An appeal against the court's decision to invalidate acts of completed work, to recognize the defendant's obligations as unfulfilled, and to recover the amount
The Board of Appeal for Civil Cases of the Almaty City Court
Almaty, 050000, Kazybek Bi street, 66.
0201@sud.kz
from the Defendant: M.B.G. LLP
BIN 1..
Almaty, ul. B.., house .., 10th floor, office 1009
+7 705 …
Representative by proxy:
Law and Law Law Firm
BIN 201240021767
79 Abylai Khan Ave., office 304, Almaty
info@zakonpravo.kz / www.zakonpravo.kz
+7 708 578 5758; +7 727 971 78 58.
THE APPEAL
on the decision of the Specialized Interdistrict Economic Court of Almaty dated July 25, 2024
On July 25, 2024, the Specialized Interdistrict Economic Court of Almaty, consisting of the presiding judge K.G.S. with the participation of a representative of the plaintiff, K.D., representatives of the defendant, V.I.S., lawyer Sarzhanov, G.T., having considered in open court, in the courthouse, civil case No. 7527-24-00-2/5847, on the claim of the Limited Liability Company "T.K.B." to the Limited Liability Company "M.B.G." on the recognition of acts performed The court decided that the claim of the limited Liability Company "T.K.B." should be partially satisfied. To collect from the limited liability company "M.B.G." in favor of the limited liability company "T.K.B." the amount of 250,000 (two hundred and fifty thousand) tenge, the amount of the state duty in the amount of 7,500 (seven thousand five hundred) tenge.
The arguments indicated in the court decision of July 25, 2024, which was rendered in final form on 08/01/2024, do not agree.
We consider the decision of the court of first instance to be illegal, unjustified and subject to cancellation on the following grounds:
Dear Board of Appeal, the Court of First Instance did not take into account the following arguments of the defendant.
Thus, the parties concluded an Agreement No. 699 dated 07/18/2022 for the bilateral integration of the online store with 1C (hereinafter referred to as the Agreement), which complies with the terms of Articles 151, 152, 378 of the Civil Code of the Republic of Kazakhstan, which stipulates that the Agreement recognizes the agreement of two or more persons on the establishment, modification or termination of civil rights and which in this civil case is not disputed by the parties.
According to clause 1.1 of the Agreement, the Customer assigns, and the Contractor undertakes, the two-way integration of the online store with 1C in accordance with the terms of reference (Appendix No. 1 to the Agreement).
According to clause 2.1. of the Agreement, the cost of work under this agreement is 250,000 tenge.
According to clause 3.1. of the Agreement, the Contractor undertakes to carry out two-way integration of the online store with 1C within 15 working days from the moment the Customer provides payment for the first tranche and accesses, all necessary materials for the start of work.
The plaintiff paid in full the amount of 250,000 tenge, this fact is confirmed by the payment order.
683 of the Civil Code of the Republic of Kazakhstan stipulates that 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.
Dear court, I would like to draw your attention to the fact that the Plaintiff has not provided all available materials in accordance with clause 3.1. Of the Contract, the Contractor undertakes to conduct two-way integration of the online store with 1C within 15 working days from the moment the Customer provides payment for the first tranche and accesses, all necessary materials to start work.
68, 72 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, each evidence is subject to assessment taking into account relevance, admissibility, reliability.
The plaintiff did not provide evidence to the court that he had provided all the necessary materials for the integration of the online store with 1C
The plaintiff's actions violate Articles 4 and 5 of the CPC RK Tasks and Principles of civil proceedings. Violation of the principles of civil proceedings, depending on its nature and materiality, entails the cancellation of judicial acts.
Thus, Dear Court, the Plaintiff's arguments that the terms of the Contract are not being fulfilled are not valid and are not justified on the basis of the above arguments.
According to Articles 67, paragraphs 1, Article 68 of the CPC RK, evidence is considered reliable if, as a result of verification, it turns out that it corresponds to reality. Each evidence is also subject to assessment taking into account its relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a civil case.
Being a decent and responsible person, the Defendant has never refused to fulfill his Contractual obligations to the Plaintiff. However, the Plaintiff himself did not undertake any constructive dialogue to resolve the current situation. To date, the Defendant has fulfilled all the clauses of the contract, however, the Plaintiff himself has been abusing the clauses of the contract and the norms of legislation for his own unscrupulous selfish purposes.
We consider the Plaintiff's arguments to be unsubstantiated and unjustified from the point of view of relevance and admissibility as evidence in accordance with art. 68 of the CPC RK, each evidence is subject to assessment taking into account relevance, admissibility, reliability, and all the evidence collected together sufficiency to resolve a civil case – in this civil case, we observe the groundlessness of Claims and Defamation in relation to The defendant.
392 of the Civil Code of the Republic of Kazakhstan, when interpreting the terms of a contract, the court takes into account the literal meaning of the words and expressions contained therein. The literal meaning of a contract clause, if it is unclear, is determined by comparing it with other terms and the meaning of the contract as a whole. Also, Article 6 of the Civil Code of the Republic of Kazakhstan "Interpretation of the norms of civil legislation" provides: The norms of civil legislation must be interpreted in accordance with the literal meaning of their verbal expression.
According to Article 147 of the Civil Code of the Republic of Kazakhstan, transactions are recognized as actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations.
The plaintiff in this civil case does not dispute in his claims the Contract No. 699 dated 07/18/2022 for the two-way integration of the online store with 1C.
In accordance with the provisions of Articles 271, 272 of the Civil Code of the Republic of Kazakhstan, Obligations arise from a contract and the Obligation must be performed properly in accordance with the terms of the obligation and the requirements of the law, and in the absence of such conditions and requirements - in accordance with business practices or other commonly imposed requirements.
Thus, we consider that the Plaintiff, without recognizing the Contract without terminating it in court, does not have the right to demand the recovery of the amount under the contract, since the Contract complies with the requirements of the legislation and has legal force for the parties.
By virtue of art. 219 part 2 of the CPC, the Court does not have the right to change the subject or the basis of the claim on its own initiative and is obliged to resolve the case within the limits of the claims stated by the plaintiff.
In accordance with Article 8 of the Civil Code of the Republic of Kazakhstan, the exercise of civil rights should not violate the rights and legally protected interests of other subjects of law.
Citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation, the moral principles of society, and entrepreneurs, as well as the rules of business ethics.
This obligation cannot be excluded or limited by the contract. Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed.
Actions of citizens and legal entities aimed at harming another person, abuse of the right in other forms, as well as the exercise of the right in contradiction with its purpose are not allowed.
According to 5.5. of the Agreement, if the Customer unilaterally refuses to perform the work performed by the Contractor under the Agreement, the payment specified in clause 2.2. of the Agreement is non-refundable.
According to Article 224 of the CPC, the court's decision must be lawful and justified.
A decision is lawful when it is made in compliance with the norms of procedural law and in full compliance with the norms of substantive law applicable to this legal relationship, or is based on the application, if necessary, of a law governing a similar relationship, or proceeds from the general principles and meaning of civil legislation and the requirements of good faith, reasonableness and fairness.
A decision is considered justified if it reflects facts relevant to the case, confirmed by evidence examined by the court that meet the requirements of the law on their relevance, admissibility and reliability, or are well-known circumstances that do not need to be proven and are collectively sufficient to resolve the dispute.
The court's decision was made in case of non-compliance with the above requirements.
According to Article 427, paragraph 4, of the CPC, the norms of substantive law are considered violated or improperly applied if the court applied a law that is not applicable, misinterpreted the law.
In resolving the dispute, the court did not apply the applicable rules of substantive law, which led to an incorrect resolution of the case and the issuance of an illegal decision.
By virtue of paragraph 2 of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to judicial protection of their rights and freedoms.
Paragraph 1 of Article 14 of the Constitution of the Republic of Kazakhstan, everyone is equal before the law and the court.
Paragraph 1 of Article 14 of the Constitution of the Republic of Kazakhstan, everyone is equal before the law and the court.
The Law of the Republic of Kazakhstan dated November 28, 2005 No. 91-111 ratified the International Covenant on Civil and Political Rights, signed in New York on December 16, 1966. According to paragraph 1 of article 14 of the aforementioned Covenant, everyone has the right to a fair and public hearing by a competent, independent and impartial court.
In accordance with Article 8 of the CPC, everyone has the right to apply to the court for protection of violated or disputed constitutional rights, freedoms or protected interests.
In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties choose their position, ways and means of defending it independently and independently of the court, other bodies and persons during civil proceedings.
The Universal Declaration of Human Rights (articles 7, 8 and 10), the International Covenant on Civil and Political Rights (article 14) and the Convention for the Protection of Human Rights and Fundamental Freedoms (article 6) establish that everyone is equal before the law and the courts and that everyone has the right to a fair trial in determining their civil rights and duties. and the public hearing of the case within a reasonable time by a competent, independent and impartial court established by law.
In accordance with Articles 401, 402, 403, 404 of the Civil Procedure Code of the Republic of Kazakhstan, it is stipulated that an appeal may be filed against court decisions that have not entered into force. The right of appeal against a court decision belongs to the parties and other persons involved in the case, and are considered by the appellate judicial board for civil cases of the regional and equivalent courts in a collegial composition of at least three judges of the board. Appeals are filed through the court that issued the decision. An appeal may be filed within one month from the date of the final decision, and by persons who did not participate in the trial, from the date of sending them a copy of the decision.
Based on the above and guided by Articles 401, 402, 403, 404 of the CPC RK,
I ask the Court:
· To satisfy the Defendant's appeal against the Decision of the Specialized Interdistrict Economic Court of Almaty dated July 25, 2024;
· The decision of the Specialized Interdistrict Economic Court of Almaty dated July 25, 2024 – to cancel.
With respect,
Proxy Representative lawyer: Sarzhanov G.T.
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