Case Note & Summary
The case involves a Company Application filed by Majid Ahmedbhai Oomerbhoy and others seeking compensation/royalty from Respondent No.3 for use of a flat. The property had already been sold, so only the compensation claim survived. The applicants alleged that Respondent No.3 was liable to pay compensation from the date of filing the Company Petition (5th September 2001) until the sale or vacation of the flat per a consent order. Respondent No.3 contested the claim. However, when the matter was called, none appeared for the applicants. The court noted that ordinarily it would dismiss the application for non-prosecution, but since Respondent No.1 supported the application, the court examined the merits. The court found that the applicants had not led any evidence to establish the liability of Respondent No.3. The court held that in the absence of evidence, the application could not be granted. Consequently, the court dismissed the application with no order as to costs.
Headnote
A) Company Law - Compensation for Use of Property - Non-Prosecution - Application for compensation for use of flat dismissed as applicants absent and no evidence led - Held that in absence of prosecution, application cannot be entertained (Paras 4-5).
Issue of Consideration
Whether Respondent No.3 is liable to pay compensation/royalty for use of the flat, and if so, what amount?
Final Decision
The Company Application is dismissed with no order as to costs.
Law Points
- Non-prosecution
- dismissal for default
- burden of proof
- compensation for use and occupation
Case Details
2005 LawText (BOM) (05) 50
Company Application No.24 of 2005 in Company Petition No.103 of 2002
Mr. Sanjay Jain with Mr. Kalpesh Joshi i/b M. Ranchoddas & Co. for Respondent No.1, Mr. J.P. Avasia i/b S. Mahomedbhai & Co. for Respondent No.3
Majid Ahmedbhai Oomerbhoy, Nadeem Majid Oomerbhoy, Heena Majid Oomerbhoy
Rashid Sattar Oomerbhoy, Imtiaz Sattar Oomerbhoy, Afzal Sattar Oomerbhoy, Salim Sattar Oomerbhoy, Anwar Sattar Oomerbhoy, Khatija Sattar Oomerbhoy, Shahida Mehmood, M/s. Ahmed Oomerbhoy Pvt. Ltd.
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Nature of Litigation
Company application seeking compensation/royalty for use of a flat.
Remedy Sought
Applicants sought compensation/royalty from Respondent No.3 for use of a flat.
Filing Reason
Respondent No.3 allegedly used the flat without paying compensation.
Previous Decisions
The property in question was sold; only the compensation claim survived. A consent order dated 27th February 2003 required Respondent No.3 to vacate by 11th April 2005.
Issues
Whether Respondent No.3 is liable to pay compensation/royalty for use of the flat?
If yes, what amount?
Submissions/Arguments
Applicants argued Respondent No.3 liable from date of filing petition till sale/vacation.
Respondent No.3 contested the claim.
Respondent No.1 supported the application.
Ratio Decidendi
In the absence of the applicants and any evidence led to establish liability, the application for compensation cannot be granted.
Judgment Excerpts
None appears for the Applicants when the matter is called out.
Ordinarily, I would have preferred to dismiss the Application for non-prosecution.
The Applicants have not led any evidence to establish the liability of Respondent No.3.
Procedural History
Company Petition No.103 of 2002 was filed on 5th September 2001. Company Application No.24 of 2005 was filed seeking compensation. The property was sold, leaving only the compensation claim. The matter was heard on 23rd June 2005.
