A civil case on the recovery of an advance payment and a penalty under a contract for the development of a mobile application

 

On October 09, 2024, case No.7527-24-00-2/10508 Specialized Interdistrict Economic Court of Almaty city, consisting of: presiding judge Onlanbekova G.M., considered in open court via mobile videoconference the civil case: on the claim of "R M " against the defendant Limited Liability Partnership "M B G " for the recovery of the amount of advance payment and penalty on January 05 In 2022, G E D G LLP and M B G LLP signed a contract for the development of a mobile application No. 2021/01112, under the terms of which the Defendant undertakes to develop a mobile application, and the Plaintiff undertakes to pay for the service provided.

According to clause 3.1. of the Agreement, the Defendant undertakes to deliver the finished mobile application to the plaintiff within 44 working days from the date of approval of the design of all pages of the mobile application. However, to date, the Defendant has not transferred the mobile application to the plaintiff. On January 21, 2022, the plaintiff, in accordance with clause 2.2 of the Contract, made an advance payment in the amount of 1,590,000 tenge.

On March 20, 2023, G E D G LLP, R M Management Company LLP and M B G LLP concluded a Contract of Assignment of the Right of Claim No. 2023/00409 dated 03/20/2023, where R.M. Management Company LLP assumes all rights of claim and obligations of the Customer under Contract No. 2021/01112 dated 05.01.2023.

On 07/21/2023, the plaintiff sent a pre-trial claim to the defendant's address for the unilateral termination of the Contract and the refund of the advance payment in the amount of 1,590,000 tenge. A penalty in the amount of 159,000 tenge was accrued. The plaintiff appealed to the court, indicating that the defendant had not fulfilled his obligations, and asked the court to recover from the defendant in favor of the plaintiff the amount of an advance payment in the amount of 1,590,000 tenge and a penalty in the amount of 159,000 tenge. The plaintiff's representative requested that the claim be satisfied in full.

The representative of the defendant, not recognizing the claim, asked to dismiss the claim, since the obligations under the contract were fulfilled under the contract for the development of the corporate website No. 2022/00688 dated 06/17/2022. The witness in court explained that the money was used to fulfill another contract, which was also not executed. The submitted interim report is not a proof of fulfillment of obligations.

Requirement No. 1 In accordance with paragraph 1 of Article 7 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), civil rights and obligations arise, change and terminate on the grounds provided for by the legislation of the Republic of Kazakhstan, as well as from actions of citizens and legal entities, which, although not provided for by it, but by virtue of general principles and meaning civil legislation generates civil rights and obligations.

Civil rights and obligations arise, change and terminate from contracts and other transactions provided for by the legislation of the Republic of Kazakhstan, as well as from transactions that, although not provided for by it, do not contradict the legislation of the Republic of Kazakhstan. According to Article 268 of the Civil Code, by virtue of an obligation, one person (the debtor) is obliged to perform a certain action in favor of another person (the creditor), such as: transfer property, perform work, pay money, etc., or refrain from a certain action, and the creditor has the right to demand that the debtor fulfill his duties.

Articles 272, 273 of the Civil Code, proper performance of an obligation means its performance in accordance with the terms of the obligation, and if the obligation provides or allows determining the day of its performance, then the obligation is subject to performance on that day, as stipulated in art. 277 of the Civil Code. Unilateral refusal to fulfill an obligation and unilateral modification of its terms is not allowed, except in cases stipulated by law or contract.

683, paragraph 1 of the Civil Code, under a contract for the provision of paid services, the contractor undertakes to provide services on behalf of the customer (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services. The customer is obliged to pay for the services rendered to him on time and in accordance with the procedure specified in the contract for the provision of paid services (art.685, paragraph 1 of the Civil Code).

The court found that on January 05, 2022, G E D g LLP and M B G LLP signed a contract for the development of a mobile application No. 2021/01112, under which the Defendant undertakes to develop a mobile application, and the Plaintiff undertakes to pay for the service provided.

According to clause 3.1. of the Agreement, the Defendant undertakes to deliver the finished mobile application to the plaintiff within 44 working days from the date of approval of the design of all pages of the mobile application. However, to date, the Defendant has not transferred the mobile application to the plaintiff. On January 21, 2022, the plaintiff, in accordance with clause 2.2 of the Contract, made an advance payment in the amount of 1,590,000 tenge, which is not disputed by the parties.

On March 20, 2023, G E D G LLP, RM Management Company LLP and M B GP LLP concluded a Contract of Assignment of the Right of Claim No. 2023/00409 dated 03/20/2023, where RM Management Company LLP assumes all rights of claim and obligations of the Customer under Contract No. 2021/01112 dated 01/05/2023 of the year. On 07/21/2023, the plaintiff sent a pre-trial claim to the defendant's address for the unilateral termination of the Contract and the refund of the advance payment in the amount of 1,590,000 tenge.

392 of the Civil Code, when interpreting the terms of a contract, the court takes into account the literal meaning of the words and expressions contained therein. At the time of the case review, the Contract has not been challenged or declared invalid.

In cases where the seller, who has received the amount of advance payment, does not fulfill his obligations to transfer the goods within the prescribed period (Article 409 of this Code), the buyer has the right to demand the transfer of the paid goods or the refund of the amount of advance payment for goods not transferred by the seller (paragraph 3 of Article 440 of the Civil Code).

Thus, the court found that the defendant's obligations under clause 5 of the Contract were not fulfilled, while the plaintiff made an advance payment for the development of a mobile application in the amount of 1,590,000 tenge.

The defendant's arguments in the part that an agreement for the development of a corporate website was concluded between the parties on June 17, 2022, and the specified funds were used to repay the specified amount according to the interim act of work performed, cannot be taken into account by the court, since the terms of the two contracts differ from each other, namely: one contract for the development of a mobile applications, and the second contract for the development of a corporate website.

No evidence has been provided to refute the plaintiff's arguments, whereas according to Article 72 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter CPC), each party must prove the circumstances to which it refers as the grounds for its claims and objections. There is no evidence of the creation of a product in accordance with the terms of reference and the transfer of a functioning application to the plaintiff.

The defendant violated the obligations under the Contract, and therefore the court recognizes the plaintiff's claim to recover the amount owed as justified. In such circumstances, the court concludes that the plaintiff's claim for recovery of arrears in advance payment has been satisfied.

In the circumstances described, having examined the evidence provided by the parties, the court concludes that the plaintiff's claims are justified, therefore, they must be satisfied within the limits of the plaintiff's claims in accordance with art.225 Part 2 of the CPC.

Upon request No. 2, According to Article 293 of the Civil Code, a penalty (fine, fine) is recognized as a monetary amount determined by law or contract, which the debtor is obliged to pay to the creditor in case of non-fulfillment or improper fulfillment of the obligation, in particular in case of late fulfillment.

Upon request for payment of a penalty, the creditor is not obliged to prove the damage caused to him. According to Article 298 of the Civil Code, a penalty is levied for non-fulfillment or improper fulfillment of an obligation if there are conditions for holding the debtor accountable for violating the obligation (Article 359 of this Code).

The court session established the fact of improper fulfillment of obligations to pay debts by the defendant. In the court's opinion, the plaintiff's claim to recover the amount of the penalty is legitimate and justified, since the contract provides for the defendant's liability for non-fulfillment or improper fulfillment of obligations.

Thus, the amount of penalty in the amount of 159 00 tenge is to be recovered from the defendant in favor of the plaintiff. The costs of the paid state fee are subject to satisfaction in proportion to the amount of the claims satisfied by the court in accordance with art.52 470 CPC

Guided by Articles 223-226 of the CPC, the court DECIDED: To satisfy the claim of the limited Liability company "ResMan Management Company" to the limited Liability company "M B G" for the recovery of the amount of the advance and the penalty. Collect from the limited liability company "MB G" in favor of the limited liability company "RM Management Company" debts in the amount of 1,590,000 (one million five hundred and ninety thousand) tenge, a penalty in the amount of 159,000 (one hundred and fifty-nine thousand) tenge and the paid state fee in the amount of 52,470 (fifty-two one thousand four hundred and seventy) tenge.

 

 

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