Recognition of acts of completed works as invalid, recognition of the defendant's obligations as unfulfilled and recovery of the amount

On July 25, 2024, the case No.7527-24-00-2/5847 Specialized Interdistrict Economic Court of Almaty city, consisting of: the presiding judge Kasymbaeva G.S. with the secretary of the court session, Elshibai K.S., considered in open court using audio-video recording tools the civil case on the claim of: limited liability Company "T K B " K To the defendant, the limited liability partnership "M B G " on the recognition of acts of completed works as invalid, on the recognition of the defendant's obligations as unfulfilled, on the recovery of the amount

On July 18, 2022, the plaintiff and the defendant entered into agreement No. 699 for the two-way integration of the online store with 1C (hereinafter referred to as the Agreement), according to which the customer assigns and the contractor undertakes the two-way integration of the online store with 1C in accordance with the terms of reference.

According to clause 2.1. of the agreement, the cost of work under this agreement is 250,000 tenge.

According to clause 3.1. of the agreement, the contractor undertakes to carry out two-way integration of the online store with 1C within 15 working days.

The plaintiff has paid an amount of 250,000 tenge under the contract, which is confirmed by the payment order.

According to clause 4.2 of the contract, the work under the contract is considered to be fully completed by the contractor after the parties sign the acceptance certificates for the completed work at each stage.

The plaintiff, having supplemented the claims, appealed to the court with the above-mentioned claim, arguing that the defendant had not fulfilled contractual obligations, that is, he had not actually completed the work. In this regard, the court requests that the acts of work performed under contract No. 699 dated 07/18/2022 for 1C integration be deemed untrue, that the obligations of M B G LLP under contract No. 699 dated 07/18/2022 for the development of a website and mobile application be not fulfilled, and that the defendant be charged an amount of 250,000 tenge.

In a written response, the defendant asks the court to dismiss the claim, stating that the plaintiff did not comply with the terms of the contract, as well as the requirements of current legislation, to provide the data necessary for the completion of the work. Thus, non-compliance with the deadlines for the execution of work arose due to improper fulfillment of the terms of the contract and the requirements of current legislation by the plaintiff. The plaintiff refuses to accept completed works and sign acts of completed works, ignoring the defendant's written requests, as well as requests sent via the WhatsApp messenger.

The plaintiff's representative supported the claims at the hearing and asked them to be satisfied on the grounds set out in the claim.

The defendant's representative in court did not recognize the claim, and asked the court to dismiss the claim.

 The court took measures to resolve the issue through mediation, but the parties did not exercise these procedural rights.

At the request of No. 3.

According to Article 272 of the Civil Code of the Republic of Kazakhstan (hereinafter CC), the obligation must be fulfilled properly in accordance with the terms of the obligation and the requirements of the legislation.

In accordance with Article 268 of the Civil Code, by virtue of an obligation, one person (the debtor) is obliged to perform a certain action in favor of another person (the creditor), such as paying money, and the creditor has the right to demand that the debtor fulfill his obligations.

 In accordance with paragraph 1 of Article 683 of the Civil Code, under a contract for the provision of paid services, the contractor undertakes to provide services on behalf of the customer (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services.

In the judicial jamming, it was established that the defendant had not completed the work under the contract. This circumstance is confirmed by the fact that there are no signed certificates of completed works and invoices issued between the parties.

By virtue of Article 349 of the Civil Code, a violation of an obligation is understood 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. The debtor is held liable for breach of an obligation at the request of the creditor.

According to Article 386 of the Civil Code, if the legislation or the contract provides for the term of the contract, the end of this period entails the termination of the obligations of the parties under the contract.

An agreement in which there is no indication of its validity period is recognized as valid until the end of the fulfillment of obligations by the parties specified in it.

The court has reliably established that the defendant's obligations under the contract have not been properly fulfilled, and therefore a debt has been incurred. This fact is confirmed by the inspection protocol of the audio message in the mobile phone dated May 24, 2024, certified by the notary of Uralsk With T.A.

According to Article 293 of the Civil Code, a penalty (fine, fine) is a sum of money determined by law or contract, which the debtor is obliged to pay to the creditor in case of non-fulfillment or improper fulfillment of the obligation, in particular in case of late fulfillment. Upon request for payment of a penalty, the creditor is not obliged to prove the damage caused to him.

According to Article 298 of the Civil Code, a penalty is levied for non-fulfillment or improper fulfillment of an obligation if there are conditions for holding the debtor accountable for violating the obligation (Article 359 of this Code).

Paragraph 2 of Article 359 of the Civil Code establishes that a person who has not fulfilled or improperly fulfilled an obligation in carrying out business activities is liable for property liability unless he proves that proper fulfillment was impossible due to force majeure, that is, extraordinary and unavoidable circumstances under the given conditions (natural disasters, military actions, etc.).

         In the circumstances described, the court concludes that the claim for recovery of the amount of 250,000 tenge is justified and must be satisfied.  

At the request of No. 1,2.

The court found that the defendant's obligations under the contract were not properly fulfilled, and therefore the court satisfied the claim for recovery of the amount, which restored the violated rights, claims No. 1 and 2 are unnecessarily filed, and therefore must be refused.

In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter CPC), civil proceedings are conducted on the basis of competition and equality of the parties. The parties enjoy equal procedural rights and bear equal procedural duties. In the course of civil proceedings, the parties choose their position, ways and means of defending it independently and independently of the court, other bodies and persons.

During the consideration of the case by the defendant's side in accordance with art. 72 of the CPC, not a single piece of evidence was presented to substantiate their arguments.

73, paragraph 1 of the CPC, failure to provide the evidence available to the parties to the court precludes the possibility of presenting this evidence to the court of appeal and cassation.

In the circumstances described and the requirements of the law provided, the court considers the plaintiff's claims to be partially satisfied.

By virtue of Article 109 of the CPC, the costs of paying the state fee in the amount of 7,500 tenge are to be recovered from the defendant in favor of the plaintiff. The court, guided by Articles 223-226, 229 of the CPC, DECIDED: Partially satisfy the claim of the limited liability company "T K B ". To collect from the limited liability company "M B G " in favor of the limited liability company "T K B " the amount of 250,000 (two hundred and fifty thousand) tenge, the amount of the state duty in the amount of 7,500 (seven thousand five hundred) tenge.

To dismiss the rest of the claim.

 

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