Private complaint against the ruling of the Specialized Interdistrict Economic Court of Almaty
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To the Board of Appeal for Civil Cases of the Almaty City Court of Almaty,
050000, Kazybek Bi Street, 66. 0201@sud.kz
from the plaintiff: LLP “Protection plus" BIN 010340000399. Almaty, Zhazylbek str., 20, sq. 158.
Proxy Representative: Law and Law Law Firm BIN 201240021767
79 Abylai Khan Ave., office 304, Almaty. info@zakonpravo.kz / www.zakonpravo .kz
+ 7 727 578 58 57; +7 708 578 58 57.
Private complaint
on the decision of the Specialized Interdistrict Economic Court of Almaty dated June 16, 2021
On June 16, 2021, the Specialized Interdistrict Economic Court of Almaty, Judge S. Baskanbayeva, having considered civil case No. 7527-21-00-2/4568 on the claim of the limited liability company "Protection Plus" against the defendant, the limited liability company "Best Craft" on recognition of acts executed and recovery of the amount, the Judge determined: To dismiss the statement of claim of the limited liability company the responsibility of "Protection Plus" to the defendant, the limited liability company "Best Craft", to recognize the acts executed and recover the amount. We disagree with the arguments stated in the court Ruling of June 16, 2021 in civil case No. 7527-21-00-2/4568. We consider the Ruling of the court of first instance to be illegal, unjustified and subject to cancellation on the following grounds: The court found in the ruling that the Arbitration Clause of the contract concluded between the parties was not invalidated by the court, was not excluded by the parties, and the condition for consideration of disputes arising between the parties in the Commercial Arbitration Court of Almaty is mandatory for the parties. Due to the above situation, we previously applied to the Commercial Arbitration Court of Almaty to resolve the dispute. But the Commercial Arbitration Court of Almaty reported that their activities were suspended indefinitely. The letter also states that we have the right to apply to another arbitration court. Subsequently, we inquired from other arbitration courts in Almaty and were made aware that we would violate the contractual clause if we applied to another arbitration court to resolve the dispute. Accordingly, the Defendant's side has every right to cancel the arbitration award of the court.
Private complaint against the ruling of the Specialized Interdistrict Economic Court of Almaty
And the reason for applying to the Specialized Interdistrict Economic Court of Almaty is the fact that between Zashchita Plus LLP, represented by General Director Aigaraeva B.Sh., acting on the basis of the Charter (hereinafter referred to as the Plaintiff) and Best Craft LLP, represented by Director Mr. Japarov Sabiat Seitovich, acting on the basis of the Charter (hereinafter referred to as the Plaintiff). – The defendant) a contract for the provision of security services No. 002-2020/VS dated 11.01.2020 was concluded (Hereinafter - Contract), according to which the Contractor, on behalf of the Customer, undertakes obligations to protect against unlawful encroachments and ensure public order at the facility “Multi-storey Residential Complex with underground parking “Vesnovka". . 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 in P. 5.2, of the Agreement, Payment of the amount stipulated in clause 5.1., of this Agreement is stipulated by the Customer within 5 business days from the date of signing by the parties of the Act of Completed Works 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 for pre-trial settlement that, in accordance with the terms of the Agreement, Best Craft LLP has outstanding debts in the amount of 520,000 tenge for June and July 2020. 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.
Private complaint against the ruling of the Specialized Interdistrict Economic Court of Almaty
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. of the Agreement, “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 related 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. Dear Court of Appeal, when searching for Arbitration, we did not find this Arbitration in the register of the Arbitration Chamber of Kazakhstan (hereinafter referred to as the APC), we subsequently sent a request to the APC, from which we received an answer that the Arbitration was indeed not listed in the register, in addition, there is a letter from the Commercial Arbitration Court of Almaty stating that the Arbitration Court has suspended its activities. Accordingly, in order to settle the dispute in court, we have filed a lawsuit with the Council of Economic and Social Council of Almaty.
Private complaint against the ruling of the Specialized Interdistrict Economic Court of Almaty
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.
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