Judgment : M. THANIKACHALAM, J. The applicant, as plaintiff, has filed the suit for declaration, that the notice dated 8.12.2006 issued in the name of defendants 5 to 30, convening an Extraordinary General Meeting of the first respondent/first defendant-company on 5.1.2007 at 10.30 a.m., at No.3, Ashok Pillar Road, Ashok Nagar,Chennai - 600 083 (Udhayam Complex) is illegal, invalid and ultra vires and for consequential permanent injunction restraining the defendants 5 to 30 from holding the Extraordinary General Meeting of the company on5.1.2007 or on any other subsequent date, in which this application has been filed, seeking an order of interim injunction, till the disposal of the suit. 2. The applicant would state, in his elaborate affidavit, that the attempt on the part of the respondents 5 to 30, to hold an Extraordinary General Meeting on 5.1.2007, is not only illegal, but also mala fide and is an wholesome effort to appoint respondents 6 to 9 as Directors, after removing respondents 2 to 4 from the office of the Directors. It is further alleged that the Directors were mismanaging the affairs of the company, because of their mal-administration and that if the proposed Extraordinary General Meeting of the company is allowed to be held on 5.1.2007, that would make the proceeding before the Company Law Board, Chennai, itself, infructuous and the balance of convenience also lies, in allowing the matters to be decided by a judicial forum. Thus elaborately alleging mismanagement and mal-administration etc., this application is filed, seeking an order of interim injunction. 3. In the counter affidavit, the respondents 5 to 30, denying the allegations in the affidavit, would contend that as per the notice issued, the respondents are competent to convene the meeting, which cannot be prevented by an order of interim injunction, since the balance of convenience and prima facie case are not in favour of the applicant, whereas they are in favour of the respondents. 4. Heard Mr. A. Venkataseshan, the learned counsel for the applicant and Mr. P.H. Arvindh Pandian, learned counsel for the respondents 5 to 30. 5. 4. Heard Mr. A. Venkataseshan, the learned counsel for the applicant and Mr. P.H. Arvindh Pandian, learned counsel for the respondents 5 to 30. 5. Thelearned counsel for the applicant would submit that the notice issued, calling for Extraordinary General Meeting, dated 8.12.2006, itself is prima facie illegal, since the same is not in accordance with the provisions of Sections 169 and 173 of the Companies Act and that there are mala fides in the proposed action taken by the respondents, in convening the Extraordinary Annual General Meeting and if that is allowed to go on, that will affect the right of the applicant, who is a shareholder and in this view, the applicant is entitled to an order of interim injunction, till the disposal of the suit. 6. Responding to the above submissions, the learned counsel for the respondents 5 to 30 would submit that as such, there is no violation of any kind and everything is in accordance with law, including the issuance of the notice and that even if any decision is to be taken on the date of Extraordinary General Meeting, that is subject to the approval of the Company Law Board in C.P. No.64 of 2006, thereby showing, no prejudice at all would be caused to the applicant and that though the applicant had received the notice as early as on 11.12.2006, he has not filed the suit in time, if really he has got any grievance, whereas the suit came to be filed only on 2.1.2007, thereby showing mala fide only on the part of the applicant and such kind of action should not be recognised, that too, when the Extraordinary General Meeting is being convened, pursuant to the requisition issued by the shareholders. Thus elaborating the above points, the learned counsel for the respondents 5 to 30 would submit that neither the balance of convenience nor the prima facie case is in favour of the applicant and therefore, the application deserves outright rejection. 7. Thus elaborating the above points, the learned counsel for the respondents 5 to 30 would submit that neither the balance of convenience nor the prima facie case is in favour of the applicant and therefore, the application deserves outright rejection. 7. By going through the entire pleadings, as well as by going through the relevant provisions of the Companies Act, including the documents relied on by either side, I am of the considered opinion that the applicant has not made out my prima facie case in his favour, as well as the balance of convenience also, to extend the discretionary order of granting interim injunction, till the disposal of the suit. On the other hand, it is demonstrated, if any interim order is granted, that will cause prejudice to the company as well as other shareholders, thereby further demonstrating, refusal to grant injunction will not cause any harm to the applicant also, since his right, if any, is not going to be aftected in view of the admitted position, that a case is pending before the Company Law Board in C.P. No.64 of 2006, that too in view of the order passed therein. 8. Theapplicant/plaintiff is the shareholder in the first respondent/first defendant-company. The respondents 2 to 5 are the Directors of the first respondent-company. It seems, respondents 6 to 9 are the proposed Directors or fresh Directors, whereas other respondents are the shareholders of the first respondent-company. Because of the mal-administration or dispute between the Directors of the first respondent-company, Mrs. S. Gomathi Ammal and other shareholders of the first respondent company issued a notice dated 14.11.2006, requesting the Board of Directors to convene an Extraordinary General Meeting of the company within a period of 45 days from the date of receipt of the requisition, for the purpose of transacting some special business, as narrated in the notice, which is available in the typed-set of papers filed on behalf of the respondents 5 to 30. It seems, the Board of Directors have not responded to the call of the share- holders, as per the notice dated 14.11.2006. Therefore, the shareholders themselves have issued a notice dated 8.12.2006 to the Board of Directors of the first respondent-company, as well to the applicant, calling for an Extraordinary General Meeting of the first respondent- company, fixing the date as 5.1.2007, fixing the venue also. Therefore, the shareholders themselves have issued a notice dated 8.12.2006 to the Board of Directors of the first respondent-company, as well to the applicant, calling for an Extraordinary General Meeting of the first respondent- company, fixing the date as 5.1.2007, fixing the venue also. This notice is under challenge in the suit, as pointed out by me supra. 9. The learned counsel for the applicant would submit that this notice dated 8.12.2006 fails to comply with the provisions of Section 169 of the Companies Act. By going through the provisions of Section 169 of the Companies Act, as well as the notice dated 8.12.2006,1 am unable to affix my seal of approval to the above said contention. Section 169(6) of the Companies Act reads: “If, the Board does not, within twenty-one days from the date of the deposit of a valid requisition in regard to any matters, proceed duly to call a meeting for the consideration of those matters on a day not later than forty-five days from of those the date of the deposit of the requisition, the meeting may called- (a) by the requisitionists themselves; (b) in the case of a company having a share capital, by such of the requisitionists as represent either a majority in value of the paid-up share capital held by all of them or not less than one-tenth of such of the paid-up share capital of the company as is referred to in Clause (a) of sub-section (4), whichever is less; or (c) in the case of a company not having a share capital, by such of the requisitionists as represent not less than one-tenth of the total voting power of all the members of the company referred to in Clause (b) of sub-section (4).” 10. In this case, as adverted to above, as per the notice dated 14.11.2006, the Board of Directors have failed to call for the Extraordinary General Meeting and therefore, as contemplated under Section 169(6) of the Companies Act, the shareholders are entitled to convene the Extraordinary General Meeting, which is done in this case, as per the notice dated 8.12.2006, in which I am unable to find any infirmity, thereby showing any prima facie illegality. 11. 11. The learned counsel for the applicant, having unable to satisfy me, to label the notice dated 8.12.2006, as violative of Section 169 of the Companies Act, made an attempt to invalidate the notice, under the provisions of Section 173(2) of the Companies Act. Section 173(2) of the Companies Act reads: “Where any items of business to be transacted at the meeting are deemed to be special as aforesaid, there shall be annexed to the notice of the meeting, a statement setting out all material facts concerning each such item of business, including in particular the nature of the concern or interest, if any, therein, of every Director and the manager, if any.” Thus, it is clear, that when the Annual General Meeting is called for, for the purpose of transacting certain business, it shall annex a statement, to the notice of the meeting, setting out all material facts concerning each such item of business, including other particulars. Admittedly the notice, dated 8.12.2006 is not annexed with any statement, setting out all material facts, concerning each such items of business. Therefore, according to the learned counsel for the applicant, this notice should be held invalid prima facie and this being the position, on the basis of the illegal notice, said to have been issued by the shareholders if an Annual General Meeting is allowed to be held, that may not be proper and in support of the same, my attention was drawn to a decision of the Gujarat High Court in Mohanlal Ganpatram and Another v. Shri Sayaji Jubilee Cotton and Jute Mills Co. Ltd and Others Mohanlal Ganpatram and Another v. Shri Sayaji Jubilee Cotton and Jute Mills Co. Ltd and Others Mohanlal Ganpatram and Another v. Shri Sayaji Jubilee Cotton and Jute Mills Co. Ltd and Others AIR 1965 Guj.96. 12. In the said case, as seen from paragraph No.59 of the judgment it is held: “59. The object of enacting Section 173 (of the Companies Act) is to secure that all facts which have a bearing on the question on which the shareholders have to form their judgment are brought to the notice of the shareholders so that the shareholders can exercise an intelligent judgment. Any disobedience to its requirements must lead to nullification of the action taken. Any disobedience to its requirements must lead to nullification of the action taken. Thus, a meeting of the company held in contravention of the provisions of Section 173, would be invalid and so also would the resolution passed at that meeting be invalid.” 13. By going through the said judgment deeply, applying the provisions of the law also very carefully, as rightly distinguished by the learned counsel for the contesting respondents, it is to be held, this decision will not come to the aid of the applicant to invalid etc., prima facie, at present, the impugned notice. As submitted by the learned counsel for the respondents 5 to 30, Section 173(2) of the Companies Act, may be applicable, when the notice was issued by the Board of Directors, calling for an Annual General Meeting and not for the notice issued by the shareholders, as in the case on hand. The above quoted passage, from the Gujarat High Court judgment, would indicate the purpose of the statement to be annexed with the notice, which emphasise, that the shareholders should have the knowledge about the meeting, in order to exercise an intelligent judgment, thereby making it mandatory, if a notice has been issued by the Board of Directors, calling for an Annual General Meeting, that notice shall be annexed with a statement, setting out all material facts and certainly not in the case where the shareholders have issued the notice, calling for Annual General Meeting, which is supported by a decision of this Court in S. Varadarajan v. Venkateswara Solvent Extraction (P) Ltd. and Others S. Varadarajan v. Venkateswara Solvent Extraction (P) Ltd. and Others S. Varadarajan v. Venkateswara Solvent Extraction (P) Ltd. and Others 80 CC 693. 14. The learned counsel for the respondents 5 to 30 would submit that in view of the Articles of Association of the first respondent company, the mandatory provision of Section 173(2) of the Companies Act is not applicable to the case on hand, for which, 1 cannot say ‘NO’, considering the Articles of Association, which is binding upon the applicant also. 15. Article 32 of the Articles of Association of the first respondent-company reads: “14 days’ notice, atleast specifying the place, date and hour of the Annual General Meeting or other General Meetings shall be given. 15. Article 32 of the Articles of Association of the first respondent-company reads: “14 days’ notice, atleast specifying the place, date and hour of the Annual General Meeting or other General Meetings shall be given. The provisions of Sections 171 to 186 of the Companies Act, 1956 shall not apply to this company.” Thus, it has been shown, that the provisions of Sections 171 to 186 of the Companies Act, are not made applicable to the first respondent-company, which is not under challenge before me, which is permissible under the Companies Act also. Therefore, at present, it is impossible to say, that the notice dated 8.12.2006 is invalid, prima facie or it infringed the provisions of Sections 169 or 173(2) of the Companies Act. For these reasons, I am constrained to say, that questioning the validity of the notice and on that basis restraining the respondents from convening the meeting, may not be desirable, since it appears, to my mind, prima facie, it may not be legally sound also. 16. The conduct of the applicant/plaintiff also would suggest that he has not come to Court with clean hands, at appropriate time and in this view, he is not entitled to injunction, to prevent the respondents from convening the meeting on 5.1.2007. As indicated above, the notice dated 8.12.2006 was served upon the applicant Mr. N. Sankara Narayanan on 11.12.2006, not disputed. If really, he had any grievance, he ought to have come to the Court immediately, but he failed to do so. After the C.P. Number 64 of 2006 has been tiled before the Company Law Board, Chennai, only at the last minute, that is on 2.1.2007, this suit came to be filed, wherein this application also has been filed, seeking an order of interim injunction, thereby showing some kind of mala fide on the part of the applicant, not vice versa. In this view of the matter, such kind of person is not entitled to disturb the meeting to be held on 5.1.2007, which appears to be legally sought to be convened. 17. The learned counsel for the applicant would submit that on the ground of mala fide also, the applicant is entitled to an order of injunction and in support of the same, he drew my attention to certain portions of the counter filed by the respondents 5 to 30. 17. The learned counsel for the applicant would submit that on the ground of mala fide also, the applicant is entitled to an order of injunction and in support of the same, he drew my attention to certain portions of the counter filed by the respondents 5 to 30. In paragraph No.11 of the counter, it is stated “… since the respondents 2 to 4 are being removed, the respondents 6 to 9 are being appointed in their place, thereby complying with the legal requirements.” But, in the notice dated 8.12.2006, the subject matter to be considered appears to be, to pass a resolution with or without modification, as ordinary resolution, to appoint the above persons also as the Directors of the company. Therefore, it seems, already a decision was taken, which is sought to be confirmed in the Annual General Meeting. From this angle alone, I cannot say, at present, there is mala fide on the part of the persons, who have issued the notice, calling for Annual General Meeting on 5.1.2007. On this ground, I am unable to favour an order of interim injunction in favour of the applicant, supporting the case of the applicant. 18. The submission of the learned counsel for the contesting respondents, that no prejudice would be caused, if the meeting is allowed to be held on 5.1.2007, in view of the order passed by the Company Law Board, Chennai, appears to be basically sound and in this view, the meeting should be allowed to go on. As seen from the order passed by the Company Law Board, in C.P.No.64 of 2006 filed by S. Balasubramanian and others, any resolution which may be passed in the Extraordinary General Meeting will not be put into operation or implemented, without the leave of the Company Law Board and the said order reads: “2. The company as and when convenes any Extraordinary General Meeting pursuant to the requisition given by the shareholders will not implement any of the resolutions which may be passed at such meeting, without leave of this Bench.” Further, the order reads, ‘the company is at liberty to convene the Board Meeting with leave of this Bench.‘This being the position, if an order is passed by this Court, it will be contradicting the order passed by the Company Law Board, which is not desirable. It appears, some of the shareholders have already moved applications to implead themselves as parties before the Company Law Board and those applications are also allowed. Therefore, if the applicant, who is also one of the shareholders, has any grievance, in the management or maladministration of the firstrespondent company by the Directors, he can very well join as a party in the C.P. No.64 of 2006 and agitate his right, if any. In this view, it is to be held, the refusal of interim injunction in this case will not affect the right of the applicant, if any. Further, in the meeting to be held on 5.1.2007, if any resolution is passed, the same cannot be implemented automatically, whereas the approval should be obtained or leave should be obtained from the Company Law Board. In this view, even if any resolution is passed on 5.1.2007, for its implementation, the parties have to approach the Company Law Board and the applicant, if he desires, can get himself impleaded as a party in C.P. No.64 of 2006 and question the resolution, if any passed in the Annual General Meeting to be held on 5.1.2007. 19. By analysing from all the possible and probable angles of the case, my considered opinion is, no prima facie case or balance of convenience has been made out by the applicant, to grant an interim injunction, whereas the balance of convenience and prima facie case are only, in favour of the contesting respondents 5 to 30 and to favour the same, legally, the claim of the applicant for interim injunction, deserves to be rejected. In the result, this application is dismissed.