THE COMPANIES ORDINANCE, 1972

Part IV.—Registration of Charges

92.—(1) Every hypothecation, mortgage or charge to which this Part of this Ordinance applies shall be registered by the Registrar in a register of charges kept by him separately for each company upon presentation to him of the instrument by which the hypothecation, mortgage or charge is created together with such copies thereof as the Registrar may require and a written application in a form prescribed by section 93(1) for the registration of the hypothecation, mortgage or charge.

(2)  This Part of this Ordinance shall apply to—

(a)   hypothecations, mortgages and charges upon or affecting any assets of a company, wherever situate, except rents, rent-charges and annuities granted or reserved out of land ; and

(b)   floating charges and general floating charges created by a company.

(3)  It shall be the duty of the trustees of the debenture trust deed by which a hypothecation, mortgage or charge is created to apply to the Registrar to register it, but if the trustees have not made such an application within seven days after the debenture trust deed is executed by the company, or if there is no debenture trust deed, or if the debenture trust deed was executed before the commencement of this Ordinance, the company or any person interested in the hypothecation, mortgage or charge may make the application.

(4)  If a company acquires assets which are already subject to a hypothecation, mortgage or charge which is binding on the company and which would be registrable under this section if it had been created by the company, it shall be the dwty of the person who transfers the assets to the eompany and of the company to notify all persons interested in the hypothecation, mortgage or charge (including the trustees of any debenture trust deed) at least twenty-one days before the acquisition by the company, and the last foregoing subsection shall thereupon apply as if the company had created the hypothecation, mortgage or charge itself on the date of the acquisition.

(5)    If within the times limited by this section a company fails to give any notice required by this section, or if trustees of a debenture trust deed fail to make an application for the registration of a hypothecation, mortgage or charge which they are under a duty to make, the company or the trustees (as the case may be), and the directors of the eompany or the trustee (if it is a body corporate) who are in default, shall be guilty of an offence punishable by a fine not exceeding ten thousand rupees.

(6)  A floating charge or general floating charge which has been duly registered under section 14 of the Companies (Debentures and Floating Charges) Ordinance, 1970, shall be deemed to have been duly registered under this section.

(7)  Nothing in this section shall affect the operation of sections 14 and 16 of the Companies (Debentures and Floating Charges) Ordinance in respect of a floating charge or a general floating charge created before this Ordinance comes into force.

93.—(1) An application to the Registrar to register a hypothecation, mortgage or charge shall be accompanied by the prescribed fee and shall contain—

(2) if the hypothecation, mortgage or charge was created by a debenture trust deed, or by debentures forming a class, the particulars required to be included in a debenture trust deed by paragraphs (a), (d), (e), (f), (g) and (l) of section 70(1) of this Ordinance, together with the name of the company and the date of and the names and addresses of the trustees appointed by the debenture trust deed (if any); or

(b) in any other case—

(i) the date on which the hypothecation, mortgage or charge was created or imposed or on which it arose ;

(ii) the names and addresses of the parties to the instrument by which the hypothecation, mortgage or charge was created;

(iii) the amount secured by the mortgage or charge or the nature of the contract or liability secured by it;

(iv) short particulars of the assets affected by the hypothecation, mortgage or charge, or in the case of a floating charge, the class or part of the class of assets which is subject to the charge, or, in the case of a general floating charge, a statement that the charge is a general floating charge ; and

(v) any prohibition or restriction contained in the instrument creating the hypothecation, mortgage or charge on the power of the company to issue debentures or to create other hypothecations, mortgages or charges ranking in priority to, or equally with, the hypothecation, mortgage or charge in respect of which the application is made.

(2)  A priority notice in the prescribed form may be given to the Registrar on payment of the prescribed fee not earlier than fourteen days before an application is made to the Registrar to register a hypothecation, mortgage or charge.

(3)  The register to be kept by the Registrar under this Part of this Ordinance shall consist of the applications delivered to him under subsection (1) of this section, a copy of each instrument which has been delivered to him with such applications, and the priority notices given to the Registrar under the last foregoing subsection. The Registrar shall also keep a chronological index of the hypothecations, mortgages or charges entered in the register.

(4)  An application for the registration of a hypothecation, mortgage or charge shall be accompanied by a signed declaration by a notary, barrister or attorney that the requirements of this Ordinance in respect of the debenture trust deed or debenture in respect of which the application is made have been complied with, and that the application contains all the information required by this Ordinance, and to the best of his knowledge, information and belief that information is true.

(5)  The Registrar shall give a certificate under his hand of the registration of any hypothecation, mortgage or charge registered in pursuance of this Part of this Ordinance, and the certificate shall be conclusive evidence that the hypothecation, mortgage or charge has been registered.

(6)  The register kept in pursuance of this section shall be open to inspection by any person on payment of the prescribed fee.

(7)  If an application for the registration does not disclose any such prohibition or restriction as is mentioned in paragraph (b) (v) of subsection (1) or in paragraph (g) of section 70(1), the prohibition or restriction may not be relied on by any person entitled to the benefit of the registered hypothecation, mortgage or charge to which the application relates, notwithstanding that the prohibition or restriction is imposed by or mentioned in any covering debenture trust deed, or in a debenture, or in the instrument creating the hypothecation, mortgage or charge and notwithstanding that the person against whom it is relied upon had notice of it.

(8)  If the particulars of a hypothecation, mortgage or charge registered under this section are incorrect or incomplete, any interested person may apply to the Registrar at any time to correct or complete the same, and upon being satisfied that the application is a proper one, the Registrar shall amend the particulars accordingly, but any person who before the amendment is made acquires for money or money's worth any interest in the assets of the company which created the hypothecation, mortgage or charge or acquired the assets subject to it, shall not be affected by any matter not contained in the registered particulars when his interest arose.

(9)  The Mortgage and Registration Ordinance shall not apply to a certificate issued under this section.

94,—(1) Each hypothecation, mortgage or charge required to be registered by this Part of this Ordinance shall rank as a security on the assets over which it is created or to which it applies as from the time when an application for its registration is made to the Registrar, or if it is registered pursuant to a priority notice, as from the time it was created or arose, not being earlier than the time when the priority notice was given to the Registrar.

(2)  If a hypothecation, mortgage or charge is registered pursuant to a priority notice, the person entitled thereto shall not be affected by any other hypothecation, mortgage or charge which at the time he gave the priority notice was not entered in the register and was not protected by a priority notice previously given.

(3)  Nothing in subsections (1) and (2) of this section shall confer on a person entitled to a floating charge or a general floating charge any priority which he would not have apart from this Ordinance, and references in the Companies (Debentures and Floating Charges) Ordinance, 1970, to registration of such a charge shall be construed as references to registration under section 14 of that Ordinance or under this Part of this Ordinance.

(4) For the purpose of this Ordinance, the creditors of a company at the time when it is wound up shall be deemed to have a charge for payment of the company's liabilities on all its assets at the time the winding up commences, being a charge which is registrable and has been duly registered under this Part of this Ordinance.

95.—(1) If a receiver of any assets of a company subject to a hypothecation, mortgage or charge is appointed by the court, or by the trustees of a debenture trust deed, or by or for the benefit of debenture holders, or if a iioating charge or general floating charge over the assets of a company crystallises, the trustees of the debenture trust deed or any debenture holder or other person entitled to the benefit of the hypothecation, mortgage or charge may apply to the Registrar to register the appointment of the receiver, or the crystallisation of the floating charge or general floating charge, in the register of charges kept by him in respect of the company, and on payment of the prescribed fee the Registrar shall enter the matter notified to him in the register.

(2) Until the Registrar has made an entry in the Register under the last foregoing subsection, any person who acquires an interest in any assets of the company for money or moneys' worth shall not be affected by the appointment of the receiver or the crystallisation of the floating charge or general floating charge (as the case may be).

(3) For the purposes of this Ordinance a floating charge or a general floating charge crystallises on the occurrence of any of the events specified in section 13(2) of the Companies (Debentures and Floating Charges) Ordinance, 1970.

96.--(1) If a hypothecation, mortgage or charge registered under this Part cf this Ordinance has been discharged in whole or part, the Registrar on payment of the prescribed fee shall cancel the registration thereof, or if the hypothecation, mortgage or charge has been discharged only in part, shall make an appropriate amendment to the entry in the register of charges.

(2)  An application to cancel or amend the registration of a hypothecation, mortgage or charge under this section may be made by the person, entitled to the hypothecation, mortgage or charge, or by the company, or by any creditor or shareholder of the company, or in the case of a hypothecation, mortgage or charge created by a debenture trust deed, by the trustees of that deed or by the holder of a debenture covered by it, but unless the application is made by the person entitled to the hypothecation, mortgage or charge, the Registrar shall 'not cancel the registration unless he has given the persons appearing to be entitled thereto according to the register, or to the trustees of the debenture trust deed which created the hypothecation, mortgage or charge and whose names appear in the register, fifteen days' notice of his intention to do so, and no such person has before the expiration of that time notified the Registrar in writing that he opposes the cancellation being made.

(3)  If the entry of a hypothecation, mortgage or charge in the register has been cancelled or amended under this section, the mortgage or charge shall, in favour of any person who subsequently acquires any interest in assets of the company for money or money's worth, be deemed conclusively to have been discharged unless he knew, or should have realised in the circumstances, that the cancellation or amendment was incorrect.

(4)  If the person entitled to a hypothecation, mortgage or charge which has been registered under this Part (including each of the trustees of a debenture trust deed which created such a hypothecation, mortgage or charge) fails to notify the Registrar that it has been discharged in whole or part within seven days after the discharge takes effect, he shall be guilty of an offence punishable by a fine not exceeding one thousand rupees.

97. An application may be made to the court by any interested person—

(a)   to determine whether a hypothecation, mortgage or charge is registrable under this Part;

(b)   to determine the order of priority between two or more hypothecations, mortgages or charges which are registrable under this Part, whether any one or more of them has been registered or not;

(c)   to determine whether a hypothecation, mortgage or charge is binding on the creditors of a company ; or

(d)   for an order that an entry in the register kept under this Part shall be cancelled or amended or that a cancellation or amendment of an entry shall be set aside.

98.—(1) The provisions of this Part shall apply to hypothecations, mortgages and charges : —

(a)   created by an overseas company upon assets in Seychelles, or

(b)   affecting assets in Seychelles of an overseas company, or

(c)   created over or affecting assets in Seychelles which are subsequently acquired by an overseas company;

in the same way and with the same consequences as if the overseas company were a company registered under this Ordinance.

(2) This Part shall not apply to a hypothecation, mortgage or charge created or arising before this Ordinance comes into force :

Provided that : —

(a)   if after this Ordinance comes into force a company acquires assets which are subject to a hypothecation, mortgage or charge created or arising before that time, this Part shall apply as though the hypothecation, mortgage or charge had been created or arose on the day when this Ordinance comes into force ; and

(b)   nothing in this section shall affect the operation of sections 14 and 16 of the Companies (Debentures and Floating Charges) Ordinance 1970.

99. It shall be an offence punishable by a fine not exceeding ten thousand rupees or by imprisonment for not more than one year, or by both such fine and imprisonment, for any person to make a statement which he knows to be false or which he does not believe to be true for the purpose of inducing the Registrar to make, amend or cancel, or not to make, amend or cancel, an entry in the register kept under this Part.