Determination of jurisdiction and Recognition of acts of performed works (services rendered) executed, Collection of the amount of debt

Zashchita Plus LLP, represented by the General Director of AB.Sh., acting on the basis of the Charter (hereinafter referred to as the Plaintiff) and .. Craft LLP, represented by the Director, Mr. DSS, acting on the basis of the Charter (hereinafter referred to as the Defendant), concluded a contract for the provision of security services No. 002-2020/VS dated 11.01.2020 year (Hereinafter referred to as the Contract), according to which the Contractor, on behalf of the Customer, undertakes obligations to protect against unlawful encroachments and ensure public order at the Multi-storey Residential Complex with underground Parking facility... The Plaintiff sent the Defendant an act of completed work on the security services provided, but the Defendant did not sign the Act of Completed Work within the time limits established by law and did not provide a reasoned objection. Whereas clause 5.2 of the Agreement stipulates Payment of the amount provided for in clause 5.1 of this Agreement shall be made by the Customer within 5 business days from the date of signing by the parties of the Act of Completed Work for the past month, provided that the Contractor properly provides security services (without defects) and the Contractor provides the Customer with an invoice and an invoice. If, after 3 working days, the Customer does not provide the Contractor with a written refusal to sign the Act of Completed Works for the services rendered and does not sign it, the works and services rendered by the Contractor are considered to have been completed in full.   Due to improper fulfillment of contractual obligations on December 24, 2020, the Plaintiff informs the Defendant in order to settle the pre-trial procedure that, in accordance with the terms of the Agreement, .. Craft LLP has outstanding debts in the amount of 520,000 tenge for June and July 2020.

Determination of jurisdiction and Recognition of acts of performed works (services rendered) executed, Collection of the amount of debt

In accordance with section 4, clause 4.1, clause 1 of the Contract, the Customer is obliged to “Timely pay for the Contractor's security Services in accordance with the terms of this Contract.” On the basis of the above-mentioned Agreement, the Plaintiff drew up an Act of reconciliation of mutual settlements for the period from 01/11/2020 to 08/24/2020, the total debt of the Defendant to the Plaintiff amounted to 520,000 tenge. The Plaintiff fulfilled all obligations under the Contract to the Defendant in full in accordance with Article 272 of the Civil Code of the Republic of Kazakhstan, which stipulates that 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. However, according to the Agreement, the Defendant did not return the money, and all oral and written requests from the Plaintiff for a refund were unsuccessful. In section 8, clause 8.1. “For violation of the deadline for payment for Services provided for in clause 5.2. of this Agreement due to the fault of the Customer, the Customer, at the request of the Contractor, pays the Contractor a penalty in the amount of 0.1 (zero point one tenth) percent of the late amount for each day of delay.” Given the long delay in payment for the service, the penalty to be paid is a large percentage of the outstanding amount. In this regard, the Plaintiff reduces the amount of the penalty to 10% of the loan amount, that is, the amount of the penalty will be 52,000 tenge, the total debt amounted to 572,000 (five hundred seventy-two thousand) tenge. By virtue of Article 273 of the Civil Code of the Republic of Kazakhstan, unilateral refusal to fulfill an obligation and unilateral modification of its terms are not allowed. Written correspondence was conducted between the Plaintiff and the Defendant, as evidenced by the Claim for ex. No. 7 dated 08/24/2020, to which an answer was received for ex. No. 83 dated 09/07/2020, claim for ex. No. 8 dated 09/28/2020, response to claim for ex. No. 93 dated 10/15/2020, but all attempts to resolve the situation peacefully were unsuccessful. To this day, the Plaintiff has not received his funds.

Thus, the Defendant is not fulfilling his obligations to pay for the services provided. In accordance with paragraph 15.6 of the Agreement, in case of failure to reach an agreement between the Parties, all disputes, disagreements and claims arising from or in connection with this agreement, including those relating to its execution, violation, termination or invalidity, are subject to final resolution in the “Commercial Arbitration Court of Almaty” (hereinafter referred to as the Arbitration) in accordance with its The Rules of Procedure, the board of arbitrators consisting of one presiding arbitrator, in Russian, in the city of Almaty, at the location of the Arbitration, in compliance with the procedure established by the current legislation of the Republic of Kazakhstan. When searching for Arbitration, we did not find this Arbitration in the registry of the Arbitration Chamber of Kazakhstan (hereinafter referred to as the APC). Later, we sent a request to the APC, which replied that the Arbitration was indeed not listed in the registry, in addition, there is a letter from the Commercial Arbitration Court of Almaty stating that the Arbitration has suspended its work. activity. Accordingly, in order to settle the dispute in court, we have filed a lawsuit with the Council of Economic and Social Council of Almaty. In accordance with paragraph 1 of Article 349 of the Civil Code of the Republic of Kazakhstan, a violation of an obligation is defined as its non-fulfillment or improper fulfillment (untimely, with defects in goods and works, in violation of other conditions determined by the content of the obligation) - improper fulfillment. According to clause 1 of Article 359 of the Civil Code of the Republic of Kazakhstan, the debtor is responsible for non-fulfillment and (or) improper fulfillment of obligations in the presence of guilt, unless otherwise provided by law or contract. Based on paragraph 1 of Article 113 of the CPC RK, at the request of the party in whose favor the decision was made, the court awards, on the other hand, the costs incurred by her to pay for the assistance of a representative (several representatives) who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party. For property claims, the total amount of these expenses should not exceed ten percent of the satisfied portion of the claim. By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests. 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. Based on the above and in accordance with art. 148 of the CPC RK, the Court was asked to: Recognize acts of completed works (services rendered) No. 29 dated 30.06.2021, No. 34 dated 31.07.2021 - fully executed; Recover from LLP “..... Craft” in favor of LLP “....... plus” the amount of debt in the amount of 520,000 (five hundred and twenty thousand) tenge;

Determination of jurisdiction and Recognition of acts of performed works (services rendered) executed, Collection of the amount of debt

However, on June 16, 2021, the Specialized Interdistrict Economic Court of Almaty, consisting of the presiding judge Baskanbayeva S., having heard the plaintiff's representative, having studied the case materials, considered that the statement of claim should be dismissed on the following grounds. According to part 5 of Article 279 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the court leaves the application without consideration if an agreement has been concluded between the parties in accordance with the law to transfer the dispute to arbitration, unless otherwise provided by law.

And Determined: To leave without consideration the statement of claim of the limited liability company ".... plus " to the defendant limited liability Partnership ".... Craft" on recognition of acts executed and recovery of the amount. Disagreeing with the decision of the court of first instance and considering it illegal, unjustified and subject to change in accordance with Articles 280, 401, 429 of the Civil Procedure Code of the Republic of Kazakhstan, a private complaint was filed and the Court was asked to: Cancel the ruling of the Specialized Interdistrict Economic Court of Almaty dated June 16, 2021; The statement of claim of the Plaintiff LLP "....... plus, "to the defendant, "...... Craft" LLP, on recognizing the acts executed and collecting the amount, to consider them on their merits. Based on the arguments presented in a Private Complaint to the Appellate Instance, on September 20, 2021, the Judicial Board for Civil Cases of the Almaty City Court, chaired by Judge Alikhan I.A., considered in open court via mobile videoconference the civil case on the claim of the limited liability company "Protection Plus" to the defendant limited liability company.... Craft" on the recognition of acts executed and the recovery of the amount received on the plaintiff's private complaint against the ruling of the Specialized Interdistrict Economic Court of Almaty dated June 16, 2021, the Court Determined: The ruling of the Specialized Interdistrict Economic Court of Almaty dated June 16, 2021, in this case to cancel, the plaintiff's private complaint to satisfy.

#Lawyer #Lawyer #Legal service #Legal advice #Defense Company #Law Firm #Civil #Criminal #Administrative #Arbitration cases disputes #Almaty #Kazakhstan 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases