About the refund of the amount for the development of an online store

June 25, 2024 No. 7527-24-00-2/3645 as part of the Specialized Interdistrict Economic Court of Almaty, the presiding Judge G. S. Kasymbaeva considered a civil case on a statement of claim at an open court session with the reception of K. Elshibay to the secretariat: plaintiff: BM limited liability company defendant: MBG limited liability company individual entrepreneur ca va" va " plaintiff'S claim: on the return of the amount

BM LLP and MBG LLP signed an agreement No. 743 of March 9, 2023, under the terms of which the customer instructs the development of an online store in accordance with the technical specifications that are an integral part of this Agreement, and the contractor undertakes this instruction. In accordance with Part 2 of the contract, the cost of work under this contract is: 2,700,000 tenge, payment is made in tenge.

The first payment is 30% of the total cost of the work, i.e. 810,000 tenge, is paid within 3 banking days from the date of signing the contract. The second contribution is 40% of the total cost of the work, i.e. 1,080,000 tenge, within 3 banking days after signing the interim act confirming the approval of the design of all pages of the mobile application. The third contribution is 30% of the total cost of the work, i.e. 810,000 tenge, is paid after the completion of all work and the parties sign the act of completion of the work.

According to the receipt with the plaintiff dated March 10, 2023, 810,000 tenge was paid in favor of the defendant IP Va. The plaintiff applied to the court with a statement of claim and in the course of work on the development of the online store with the defendant https://..ay.kz/, https://broker....ay.kz there are obvious elements of copying and plagiarism from / sites, indicating that poor-quality work has been performed.

In addition, the defendant has the right to use all materials that were used to create the online store https://..pay.kz/, https://broker...pay.kz "I don't know," he said.

Not only that, the defendant had done a very poor job of closing the whole case quickly.

At the same time, it was only after the payment of the claimant that there were extremely negative and negative feedback about the defendant on the internet. Therefore, the defendant asks the court to withdraw the amount of 810,000 tenge from MBG LLP or IP Va.

Defendant in his opinion against the statement of claim, in accordance with the terms of the concluded agreement, the consent and comments and complaints of the customer are reflected in the whats app correspondence or by e-mail, however, none of these means of communication has any mention either in terms of the quality of service or in terms of the service period. The customer did not provide any evidence in the claim confirming his position, but only stated that he had a negative attitude towards the performer after reading negative reviews on the internet.

For the same reason, the claim is asked to refuse to satisfy. At the court session, representatives of the plaintiff, in support of the claim, asked for satisfaction.

At the hearing, the representative of the defendant asked to dismiss the statement of claim. The defendant IE VA did not attend the court session, did not inform the reason for the absence, the court decided to consider the case in accordance with Article 196 of the Civil Procedure Code of the Republic of Kazakhstan.

The court explained to the parties their right to settle, however, the parties did not take advantage of the opportunity to settle.

In accordance with Article 271 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the civil code), obligations arise from the contract.

In accordance with articles 272, 277 of the Civil Code, an obligation must be fulfilled accordingly and in a timely manner in accordance with the terms of the obligation and the requirements of the law.

If the obligation provides for or allows you to determine the date of its fulfillment or the period of time during which it must be fulfilled, the obligation must be fulfilled on the same day or, accordingly, at any time during the same period.

In accordance with article 386 of the civil code, the contract comes into force from the moment of its conclusion and is binding on the parties (Article 393 of this code). In accordance with paragraph 1 of Article 349 of the Civil Code, non-performance or improper performance of an obligation (untimely performance, incomplete performance of goods and works, performance in violation of other conditions established by the content of the obligation)-improper performance is understood as its violation.

In accordance with paragraph 9 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated March 20, 2003 No. 2 "on the application by courts of certain norms of Civil Procedure legislation", the merits of the case, which by law must be confirmed by certain evidence, should not be confirmed by any other evidence (for example, if there is a dispute on specific circumstances of the transaction, it is proved by a contract).

According to paragraph 2.1 of the contract, the cost of works is: 2,700,000 tenge. In accordance with paragraph 2.2 of the agreement, the first installment is 30% of the total cost of work under this agreement, which is 810,000 tenge.

The customer is obliged to pay within 3 banking days from the date of signing the contract. The plaintiff paid the first installment in the amount of 810,000 tenge in accordance with the receipt and the incoming cash order. In accordance with the terms of the agreement 3.9, the customer's consent and comments and complaints are reflected in the whats app correspondence or via email.

However, none of these means of communication indicated any mention, either in terms of the quality of service or in terms of the period of service (by agreement of the service, all correspondence specified in the group is attached).

In accordance with paragraph 5.6 of the contract, in case of defects in the work of the contract, the parties must draw up a bilateral act.

At the court session, the plaintiff did not provide evidence of what part the defendant actually violated under the contract, nor a document on what claim the defendant filed before the court.

During the work and its delivery, the customer did not show any complaints about the quality and timing of the service, on the contrary, correspondence in the WhatsApp group will serve as evidence that the plaintiff agreed with the sample.

According to Article 72 of the APC, each party must present evidence and objections against the evidence within the time limits established by the judge, which correspond to the evidence of the circumstances to which it refers as the basis of its claims and objections, the use of the means of Defense, the confirmation of the facts, the challenge to them, the fair conduct of the

No documents were submitted to the court from the plaintiff's tarp proving the failure or improper performance of obligations by the defendant.

In addition, in accordance with clause 3.9 of the contract, all modifications of layouts are accepted from the customer and only in electronic and structural form by the contractor info@....kz sent via email or WhatsApp Messenger.

Comments sent using third-party means of communication are not an official document confirming their existence, and therefore are not accepted or taken into account by the performer. On the part of the plaintiff, evidence that notifications were sent to the defendant in accordance with the requirement of the above agreement was not submitted to the court, but rather, in correspondence, it is taken into account that the plaintiff approved a sample of work for the first stage.

In such a context of the case, the court, subject to refusal to satisfy the statement of claim. According to Article 113 of the APC, the plaintiff must collect from BM limited liability company 100,000 tenge of court costs paid by the defendant for the assistance of a representative in favor of MBG limited liability company.

Guided by articles 223-226 of the APC, the court decided: to dismiss the claim of the plaintiff BM limited liability company for the return of 810,000 tenge, filed by the defendants MBG limited liability company, individual entrepreneur ca va "va".

100,000 tenge of court costs paid by the plaintiff from BM limited liability company in favor of the defendant from MBG limited liability company for the assistance of a representative.

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