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. 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 Act, 1961 and / or Wealth Tax Act, 1957. The respondent is put to notice that any withholding of information in relation to either movable or immovable assets shall entail criminal proceedings in accordance with law. The details to be tendered by respondent on or before 19/02/2010. Matter to come up on 19/02/2010.” 11. On 26.02.2010, following order was passed : “Learned Advocate for the respondent submits that the respondent is not present in the Court. The details to be tendered by respondent on or before 19/02/2010. Matter to come up on 19/02/2010.” 11. On 26.02.2010, following order was passed : “Learned Advocate for the respondent submits that the respondent is not present in the Court. This statement has come only after the Court called upon the learned Advocate to explain the details contained in the balance sheet of Pyramid Spaces Private Limited accompanying the affidavit dated 25/02/2010 tendered today. At this stage learned Advocate for the respondent tries to explain the absence on the basis of some e-mail communication received by the learned Advocate from the respondent as to illness of respondent. The said explanation is not accepted in absence of any evidence as to illness of respondent. Vide order dated 22/02/2010 a specific direction was issued that the respondent shall remain personally present on every successive date of hearing till further orders are passed by the Court, despite which the respondent has remained absent without permission of the Court. Hence Bailable Warrant to be issued to respondent – Kirti Jain at the address stated in the cause-title for a sum of Rs.50,000/- returnable on 02/03/2010. Registry is directed to forward the bailable warrant to the Commissioner of Police, Vadodara, for ensuring that J P Road Police Station or any other appropriate Police Station having jurisdiction complies with the order and the warrant by returnable date, today by Fax Message alongwith a copy by registered courier service. The Official Liquidator is directed to forward copies of the affidavits dated 18/02/2010, 23/02/2010 and 25/02/2010 alongwith all the enclosures to the Chief Commissioner of Income Tax, Vadodara with a request to have the financial affairs of the respondent, his wife and his HUF being investigated by the appropriate Officers having jurisdiction, possibly CIT (I), Vadodara and CIT (IV), Vadodara. The Chief Commissioner of Income Tax shall tender necessary report as to the source(s) of income of the respondent who is alleged to have committed misfeasance in relation to the affairs and funds of the company in liquidation viz., M/s. Esskay Pharmaceuticals Limited. The focus of the inquiry shall be as to the mode and manner of siphoning of the funds of the company in liquidation and whether the respondent, Shri Kirti Jain residing at A-1, Samparpan Society, Vasna Road, Vadodara is in a position to refund the amounts misappropriated. The focus of the inquiry shall be as to the mode and manner of siphoning of the funds of the company in liquidation and whether the respondent, Shri Kirti Jain residing at A-1, Samparpan Society, Vasna Road, Vadodara is in a position to refund the amounts misappropriated. The Commissioner is requested to furnish the report within a period of four weeks from today i.e. on or before 26/03/2010 in a sealed cover. The Official Liquidator is directed to ensure that all necessary details, as are available on record of this proceeding and the record available with the Official Liquidator are made available to the Income Tax Department for complying with the directions made by this Court. The Official Liquidator shall coordinate with the Income Tax Department to ensure compliance both in letter and spirit. Matter to be listed on 02/03/2010.” 12. Thereafter the matter was adjourned from time to time and as the respondent was not remaining present even cost was imposed by the Court. 13. A statement was made before the Court on 7.05.2010 that the respondent and all the Directors of the company in liquidation as well as the Directors of Pyramid Spaces Private Limited and S.K. Remedies Private Limited shall appear before the concerned Assessing Officer on 11.05.2010. 14. The respondent thereafter did not remain present before the Court. This Court therefore, passed the following order on 22.06.2011 : “1. Heard learned advocates for the parties. 2. Mr. N.K. Majmudar, learned advocate for the respondent submits that respondent is directed to remain present before this Court unless so exempted. It is further submitted that the respondent would file an undertaking that as and when his presence is necessary and any direction issued in this regard, the respondent would remain present and he is ready and willing to file an undertaking on oath. Learned advocate for the respondent further submits that in view of law laid down with regard to the procedure to be adopted by the Company Court for negotiation of prosecution, and necessary action in accordance with law pursuant to Sections 542 and 543 of the Companies Act, 1956 and Rules made thereunder he would like to rely on certain decisions of Apex Court as well as this Court. 3. 3. Undertaking dated 22nd June, 2011 filed by respondent is ordered to be taken on record and any breach of the above undertaking on the part of the respondent will automatically result into initiation of appropriate action in accordance with law. 4. With the aforesaid, subject to complying with the undertaking as above, respondent is exempted from personal appearance. 5. The matter is listed for hearing on 20th July, 2011.” 15. Thereafter on 20.07.2011, the following order was passed : “The Official Liquidator and the learned advocate for the Official Liquidator have requested for time. It is further submitted that the actions are required to be taken to prosecute the concerned officers, though in present case, the request for criminal liability/action and civil liability/action have been combined in the prayers. So as to take necessary steps with regard to the criminal liability /action, time is requested for. Hence, S.O to 16th August 2011, so as to enable the Official Liquidator to take necessary steps for conducting the case so far as civil liability/ action is concerned.” 16. It appears that the Official Liquidator filed further report dated 15.09.2011 pursuant to the aforesaid order dated 20.07.2011 seeking permission to avail the services of Mr. P.J. Dholakia, retired Judge of District Court to conduct the matter and further to place the proceedings of the matter on record of this Court and to pay the remuneration of Rs.10,000/- excluding other actual expenses to Mr. Dholakia. However thereafter it appears that the Official Liquidator has not pressed for passing any order on the aforesaid report and the matter was adjourned from time to time on one pretext or another and mostly due to lack of personal presence of the respondent. On 2.09.2013, the Court passed the following order : “When the petition is taken up for hearing, learned counsel for the respondent is not present. Therefore Directors of the Company are directed to remain personally present on the next date of hearing. Official Liquidator will supply address of Ex-Directors of the Company to the registry on or before 4.9.2013. After the address is supplied, let notice be issued to the Directors of the Company intimating them to remain personally present on the next date of hearing. S.O. to 30.9.2013.” 17. Official Liquidator will supply address of Ex-Directors of the Company to the registry on or before 4.9.2013. After the address is supplied, let notice be issued to the Directors of the Company intimating them to remain personally present on the next date of hearing. S.O. to 30.9.2013.” 17. As the Official Liquidator did not comply with the aforesaid order, order dated 6.09.2013 was passed followed by order dated 30.09.2013 whereby presence of the respondent was ordered to be dispensed with an undertaking on affidavit to remain present when instructed by learned advocate Mr. N.K. Majmudar under instructions of this Court. Order dated 6.09.2013 and 30.09.2013 are reproduced for ready reference : 6.09.2013 “1. Though this petition came to be adjourned to 30.9.2013 under order dated 2.9.2013, office has listed present petition for appropriate orders with office note dated 5.9.2013, which reads thus: “It is respectfully submitted that as per the Honourable Court's (Coram: Honourable Mr. Justice K.M. Thaker) order dated 02/09/2013, the official Liquidator has not supplied address of Ex-Directors of the Company to the Registry on or before 04/09/2013 in the matter.” 2. Official Liquidator was directed to supply addresses of the ex-directors of the company on or before 4.9.2013. 3. Office has informed that the address has not been supplied by the Official Liquidator. 4. As a last chance, time to Official Liquidator is granted to supply address of ex-directors. Addresses of the ex-directors of the company must be supplied to the office on or before 10.9.2013 If the address is not supplied by the Official Liquidator, Official Liquidator will be visited with cost of Rs.1,000/ for neglecting the order and directions of the Court passed at the request of Official Liquidator.” 30.09.2013 “1. The Official Liquidator has not complied with direction of this Court issued vide order dated 06.09.2013. 2. Therefore, in view of the said order dated 06.09.2013, the Official Liquidator is directed to pay cost of Rs.1000/- to the Legal Aid Committee. The amount should be paid on or before 04.10.2013. 3. As a last chance, time to provide details, as mentioned in the order dated 06.09.2013 is once again granted. Such addresses should be supplied to the Registry on or before 04.10.2013. The amount should be paid on or before 04.10.2013. 3. As a last chance, time to provide details, as mentioned in the order dated 06.09.2013 is once again granted. Such addresses should be supplied to the Registry on or before 04.10.2013. If need be, the Official Liquidator may take help from the respondent, who is present in the Court in view of previous direction and supply the complete, correct and present addresses of Ex-Directors of the Company on or before 04.10.2013. 4. After the addresses are supplied by the Official Liquidator, notice to the said Ex-Directors and newly added respondents may be issued making it returnable on 25.10.2013. 5. For the aforesaid purpose, leave to amend is granted. 6. So far as Mr. Jain is concerned, he shall supply his correct, complete and present addresses to learned advocate Mr. Majmudar as well as to learned advocate Mr. Yajnik for the Official Liquidator and he shall also file an undertaking on affidavit to remain present when instructed by learned advocate Mr. Majmudar, under instruction of this Court. On the said condition, presence of Mr. Jainh, Ex-Director is dispensed with so far as next hearing concerned. Affidavit, as aforesaid shall be filed by Mr. Jain today on or before 05.00 p.m. S.O. to 24.10.2013.” 18. It appears that thereafter the matter was never heard by the Court till 16.01.2015 and the matter was adjourned at the request of learned advocate Mr. Majmudar from time to time upto 10.03.2022 when the following order was passed : “Heard learned advocate Ms. K.J. Brahmbhatt for the applicant and learned advocate Mr. Bhuvnesh Gahlot for learned advocate Mr. N.K. Majmudar for respondent no.1. Learned advocate Mr. Ghalot submitted that name of learned advocate Mr. N.K. Majmudar for respondent no.1 is not shown in the cause title and therefore, the Registry may be directed to show the name of Mr. N.K. Majmudar for respondent no.1 Registry to show the name of learned advocate Mr. N.K. Majmudar for respondent no.1 - Shri Kirti Jain. It appears that even the name of counsel for the Income-tax department is also not reflected in the cause list. Registry is directed to show the name of counsel appearing for the Income-tax department on the next date of hearing. Stand over to 24th March, 2022.” 19. Thereafter learned advocate Mr. Karan Sanghani for learned advocate Mr. It appears that even the name of counsel for the Income-tax department is also not reflected in the cause list. Registry is directed to show the name of counsel appearing for the Income-tax department on the next date of hearing. Stand over to 24th March, 2022.” 19. Thereafter learned advocate Mr. Karan Sanghani for learned advocate Mr. Nikunt Raval prayed for time to comply with the order dated 2.09.2022 to file affidavit placing on record the current status of the action taken by the Income Tax Department on 11.11.2022 and thereafter matter was kept for hearing on 25.11.2022 and adjourned to today due to leave note of learned advocate Mr. Varun K. Patel. 20. Learned advocate Mr. Karan Sanghani for learned advocate Mr. Nikunt Raval who appears in place of learned advocate Mr. Varun Patel for the Income Tax department submitted that the affidavit as per the directions given by this Court vide order dated 2.09.2022 is already filed on 28.11.2022 placing on record the current status of the action taken by Income Tax department as under : “3. I humbly submit that separate show cause notices for launching prosecution was issued upon the assessee company and Kirti Jain, Managing Director on 07.05.2010 for A.Y 1995-96. The CIT-1, Baroda under separate orders dated 01.10.2010 passed under Section 279 of the Income Tax Act, 1961 ("the Act') granted sanction for launching prosecution against the company and Kirti Jain for the offences punishable under Section 276C(1), 277 and 278B of the Act. A copy of order dated 01.10.2010 passed under Section 279 in the case of assessee company is annexed hereto and marked as Annexure-A. A copy of order dated 01.10.2010 passed under Section 279 in the case of Kirti Jain is annexed hereto and marked as Annexure-B. 4. The sanction for launching prosecution was on the ground that the assessee company and Kirti Jain with his active and willful connivance had: (i) had deliberately concealed income by forging and fabricating the documents which were not reflecting the correct affairs of the company which necessitated disallowance of capital expenditure on scientific research and development u/s 35(1)(iv) amounting to Rs.56,38,059 and excess claim of depreciation to the extent of Rs.2,40,754, which were found to be untenable and admitted by the accountable persons as claimed and knowing fully well that these were bogus. (ii) willfully delivered statements returns of income which were fictitious and untrue and made willfully untrue verification in the return of income with a motive to conceal the income and defraud the revenue. 5. Pursuant to sanction granted for launching prosecution, a criminal complaint no.155 of 2011 came to be filed by the Income Tax Department before the court of Ld. Chief Judicial Magistrate, Vadodara against the assessee company and Kirti Jain, the same is pending. 6. I further submit that as per ITD System, the outstanding demand of assessee company for A.Y 2014-15 is Rs. 1340 and Rs. 679 for A.Y 2015-16.” 21. Considering the above progress of the matter since 2007 till date, it appears that the Official Liquidator is not keen to proceed with the matter and the matter is being adjourned from time to time on one pretext or another. The Income Tax department has already instituted the prosecution which is pending as stated in the aforesaid affidavit filed on 28.11.2022. 22. The Official Liquidator has also not pursued the matter after filing further report dated 15.09.2011 pursuant to the order dated 20.07.2011 passed by this Court as stated here-in-above. 23. Therefore, the application is disposed of due to sheer negligence on part of the Official Liquidator to pursue the same in accordance with law and keeping it pending for more than 15 years on one pretext or another and permitting the respondent to take advantage of delay tactics to see that entire cause of action is frustrated, this Court has no other option but to dispose of this matter because keeping such stale matters pending in the Court would not result into any fruitful action on part of the Official Liquidator. 24. Chartered Accountants M/s. K.A. Shah & Company, has tendered voluminous report way back in the year 2007 pointing out various misfeasance and fraud committed by the respondents under section 543(1) of the Act but unfortunately due to lackadaisical approach of the parties, such report is not brought to any logical conclusion. 25. In view of above, this application is disposed of. No order as to costs.