Recognition of acts of completed works as valid and recovery of the amount of loss and penalty

 

On August 18, 2025, No. 7599-25-00-2a/8045 Judicial Board for Civil Cases of the Almaty City Court, consisting of: presiding judge Alimbayeva G.O., judges of the board Absimetova K.D., Biyakhmetova B.D., with the participation of representatives of the plaintiff Sarzhanov G.T., Dko O.F., having considered in open court in the courthouse (by WhatsApp messenger video communication), an electronic civil case on the claim of the limited liability company "C kz" to the limited liability company "BP" for recognition of acts of work performed, according to the counterclaim of the limited liability company "BP" to the limited liability company "C kz" for the recovery of damages and penalties received on the plaintiff's appeal against the decision of the specialized interdistrict economic court on June 11, 2025,

C kz Limited Liability Partnership (hereinafter referred to as LLP) applied to the court with a request to recognize the certificates of completed works as valid, referring to the completion of work in February 2024 and sending the certificates to the defendant without receiving a reasoned response. The defendant, BP LLP, filed a counterclaim for damages in the amount of 11,356,875 tenge and penalties in the amount of 4,427,238 tenge.

Motivating him by the contractor's violation of the deadlines for the performance of work, as a result of which the defendant suffered losses and paid Adidas LLP a penalty in the specified amount.

They were satisfied with the decision of the specialized interdistrict economic Court on June 11, 2025 on the recognition of acts of completed works as valid.

The counterclaims of BP LLP for recovery of losses were left without satisfaction, and the claim for recovery of penalties was partially satisfied: the amount of 4,427,238 tenge was recovered from C Kz LLP.

Disagreeing with the decision regarding the recovery of the penalty, C Kz LLP filed an appeal, stating that the work was actually completed, the acts of completed work were submitted to the customer, therefore, the collection of penalties is illegal and excessive.

The failure of a party duly notified of the time and place of the hearing of the case, in accordance with part 2 of Article 418 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter CPC), is not an obstacle to the proceedings.

After hearing the plaintiff's representatives who supported the arguments of the appeal, having examined the case materials and the arguments of the appeal, the judicial board comes to the following conclusion.

According to Article 427 of the CPC, the grounds for revoking or changing a court decision on appeal are:

1) incorrect definition and clarification of the range of circumstances relevant to the case;

2) the lack of evidence of circumstances relevant to the case established by the court of first instance;

3) inconsistency of the conclusions of the court of first instance set out in the decision with the circumstances of the case;

4) violation or improper application of substantive or procedural law;

5) there is no record of a court session or a separate procedural action in the case, when the obligation to conduct it is provided for by this Code. There are no such violations.

In accordance with part 2 of Article 426 of the CPC, when an appeal or protest is dismissed due to the lack of new arguments, the reasoning part of the decision indicates only the absence of grounds provided for in this Code for amending the decision of the court of first instance or its cancellation.

The court of First Instance found that on December 4, 2023, C Kz LLP (contractor) and BP LLP (customer) signed a contract No. BB-SKZ-04022023-01, under the terms of which the contractor undertook to perform work on the supply and installation of engineering equipment and internal engineering systems in the amount of 29 394,521 tenge with the completion date until January 17, 2024. By an additional agreement dated December 26, 2023, the cost of additional work was increased to 32,882,886 tenge.

The work was carried out for the office of Adidas Kazakhstan LLP at 210 Dostyk Avenue, Almaty.

The plaintiff (contractor) drew up and sent to the defendant certificates of completed work, but the customer (BP LLP) refused to sign them, arguing that the work was performed in violation of deadlines, and there are complaints about quality.

In accordance with paragraph 1 of Article 616 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), under the contract, the contractor is obliged to complete the work on time and deliver its result to the customer.

The delivery of the result of the work and their acceptance are formalized by an act signed by both parties (art. 663 of the Civil Code of the Republic of Kazakhstan).

The court of first instance, satisfying the main claim, reasonably proceeded from the conclusions of the report on the results of the assessment of the quality of construction and installation works performed on May 17, 2024, according to which the work on the installation of internal engineering networks and systems was carried out in accordance with the project approved by the customer for the production of works.

The installation work was carried out without violations of building codes and regulations of the Republic of Kazakhstan. The actual amount of work performed has been proven, but the defendant has not provided any evidence to refute these circumstances.

The Judicial Board agrees with the above conclusions of the court of first instance and considers the decision in this part to be lawful and justified. In addition, the court of first instance found that C Kz LLP violated the deadlines for the work, which is confirmed by letters from the customer, reconciliation reports and explanations from a third party, Adidas Kazakhstan LLP, submitted to the case.

The deadline for completing the work was exceeded by 118 days. By virtue of Article 293 of the Civil Code, as well as clause 9.3.3 of the concluded contract, in case the contractor violates the deadlines for more than 20 calendar days, the contractor is obliged to pay the customer a fine in the amount of 15% of the contract price.

The contract price, according to the supplementary agreement, amounted to KZT 29,514,922, respectively, the amount of the penalty was KZT 4,427,238. The arguments of the plaintiff's appeal that the work was completed and the acts were sent to the customer do not indicate that there was no violation of deadlines.

By itself, the direction of the acts does not release the contractor from responsibility for late fulfillment of obligations.

Also, the plaintiff's arguments that the delay in fulfilling obligations under the contract arose due to the lack of construction readiness of the facility cannot be taken into account by the judicial board.

In accordance with Articles 272 and 273 of the Civil Code of the Republic of Kazakhstan, obligations must be performed properly in accordance with the terms of the contract and the requirements of the legislation.

In the event of circumstances preventing timely execution, the contractor was obliged to notify the customer in a timely manner and declare a change in the deadline or suspension of the contract.

There is no evidence from the case file that the contractor took measures to coordinate the change of deadlines due to the lack of construction readiness of the facility.

Thus, the defendant's reference to the construction readiness of the facility as the basis for exemption from liability for violation of the terms of the penalty is unfounded and not supported by evidence.

The applicant's reference to the excessive amount of the penalty is also unfounded.

The amount of the penalty is directly stipulated by the terms of the contract, agreed upon by the parties at its conclusion and corresponds to Article 298 of the Civil Code, according to which the penalty is collected regardless of the actual amount of losses.

The grounds for applying Article 297 of the Civil Code (reduction of the penalty by the court) have not been established, since the plaintiff has not proven the circumstances indicating a clear disproportionality.

Thus, the judicial board comes to the conclusion that the decision of the court of first instance regarding the recovery of the penalty is lawful, justified and is not subject to cancellation or amendment.

Guided by Part 1 of subparagraph 1 of Article 424 of the CPC, the board,

DECIDED: The decision of the specialized interdistrict economic Court on June 11, 2025, in this case should remain unchanged. The appeal is dismissed.

 

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