Collection of the amount of debt under the contract for the creation of a website as a result of improper fulfillment of obligations

Case No. 7527-23-00-2/6538 dated July 27, 2023

In the proceedings of the Council of Economic and Social Council of Almaty, there was a civil case No. 7527-23-00-2/2563 on the claim of the Limited Liability Partnership "Si Pi Retail Almaty Company" (hereinafter referred to as the Plaintiff) to LLP "...." (hereinafter referred to as the Defendant) for the recovery of funds.

Where the plaintiff demands 1. To recover from the Defendant in favor of the Plaintiff the amount of 1,300,000 (one million three hundred thousand) tenge paid by the Plaintiff to the Defendant as part of the execution of the Contract for the creation of the website No. SPRA/2021-70 dated 11/26/2021. 2. To recover from the Defendant in favor of the Plaintiff the state fee in the amount of 39,000 (thirty-nine thousand) tenge.

According to the terms of the concluded Contract, the Defendant undertook to provide the Services provided for in the Contract in stages, in strict accordance with the Contract, with proper quality, and within no more than 4 (four) months from the date of signing the Contract in accordance with the requirements and characteristics provided for in the terms of the Contract. Payment of the cost of services under the Contract, in the amount of 1,300,000 tenge, was made by the Plaintiff in accordance with the procedure and within the time limits established by the terms of the Contract for the delivery of completed works.

According to the terms of the concluded Agreement, on 10.10.2022, the Defendant fully handed over the Website to the Plaintiff according to the Act of Completed Works No. 1083, which in turn accepted the work and signed the ADR.

In accordance with Article 6 of the Agreement, the Warranty period for the website under the Agreement is 6 (six) months from the date of signing the act of completed works, that is, until 03/10/2023. During the warranty period, the Defendant undertakes to eliminate all identified deficiencies of the Services independently at his own expense.

        As part of the website's Warranty Service, the Defendant fulfilled his obligations under the Contract and all the plaintiff's wishes were corrected.

        Prior to the hearing of this civil case, the plaintiff's representative stated that they had no claims and was ready to withdraw the Claims.

        However, to date, the Plaintiff claims that they have new problems on the site that need to be fixed.

I would like to draw the court's attention to the fact that the Website consists of complex codes that constantly require updating and maintenance by specialists who, with each update of the contributing software, need to be edited and updated.

In addition, during the pre-trial settlement of the dispute, the Plaintiff no longer had a claim against the Defendant, however, with each passing of time, the Plaintiff has new requests, as evidenced by the following correspondence

03/13/2023 – meeting with Yesentai's Lawyer to resolve the dispute and conclude a settlement agreement, the court group confirmed.

03/14/2023 – a scan of the defective act signed on our part was sent to the court group.

 

03/15/2023 – the Plaintiff sent a request to the court group for information to gain access to the site.

03/24/2023 – received access from the server with a cover letter from the Plaintiff, but did not receive a link to the server. We have begun our obligations under the claim.

 

04/06/2023 – we received a link to the server and uploaded all the adjustments and received confirmation from the Plaintiff.

     

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.

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.

272 of the Civil 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 by all obligated persons specified in the article, however, this is not observed in the actions of the Plaintiff.

Also, the selfish thoughts of the Plaintiff will not find their embodiment, since 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.

Article 68 of the CPC RK. The "Evaluation of Evidence" states Each piece of evidence is subject to

According to the assessment, taking into account the relevance, admissibility, reliability, and all the evidence collected together - sufficiency to resolve a civil case – in this civil case, we observe the groundlessness of the evidence provided.

Article 72 of the CPC RK. The "Duty of Proof" provides for each party

She must prove the circumstances to which she refers as the basis of her claims, which is not observed in the statement of claim.

Article 73 of the CPC RK. "Presentation of evidence", evidence is presented

the parties and other persons involved in the case are referred to the court of first instance at the stage of preparing the case for trial.

   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.

Based on the above and guided by the Civil Code of the Republic of Kazakhstan, the CPC of the Republic of Kazakhstan, Asked the Court:

The Plaintiff's statement of claim to the Defendant for recovery of the amount of debt under the contract for the creation of a website as a result of improper fulfillment of obligations - to refuse satisfaction;

Based on the above, the Specialized Interdistrict Economic Court of Almaty, consisting of: the presiding judge Satbayeva G.A., with the secretary of the court session, Salimbayeva G., considered in open court the civil case on the claim: PLAINTIFF: Limited Liability Company "Si Pi Retail Almaty" DEFENDANT: Limited Liability Company "... PLAINTIFF'S CLAIMS: for debt collection THE COURT WAS ATTENDED BY: plaintiff's representative E.A.E. defendant's representative Sarzhanov G.T.

On November 26, 2021, an agreement was concluded between the parties to the case for the creation of a web site No.SPRA/2021-70, according to which the defendant undertook to provide the services provided for in the contract in stages in the amount of 1,300,000 tenge. He indicated that the defendant had submitted the result of the work in October 2022, instead of the required 4 months from the start of the completion of services. Refers to the presence of comments that have not been eliminated. The limited Liability Company "CP Retail Almaty" filed a lawsuit against the limited liability company "....." for debt collection in the amount of 1,300,000 tenge. He pointed out that the defendant had not fulfilled 2 obligations for the proper provision of services due to the presence of unresolved comments. According to the response of the defendant according to the act of completed works, the defendant fulfilled his obligations.

The plaintiff's representative, E.A.E., supported the arguments of the claim in court. She asked the court to satisfy the demands in full.

In court, the representative of the defendant, Sarzhanov G.T., did not recognize the claim, explaining that there were no grounds for debt collection. He asked to dismiss the claim.

According to Articles 272, 273 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, and in the absence of such conditions and requirements - with business practices or other commonly imposed requirements. Unilateral refusal to fulfill an obligation and unilateral modification of its terms are not allowed.

In accordance with paragraph 1 of Article 349 of the Civil Code, a violation of an obligation is defined as its non-fulfillment or improper fulfillment. When discussing this requirement, the court takes into account that according to Article 683 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.

During the trial, the plaintiff's arguments on the transfer of the payment amount in the amount of 1,300,000 tenge were confirmed. Clause 5.18 of the agreement stipulates that the defendant guarantees the proper operation of the site within the framework of the services provided during the fifth stage of the services. The term of the fifth stage of the site's warranty services under the contract is 6 months, that is, until March 10, 2023. The requirements are based on clause 12.5 of the contract, which states that the defendant is obliged to make a refund within 5 business days, and the plaintiff has the right to unilaterally, out of court, cancel further execution of the contract with written notification to the defendant 5 calendar days before the date of the expected date of termination of the contract.

The defendant's objections amount to the fact that the service was accepted by the plaintiff without comments on the act of completed works No. 1083. 3 According to part 2 of Article 224 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the court bases the decision only on the evidence presented by the parties and examined at the court session. Meanwhile, contrary to the requirements of Articles 72, 73 of the CPC, the plaintiff has not provided evidence of improper performance of the contract. Thus, there are no grounds for debt collection in the amount of 1,300,000 tenge.

In this regard, the court considers the plaintiff's claim for debt collection from LLP "..." to be unproven and unfounded and to be refused.

Guided by Articles 223-226 of the CPC, the court DECIDED: To refuse to satisfy the claim of the limited liability partnership "Si Pi Retail Almaty Company" to the limited liability partnership "...." on debt collection.

 

  

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