form No. 10
|
Particulars of mortgages,
charges, etc.
|
121, 129 and 463
|
|
Form No. 11
|
Particulars
of mortgage or charge subject to which property has been acquired
|
122 and 463
|
|
Form No. 13
|
Registration of entire series of debentures / redeemable
capital
|
123, 124 and 463
|
|
Form No. 14
|
Particulars of an issue of redeemable capital / debentures
in a series when more than one issue in the series is made.
|
123 and 463
|
|
Form No. 16
|
Particulars of modification of mortgage, charge, etc.
|
129(3) and 463
|
|
Form No. 17
|
Memorandum of complete
satisfaction of mortgage, charge, etc.
|
132 and 463
|
•
Select the correct form, fill it and send to the
concerned Registration office. Act as quickly as possible, you have only 21
days from the date of creation of the mortgage or charge to get the correct
particulars of the Mortgage/Charge registered.
•
Attach the copy(ies) of the instrument(s)
creating or evidencing the mortgage/charge with the form, if there is an
instrument, as there usually will be.
•
Copy(ies) of the instrument(s) shall be verified by an Affidavit to the
effect that the same are true copies of the original.
•
Make sure the details on the form are correct
and match the instrument. If the registrar finds errors, he will convey the
deficiencies to the company. The company has to make good the deficiencies
within the 21-days time limit.
•
Please ensure this information is complete and
accurate.
•
Make sure that the company name and number are
correct.
•
Make sure that the creation date and description
of the charge agree with the instrument.
•
Make sure that the amount secured accurately
reflects what is stated in the instrument.
•
Make sure that the name of the mortgagee/chargee
matches with the instrument, (‘Mortgagee/Chargee’ means the person to whom
property is mortgaged/charged’).
•
Make sure that the short particulars of the
property mortgaged/charged in Form 10 accurately reflect what is stated in the
instrument.
•
For mortgaged land it is desirable that you give
the complete address of the Property.
•
Ensure that charging clauses are always
inserted, including reference to fixed and floating charges.
•
Sign and date the form.
•
Complete the forms legibly using black ink or,
preferably, type the form.
•
The forms are scanned and reproduced
electronically by the Registrar so that the public can inspect them. The
Registrar may refuse documents that are not suitable for scanning and
reproduction.
Please note
if you omit or mis-state any detail in the documents registered, then
you should apply to the Commission to correct it under section 131 of the
Ordinance.
7.
What happens
when the documents for registration reaches registrar concerned?
If the document is acceptable, the registrar concerned takes
details from it and records the particulars in the register and issue the
certificate of registration of mortgage or charge,.
8.
What if
registrar concerned has any query on the documents?
Registrar will communicate queries to the company. If the
documents need to be corrected, it must be done within 21 days from the date of
creation, modification or satisfaction etc. of charge, as the case may be.
9.
What if the
charge is not registered in time?
If a charge is not registered in time, then it is void
against the liquidator or administrator and any creditor of the company.
This means that the debt for which the charge was given will remain payable,
but it will be unsecured.
If a company fails to deliver a charge, and no interested
party has registered it, then the company and every officer of the company who
is in default are liable to a fine. If the default continues, they are liable
to a daily default fine.
10.
Can a charge
be registered after the expiry of 21 days from the date of its creation?
Only
the Commission can grant an extension of time for registration of a charge that
was not received in time. The normal time limit is 21 days from the date of
creation of the charge.
11.
What must I
do if my company acquires property that is already charged?
If the charge is of a type which the company would have had
to register if it had created the charge itself, then it must notify the fact
that it has acquired this property. To do this the company must complete and
send Form 11 with the registrar concerned, with a certified copy of any
instrument that created or evidenced the charge.
This must be done within 21 days after the company completed
the acquisition of the property. If the charged property is outside Pakistan
and the charge was created outside Pakistan, the 21 days runs from date when
the copy instrument could have been received in Pakistan in the normal course
of post, assuming that it had been dispatched with due Diligence.
12.
What are the
rights of the mortgagee/charge?
If the company does not send the particulars of charge for
registration, then the chargee (the person to whom property is charged) – or
some other interested person may file the required documents. In certain
circumstance a chargee can appoint a receiver or manager, or ask the court to
appoint a receiver or manager, over the
property charged – for example, if the company defaults in payment of the debt
secured by the charge. The chargee must notify the appointment with the
registrar concerned within 15 days using form 18. Registrar will then enter
this in the register of charges.
On ceasing to act, a receiver or manager must notify the
registrar concerned within 30 days using Form 19. Registrar will then enter the
fact in the register of charges.
CHAPTER 2
Modification
of Mortgages and Charges
1.
What is
modification in a mortgage or a charge?
Modification is change in the mortgage or charges i.e.
change in:-
•
Amount of mortgage / charge (enhancement or
reduction in amount).
•
Change in particulars of property (excluding or
including certain property or asset).
•
Variation in the rate of markup or interest.
•
Extension of
time for repayment on period
of maturity
(Rescheduling) or
change in other terms and conditions.
2.
Which
documents are required to be filed for modification in a mortgage or charge?
The following documents are required to be filed for
modification in a mortgage or charge:-
•
Form 16 containing particulars of modification
in mortgage/charge etc.
•
Copy of instrument modifying the mortgage or
charge.
•
Affidavit that the copy(ies) of the instrument
is/are true copy(ies).
•
Bank challan evidencing the payment of Rs. 7,500
being filing fee for submission in physical form or Rs. 5,000 for submission
through eServices, as the case may be.
3.
Whether
partial payment is treated as partial satisfaction or modification of a
mortgage or charge?
Partial payment is modification of a mortgage or charge and
cannot be treated as satisfaction.
CHAPTER 3
Satisfaction of Mortgages
and Charges
1.
What should
the company do when the charge is paid off (or ‘satisfied’)?
On the one hand it is in the company’s own interest and on
the other hand it is the requirement of law that the company should inform the
registrar concerned that the charge has been fully satisfied so that the stake
holders i.e. investors and lenders should know that all of the debt has been
paid off. The particulars of satisfaction of mortgage/charge shall be submitted
to the registrar concerned on prescribed form 17 within 21 days from the date
of satisfaction/repayment.
2.
What if
charged property ceases to be charged or to belong to the company?
As stated above, the company needs to inform registrar
concerned as soon the property has been released from a mortgage/charge. If the
charge property is acquired by a company, it is the responsibility of the
company to report the particulars on
prescribed form 11.
3.
Is there a
fee for registering Form 17?
Yes, a fee of Rs. 7,500 being the filing fee for submission
in physical form or Rs. 5,000 for submission through eServices, as the case may
be, shall be deposited. In case of submission in physical form, the original
challan evidencing the payment of fee is to be annexed with Form 17.
CHAPTER 4
Rectification of Mortgages and Charges
1.
What are the
grounds of rectification of register of mortgages or charges?
The following are grounds of
rectification of register of mortgages or charges:-
ƒ
Omission to file particulars of charge within 21
days from the date of creation of
charge.
ƒ
Failure to file particulars of modification of
charge within 21 days from the date of modification.
ƒ
Omission to intimate payment or satisfaction
within 21 days.
ƒ
Omission in compliance with observation within
21 days from the date of creation, modification, satisfaction etc. of charge.
ƒ
Omission or misstatement in the
particulars.
2.
Who is
empowered to order for rectification of register of mortgages or charges?
The Commission is empowered to
order for rectification of register of mortgages or charges.
3.
Which
documents should be enclosed with the application for rectification to be filed
before the Commission?
The following documents should be
enclosed with the petition for rectification to be filed before the Commission.
•
Copy of Form 10, 11, 13, 16 or 17; as case may
be.
•
Copy of instrument for creating, modifying,
satisfying charge
etc.
•
Observation memorandum, if any, issued by the
registrar concerned.
•
Affidavit verifying that the contents of
application are true.
•
Bank challan evidencing the payment of Rs. 7,500
being the application fee.
4.
Which
documents should be filed with the registrar concerned after passing of order
by the Commission?
The following documents should be
filed with the registrar concerned after passing of order by the Commission.
•
Form 10, 11, 13, 16 or 17, as the case may be.
•
Copy(s) of the instrument(s) relating to
creation, modification, or a confirmation letter from the Bank for the
satisfaction of charge.
•
Copy of order of the Commission.
•
Affidavit that the copies of the instruments are
true copies.
•
Bank challan evidencing the payment of Rs. 7,500
being filing fee for submission in physical form or Rs. 5,000 for submission
through eServices, as the case may be.
|
Please note that particulars of mortgages or charges or
modification or satisfaction thereof are required to be registered within 21
days. Mere filing within 21 days may cause certain difficulties leading to
filing petition before the Commission for extension in time. It would be
advisable if the documents are filed much earlier so that these may be
registered.
|
CHAPTER 5
Further information:
1.
Who should
respond to the query made by the company about the registration?
The officers sitting in the CROs
shall willingly answer general queries regarding the procedure but note legal
points, which should be referred to your legal advisor.
The telephone number of all the
Company Registration Office concerned given in the list at the end of this
booklet.
2.
What are the
modes of submission of statutory returns?
There are two modes of filing
statutory returns with the registrar concerned:
i.
In physical
form
ƒ
Personally:
You may visit the CRO and deliver the documents by hand. The authorized
staff of the Registrar concerned shall acknowledge the receipt of documents if
delivered to him by hand.
ƒ
By post:
You may post the return through registered mail or courier at the postal
addresses of CROs (as given at the end of this guide booklet).
ii.
Electronically
using e.Services portal of SECP
3.
From where
format of returns/forms be obtained?
For
submission in physical form
In case of physical submission,
there are three sources of getting statutory returns/Forms:
•
You may refer to the Rules and find the relevant
statutory form.
•
You may download these formats from the
Commission’s website at the link http://www.secp.gov.pk/forms.asp
which is the quickest and easiest way to get the forms. By using the downloaded
forms, additional space can also be created in the fields available for
information, according to your requirements.
|
|
• You
may visit the regional offices of the Commission (Company Registration
Offices) personally and get the forms.
For Online
submission:
In
case of online submission, the statutory returns/ forms on the prescribed
format containing the existing information shall automatically appear in the
eServices portal. Detailed procedure is explained at Q. No. 7 of this guide
below.
|
|
4.
|
What is filing fee
of forms/returns?
The filing fee of
various returns/forms is prescribed in 6th
Schedule to the Ordinance, which may be accessed at Commission’s website.
For detailed information regarding fees schedule, (both online/physical)
kindly visit the link
http://www.secp.gov.pk/notification/pdf/2010/SixthSchedule26-102010.pdf
|
|
5.
|
Who is competent to
sign/authenticate the return/forms?
|
As provided under the Companies
Ordinance, 1984, Chief Executive, Director and the Company Secretary are
authorized to sign the returns/forms.
6.
How to pay
filing fee?
The filing fee can be paid
/deposited through challans in any of the designated branches of MCB Bank
Limited.
Online:
In case of online submission,
challans are auto generated. Procedure is explained above at Q. No. 7 of this
guide.
Physical:
In case of physical submission,
challans in the physical form are available at all the designated branches of
MCB Bank Limited.
7.
How
statutory returns can be filed through eServices?
Below is the procedure for filing statutory returns through
eServices:
(1) Log on
to eServices
•
In case
the company has obtained eServices Login name and Password:
Connect to eServices https://eservices.secp.gov.pk/eServices,
and log on to your account using your eServices Login name and Password
provided by SECP. Procedure for obtaining Login name and Password has been
provided in subsequent process.
Important Note: PLEASE NOTE THAT “SIGN UP” LINK ON
eServices WEBPAGE, IS FOR NEW INCORPORATION PROCESS ONLY AND NOT FOR ALREADY
INCORPORATED COMPANIES.
•
In case
the company has not obtained eServices Login name and Password, please follow
the procedure as under:
a.
Apply for an eServices Login name and Password by
writing a letter, on the company letterhead, duly signed by the Chief Executive
alongwith the either of the Company Secretary, Chief Financial Officer, or one
of the Directors of the company, with a copy of their CNIC, to be addressed to
the following address:
Director (MIS),
Registration Department,
Securities and Exchange Commission of Pakistan, NIC
Building, Jinnah Avenue,
Islamabad, Pakistan email: ibtesam.moatisim@secp.gov.pk Phone: +92-51-9207091-3
(Ext: 280)
b.
Mention the email address on which the eServices Login
name and Password will be dispatched. Please, only provide POP3 email address
such as abc@comsats.com;
free email address such as hotmail, gmail, or yahoo is not acceptable.
c.
SECP will confirm the validity of the email address.
After validation the eServices Login name and Password will be emailed to the
specified email address.
(2) Enter Information
•
A successful logon to eServices by entering
Login name and password will display a list of available processes
•
Click Filing
of Statutory Returns
•
List of forms containing all the statutory
returns will appear
•
Click the relevant form (Form 10 to 17, as the case may be)
•
Enter required information on the page
•
Click the Continue button, the process document
listing page shall be displayed, containing the following links:
a. Update Form
o Click
link if you want to update the data. o After updating data, click continue
button o Process document listing page will be
displayed
b. View Form
•
Click link.
•
The form
on the
prescribed format shall be automatically generated based on your
input.
•
View Form.
•
If data displayed in the form is correct, click
the back button on the screen
•
Process document listing page will be displayed
c. Fill New Attachment Form
•
Click link and an attachment form window will be
displayed.
•
Attach document, if any.
•
Click Save Form button.
Please
note that only PDF format is allowed for attachment. Size of the file must not
exceed 2 MB.
•
Process document listing page will be
displayed.
d. Fill New Bank Challan
•
Click link – auto filled bank challan will be
displayed.
•
Click Print Form button at the bottom of the
page and four copies namely original, bank copy, SECP copy and depositor copy
will be printed.
•
After printing, click Save Form button at the
bottom of the page.
•
Process document listing page will be displayed.
e. Sign Forms
•
Procedure
for obtaining Digital Signatures: Any
return/form filed through e-services shall be authenticated by companies by
affixing electronic signatures. Detailed procedure for obtaining digital
signatures from National Institutional of Facilitation Technologies (NIFT) for
SECP eServices is available at the following link of NIFT website: https://secp.niftetrust.com/.
•
Click on Sign Forms link.
•
Digital signature pad window will appear.
Select all the form(s)/Attachment(s)
available for signature by clicking the check boxes.
•
Select the required signature from the drop down
menu
•
Click Sign button (After signing, submit to
SECP button will be enabled.)
•
Click Submit to SECP button.
•
All the documents will be automatically
submitted to the SECP.
•
Please note down the Tracking Number, appearing
on the screen.
•
Deposit fee through the challan printed during
the process, in the selected branch of MCB.
•
The bank shall retain the SECP and bank copies
and return remaining two copies (original and customer copy) to the customer
If the documents are sent by post
or courier, the same can be addressed to one of the following Company
Registration Offices (CROs), having jurisdiction on your company.
|
¾
|
Company Registration Office,
State Life Building, 7-Blue Area, Islamabad.
Phone No.: 051-9208740 Fax No: 051-9208740
Email: croislamabad@secp.gov.pk
|
|
¾
|
Company Registration Office, 4th Floor, SLIC
Building No.2, Wallace Road, Karachi.
Phone No:
021-99213272 Fax No. 021-99213278
Email: crokarachi@secp.gpv.pk
|
|
¾
|
Company Registration
Office,
|
3rd & 4th
Floor, Associated House,
7-Egerton Road, Lahore
Phone No. 042-99204962 – 6 Fax No: 042-99202044
Email:
crolahore@secp.gov.pk
|
|
|
|
¾
|
Company Registration Office,
63-A, 2nd Floor,
Nawa-e-Waqt Building, Adbali Road, Multan.
Phone No:
061-9200530/9200920 Fax No: 061-9200920
Email: cromultan.eservices@secp.govpk
|
|
¾
|
Company Registration Office, 356-A, Ikram Plaza, Small D
ground.
Peoples Colony No. 1, Faisalabad.
Phone No: 041-9220284 Fax No: 041-9220152
Email: crofaisalabad@secp.gov.pk
|
|
¾
|
Company Registration Office,
1st Floor, State Life Building, The Mall, Peshawar Cantt.
Phone No: 091-9213178, Fax No: 091-9213686
Email: cropeshawar@secp.gov.pk / saeedullah.khan@secp.gov.pk
|
|
¾
|
Company Registration Office,
382/3, (IDBP House), Shahrah-e-Hali, Quetta Cantt.
Phone No: 081-2844136 Fax No: 081-2899134
Email: croquette@secp.gov.pk
|
|
¾
|
Company Registration
Office,
|
28 – D , Hamdard
Housing Society,
Airport Road, Sukkur,
Phone No: 071-5630517 Fax No:
071-5633757
Email:
croskr@hotmail.com
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