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10. In the reply to the application the respondent-company has reiterated that the petitioner has already moved an application, namely, I. A. No. 9982 of 1997 by which they have sought directions for restraining the respondents from giving effect to the decisions taken by circular resolutions dated October 1, and October 3, 1997. In fact the circular resolution dated. October 3, 1997, inter alia, provides for fixing the date for holding the annual general meeting pursuant to which the annual general meeting is being held on December 5, 1997. In other words, the petitioners are on the one hand seeking to stop the annual general meeting and on the other praying for an order from the CLB for calling the annual general meeting. The petitioner is also guilty of concealment, misrepresentation and misleading of the Board by making false allegations. It is further stated that the present chairman has previously conducted six annual general meetings of the company and there has not been any complaint or doubt about his integrity and impartiality. In fact the board had unanimously appreciated the commendable job done by Shri P. N. Vedanarayanan in conducting six annual general meetings. In view of the above, the prayer for appointment of any other chairman for the annual general meeting is totally uncalled for.

12. Shri Aggarwala also pointed out that the petitioner is clearly pursuing parallel proceedings inasmuch as the application, namely, I. A. No. 9982 of 1997 before the Delhi High Court seeks an order restraining the respondent-company from implementing the circular resolution which means an order to restrain the respondent-company from holding the proposed annual general meeting. In the same breath, the company is seeking an order from the CLB for convening the annual general meeting and to appoint another chairman for the meeting.

27. Another argument of petitioner's counsel is that the default had occurred on the date of filing of the petition and as such the jurisdiction was there when the petition was filed. However, subsequently since the board of directors by a circular resolution has called an annual general meeting he is not pressing his prayer for the CLB calling the annual general meeting but his prayer with regard to the other directions, namely, appointment of an independent chairman could be considered. In this connection, the argument from the respondent's side that the petitioner was aware particularly when the director who signed the petition on behalf of the petitioner-company having received the circular resolution for calling the AGM on December 5, is relevant. In other words, the petitioner is in the know of the fact that the date of the annual general meeting has been already fixed and as such there is no default in convening the annual general meeting. Apart from the knowledge about the date of the meeting, on the date of filing the petition, there was no default at all. A default would arise only on the expiry of the year or on the expiry of the 15 months period from the last meeting. Till any one of these events occurs there cannot be a default and the jurisdiction cannot be invoked. Thus, the petition is undoubtedly premature. This being the case, invoking the jurisdiction where no jurisdiction lies, through a petition under Section 167 cannot be entertained. It is also necessary to record here that what the petitioner is seeking is the incidental orders with regard to the appointment of an independent chairman. In this connection, I am in full agreement with counsel for the respondent-company that due to lack of jurisdiction when the main relief itself cannot be granted there is no question of granting incidental reliefs. A question of incidental relief could be considered if at the time of filing the petition, the cause of action had existed but due to the subsequent action on the part of the respondents, the main relief is not pressed. In the present case, however, even the cause of action on the date of filing of the petition did not exist as no default has been committed. Moreover, the signatory to the petition was himself aware that the annual general meeting has been already called for. Hence, ab initio the cause of action did not exist as there was no default and hence granting incidental relief does not arise due to lack of jurisdiction. I have considered in this connection the contention of the petitioner in the supplementary affidavit that the agenda was finalised only on October 29, 1997. The fact, however, remains that the date of the annual general meeting has been already accepted by respondents as December 5, 1997, and finalisation of the agenda is a mere technicality.

29. The admissibility is also being challenged as a preliminary objection on the ground of parallel proceedings before the Delhi High Court and the CLB on the same issues and with the same reliefs. In this connection, what is specific to note is that the petitioner along with others has filed an interim application, namely, I. A. No. 9982 of 1997 in which the petitioner has sought to restrain the respondent-company from proceeding to implement the decision as per the circular resolutions of 1st as also of 3rd October, 1997, which specifically relates to the calling of the annual general meeting on December 5, 1997. According to the respondents, since a prayer relating to the annual general meeting of December 5, 1997, is before the High Court such a prayer cannot be agitated before the CLB, since there is the possibility of clash of decisions. In this connection, on behalf of the petitioner-company an additional affidavit was filed to state that they have not sought any relief with regard to the holding of the annual general meeting and as such there will be no impediment for the CLB passing an order concerning the annual general meeting. I have considered the rival contentions as well as the prayers before both the forums. The additional affidavit filed before me by the petitioner only clarifies the stand of the petitioner, but does not specifically contain a commitment for withdrawal of the prayer with regard to the annual general meeting in the context of the implementation of the circular resolution dated October 3, 1997. Further, since the suit before the High Court has been filed by not only the petitioner-company but also by certain others it will not be possible for the petitioner-company to withdraw such prayer on its own unless all the plaintiffs therein have withdrawn such prayer. Further, the point raised by Shri P. V. Kapoor with regard to Order 11, Rule 2 of the Civil Procedure Code is also relevant. The suit before the High Court includes the whole of the claim, i.e., a declaration with regard to the validity of the entire resolution passed by a circulation which incorporates also the decision with regard to the annual general meeting. Since such a prayer continues before the High Court any decision that may be taken by the CLB will certainly conflict with the decision of the High Court on the same subject which should be avoided, particularly when the suit is prior to the present petition and the relevant I. A. is stated for hearing before the High Court before December 5, 1997, namely, the scheduled date of the annual general meeting.