Judicial practice on the recovery of damages and penalties for Contractual obligations for the supply of goods

In the proceedings of the Nauryzbay District Court of Almaty, there was a civil case on the claim of the SHOI (hereinafter referred to as the Plaintiff) to IP "P" represented by the AGB (hereinafter referred to as the Defendant) for damages. We disagreed with the Plaintiff's claims on the following grounds. The plaintiff makes claims on the basis of a Purchase and Sale Agreement dated 02/07/2019 (hereinafter referred to as the Agreement), which was allegedly concluded between IP "P" represented by AGB and SHOI. However, we would like to point out that the Defendant did not enter into an Agreement with the Plaintiff, and the signature on the Agreement belongs to ZHAE. In turn, J.E. She is not an employee of IP "P", and she also does not have a power of attorney from IP "P" to conclude contracts and receive funds. But JA.E agreed with the plaintiff to sell baby strollers in February 2019. Since, at that time, ZHA.E. was not yet registered as an individual entrepreneur, and the plaintiff, in turn, required official documents, in this regard, ZHA.E used blank contract forms and a cash receipt order stamped by IP "P" without informing his mother AG.B., who owns IP "P" In accordance with the signatures on the documents belongs to ZH.E., therefore, she concluded the contract with the plaintiff independently and fulfilled her obligations under the contract herself. Therefore, IP "P" has nothing to do with this transaction, and the forms of IP "P" documents were used only for appearance.

Judicial practice on the recovery of damages and penalties for Contractual obligations for the supply of goods

Thus, Ms.E. did not have the authority to conclude a Contract on behalf of IP "P" and acted on her own behalf. By virtue of paragraph 1 of Article 166 of the Civil Code of the Republic of Kazakhstan, a person who permanently and independently represents on behalf of entrepreneurs when concluding contracts (a commercial representative) acts on the basis of a written agreement containing instructions on the powers of the representative, and in the absence of such instructions, also a power of attorney. In accordance with paragraph 2 of Article 157 of the Civil Code of the Republic of Kazakhstan, a transaction is declared invalid if the requirements for the form, content and participants of the transaction, as well as for their freedom of expression, are violated on the grounds established by this Code or other legislative acts. According to paragraph 2 of art.157-1 of the Civil Code of the Republic of Kazakhstan, an invalid transaction does not entail legal consequences, except for those related to its invalidity, and is invalid from the moment of its commission, unless otherwise provided by this Code, legislative acts of the Republic of Kazakhstan or follows from the substance or content of the transaction. It follows from the receipts attached to the statement of claim that the Plaintiff did not pay the money to the Defendant, but transferred it to ZHAE's personal card account. Thus, the Defendant did not assume any obligations to the Plaintiff and did not receive any funds from the Plaintiff, and therefore the Defendant has no obligations to the Plaintiff. Along with this, to a bank card of a woman.E, 3,360 448.77 tenge was received from the plaintiff, which is about 8,600 US dollars (the amount of the contract), but we are completely unclear about what other amounts indicated in the statement of claim. And the Plaintiff also received from ZHA.Some of the baby strollers that she accepted as part of the contract, and those that did not fit her, she sent back to Almaty. Next, for the settlement of mutual settlements, it is necessary.E suggested that the Plaintiff recalculate the cost of strollers from wholesale prices to retail prices, since the Plaintiff did not purchase all the goods, but only part of the goods. In turn, the Plaintiff refused to recalculate, and therefore the settlement of settlements stalled. Thus, the relationship between the Plaintiff and ZHA is currently underway.The payments under the agreement dated 07.02.2019 are at the stage of settlement of mutual settlements. But it is not clear to us which agreement dated 02/07/2018 the Plaintiff is referring to in his statement of claim, especially since this agreement is VALID.I did not conclude a contract with the Plaintiff. In confirmation of the above words, we also inform you that the seal impression on the purchase and sale agreement dated 02/07/2019 does not belong to IP "P", which can be confirmed by an appropriate examination in case the Plaintiff disputes this fact. In addition, during the court session, the plaintiff's representative stated that the Plaintiff personally purchased baby strollers under the agreement dated 02/07/2019 from The defendant in the Trading house "Tigrohaud". But the Defendant did not sell baby strollers in the Tigrohaud Trading House, which is confirmed by the official response of Firm Tigrohaud LLP No. 65 dated 01.10.2019. In addition, the Plaintiff submits to the court a receipt for cash receipt No. 15 dated 02/07/2019 (hereinafter referred to as the Receipt), but does not submit a fiscal receipt from IP "P". Please note that the amount indicated on the Receipt is in a foreign currency, that is, in the amount of $ 8,600. In accordance with paragraph 1 of Article 7 of the Law of the Republic of Kazakhstan "On Currency Regulation and Currency Control" (hereinafter referred to as the Law), payments and (or) money transfers for currency transactions of residents and non–residents are carried out through bank accounts with authorized banks in accordance with the procedure established by the currency legislation of the Republic of Kazakhstan. It is allowed to conduct without opening and (or) using bank accounts in authorized banks: 10) payments by issuing (transferring) a check or bill of exchange. According to clause 3, clause 1, Article 1 of the Law, currency transactions: - transactions related to the transfer of ownership and other rights to currency valuables, as well as the use of currency valuables as a means of payment. In accordance with clause 2, clause 1, Article 1 of the Law, currency values are: - foreign currency. Thus, the Receipt cannot be recognized as evidence in this civil case. And also in paragraph 1 of Article 166 of the Code of the Republic of Kazakhstan "On Taxes and other mandatory payments to the Budget" in the territory of the Republic of Kazakhstan, monetary settlements are made with the mandatory use of cash registers (hereinafter referred to as KKM), it should be noted that monetary settlements are understood to be settlements carried out for the purchase of goods, performance of works, provision of services through cash and/or payments using payment cards. Taking into account the above, when making payments using payment cards, there is an obligation to apply KKM. At the same time, we note that according to subclause 2, clause 6, Article 166 of the Tax Code, when applying the CCM, a CCM check or a sales receipt is issued for the amount paid for the goods, work, or service. Thus, it is necessary to knock out a KKM check when making a monetary payment upon receipt of payment for goods, work, or service. According to paragraph 1 of Article 68 of the Civil Code of the Republic of Kazakhstan, each evidence is subject to assessment taking into account its relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a civil case. Considering the above, it can be seen that the claim is not brought against the person who should be responsible for the claim. In this regard, the Plaintiff needs to apply for the replacement of the improper defendant IP "P" in the person of AGB with the proper defendant JAE. In accordance with Part 1 of Article 50 of the CPC RK, replacement of the defendant is allowed before the start of consideration of the case on the merits in the court of first instance. The court, having established that the claim was brought against the wrong person who should be responsible for the claim, may, at the request of the plaintiff, without terminating the case, allow the replacement of the improper defendant with the proper one. After the replacement of an improper defendant, the preparation of the case and its consideration at the court session are carried out from the very beginning. The term of consideration of the case is calculated from the date of completion of the preparation of the case for trial.

Judicial practice on the recovery of damages and penalties for Contractual obligations for the supply of goods

           Based on the above, the Court was asked to leave the claims of the SHOI against IP "P" represented by the AGB without satisfaction. Thus, the court concludes that for the party on whose behalf the unauthorized person entered, the contract does not give rise to legal consequences. On May 21, 2020, the Nauryzbay District Court of Almaty, having considered in open court a civil case on the recovery of damages and penalties, having studied the opinion of the participants in the process, comes to a decision to dismiss the claim in full on the above grounds and decided: To dismiss the claim of SEAM to Individual Entrepreneur "P" for the recovery of damages in the amount of 7,901,465 /seven million nine hundred one thousand four hundred sixty-five/ tenge and penalties 279,000 /two hundred seventy-nine thousand/ tenge.

#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