For the production of funds by oral agreement

 

September 25, 2024 No. 7599-24-00-2A/10075 as part of the judicial board for civil cases of the Almaty city court with the participation of the chairman of the board N. B. Beknazarov, judges A. A. Abilova, I. A. Alikhan, the representative of the plaintiff zh.Shaimukhanbetuly, the representative of the defendant G. Sarzhanov, At an open court session held via video link in the building of the Almaty city court, the plaintiff considered the civil case received by the appeal of the plaintiff to the decision of the District Court No. 2 of the Auezovsky District of Almaty on July 26, 2024 on a civil case initiated in electronic form with a claim for the recovery of funds from the defendant K S T Ch.the decision of the District Court No. 2 of the Auezovsky District of Almaty on July 26, 2024, this claim was partially satisfied by the decision of the District Court No. 2 of the Auezovsky District of Almaty on July 26, 2024.

The court decided as follows: in favor of the defendant S. T. K. an plaintiff K. A. M. to collect funds in the amount of 8,300 tenge, expenses for legal assistance in the amount of 830 tenge, state duty in the amount of 83 tenge.

The rest of the claim was dismissed. According to the materials of the case, the following points were determined. An oral agreement was concluded between the defendant K. A. M. Tala and the defendant S. T. KV.

According to the agreement, the defendant received from the plaintiff on October 09, 2023 for the sale of 3,320 boxes (21,810 kg) of grapes and 450 boxes (1,670 kg) of pomegranate products.

After the goods are sold, the proceeds must be returned to the plaintiff. According to the plaintiff, the amount of goods subject to return is 7,000,000 tenge. The defendant returned 4,000,000 tenge of funds, 3,000,000 tenge of arrears remained.

In this regard, the statement of claim asks the defendant to recover arrears of 3,000,000 tenge and court costs. The court of First Instance found that the plaintiff was subject to partial satisfaction of the claim made by K. A. thousand and collected only 8,300 tenge of arrears, as well as reimbursed the court costs associated with the amount collected. In disagreement with the court decision, the plaintiff filed an appeal.

In the complaint, the court indicates that the interested person attracted an individual entrepreneur to the trial only after the court left for consultation to make a decision, did not give him a proper judicial notification, the defendant has arrears in the case materials, without taking into account which the court inexplicably collected only 8,300 tenge.

At the court session, the plaintiff fully satisfied the appeal, requested the cancellation of the court decision and the revision of the said case on its merits. The representative of the defendant did not agree with the appeal and asked to leave the decision of the court of first instance in force.

The appeal board listened to the explanations of the participants of the court session, fully studied the case documents, discussed the arguments presented in the appeal and concluded that the court decision is subject to leave unchanged.

In accordance with Article 272 of the Civil Code of the Republic of Kazakhstan, an obligation must be properly executed 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 customary rights in the field of business activity or other requirements usually imposed.

The statement of claim indicates that the defendant did not fully fulfill the obligation assumed by him. However, this argument of the plaintiff is not confirmed by the mataries of the case. In accordance with Part 3 of Article 65 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the APC), the circumstances of the case, which by law must be confirmed by certain evidence, cannot be confirmed by any other evidence.

The agreement concluded between the parties is not concluded in writing, but only orally. The defendant does not deny the receipt of the goods for sale, such a relationship with the mataries of the case is confirmed.

However, in the case materials, there was no evidence that the defendant was subject to a refund of 7,000,000 tenge for the goods received.

No such obligation is specified, the defendant does not confirm this amount. The defendant believes that the total amount of goods sold should be 7,000,000 tenge, however, there are losses in this amount. That is, the cost of transporting the goods, related to sales and other costs.

In particular, it indicates that the plaintiff has returned 4,000,000 tenge. Consequently, there is no clear evidence in the case that the defendant must return the plaintiff 7,000,000 tenge for the goods, or that after giving 4,000,000 tenge, an additional 3,000,000 arrears remain.

In the court of appeal, the representative of the defendant recognized that he owed the plaintiff 8,300 tenge and confirmed it.

Therefore, the collection of this amount by the court of first instance is justified only by the recognition of the defendant. The rest of the claim did not find its evidence.

In accordance with the requirements of Article 72 of the APC, each party must independently prove the circumstances to which it refers as the basis of its claims and objections.

However, as can be seen from the case materials, the plaintiff did not submit to the court documents proving his motivation, did not provide evidence indicating the validity of the claim.

In addition, the argument of the court of first instance in the appeal that a third party violated the rights of an individual entrepreneur Makatova without calling her to court is unfounded.

From the case materials, it follows that the plaintiff purchased the goods from ie M and this goods were further transferred to the defendant. A written agreement was concluded between the plaintiff and IP Makatova, the text of which does not indicate whether the defendant has a certain obligation. The contract only states that the plaintiff has purchased the goods.

That is, the plaintiff bought the GOODS ie M, and then transferred it for sale to the defendant at his disposal. At the same time, the decision of the first instance does not affect the rights and legitimate interests of the IP, in respect of which the decision has not been made.

Therefore, the stated motivation is unfounded. In accordance with Part 3 of Article 427 of the civil code, the validity of a valid court decision is not canceled on a single formal basis.

Violation or improper application of the norms of material or procedural law is the basis for changing or canceling the decision of the court of first instance, if this violation entails or may entail a failure to make a correct decision.

The absence of an IP thousand in court is a formal reason for violating a legal and reasonable judicial act.

Guided by the foregoing, the Appeal Board asserts that the court of first instance correctly assessed the arguments collected in the case and made a legal decision.

There are no grounds for canceling or changing the decision, the appeal is not subject to satisfaction.

In accordance with paragraph 3) of Part 2 of Article 434 of the criminal code, the civil case under consideration is not subject to revision in a cassation procedure.

Guided by articles 424, 425, 426 of the Civil Procedure Code of the Republic of Kazakhstan, the judicial board decided: the decision of the District Court No. 2 of the Auezovsky District of Almaty on this civil case dated July 26, 2024 is unchanged, to leave the appeal of the plaintiff without satisfaction.

 

 

 

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