Collection of the amount of debt under the contract for the provision of real estate services
05/15/2017 District Court No. 2 of Almaly district of Almaty with the participation of a representative of the plaintiff, a representative of the defendant by proxy Sarzhanov G.T., having considered in open court the civil case on the claim of IP "G." to TMG for the recovery of the amount of debt and penalties under the service agreement, U S T A N O V I L: Plaintiff IP "G." . filed a lawsuit against the defendant T.M.G. about collecting the amount of debt under the contract for the provision of real estate services in the amount of 370,000 tenge, contractual penalty in the amount of 370,000 tenge, refund of state duty in the amount of 7,400 tenge, commission fee – 222 tenge and for sending mail – 436 tenge. The statement of claim is motivated by the fact that on 30.01.2016, the parties concluded a contract for the provision of services to the buyer of real estate for No. 896. According to clauses 3.1 and 3.2 of the agreement, the cost of services (remuneration) amounted to 370,000 tenge, which must be paid by the customer T.M.G. in two stages. [caption id="attachment_37655" align="alignleft" width="300"]Collection of the amount of debt under the contract for the provision of real estate services Collection of the amount of debt under the contract for the provision of real estate services[/caption] By virtue of clause 2.6 of the contract, the defendant assumed the obligation to perform all actions only through the plaintiff. On 30.01.2016, the plaintiff conducted a search and display of an apartment at the address: Almaty, ul. p.4, sq.3, which is confirmed by the signature of the customer in paragraph 1.3 of the contract. 02.02.2016 the defendant, contrary to the terms of the contract, performed independent actions to conclude a purchase and sale agreement for the specified apartment, on the basis of which ownership was registered for T.M.G. At the hearing, the plaintiff's representative acting by proxy, Sh.R., supporting the stated claims, gave explanations similar to the claim and asked to satisfy the claim in full. At the hearing, the defendant T.M.G. and the defendant's representative by proxy, Sarzhanov G.T., partially recognized the claims only in the amount of 150,000 tenge, and asked to dismiss the rest of the claim. They asked to take into account the financial and marital status of the defendant, who is raising her son alone and is engaged in private transportation. After hearing the explanations of the parties and their representatives, having studied the materials of the civil case and the submitted written evidence, the court concludes that the stated claims are partially satisfied on the following grounds. It follows from the materials of the case and the explanations of the parties that on 30.01.2016 the parties concluded a contract for the provision of services to the buyer of real estate for No. 896, under the terms of which the plaintiff (as an agency) undertook to assist in the search for a real estate object for the defendant T.M.G. (as a customer).
Collection of the amount of debt under the contract for the provision of real estate services
According to clauses 3.1 and 3.2 of the agreement, the cost of services (remuneration) amounted to 370,000 tenge, which must be paid by the customer of TM.G. in two stages. By virtue of clause 2.6 of the contract, the defendant assumed the obligation to perform all actions only through the plaintiff. On 30.01.2016, the plaintiff conducted a search and display of an apartment at the address: Almaty, 4 P. D. str., sq.3, which is confirmed by the signature of the customer in clause 1.3 of the contract. Subsequently, on 02.02.2016, the defendant T.M.G., contrary to the terms of the contract, committed independent actions to conclude a purchase and sale agreement for the specified apartment, on the basis of which for T.M.G. the ownership of the specified apartment was registered. At the hearing, the defendant did not dispute her signatures in the contract dated 30.01.2016, this contract was not declared invalid or terminated in accordance with the procedure established by law. When evaluating the evidence presented by the parties, the defendant's arguments in support of his objections were found by the court to be unfounded and inconsistent with the actual circumstances of the case, and therefore were not taken into account by the court when resolving the dispute. Thus, in accordance with clause 2.7 of the contract, the defendant undertook not to contact the owner of the property independently or through relatives (acquaintances, spouses) after viewing it, and also to notify the agency of the decision to acquire ownership of the apartment. Thus, despite the services actually provided by the agency and the terms of the agreement reached, the defendant's obligation to pay remuneration in the amount of 370,000 tenge was not fulfilled. According to clause 1 of 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. According to Articles 7 and 271 of the Civil Code, civil rights and obligations arise from contracts and other transactions provided for by law, as well as from transactions that, although not provided for by it, do not contradict the law. Obligations arise from the contract.
According to paragraph 1 of Article 282 of the Civil Code, by virtue of a monetary obligation, one person (the debtor) is obliged to pay money to another person (the creditor), and the creditor has the right to demand from the debtor the fulfillment of his obligation to pay money. 361 of the Civil Code, if in a bilateral agreement the execution for one party has become impossible due to a circumstance for which neither party is responsible, then neither party, since the legislative act or the contract does not provide otherwise, has the right to demand the execution of the contract. By virtue of Article 685 of the Civil Code, the customer is obliged to pay for the services rendered to him on time and in accordance with the procedure specified in the contract for the provision of paid services. In case of impossibility of performance due to the fault of the customer, the services are subject to payment in full, unless otherwise provided by legislative acts or a contract for the provision of paid services. According to the terms of clause 4.4 of the agreement, in case of violation of obligations, the defendant undertook to pay the agency a fine in the amount of 300% of the amount specified in clause 3.1 of the agreement, and in case of late payment to pay 1% for each day of delay. At the same time, the plaintiff decided to recover a penalty in the amount of 370,000 tenge from the defendant. 297 of the Civil Code, if the penalty to be paid (fine, fine) is excessively large in comparison with the creditor's losses, the court has the right to reduce the penalty (fine, fine), taking into account the degree of fulfillment of the obligation by the debtor and the interests of the debtor and the creditor that deserve attention. The penalty imposed by the plaintiff is excessively large in comparison with the losses of the creditor, and therefore, taking into account the requirements of Part 5 of art. 6 of the CPC, based on the criteria of fairness and reasonableness, the amount of the penalty is subject to reduction to 30,000 tenge. 109 of the CPC, the party in whose favor the decision was made, the court awards, on the other hand, all costs incurred in the case. Based on the above and guided by Articles 217-221, Recovery of the amount of debt under the contract for the provision of real estate services Recovery of the amount of debt under the contract for the provision of real estate services[/caption] 223 CPC RK, the Court of the Republic of Kazakhstan: Statement of claim of IP "G." to T.M.G. to partially satisfy the debt and penalties under the service agreement. To collect from T.M.G. in favor of IP "G." the amount of debt under the service agreement dated 30.01.2016 in the amount of 370,000 tenge, the amount of penalty in the amount of 30,000 tenge, court costs for the payment of state duty in the amount of 4,000 tenge, the commission of Kazpost JSC in the amount of 222 tenge and for sending mail in the amount of 436 tenge. To deny the rest of the claim of IP "G".
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