A law firm in Almaty in a civil case, the defendant is unable to provide a response to the statement of claim and protect his interests due to failure to receive a copy of the statement of claim and failure to notify the court of the time and place of consideration of the case.
LLP "K" filed a lawsuit against IP "K" for recovery of the amount of KZT 1,086,000 paid as an advance, pointing to improper fulfillment of its obligations to install fire alarm systems and automatic smoke protection control at the facility: LCD "E", block "B". The claim was satisfied by the decision of the specialized inter-district Economic Court of Astana dated August 21, 2012. Debt in the amount of KZT 1,086,000 was collected from IP "K" in favor of LLP "K", 32,580 tenge was reimbursed for the payment of state duty, in total – KZT 1,118,580. In the petition, IP "K" asked to cancel the court's decision in connection with the violation by the court of the norms of procedural law. He pointed out that he had not received a copy of the statement of claim, had not been notified by the court of the time and place of the case, and had been deprived of the right to defend his interests in court. LLP "K" has not submitted a response to the petition. The Supervisory Judicial Board of the Supreme Court overturned the decision of the specialized inter-district Economic Court of Astana in this case, and sent the case for a new hearing to the same court in a different composition, stating the following. It is clear from the case file that there was no written subcontracting agreement between the parties. At the meeting of the supervisory instance court, IP "K" denied that he had any obligations to LLP "K" to perform work at the facility: LCD "E", block "B", indicating that, by virtue of an oral agreement, his son, K., performed the work at the facility in full and accepted by the customer of "A" LLP. In confirmation of the application, I attached the certificate of acceptance for use dated May 26, 2012 and the act of acceptance and transfer dated May 07, 2012.
In the statement of claim filed with the court, K LLP repeatedly indicated K. At the same time, there were no documents proving that he acted on behalf of IP "K". A study of the payment documents submitted by the plaintiff showed that out of 1,086,000 tenge, he transferred 760,000 tenge to the account of IP "K" on payment order No. 339 dated March 28, 2012, the remaining amount was 326,000 tenge for cash orders received by K., there are no powers of attorney on behalf of IP "K" to receive money. The case was considered by the court of first instance without the participation of the defendant. In the petition, he indicated that due to the failure to receive a copy of the statement of claim and the failure of the court to notify him of the time and place of consideration of the case, he was deprived of the opportunity to provide a response to the statement of claim and protect his interests. Thus, the above circumstances indicate that the court of first instance incorrectly determined and clarified the range of circumstances relevant to the case, and violated the procedural rights of individual entrepreneur K. In this regard, by virtue of part 1 of Article 364 and part 1 of Article 366 of the CPC, the court decision is subject to cancellation, and the case is referred for a new hearing to the court of first instance. Upon a new hearing, the court should clarify the plaintiff's claims, carefully examine and give an appropriate assessment of the circumstances of the case, and, depending on what is established, resolve the dispute in accordance with the law.
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