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33 1963

COMPANIES ACT, 1963

PART IV

Registration of Charges

Registration of Charges with Registrar of Companies.

Registration of charges created by companies.

99. —(1) Subject to the provisions of this Part, every charge created after the fixed date by a company, and being a charge to which this section applies, shall, so far as any security on the company's property or undertaking is conferred thereby, be void against the liquidator and any creditor of the company, unless the prescribed particulars of the charge, verified in the prescribed manner, are delivered to or received by the registrar of companies for registration in manner required by this Act within 21 days after the date of its creation, but without prejudice to any contract or obligation for repayment of the money thereby secured, and when a charge becomes void under this section, the money secured thereby shall immediately become payable.

(2) This section applies to the following charges:

(a) a charge for the purpose of securing any issue of debentures;

(b) a charge on uncalled share capital of the company;

(c) a charge created or evidenced by an instrument which, if executed by an individual, would require registration as a bill of sale;

(d) a charge on land, wherever situate, or any interest therein, but not including a charge for any rent or other periodical sum issuing out of land;

(e) a charge on book debts of the company;

(f) a floating charge on the undertaking or property of the company;

(g) a charge on calls made but not paid;

(h) a charge on a ship or any share in a ship;

(i) a charge on goodwill, on a patent or a licence under a patent, on a trade mark or on a copyright or a licence under a copyright.

(3) In the case of a charge created out of the State comprising property situate outside the State, 21 days after the date on which the prescribed particulars could, in due course of post, and if despatched with due diligence, have been received in the State shall be substituted for 21 days after the date of the creation of the charge as the time within which the particulars are to be delivered to the registrar.

(4) Where a charge is created in the State but comprises property outside the State, the prescribed particulars may be sent for registration under this section, notwithstanding that further proceedings may be necessary to make the charge valid or effectual according to the law of the country in which the property is situate.

(5) Where a charge comprises property situate outside the State and registration in the country where the property is situate is necessary to make the charge valid or effectual according to the law of that country, a certificate in the prescribed form stating that the charge was presented for registration in the country where the property is situate on the date on which it was so presented shall be delivered to the registrar of companies for registration.

(6) Where a negotiable instrument has been given to secure the payment of any book debts of a company, the deposit of the instrument for the purpose of securing an advance to the company shall not, for the purposes of this section, be treated as a charge on those book debts.

(7) The holding of debentures entitling the holder to a charge on land shall not, for the purposes of this section, be deemed to be an interest in land.

(8) Where a series of debentures containing, or giving by reference to any other instrument, any charge to the benefit of which the debenture holders of that series are entitled pari passu is created by a company, it shall, for the purposes of this section, be sufficient if there are delivered to or received by the registrar, within 21 days after the execution of the deed containing the charge, or, if there is no such deed, after the execution of any debentures of the series, the following particulars:

(a) the total amount secured by the whole series; and

(b) the dates of the resolutions authorising the issue of the series, and the date of the covering deed, if any, by which the security is created or defined; and

(c) a general description of the property charged; and

(d) the names of the trustees, if any, for the debenture holders;

so, however, that where more than one issue is made of debentures in the series, there shall be sent to the registrar for entry in the register particulars of the amount and date of each issue, but an omission to do this shall not affect the validity of the debentures issued.

(9) Where any commission, allowance or discount has been paid or made either directly or indirectly by a company to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any debentures of the company, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any such debentures, the particulars required to be sent for registration under this section shall include particulars as to the amount and rate per cent. of the commission, discount or allowance so paid or made, but omission to do this shall not affect the validity of the debentures issued, so, however, that the deposit of any debentures as security for any debt of the company shall not, for the purposes of this subsection, be treated as the issue of the debentures at a discount.

(10) In this Part—

(a) “charge” includes mortgage;

(b) “the fixed date” means, in relation to the charges specified in paragraphs (a) to (f), of subsection (2), the 1st July, 1908, and in relation to the charges specified in paragraphs (g) to (i), the operative date.

Duty of company to register charges created by company.

100. —(1) It shall be the duty of a company to send to the registrar of companies for registration within the time required by section 99 the particulars of every charge created by the company, and of the issues of debentures of a series requiring registration under section 99, together with any documents required by that section, but registration of any such charge may be effected on the application of any person interested therein.

(2) Where registration is effected on the application of some person other than the company, that person shall be entitled to recover from the company the amount of any fees properly paid by him to the registrar on the registration.

(3) If any company makes default in sending to the registrar for registration the particulars of any charge created by the company or of the issues of debentures of a series requiring registration under section 99 or any documents required by that section then, unless registration has been effected on the application of some other person, the company and every officer of the company who is in default shall be liable to a fine not exceeding £100.

(4) Proceedings in relation to an offence under this section may be brought and prosecuted by the registrar of companies.

Duty of company to register charges existing on property acquired.

101. —(1) Where a company acquires any property which is subject to a charge of any such kind as would, if it had been created after the acquisition of the property, have been required to be registered under this Part, the company shall cause the prescribed particulars of the charge, verified in the prescribed manner, to be delivered to the registrar of companies for registration in manner required by this Act within 21 days after the date on which the acquisition is completed so, however, that if the property is situated outside the State, 21 days after the date on which the prescribed particulars could, in due course of post and if despatched with due diligence, have been received in the State, shall be substituted for 21 days after the completion of the acquisition as the time within which the particulars are to be delivered to the registrar.

(2) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a fine not exceeding £100.

Registration of judgment mortgages.

102. —(1) When judgment is recovered against a company and such judgment is subsequently converted into a judgment mortgage affecting any property of the company, the judgment creditor shall cause 2 copies (certified by the Land Registry or the Registry of Deeds, as the case may be, to be correct copies) of the affidavit required for the purpose of registering the judgment as a mortgage to be delivered to the company within 21 days after the date of such registration, and the company shall within 3 days of receipt of such copies deliver one of such copies to the registrar of companies for registration in manner required by this Act. By way of further precaution, the Land Registry, or Registry of Deeds, shall as soon as may be deliver a copy of the said affidavit to the registrar of companies.

(2) If any judgment creditor makes default in complying with subsection (1) he shall be liable to a fine not exceeding £100, and if a company makes default in complying with that subsection, the company and every officer of the company who is in default shall be liable to a like penalty.

(3) This section shall not apply to any judgment mortgage created before the operative date.

Register of charges to be kept by registrar of companies.

103. —(1) The registrar of companies shall keep, in relation to each company, a register in the prescribed form of all the charges requiring registration under this Part, and shall, on payment of such fee as may be prescribed, enter in the register, in relation to such charges, the following particulars:

(a) in the case of a charge to the benefit of which the holders of a series of debentures are entitled, such particulars as are specified in subsection (8) of section 99;

(b) in the case of any other charge—

(i) if the charge is a charge created by the company, the date of its creation;

(ii) if the charge was a charge existing on property acquired by the company, the date of the acquisition of the property;

(iii) if the charge was a judgment mortgage, the date of the creation of such judgment mortgage;

(iv) the amount secured by the charge;

(v) short particulars of the property charged;

(vi) the persons entitled to the charge.

(2) The register kept in pursuance of this section shall be open to inspection by any person on payment of such fee as may be prescribed.

Certificate of registration.

104. —The registrar shall give a certificate under his hand of the registration of any charge registered in pursuance of this Part, stating the amount thereby secured, and the certificate shall be conclusive evidence that the requirements of this Part as to registration have been complied with.

Entries of satisfaction and release of property from charge.

105. —The registrar of companies, on evidence being given to his satisfaction with respect to any registered charge

(a) that the debt in relation to which the charge was created has been paid or satisfied in whole or in part; or

(b) that part of the property or undertaking charged has been released from the charge or has ceased to form part of the company's property or undertaking;

and after giving notice to the person to whom such charge was originally given or to the judgment creditor, as the case may be, may enter on the register a memorandum of satisfaction in whole or in part, or of the fact that part of the property or undertaking has been released from the charge or has ceased to form part of the company's property or undertaking, as the case may be, and where he enters a memorandum of satisfaction in whole he shall, if required, furnish the company with a copy thereof.

Extension of time for registration of charges.

106. —(1) The court, on being satisfied that the omission to register a charge within the time required by this Act or that the omission or mis-statement of any particular with respect to any such charge or in a memorandum of satisfaction was accidental, or due to inadvertence or to some other sufficient cause, or is not of a nature to prejudice the position of creditors or shareholders of the company, or that on other grounds it is just and equitable to grant relief, may, on the application of the company or any person interested, and on such terms and conditions as seem to the court just and expedient, order that the time for registration shall be extended, or, as the case may be, that the omission or mis-statement shall be rectified.

(2) The grant of relief by the court under this section shall, if the court so directs, not have the effect of relieving the company or its officers of any liability already incurred under section 100.

Notice to registrar of appointment of receiver, and of receiver ceasing to act.

107. —(1) If any person obtains an order for the appointment of a receiver of the property of a company or appoints such a receiver under any powers contained in any instrument, he shall, within 7 days after the date of the order or of the appointment, publish in Iris Oifigiúil and in at least one daily newspaper circulating in the district where the registered office of the company is situated, and deliver to the registrar of companies, a notice in the form prescribed.

(2) When any person appointed receiver of the property of a company ceases to act as such receiver, he shall, on so ceasing, deliver to the registrar of companies a notice in the form prescribed.

(3) If any person makes default in complying with the requirements of this section, he shall be liable to a fine not exceeding £100.

Effect of provisions of former Companies Acts as to registration of charges on land.

108. —Paragraph (d) of subsection (1) of section 10 of the Companies Act, 1907, and paragraph (d) of subsection (1) of section 93 of the Companies (Consolidation) Act, 1908 (by virtue whereof charges created on land by a company required registration under those Acts respectively), shall be deemed never to have applied to a charge for any rent or other periodical sum issuing out of the land.

Provisions as to copies of Instruments creating Charges.

Copies of instruments creating charges to be kept at registered office.

109. —Every company shall cause a copy of every instrument creating any charge requiring registration under this Part, including every affidavit a copy of which has been delivered to the company under section 102, to be kept at the registered office of the company so, however, that, in the case of a series of uniform debentures, a copy of one debenture of the series shall be sufficient.

Right to inspect copies of instruments creating charges.

110. —(1) The copies of instruments referred to in section 109 may be inspected during business hours (but subject to such reasonable restrictions as the company in general meeting may impose, so that not less than 2 hours in each day shall be allowed for inspection) by any creditor or member of the company without fee.

(2) If inspection is refused, every officer of the company who is in default shall be liable to a fine not exceeding £100.

(3) In the event of any such refusal, the court may by order compel an immediate inspection.

Application of this Part to Companies incorporated outside the State.

Application of this Part to companies incorporated outside the State.

111. —The provisions of this Part shall extend to charges on property in the State which are created on or after the operative date, and to charges on property in the State which is acquired on or after the operative date, by a company incorporated outside the State which has an established place of business in the State, and to judgment mortgages created on or after the operative date and affecting property in the State of such a company and to receivers, appointed on or after the operative date, of property in the State of such a company, and for the purposes of those provisions, the principal place of business of such a company in the State shall be deemed to be its registered office.

Registration of Charges existing before application of this Act.

Registration of charges existing before application of this Act.

112. —(1) It shall be the duty of a company within 6 months after the operative date to send to the registrar of companies for registration the prescribed particulars of

(a) any charge created by the company before the operative date and remaining unsatisfied at that date which would have been required to be registered under paragraphs (g), (h) and (i) of subsection (2) of section 99 or under section 111, if the charge had been created after the operative date;

(b) any charge to which any property acquired by the company before the operative date is subject and which would have been required to be registered under section 101 or under section 111 if the property had been acquired after the operative date;

(c) any charge created before the operative date to which any property of the company is subject and which would have required registration under section 102 or under section 111 if created after the operative date.

(2) The registrar on payment of the prescribed fee shall enter the said particulars on the register kept by him in pursuance of this Part.

(3) If a company fails to comply with this section, the company and every officer of the company or other person who is knowingly a party to the default shall be liable to a fine not exceeding £100.

(4) The failure of the company to send to the registrar the prescribed particulars of any charge mentioned in paragraphs (a), (b) and (c) of subsection (1) shall not prejudice any rights which any person in whose favour the charge was made may have thereunder.

(5) For the purposes of this section, “company” includes a company incorporated outside the State which has an established place of business in the State.

(6) In relation to a company incorporated outside the State which, on or after the operative date, establishes a place of business in the State, this section shall have effect as if—

(a) for the references to the operative date there were substituted references to the date of such establishment, and

(b) for the references to charges created or property acquired before the operative date there were substituted references to charges created or property acquired before such establishment, whether before the operative date or not.