1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY SUMMONS FOR DIRECTION NO. 380 OF 2011 In the matter of: The Companies Act, 1956 And In the matter of: Sections 391 to 394 of the Companies Act, 1956 And In the matter of: Tata Capital Limited And In the matter of: The scheme of Arrangement between Tata Capital Limited (“Applicant Company” or “Transferor Company”) and Tata Capital Financial Services Limited (“Transferee Company”) and their respective members and creditors. Tata Capital Limited, a company incorporated under the provisions of the Companies Act, 1956 having its registered office at One Forbes, Dr. V B Gandhi Marg, Fort, Mumbai – 400 001, Maharashtra ) ) ) ) ) …. Applicant Company 2 CALLED SUMMONS FOR DIRECTION Coram: S. J. Kathawalla, J. Date: 24th June, 2011 Mr. Sharan Jagtiani along with Mr. Sayantan Banerjee and Mr. Molla Hasan i/b AZB & Partners, Advocates for the Applicant Company MINUTES OF THE ORDER UPON the application of the Applicant Company abovenamed by the Summons for Direction AND UPON HEARING Mr. Sharan Jagtiani along with Mr. Sayantan Banerjee and Mr. Molla Hasan instructed by AZB & PARTNERS, Advocates for the Applicant Company, AND UPON READING the Affidavit dated 5th day of May, 2011 and Additional Affidavit dated 15th day of June, 2011 and Additional Affidavit dated 17th June, 2011 of Ms. Avan Kayomars Doomasia, the Deputy Company Secretary of the Applicant Company, in support of Summon for Direction along with the Exhibits therein referred to, IT IS ORDERED: 1. That a meeting of the Equity Shareholders of Tata Capital Limited, the “Applicant Company/ Transferor Company”, be convened and held at Rama Watumull Auditorium, Kishanchand Chellaram College, 124, Dinshaw Wachha Road, Churchgate, Mumbai - 400 020 on Tuesday, the 9th day of August 2011 at 9.00 a.m., for the purpose of considering, and if thought fit, approving, with or without modification, the proposed Scheme of Arrangement between the Applicant Company and Tata Capital Financial Services Limited and their respective members and creditors. 2. That a separate meeting of the Secured Creditors of the Applicant Company be convened and held at Rama Watumull Auditorium, Kishanchand Chellaram College, 124, Dinshaw Wachha Road, Churchgate, Mumbai - 400 020 on Tuesday, the 9th day of August 2011 at 9.45 a.m., for the purpose of considering, and if thought fit, approving, with or without modification, the proposed Scheme of Arrangement between the Applicant Company and Tata Capital Financial Services Limited and their respective members and creditors. 3 3. That a separate meeting of the Unsecured Creditors (other than the Debenture Holders) of the Applicant Company be convened and held at Rama Watumull Auditorium, Kishanchand Chellaram College, 124, Dinshaw Wachha Road, Churchgate, Mumbai - 400 020 on Tuesday, the 9th day of August 2011 at 10.15 a.m., for the purpose of considering, and if thought fit, approving, with or without modification, the proposed Scheme of Arrangement between the Applicant Company and Tata Capital Financial Services Limited and their respective members and creditors. 4. That there are no Secured, Non-Convertible Debentures (Short Term) of the Applicant Company issued pursuant to the Debenture Trust Deed dated 26th September, 2008 as stated in paragraph 3 of the Additional Affidavit dated 15th June, 2011 filed by the Applicant Company in Support of the Summons for Direction. Hence, the question of convening and holding the meeting of the Debenture Holders of the Applicant Company holding Secured, Non-Convertible Debentures (Short Term) of the Applicant Company issued pursuant to the Debenture Trust Deed dated 26th September, 2008, for the purpose of considering, and if thought fit, approving, with or without modification, the proposed Scheme of Arrangement between the Applicant Company and Tata Capital Financial Services Limited and their respective members and creditors, does not arise. 5. That a separate meeting of the Debenture Holders of the Applicant Company holding Secured, Redeemable Non-Convertible Debentures of the Applicant Company issued pursuant to the Debenture Trust Deed dated 9th July, 2010 be convened and held at Rama Watumull Auditorium, Kishanchand Chellaram College, 124, Dinshaw Wachha Road, Churchgate, Mumbai - 400 020 on Tuesday, the 9th day of August 2011 at 11.00 a.m., for the purpose of considering, and if thought fit, approving, with or without modification, the proposed Scheme of Arrangement between the Applicant Company and Tata Capital Financial Services Limited and their respective members and creditors. 6. That a separate meeting of the Debenture Holders of the Applicant Company holding Secured, Redeemable Non-Convertible Debentures of the Applicant Company issued pursuant to the Debenture Trust Deed dated 25th September, 2008 be convened and held at Rama Watumull Auditorium, Kishanchand Chellaram College, 124, Dinshaw 4 Wachha Road, Churchgate, Mumbai - 400 020 on Tuesday, the 9th day of August 2011 at 11.30 a.m., for the purpose of considering, and if thought fit, approving, with or without modification, the proposed Scheme of Arrangement between the Applicant Company and Tata Capital Financial Services Limited and their respective members and creditors. 7. That a separate meeting of the Debenture Holders of the Applicant Company holding Secured, Redeemable Non-Convertible Debentures (Public) of the Applicant Company issued pursuant to the Debenture Trust Deed dated 12th February, 2009 be convened and held at Rama Watumull Auditorium, Kishanchand Chellaram College, 124, Dinshaw Wachha Road, Churchgate, Mumbai - 400 020 on Tuesday, the 9th day of August 2011 at 1.00 p.m., for the purpose of considering, and if thought fit, approving, with or without modification, the proposed Scheme of Arrangement between the Applicant Company and Tata Capital Financial Services Limited and their respective members and creditors. 8. That a separate meeting of the Debenture Holders of the Applicant Company holding Unsecured, Non-Convertible, Perpetual Debentures of the Applicant Company issued pursuant to the Debenture Trust Deed dated 30th December, 2010 be convened and held at Rama Watumull Auditorium, Kishanchand Chellaram College, 124, Dinshaw Wachha Road, Churchgate, Mumbai - 400 020 on Tuesday, the 9th day of August 2011 at 12 noon, for the purpose of considering, and if thought fit, approving, with or without modification, the proposed Scheme of Arrangement between the Applicant Company and Tata Capital Financial Services Limited and their respective members and creditors. 9. That a separate meeting of the Debenture Holders of the Applicant Company holding Unsecured, Redeemable, Non-Convertible Debentures of the Applicant Company issued pursuant to the Debenture Trust Deed dated 3rd August, 2009 be convened and held at Rama Watumull Auditorium, Kishanchand Chellaram College, 124, Dinshaw Wachha Road, Churchgate, Mumbai - 400 020 on Tuesday, the 9th day of August 2011 at 12.30 p.m., for the purpose of considering, and if thought fit, approving, with or without modification, the proposed Scheme of Arrangement between the Applicant Company and Tata Capital Financial Services Limited and their respective members and creditors. 5 10. There are no preference shareholders of the Applicant Company as stated in paragraph 31 of the Affidavit in Support of the Summons for Direction. Hence, the question of convening and holding meeting of the preference shareholders of the Applicant Company for the purpose of considering and, if thought fit, approving, with or without modification(s), the Scheme, which, provides for transfer of the Transferred Undertaking of the Applicant Company to the Transferee Company; does not arise. 11. That the issuing of individual notices to each Unsecured Creditor to whom the amount owed by the Applicant Company is less than Rs. 50,000 (Rupees Fifty Thousand) is dispensed with. 12. That the Applicant Company had undertaken in paragraph 28 of the Affidavit dated 5th May, 2011 in Support of the Summons for Direction to obtain the consent of the Debenture Trustee in view of Clause 35B(II)(b) of the Debenture Trust Deed dated 12th February, 2009. In accordance to the same, the Debenture Trustee had issued its consent letter dated 14th June, 2011 which has been annexed as Exhibit “C” to the Additional Affidavit dated 17th June, 2011 filed by the Applicant Company in Support of the Summons for Direction, and in view thereof, the issuing of individual notices to each Debenture Holder holding Secured, Redeemable Non-Convertible Debentures (Public) of the Applicant Company issued pursuant to the Debenture Trust Deed dated 12th February, 2009 to whom the amount owed by the Applicant Company is less than Rs 1,00,000 (Rupees One Lakh) is dispensed with. 13. That at least 21 clear days before the date appointed for the aforesaid meetings, the advertisement convening the same and stating that the copies of the Scheme and of the explanatory statement required to be furnished pursuant to Section 393 of the Companies Act, 1956 and forms of proxy be obtained free of charge at the registered office of the Applicant Company, be published in the Free Press Journal (Mumbai Edition) in English language and Marathi translation thereof in Maharashtra Times (Mumbai Edition), both having circulation in Mumbai. Publication in Maharashtra Government Gazette is dispensed with. 14. That at least 21 clear days before the meeting to be held as aforesaid, a notice convening the said meeting of Equity Shareholders on the day, date, place, and time 6 as aforesaid, together with a copy of the Scheme, a copy of the explanatory statement required to be sent under Section 393 of the Companies Act, 1956 and the prescribed form of proxy, shall be sent by speed post to each of the Equity Shareholders of the Applicant Company at their registered or last known addresses by the Applicant Company. 15. That at least 21 clear days before the meeting to be held as aforesaid, a notice convening the said meeting of Secured Creditors on the day, date, place, and time as aforesaid, together with a copy of the Scheme, a copy of the explanatory statement required to be sent under Section 393 of the Companies Act, 1956 and the prescribed form of proxy, shall be sent by speed post to each of the Secured Creditors of the Applicant Company at their registered or last known addresses by the Applicant Company. 16. That at least 21 clear days before the meeting to be held as aforesaid, a notice convening the said meeting of Unsecured Creditors (other than the Debenture Holders) on the day, date, place, and time as aforesaid, together with a copy of the Scheme, a copy of the explanatory statement required to be sent under Section 393 of the Companies Act, 1956 and the prescribed form of proxy, shall be sent by speed post to each of the Unsecured Creditors of the Applicant Company at their registered or last known addresses. 17. That at least 21 clear days before the meeting to be held as aforesaid, a notice convening the said meeting of Debenture Holders of the Applicant Company in relation to the Secured, Redeemable Non-Convertible Debentures of the Applicant Company issued pursuant to the Debenture Trust Deeddated 9th July, 2010 on the day, date, place, and time as aforesaid, together with a copy of the Scheme, a copy of the explanatory statement required to be sent under Section 393 of the Companies Act, 1956 and the prescribed form of proxy, shall be sent by speed post to each of such Debenture Holder at their registered or last known addresses. 18. That at least 21 clear days before the meeting to be held as aforesaid, a notice convening the said meeting of Debenture Holders of the Applicant Company in relation to the Secured, Redeemable Non-Convertible Debentures of the Applicant Company issued pursuant to the Debenture Trust Deed dated 25th September, 2008 on 7 the day, date, place, and time as aforesaid, together with a copy of the Scheme, a copy of the explanatory statement required to be sent under Section 393 of the Companies Act, 1956 and the prescribed form of proxy, shall be sent by speed post to each of such Debenture Holder at their registered or last known addresses. 19. That at least 21 clear days before the meeting to be held as aforesaid, a notice convening the said meeting of Debenture Holders of the Applicant Company in relation to the Secured, Redeemable Non-Convertible Debentures (Public) of the Applicant Company issued pursuant to the Debenture Trust Deeddated 12th February, 2009 on the day, date, place, and time as aforesaid, together with a copy of the Scheme, a copy of the explanatory statement required to be sent under Section 393 of the Companies Act, 1956 and the prescribed form of proxy, shall be sent by speed post to each of such Debenture Holder at their registered or last known addresses. 20. That at least 21 clear days before the meeting to be held as aforesaid, a notice convening the said meeting of Debenture Holders of the Applicant Company in relation to the Unsecured, Non-Convertible, Perpetual Debentures of the Applicant Company issued pursuant to the Debenture Trust Deed dated 30th December, 2010 on the day, date, place, and time as aforesaid, together with a copy of the Scheme, a copy of the explanatory statement required to be sent under Section 393 of the Companies Act, 1956 and the prescribed form of proxy, shall be sent by speed post to each of such Debenture Holder at their registered or last known addresses. 21. That at least 21 clear days before the meeting to be held as aforesaid, a notice convening the said meeting of Debenture Holders of the Applicant Company in relation to the Unsecured, Redeemable, Non-Convertible Debentures of the Applicant Company issued pursuant to the Debenture Trust Deed dated 3rd August, 2009 on the day, date, place, and time as aforesaid, together with a copy of the Scheme, a copy of the explanatory statement required to be sent under Section 393 of the Companies Act, 1956 and the prescribed form of proxy, shall be sent by speed post to each of such Debenture Holder at their registered or last known addresses. 22. That the settling and approving of the form of advertisement, form of proxy, the form of notice, the Statement required to be furnished pursuant to Section 393 of the 8 Companies Act, 1956 to accompany the notice by the Company Registrar of this Court is dispensed with. The Applicant undertakes to: a) issue Notice convening the meetings of the Equity Shareholders, Secured Creditors, Unsecured Creditors and Debenture Holders of the Applicant Company under the Debenture Trust Deeds dated 9th July, 2010, 25th September, 2008, 12th February, 2009, 30th December, 2010 and 3rd August, 2009 respectively as per Form No. 36 (Rule 73); b) issue Form of Proxy as per Form No. 37 (Rule 73); c) advertise the Notice convening meetings as per Form No. 38 (Rule 74); d) issue Statement containing all the particulars as per Section 393 of the Companies Act, 1956; The undertaking is accepted. 23. That Mr.F. K. Kavarana, Director of the Applicant Company, failing whom, Mr. Janki Ballabh, Director of the Applicant Company, failing whom, Mr. Praveen P. Kadle, Director of the Applicant Company, failing whom, Mr. F. N. Subedar, Director of the Applicant Company, failing whom, Mr. S. H. Rajadhyaksha, Company Secretary of the Applicant Company, shall be the Chairman for the aforesaid meetings of Equity Shareholders, Secured Creditors, Unsecured Creditors and Debenture Holders of the Applicant Company under the Debenture Trust Deeds dated 9th July, 2010, 25th September, 2008, 12th February, 2009, 30th December, 2010 and 3rd August, 2009 respectively as aforesaid or any adjournment/s thereof. 24. That the Chairman appointed for the aforesaid meetings to issue the advertisement and send out the notices of the meeting referred to above. 25. That the Chairman of the aforesaid meetings shall have all powers under the Companies (Court) Rules, 1959 in relation to conduct of the meetings including for deciding any procedural questions that may arise at the meeting or at any adjournment or adjournments thereof or on any other matter including the amendment(s) to the Scheme or resolution, if any, proposed at the meeting by any person(s) and to ascertain the decision of the meeting. 9 26. That the quorum for the meeting of the Equity Shareholders of the Applicant Company shall be 5 shareholders present in person. 27. That the quorum for the meeting of the Secured Creditors of the Applicant Company shall be 5 Secured Creditors present in person or by proxy or through an authorized representative. 28. That the quorum for the meeting of the Unsecured Creditors of the Applicant Company shall be 5 Unsecured Creditors present in person or by proxy or through an authorized representative. 29. That the quorum for the meeting of the Debenture Holders of the Applicant Company in relation to the Secured, Redeemable Non-Convertible Debentures of the Applicant Company issued pursuant to the debenture trust deed dated 9th July, 2010 shall be 5 Debenture Holders present in person or by proxy or through an authorized representative. 30. That the quorum for the meeting of the Debenture Holders of the Applicant Company in relation to the Secured, Redeemable Non-Convertible Debentures of the Applicant Company issued pursuant to the debenture trust deed dated 25th September, 2008 shall be 5 Debenture Holders present in person or by proxy or through an authorized representative. 31. That the quorum for the meeting of the Debenture Holders of the Applicant Company in relation to the Secured, Redeemable Non-Convertible Debentures (Public) of the Applicant Company issued pursuant to the debenture trust deed dated 12th February, 2009 shall be 5 Debenture Holders present in person or by proxy or through an authorized representative. 32. That the quorum for the meeting of the Debenture Holders of the Applicant Company in relation to the Unsecured, Non-Convertible, Perpetual Debentures of the Applicant Company issued pursuant to the debenture trust deed dated 30th December, 2010 shall be 5 Debenture Holders present in person or by proxy or through an authorized representative. 10 33. That the quorum for the meeting of the Debenture Holders of the Applicant Company in relation to the Unsecured, Redeemable, Non-Convertible Debentures of the Applicant Company issued pursuant to the debenture trust deed dated 3rd August, 2009 shall be 5 Debenture Holders present in person or by proxy or through an authorized representative. 34. That voting by proxy/ through authorized representative is permitted, provided that the proxy in the prescribed form/ authorization duly signed by the person entitled to attend and vote at the meeting, is filed with the Applicant Company at its registered office at One Forbes, Dr. V B Gandhi Marg, Fort, Mumbai – 400 001, Maharashtra, not later than 48 hours before the meeting as provided under Rule 70 of the Companies (Court) Rules, 1959. 35. That the list and value of the Equity Shareholders, Secured Creditors, Unsecured Creditors and Debenture Holders of the Applicant Company under the Debenture Trust Deeds dated 9th July, 2010, 25th September, 2008, 12th February, 2009, 30th December, 2010 and 3rd August, 2009 respectively shall be in accordance with the books/ registers of the Applicant Company and where the entries in the books/registers are disputed, the Chairman shall determine the value for the purpose of the meetings 36. That the Chairman appointed for the aforesaid meetings to file his report in this Court as to the results of the said meetings within 21 days of the conclusion of the meetings and the report shall be verified by his affidavit. (S. J. Kathawalla, J.)