A successful case on the cancellation of a court decision on debt collection
The specialized Interdistrict Economic Court of the Almaty region considered in open court in Taldykorgan in the courthouse a civil case on the claim of IP SE.N. to the defendant LLP "MD K" for the recovery of the amount of debt and penalties court. Where the court established that IP S.E.N. (hereinafter the plaintiff, the Supplier) filed a lawsuit against MD K LLP (hereinafter the defendant, the Buyer) for debt collection in the total amount of 2,415,033.6 tenge, of which 2,300,000 tenge is the amount of the principal debt and 115,001.60 tenge is the penalty. The plaintiff's side also requested to collect court costs for the payment of the state fee in the amount of 72.451.08 tenge. IP SE.N., having supported the arguments of the claim, asked the court to satisfy the stated claims on the grounds set out in the claim. The defendant, MD K LLP, was repeatedly duly notified of the place and time of the court session, but did not appear in court and did not inform the court of the validity of the reasons for his non-appearance, and therefore, in accordance with the requirements of Articles 187, 260 of the CPC RK, the court finds it possible to consider the case in absentia proceedings on the evidence available in the case. After listening to the plaintiff's representative, examining the case materials, and evaluating all the evidence in their entirety, the court comes to the following conclusion.
A successful case on the cancellation of a court decision on debt collection
From the materials provided to the court, it can be seen that a Supply Agreement was concluded between the parties to the dispute dated November 17, 2014 (hereinafter referred to as the Agreement), according to which the Supplier undertook to deliver and transfer to the Buyer's ownership (hereinafter referred to as the Goods), in the amount of 119 meters, and the Buyer undertook to accept the Goods according to the acceptance certificate or the consignment note and pay for it the cost according to the terms of the concluded agreement. The total cost of the contract was 2,300,032 tenge. According to the terms of clause 3.4. Payment of the Contract must be made in a non-cash form according to the invoices issued for payment and the specified bank details. According to P.4.6. The date of delivery of the Contract is considered to be the date when the Buyer's representative signs the acceptance and transfer certificate or the consignment note for the release of the Goods. According to the reconciliation report for the period from 01.01.2014 to 08.06.2015, the Buyer incurred debts totaling 2,300,032.00 tenge. By virtue of Article 271 of the Civil Code of the Republic of Kazakhstan, one of the grounds for the obligation is a contract. In accordance with the requirements of Articles 65-66 of the Civil Procedure Code of the Republic of Kazakhstan, each party must prove the circumstances to which it refers as the grounds for its claims and objections. The plaintiff's party provided the court with letters of guarantee from the Director of MD K LLP for exodus as evidence.No.00... dated 01/21/2015, where he guarantees to make payment by March 01, 2015 of arrears in the amount of 2,300,032.00 tenge. In the repeated letter of guarantee dated 04/23/2015 for ex.No. 052, the head of MD K LLP again promised to repay the debt by May 01, 2015, but the debt was not repaid. According to art.67 of the CPC RK, the court finds this evidence relevant to the case, since it represents factual data that confirms the claims made by the plaintiff by the defendant's side.
In addition, the fact of delivery and receipt of the Goods is confirmed by the Act of Acceptance and transfer, invoice No. 2 dated 15.01.2015, in connection with which the stated requirements for collecting the amount of the principal debt for the delivered Goods are subject to satisfaction. A successful case on the cancellation of a court decision on debt collection
According to clause 7.3 of the Agreement, in case of late payment by the Buyer, a penalty of 0.5% is charged for each day of delay in fulfilling the obligation. According to the calculations provided by the plaintiff, the defendant is obliged to pay a penalty in the amount of 115.001,60 tenge. Article 298 of the Civil Code of the Republic of Kazakhstan provides for the collection of penalties for non-fulfillment or improper fulfillment of obligations if there are conditions for holding the debtor accountable for violating the obligation. According to the requirements of art.272 of the Civil Procedure Code of the Republic of Kazakhstan, the obligation must be performed properly in accordance with the terms of the obligation and the requirements of the law. Thus, taking into account the stated circumstances, the court finds the claim justified and to be satisfied. By the Decree of the President of the Republic of Kazakhstan dated 07.02.2001 "On some issues of the functioning of the national currency of the Republic of Kazakhstan" it is established that cash banknotes are withdrawn from monetary circulation, and therefore the amount is subject to collection without specifying the tiyns. 110 of the Civil Procedure Code of the Republic of Kazakhstan, the court awards, on the other hand, all court costs incurred by the party to the party in whose favor the decision was made. 110, 217-221 of the CPC RK, the court decided to satisfy the claim. Collect from MD K LLP in favor of IP SE.N. debt in the amount of 2,300,000 (two million three hundred thousand) tenge, a penalty in the amount of 115,001 (one hundred fifteen thousand one) tenge and a refund of state duty in the amount of 72,451 (seventy-two thousand four hundred fifty-one) tenge. After listening to his arguments by the company's lawyers, a corresponding application was submitted for the cancellation of the court's decision on debt collection in respect of our client. On April 26, 2016, the Specialized Interdistrict Economic Court of the Almaty region considered in open court in the courthouse the statement of the defendant's representative on the cancellation of the absentee court decision dated 08/20/2015, in a civil case, on the claim of IP SE.N. to the defendant LLP "MD K" for the recovery of the amount of debt and penalties. I have established that the claims have been satisfied by an absentee decision of the Specialized Interdistrict Economic Court of the Almaty region dated 08/20/2015.
From the defendant, MD K LLP, in favor of IP SE.N., a debt in the amount of 2,300,000 (two million three hundred thousand) tenge was recovered, a penalty in the amount of 115,001 (one hundred fifteen thousand one) tenge and a refund of state duty in the amount of 72,451 (seventy-two thousand four hundred fifty-one) tenge. The defendant filed an application for the cancellation of the absentee judgment, in which he indicates that he did not receive court notices, moreover, on August 20, 2015, he filed an application for adjournment of the court session, did not have the opportunity to familiarize himself with the subject of the claim and protect his interests. At the hearing, the plaintiff asked the court to reject the application for cancellation of the absentee decision of MD K LLP, on the grounds set out in the review. In accordance with art.265 of the CPC of the Republic of Kazakhstan, a decision in absentia is subject to cancellation if the court finds that the defendant's failure to appear at the court session was caused by valid reasons that he was unable to inform the court in a timely manner and provided evidence that may affect the content of the decision. It appears from the court's ruling that the hearing is scheduled for August 13, 2015. (L.D.34). It follows from the minutes of the court session dated August 13, 2015, that the parties did not appear at the hearing, and due to the failure of the parties to appear, the hearing was postponed to August 20, 2015. (l.d.37). On August 20, 2015, an application was received from the defendant, MD K LLP, to postpone the court session due to his employment at a seminar in Almaty.(L.D.40). However, the minutes of the court session dated 08/20/2015 indicated that the defendant did not appear, and the defendant's application for adjournment of the court session was not announced. (l.d. 43-44). In such circumstances, the court considers the application to be satisfied, and the decision in absentia to be annulled. Guided by Articles 268-269 of the CPC of the Republic of Kazakhstan, the court DETERMINED: To cancel the decision in absentia of the Specialized Interdistrict Economic Court of the Almaty region dated 08/20/2015, in a civil case, on the claim of IP S E.N. to the defendant MD K LLP on the recovery of the amount of debt and penalties.
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