On recognizing the obligations under the contract for the development of the website and mobile application as unfulfilled and collecting the amount of penalties and damages
On July 30, 2024, case No.7527-24-00-2/5030, the Specialized Interdistrict Economic Court of Almaty, consisting of: D.A. Aketaev, the presiding judge, with A.S. Azimzhanova, the secretary of the court session, considered in open court a civil case on the claim, in which:
PLAINTIFF: Limited Liability Partnership "TKB" (hereinafter referred to as "TKB" LLP) Almaty city
DEFENDANT: MBG Limited Liability Company (hereinafter referred to as MBG LLP)
PLAINTIFF'S CLAIMS:
1. to recognize the obligations of MBG LLP under contract No. 667 dated February 9, 2022 for the development of the website and mobile application as unfulfilled;
2. to recover from MBG LLP in favor of the plaintiff the amount of the penalty in the amount of 180,400 tenge.
3. to recover from MBG LLP in favor of the plaintiff the amount of damages in the amount of 2,019,600 tenge
On February 9, 2022, the plaintiff and the defendant signed an agreement No. 667 for the development of a website and a mobile application. The amount of services under the agreement amounted to 2,200,000 tenge. The first installment is 30% of the total cost of the work, which amounted to an amount of 660,000 tenge.
The second installment amounted to 40% of the total cost of the work, which amounted to 880,000 tenge.
The third installment is 30% of the total cost of the work, which amounted to an amount of 660,000 tenge.
According to the terms of the agreement, MBG LLP has assumed the obligation to develop, coordinate and approve the structures of the website and mobile application (hereinafter referred to as the MP);
to develop, coordinate and approve the layout of the main page of the website and MP; to develop, coordinate and approve the layouts of the inner pages of the website and MP; layout of the main page and internal pages of the website and MP; programming:
set up page layouts for the website and MP, enable Push notifications; develop a management system for the website and MP;
content filling of the website and MP; testing of the website and MP; publishing a mobile application in the App Store and Google Pay and uploading the website to hosting; enabling online payment.
The plaintiff applied to the IP "Successful IT Solutions Company" to verify the compliance of the result of the work, according to the conclusion of which it was revealed that the site https://tkb .kz is not ready for operation, namely, the basic functionality does not work, integration with 1C is not completed, online payment is not enabled.
The defendant is also obliged to transfer administrative access to the site to the plaintiff, but the obligation has not been fulfilled, access has not been transferred to the plaintiff. On December 29, 2023, the plaintiff sent a pre-trial claim to MBG LLP, after receiving which he did not take measures to refund the funds, which served as the basis for filing a lawsuit in court.
The plaintiff, referring to Article 272 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), requests the court:
1. to recognize the obligations of MBG LLP under contract No. 667 dated February 9, 2022 for the development of the website and mobile application as unfulfilled;
2. to recover from MBG LLP in favor of the plaintiff the amount of the penalty in the amount of 180,400 tenge;
3. to recover from MBG LLP in favor of the plaintiff the amount of damages in the amount of 2,019,600 tenge.
The defendant submitted a written review in which he argues against the claim, explains that the plaintiff signed the acts of completed work, which confirms the proper functioning of the site.
In addition, he believes that the plaintiff has not provided evidence of the defendant's improper performance of its obligations.
At the hearing, the plaintiff's representative, K. D., supported the claim and asked to satisfy it. The representatives of the defendant, Sarzhanov G., V. I., objecting to the claim, asked to be dismissed on the grounds set out in the written response.
At the request of No. 1, No. 2, No. 3. In accordance with paragraph 3 of Article 8 of the Civil Code, the exercise of civil rights should not violate the rights and protected interests of other subjects of law.
Paragraph 5 of the said article states that actions of citizens and legal entities aimed at harming another person, abusing the right in other forms, as well as exercising the right in contradiction with its purpose are not allowed.
In case of non-compliance with the requirements provided for in paragraphs 3-5 of this article, the court may refuse to protect the person's right.
It was established that the plaintiff and MBG LLP signed an agreement No. 667 for the development of a website and a mobile application.
The full terms of the agreement are given in the descriptive part of the court decision. Suing for recognition of unfulfilled obligations by the defendant MBG LLP, the plaintiff argues that in its current form the site https://tkb .kz is not ready for operation by the customer, the necessary functionality does not work, in particular: the function for ordering goods does not work, integration with 1C has not been completed, online payment is not enabled.
In this regard, the court cited the conclusion of the Sole proprietor to recognize the company as "Successful IT Solutions" as evidence. Objecting to the expert's opinion, the defendant's representatives asked for the expert's opinion to be inadmissible evidence, since specialist Zhakupov Ch.A. does not fully possess knowledge in the field of programming, does not have a special license and permission to draw up an expert opinion.
In addition, there is no warning in the expert's report about criminal liability for making false conclusions. The court considers that the defendant's petition is justified, since there is no warning of criminal liability in the conclusion, the content of the conclusion does not meet the requirements of the norms of Articles 38.39 of the Law of the Republic of Kazakhstan "On Forensic expertise", in addition, when interviewing specialist Zhakupov Ch.A., he was not able to fully answer the questions posed by the defendant.
In accordance with Article 72 of the CPC, the content of which should be considered in the context of the provisions of Article 15 of the CPC, which enshrine the principles of adversarial civil proceedings and the principle of equality of the parties, each party must prove the circumstances to which it refers as the basis of its claims and objections, use remedies, assert, challenge facts, provide evidence and objections to evidence within the time limits set by the judge, which correspond to the fair conduct of the process and are aimed at facilitating the proceedings.
In violation of the requirements of Article 72 of the CPC, the plaintiff did not provide evidence that the defendant had failed to fulfill its obligations to develop the website and mobile application.
On June 30, 2022, the defendant fully handed over to the plaintiff according to the Act of Completed Works No. 1060, the developed website and mobile application.
At the same time, the plaintiff accepted the work, signed and sealed it. Objecting to the claim, the defendant points out that as part of the warranty service of the site under the Contract, the defendant fulfilled his obligations, and all the plaintiff's wishes were corrected.
At the same time, the court should pay attention to the defendant's arguments that the Website consists of complex codes that constantly require updating and maintenance by specialists who need to edit and update with each update of the contributing software.
The defendant's representatives drew the court's attention to the fact that the defendant's Mobile download application was published in the application on Google Play, therefore, Google Play did not accept or add a non-working application to the market without verification.
In this state of affairs, the court concludes that the plaintiff paid for the work performed by the defendant under the Contract and accepted it under the acceptance certificate.
There is no evidence that the website and mobile application were not working at the time of the defendant's work. It should be noted that a considerable time has passed since the transfer of the works on June 30, 2022, respectively, changes could have been made to the website and mobile application, where the expert did not refute this fact at the hearing.
Since the obligations assumed by the defendant were fulfilled within the framework of the Contract, and the work was accepted by the plaintiff, the claims of the claim for damages in the amount of 2,019,600 tenge and penalties in the amount of 180,400 tenge are unfounded.
The defendant requested to recover from the plaintiff the court costs of paying for the services of a representative in the amount of 200,000 tenge.
In accordance with paragraph 1 of Article 109 of the CPC, the court awards to the party in whose favor the decision was made, on the other hand, all court costs incurred in the case.
If the claim is partially satisfied, the costs are awarded to the plaintiff in proportion to the amount of the claims satisfied by the court, and to the defendant in proportion to the part of the claims denied to the plaintiff.
The defendant's expenses for representative services are confirmed by the case materials, and therefore, the plaintiff's court costs for paying for representative services in the amount of 200,000 tenge are to be recovered from the defendant in favor of the defendant.
Guided by Articles 223-226 of the CPC, the court DECIDED: To dismiss the claim of the limited liability company TKB.
To collect from the limited liability company "TKB" in favor of the limited liability company "MBG" the court costs of paying the representative's services in the amount of 200,000 (two hundred thousand) tenge.
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