ORDER :

1. Heard learned advocate Ms. P.J. Davawala for the applicant and learned advocate Mr. Karan Sanghani for learned advocate Mr. Nikunt Raval for respondent no.2.

2.The Official Liquidator has filed this application with the following prayers :

“(A) Declare that the respondents-accused who were Directors of M/s Esskay Pharmaceutical Ltd has misapplied, retained or misused for their own personal purpose and benefit funds of the company and became liable and accountable for money or property of the Company;

(B) For a declaration that the respondents accused who were Directors of M/s Esskay Pharmaceutical Ltd were and are guilty of misfeasance, breach of the trust, breach of duties and gross negligence in discharging their duty as Directors of the Company and the Managing Affairs of the Company in negligent manner;

(C) For order that all necessary inquiry be made and accounts be taken for ascertainment of the same that the respondents-accused are liable to contribute to the assets of the company in liquidation by way of compensation for the said misfeasance and breach of trust;

(D) Order that the respondents-accused jointly and severally contribute to the assets of the company in liquidation and to pay official liquidator of the company in liquidation all such sum that may be found liable to be contributed in view of misfeasance, breach of trust, breach of duties and gross negligence committed by the respondent accused together with the interest on the said amount at 18% from such date as the Hon’ble Court may direct till actual payment.

(E) For order that the respondent-accused do pay costs, charges and expenses incurred by the Liquidator, by way fees of Chartered Accountant and fees of the Legal Advisors as may be deemed fit by the Hon'ble Court;

(F) Such other and further reliefs and directions as the Hon’ble Court in the facts and circumstances of the case may be passed as deemed fit.”

3. The Official Liquidator has purportedly preferred this application under section 478 read with section 543 of the Companies Act, 1956 (For short, “the Act,”).

4. The Official Liquidator has also along with this application placed misfeasance report prepared by M/s. K.A. Shah & Company, Chartered Accountants.

5. It appears that the affidavit in support of Judges Summons is based upon the findings arrived at by Chartered Accountants - M/s. K.A. Shah & Company, pointing out misfeasance done by the respondent Managing Director.

6. After filing of the aforesaid application, this Court issued notice vide order dated 18.10.2007.

7. By order dated 10.03.2008, this Court permitted learned advocate Mr. N.K. Majmudar appearing for the respondent to get a copy of the report and directed the respondent to remain present before the Court on every hearing.

8. On 21.11.2008, following order was passed by this Court :

“1. This matter is listed 27 times. Still it is at a stage whereby the documents have to be collected from the Office of the Official Liquidator. It appears that under one pretext or the another, time is sought for and the necessary compliance of the Order has yet not been made. The Official Liquidator is directed to provide zerox copies of the documents which are demanded by the Respondent within one week from today.

2. Matter is adjourned to December 2, 2008. The respondent is directed to remain personally present before this Court on that day.”

9. Thereafter the affidavit was filed on behalf of the respondent and time was sought for filing rejoinder on behalf of the Official Liquidator and the matter was adjourned from time to time.

10. This Court passed the following order on 17.02.2010 :

“Mr. Suthar, learned Advocate appearing for Mr. N.K. Majmudar on behalf of respondent is hereby directed to ensure that the respondent shall tender on affidavit a list of all personal and family assets (family comprised of self, spouse and minor children, if any) alongwith details of the ward and circle where the respondent is assessed under provisions of Income Tax Ac