Recognition of acts of completed works as valid collection of amounts and penalties

 

On July 14, 2024, Case No.7527-25-00-2/5441 Specialized Interdistrict Economic Court of Almaty, composed of the presiding judge Baskanbayeva S.S., with the secretary Shargyn K.T., having considered in open court in the courthouse the civil case on the claim of the PLAINTIFF: Limited Liability Company "C kz" DEFENDANT: Limited Liability Company "KPS" PLAINTIFF'S CLAIMS:

1. on the recognition of acts of completed works as valid

2. about the recovery of the amount

THE PLAINTIFF IN THE COUNTERCLAIM: Limited Liability Company "KPS" DEFENDANT IN THE COUNTERCLAIM: Limited Liability Company "WITH kz" COUNTERCLAIM REQUIREMENTS: about collecting a penalty

The main claim:

Agreements were concluded between C kz LLP (hereinafter referred to as C kz LLP) and KPS LLP (hereinafter referred to as KPS LLP): – Subcontracting Agreement No. 13/PD/2019 dated July 18, 2019, under the terms of which C kz LLP undertakes to perform the work specified in specifications that are an integral part of the contract, at the Customer's facility there is a fuel and lubricants warehouse and a gas station of Vostokinetmet LLP, located at:

East Kazakhstan region. Ust-Talovka settlement. and the Customer undertakes to accept the results of the work and pay for them under the terms of the Contract.- Supply agreement No. 05/20 (shut-off valves) dated May 29, 2020, under the terms of which C kz LLP undertakes to supply (hereinafter referred to as "Works") shut-off valves TU 3791-001-70780838-2005 model H-A2 20-K-R1-U1\UHL 1 (hereinafter referred to as the Product), in quantity and assortment in accordance with Appendix No. 1 (Terms of Reference) to the Agreement, which are an integral part of this agreement, and the Buyer undertakes to accept and pay for the goods on the terms of the Agreement.

According to clause 3 of the Supply Agreement No. 05/20, the total value of the Goods under this Agreement is 9,237,695 tenge.

Payment of the Contract Price is made by the Buyer in the following order: prepayment in the amount of 4,900,000 tenge, paid by KPS LLP within three days from the date of invoicing under the contract;

the second payment in the amount of 2,168,847.50 tenge, 10 days after prepayment; the remaining amount in the amount of 2,168,847.50 tenge, is paid at the time of shipment of the goods.

- Subcontract Agreement No. 77 dated October 19, 2020 and an additional agreement, under the terms of which C kz LLP undertakes to perform work according to the Specifications that are an integral part of the agreement at the Customer's facility, Vostoktsvetmet LLP VM REHS CMTS warehouse, located at:

East Kazakhstan Region, Ust Talovka settlement, and the Customer undertakes to accept the results of the work and pay for them under the terms of the Contract.

- Subcontracting Agreement No. 01.2/PD/2021 dated February 12, 2021, under the terms of which C kz LLP undertakes to perform work according to Specifications that are an integral part of the agreement at the Customer's facilities: "Construction of a hangar and neighboring buildings", "Installation of two additional 1000 m3 tanks for fuel storage", located at:

East Kazakhstan region, Ayagoz district, 27 km. from the village of Aktogay, the territory of KAZ Minerals Aktogay LLP, and the Customer undertakes to accept the results of the work and pay for them under the terms of the Contract.

C kz LLP, under subcontractor agreement No. 13/PD/2019 dated July 18, 2019, as a subcontractor, fulfilled its obligations fully and appropriately.

KPS LLP made the payment late under subcontract No. 13/PD/2019. The Act of completed works (hereinafter referred to as the ADR) No. 11 in the amount of 1,100,000 tenge was signed by the parties on 05/25/2020, however, according to the statement of account belonging to the Plaintiff, it can be verified that the actual payment date is 07/03/2020.

Accordingly, C kz LLP provides a table of calculations of the penalty in the claim, where it calculated a 20-day delay in payment for ADR No. 11.

The Plaintiff's right to claim penalties for late transfer of money is provided for in clause 12.3. of the Subcontracting Agreement No. 13/PD/2019 dated July 18, 2019. A similar late payment was made by KPS LLP under ADR No. 13, 17 dated 05/25/2020.

The confirmation of the above-mentioned ATS No. 11, 13 and 17 dated 05/25/2020 by the parties is the signed Reconciliation Report of mutual settlements for the period from 01.01.2020 to 12/16/2020 between the parties under the Subcontract Agreement No. 13/PD/2019 dated July 18, 2019. According to ADR No. 40, 42 dated 11.11.2020, KPS LLP paid 350,000 tenge in arrears on 05.26.2021, i.e.

KPS LLP paid the Plaintiff after 117 business days and an incomplete amount. The remaining 50,000 tenge was paid by KPS LLP only on 11/08/2021.

In total, under the subcontract agreement No. 13/PD/2019, KPS LLP received a penalty in the amount of 97,480 tenge. On 06/02/2020, C kz LLP received an advance payment from KPS LLP.

Under the supply agreement No. 05/20 dated May 29, 2020 in the amount of 4,900,000 tenge, the second payment in the amount of 2,168,847.5 tenge was received on 06/18/2020. In accordance with clause 3.2.

Of the Contract, the remaining amount in the amount of 2,168,847.50 tenge is paid by C kz LLP at the time of shipment of the goods. The goods of C kz LLP were shipped on June 30, 2020, however, KPS LLP partially paid the remaining amount of 2,168,847 tenge only in the amount of 1,000,000 tenge six months later, i.e. on January 29, 2021.

Thus, the amount of the penalty amounted to 116,884 tenge. Under subcontractor agreement No. 77 dated October 19, 2020, KPS LLP sent an amount of KZT 15,000,000 only on October 22, 2020 and a month later, i.e. on November 25, 2020, paid the advance payment in full, i.e. the balance of KZT 5,000,000.

According to clause 4.1. of the Contract, the subcontractor begins to perform the work from the date of payment of the advance payment provided for in clause3.2. of this Agreement.

According to the advance payment in the amount of 20,000,000 tenge, C kz LLP fulfilled all obligations. According to P.3.3. The Contract, which stipulates that subsequent payments for the cost of work are made on the basis of signed f2b Certificates in the amount of 20,000,000, is carried out by the Customer within 10 (ten) banking days from the date of signing the Certificates.

The final payment is made within 10 (ten) business days after signing the certificates of completed works on the basis of the invoice issued by the Subcontractor.

According to the reconciliation report of mutual settlements for the period 01.01.2021 to 03.12.2021 under subcontract No. 77 (signed by the parties), as of December 3, 2021, KPS LLP had a debt to C kz LLP in the amount of 802,853 tenge, which has not been paid to this day.

It should also be noted that KPS LLP accepted work on the Act of Completed Works No. 3 dated 01/31/2022 in the amount of 120,000 tenge and on the Act of Completed Works No. 4 dated 01/31/2022 in the amount of 728,000 tenge.

However, KPS LLP received the certificates on purpose, but to this day has not paid for the subcontracted work provided by KZ LLP and refused to sign the acts without giving reasons for the refusal.

Thus, according to the reconciliation report and according to two acts of completed work on No. 3 and No. 4, KPS LLP has debts to C kz LLP in the amount of 1,650 853 tenge.

All certificates of completed works from "C kz" LLP were provided to "KPS" LLP on purpose. According to the supplementary agreement dated October 18, 2021 to subcontractor agreement No. 77 dated October 19, 2020, where the parties agreed to exclude "Appendix 1" from agreement No. 77 and replace it with a new specification in the supplementary agreement, as well as to supplement the specification with the "Communication" section. According to the act of reconciliation of mutual settlements for the period 01.07.2019 to 31.01.2024 under the additional agreement dated 18.10.2021. As of January 31, 2024, KPS LLP had a debt to C kz LLP in the amount of KZT 149,105 to the subcontract agreement No. 77.

This debt was formed as follows:

KPS LLP made an advance payment in the amount of 5,093,860 tenge in accordance with payment order No. 18 dated 10/25/2021.

By 01/31/2022, C kz LLP partially fulfilled its obligations in the amount of 9,554,395 tenge, however, KPS LLP paid 4,311,430 tenge on 02/21/2022.

And thus, KPS LLP did not pay the amount according to the act of completed works No. 2 and did not pay the amount of 86,805 tenge according to the act of completed works No. 52. Thus, according to the additional agreement dated October 18, 2021 to the subcontract agreement No. 77 dated October 19, 2020, the penalty amounted to 271,805 tenge.

Under the subcontracting agreement No. 01.2/PD/2021 dated February 12, 2021, C kz LLP fulfilled all its obligations under the Specifications. All acts of completed works have been signed under this agreement.

According to clause 3.3. of the Subcontracting Agreement No. 01.2/PD/2021, payment for the cost of work is made on the basis of signed Certificates of completed work, carried out by the Customer within 10 (ten) banking days from the date of signing the Certificates.

The final payment is made within 10 (ten) business days after signing the certificates of completed works on the basis of the invoice issued by the Subcontractor.

In this case, KPS LLP, under this Agreement, also signed all acts of completed works, accepted all works, however, according to the latest act of completed works No. 45 dated 11/09/2021 in the amount of 693,900 tenge, KPS LLP did not pay the amount of 269,611 tenge.

According to the reconciliation report of mutual settlements for the period from 01.01.2021 to 08.02.2022, KPS LLP had debts to C kz LLP in the amount of 269,611 tenge and a penalty in the amount of 221,030 tenge as of February 8, 2022.:

1) To recognize as valid the Act of completed works No. 3 dated 01/31/2022 under the subcontracting agreement No. 77 dated October 19, 2020; Act of completed works No. 4 dated 01/31/2022 under the subcontracting agreement No. 77 dated October 19, 2020; Act of completed works No. 2 dated 01/31/2022 under the supplementary agreement dated 10/18/2021 to the subcontracting agreement No. 77 dated October 19, 2020; Act of Completed Works No. 56 dated December 27, 2021 under the additional agreement dated October 18, 2021, to the subcontract agreement No. 77 dated October 19, 2020; Act of completed works No. 10 dated 04/29/2021 under subcontract No. 77 dated October 19, 2020.

2) collect from KPS LLP in favor of C kz LLP the amount of 2,069,569 tenge.

3) a penalty in the amount of 1,075,364 tenge, the cost of paying for the assistance of a representative in the amount of 300,000 tenge, as well as state duty.

Counterclaim:. The KPS Limited Liability Company is filing a counterclaim with the court. The requirements are motivated by the fact that according to the Supply Agreement No. 05/20 (shut-off valves) dated May 29, 2020, C kz LLP was supposed to deliver on 08/01/2020.

However, the delivery of the equipment was carried out in violation of the delivery time under the contract for 102 days. The actual delivery and delivery of the goods was carried out on 11.11.2020, which is confirmed by the invoice for the release of stocks to the party No. 41 dated 11.11.2020, signed by the parties, and electronic invoice No. 00000000044 dated 11.11.2020.

The amount of the penalty amounted to 942,235 tenge. Under the Subcontract Agreement No. 77 dated October 19, 202022.10.2020, KPS LLP made an advance payment in the amount of 15,000,000 tenge in accordance with payment order No. 1571 and on 11/15/2020 in the amount of 5,000,000 tenge in accordance with payment order No. 1755.

Accordingly, the equipment must be delivered no later than January 2021. However, to date, the equipment has not been delivered.

In accordance with clause 12.1 of the contract, the penalty amounted to 5,636,127 tenge.

According to the supplementary agreement to Contract No. 77 dated October 18, 2021, prepayment was made by KPS LLP in accordance with the agreement, which is confirmed by payment order No. 1533 dated October 25, 2021.

According to clause 2 of the Supplementary Agreement, "The supply of equipment under the supplementary agreement will be carried out within 30 days," that is, the final delivery date is November 21, 2021.

However, the Plaintiff violated the deadlines for the delivery of equipment and work, namely: the equipment according to invoice No. 47 was delivered on 11/24/2021; the equipment according to invoice No. 53 was delivered on 12/10/2021; the equipment according to invoice No. 52 was delivered on 12/10/2021; the equipment according to invoice No. 54 was delivered on 12/20/2021; the equipment according to invoice No. 55 was delivered on 12/20/2021.

The total amount of undelivered equipment is 1,380,885 tenge, which was supposed to be delivered by November 21, 2021.

Due to the delay in the delivery of equipment, the total amount of the accrued penalty amounted to 1,545,509 tenge. He asked to collect from C kz LLP in favor of KPS LLP a penalty in the amount of 8,123,871 tenge, as well as a state duty in the amount of 243,720 tenge.

The representative of C kz LLP supported the claims at the court hearing, asked to satisfy them, and asked KPS LLP to reject the counterclaim.

The representative of KPS LLP did not recognize the claims of C kz LLP at the court hearing, asked to reject the claims, supported the counterclaim and asked to satisfy it.

According to the main claim:

In accordance with Article 272 of the Civil Code, 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.

Also, according to Article 273 of the Civil Code, unilateral refusal to fulfill an obligation and unilateral modification of its terms are not allowed, except in cases stipulated by law or contract. In accordance with paragraph 4 of Article 663 of the Civil Code, the delivery of the results of work by the contractor and their acceptance by the customer are executed by an act signed by both parties, and in cases provided for by legislative acts, also by representatives of state bodies and local governments.

If one of the parties refuses to sign the act, a note about it is made in it, and the act is signed by the other party.

A unilateral act of handing over or accepting the results of work may be recognized by a court as valid only if the reasons for refusing to sign the act are recognized by the court as unfounded.

By virtue of paragraph 6 of Article 663 of the Civil Code, the customer has the right to refuse to accept the results of the work in case of defects that exclude the possibility of using the results of the work for the purpose specified in the contract and cannot be eliminated by the contractor, the customer or a third party.

If other deficiencies are found during acceptance, they must be indicated in the act provided for in paragraph 4 of this article.

The court session established that a number of agreements had been concluded between the parties, namely:

- Subcontracting Agreement No. 13/PD/2019 dated July 18, 2019;- Supply agreement No. 05/20 (shut-off valves) dated May 29, 2020;

- Subcontracting Agreement No. 77 dated October 19, 2020;

- Supplementary Agreement to the Subcontracting Agreement No. 77 dated October 18, 2021;

- Subcontracting agreement No. 01.2/PD/2021 dated February 12, 2021.

According to P.3.3. Subcontracting Agreement No. 77 stipulates that subsequent payments for the cost of work are made on the basis of signed f2b Certificates in the amount of 20,000,000, carried out by the Customer within 10 (ten) banking days from the date of signing the Certificates.

The final payment is made within 10 (ten) business days after signing the certificates of completed works on the basis of the invoice issued by the Subcontractor.

Also, clause 3 of the supplementary agreement dated October 18, 2021, to the subcontractor agreement No. 77 dated October 19, 2020 provides that the Subcontractor has the right to remove employees from the facility in case of failure to provide construction readiness or delay of any payment for more than 5 working days. Until the fulfillment of obligations on the part of the Customer.

Thus, according to the reconciliation report of mutual settlements for the period 01.01.2021 to 03.12.2021 under subcontract No. 77 (signed by the parties), where KPS LLP had debts to C kz LLP in the amount of 802,853 tenge as of December 3, 2021, which has not been paid to this day.

The court also found that after the parties signed the reconciliation report for mutual settlements for the period 01.01.2021 to 03.12.2021 under subcontract No. 77 in the amount of 802,853 tenge, the Plaintiff under subcontractor No. 77 additionally handed over to the Defendant the work under the Act of Completed works No. 3 dated 31.01.2022 in the amount of 120,000 tenge and the Act of completed works No. 4. dated 01/31/2022 in the amount of 728,000 tenge. According to the supplementary agreement dated October 18, 2021, to the subcontract agreement No. 77 dated October 19, 2020, C kz LLP, we indicate in the lawsuit that KPS LLP, under the supplementary agreement dated October 18, 2021, to the subcontract agreement No. 77 dated October 19, 2020 (hereinafter referred to as the Addendum), hasA debt in the amount of 149,105 tenge was formed with kz". This debt was formed as follows:

KPS LLP made an advance payment in the amount of 5,093,860 tenge in accordance with payment order No. 18 dated 10/25/2021.

The fact of the work performed by C kz LLP under the supplementary agreement is confirmed by invoices signed between the parties and unsigned acts of completed work, namely: invoices for the release of supplies to the party No. 44 dated 11/09/2021 in the amount of 840,000 tenge, No. 46 dated 11/24/2021 in the amount of 1,396,275 tenge, No. 47 dated 11/24/2021. in the amount of 2,147,320 tenge, No. 52 dated 12/10/2021 in the amount of 3,141,800 tenge, No. 53 dated 12/10/2021 in the amount of 220,000 tenge, No. 54 dated 12/20/2021 in the amount of 291,500 tenge, No. 55 dated 12/20/2021. in the amount of 174,900 tenge and Certificates of completed works No. 56 dated December 27, 2021 in the amount of 1,280,300 tenge, No. 2 dated January 31, 2022 in the amount of 62,300 tenge.

Subsequently, on February 21, 2022, KPS LLP made an interim payment in the amount of 4,311,430 tenge in accordance with payment order No. 8 dated 02/21/2022, which is confirmed by an account statement. In court, the representative of "C kz" LLP explained that this amount under payment order No. 8 dated 02/21/2022 was not enough to cover the work of "C kz" LLP under the Act of Completed Works No. 2 dated 01/31/2022 in the amount of 62,300 tenge under the supplementary agreement and partially in the amount of 86,805 tenge (unpaid amount) according to the act of completed works No. 56 dated December 27, 2021 under the additional agreement. Thus, the debt amounts to 149,105 tenge.

Under subcontractor agreement No.01.2/PD/2021 dated February 12, 2021, C kz LLP, in the lawsuit, we indicate that KPS LLP, under Subcontractor Agreement No.01.2/PD/2021, owed 269,611 tenge to C kz LLP, which was formed as follows:

The defendant made an advance payment in the amount of 17,000,000 tenge in accordance with payment orders No. 2 dated 03/02/2021 in the amount of 5,000,000 tenge; No. 4 dated 04/01/2021 in the amount of 8,000,000 tenge and No. 5 dated 04/15/2021 in the amount of 4,000,000 tenge.

The court found that KPS LLP made an interim payment in the amount of 2,418,136 tenge in accordance with payment order No. 10 dated 06/02/2021.

Confirmation that "C kz" LLP has completed the work under Subcontract No. 01.2/PD/2021 (in the amount of 26,217,734 tenge, i.e. in the part for which it has been paid) KPS LLP is an act of reconciliation of mutual settlements signed by the parties for the period 01.01.2021 to 03.12.2021, where KPS LLP had debts to C kz LLP in the amount of 6,799,598 tenge as of December 03, 2021, as well as invoices for the release of stocks to the party No. 20 dated 06/18/2021 in the amount of 4 836,272 tenge under contract No.01.2/PD/2021 and No. 32 dated 08/24/2021 for the amount of 2,471,775 tenge under contract No. 01.2/PD/2021, No.35 dated 09/07/2021. in the amount of 3,250 tenge under contract No.01.2/PD/2021, No. 36 dated 09/07/2021 in the amount of 12,400 tenge under contract No. 01.2/PD/2021, No.40 dated 10/27/2021 in the amount of 156,417 tenge under contract No.01.2/PD/2021, No.41 dated 10/27/2021 in the amount of 490 000 tenge under contract No.01.2/PD/2021 by acts of completed works No. 33 dated 08/24/2021 in the amount of 1,300,000 tenge under contract No.01.2/PD/2021, No.37 dated 10/27/2021 in the amount of 1,966,151 tenge under contract No.01.2/PD/2021, No. 38 dated 10/27/2021 in the amount of 200,000 tenge under contract No.01.2/PD/2021, No. 39 dated 27.10.2021 for the amount of 2,065,414 tenge under contract No. 01.2/PD/2021, No.43 dated 09.11.2021. in the amount of 72,936 tenge under contract No. 01.2/PD/2021, No. 45 dated 09.11.2021 in the amount of 693,900 tenge under contract No. 01.2/PD/2021.

The representative of C kz LLP explained to the court that subsequently, the parties carried out an accounting adjustment of debt No. 3 dated 12/13/2021 in the amount of 1,529,987 tenge.

The court found that according to payment order No. 22 dated 12/15/2021, KPS LLP, under Subcontract No. 01.2/PD/2021, made a final payment in the amount of 5,000,000 tenge, however, the final payment under payment order No. 22 dated 12/15/2021 in the amount of 5,000,000 tenge did not cover all the work completed under the signed agreement. the parties to the reconciliation report of mutual settlements for the period 01.01.2021 to 03.12.2021, where KPS LLP had debts to C kz LLP in the amount of KZT 6,799,598 as of December 03, 2021 (Debit 26,217,734 – Credit 25,948,123= 269,611 Debt).

Article 349 of the Civil Code of the Republic of Kazakhstan indicates that a violation of an obligation means 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. To date, the amount owed by KPS LLP to C kz LLP is 2,069,569 tenge.

Thus, the claims of "C kz" LLP for the recognition of acts of completed works as valid and debt collection in the amount of 2,069,569 tenge are subject to satisfaction.

By virtue of the requirements of art.293 of the Civil Code, a penalty (fine, fine) is recognized as a monetary amount 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.

According to clause 12.3. of the Subcontractor Agreement No. 13/PD/2019, for late transfer of money within the time limits stipulated in the terms of the agreement, the Subcontractor has the right to demand payment of a penalty, and the Customer, at the request of the Subcontractor, pays a penalty in the amount of 0.1% of the unpaid amount for each day of delay, but not more than 10% of the unpaid amounts.

According to clause 5.5. of the Delivery Agreement No. 05/20 dated May 29, 2020, for violation of the deadline for payment of the remaining amount of the goods specified in clause 3.2. of this Agreement, the Supplier has the right to demand from the Buyer a penalty in the amount of 0.1% of the unpaid amount for each day of delay, but not more than 3% of the total cost of the Agreement.

According to clause 12.2 of Subcontractor Agreement No. 77, for late transfer of money within the time limits stipulated in the terms of the agreement, the Subcontractor has the right to demand payment of a penalty, and the Customer, at the request of the Subcontractor, pays a penalty in the amount of 0.1% of the unpaid amount for each day of delay, but not more than 10% of the unpaid amount.

According to clause 12.2 of the Subcontractor Agreement No. 01.2/PD/2021, for late transfer of money within the time limits stipulated in the terms of the agreement, the Subcontractor has the right to demand payment of a penalty, and the Customer, at the request of the Subcontractor, pays a penalty in the amount of 0.1% of the unpaid amount for each day of delay, but not more than 10% of the unpaid amount. amounts.

According to the calculation submitted by C kz LLP, the total amount of the penalty is 1,075,364 tenge, of which: under subcontract No. 13/PD/2019 dated July 18, 2019 - 97,480 tenge, under supply agreement No.05/20 dated May 29, 2020 - 116,884 tenge, under subcontract No. 77 dated October 19, 2020 - 368,165 tenge, under the supplementary agreement dated October 18, 2021, to the subcontract agreement No. 77 dated October 19, 2020 - 271,805 tenge and under the subcontract agreement No. 01.2/PD/2021 dated February 12, 2021 - 221,030 tenge.

According to Article 364 of the Civil Code, if non-fulfillment or improper fulfillment of an obligation occurred due to the fault of both parties, the court accordingly reduces the amount of liability of the debtor.

The court also reduces the amount of the debtor's liability if the creditor intentionally or negligently contributed to an increase in the amount of losses caused by non-performance or improper performance, or did not take reasonable measures to reduce them.

Based on the above, based on the principle of fairness and reasonableness, taking into account that the plaintiff was aware of the payment terms, given that the amount of the penalty is excessively high compared to the amount owed, the court considers it necessary to reduce it to 50 percent of the amount of the accrued penalty, which is 537 682 tenge, in this regard, the specified requirement is subject to partial satisfaction.

In connection with the stated circumstances, the court considers that the claim is subject to partial satisfaction. According to the counterclaim: Under the terms of the supply agreement No. 05/20 (shut-off valves) dated May 29, 2020, C kz LLP was supposed to deliver the equipment on 08/01/2020, however, the delivery of the equipment was carried out in violation of the delivery dates under the agreement for 102 days.

The court found that the actual delivery and delivery of the goods was carried out on 11.11.2020, which is confirmed by the invoice for the release of stocks to the party No. 41 dated 11.11.2020, signed by the parties, and electronic invoice No. 00000000044 dated 11.11.2020. The court also found that according to Appendix No. 4 to Contract No. 77 dated October 19, 2020, the equipment "Explosive Detector Pilot-M" for a total cost of 3,540,000 tenge should have been delivered within 50 days.

According to clause 4.1. of the Agreement, C kz LLP begins to perform work from the date of payment of the advance payment provided for in clause 3.2. of this Agreement. On 22.10.2020, KPS LLP made an advance payment in the amount of 15,000,000 tenge according to payment order No. 1571 and on 15.11.2020 in the amount of 5,000,000 tenge according to payment order No. 1755.

Accordingly, the equipment must be delivered no later than January 2021, but to date, the equipment has not been delivered to C kz LLP. Also, the following equipment has not been supplied and work has not been completed under this agreement:

equipment was not supplied and installation was performed: automatic switch BA61F29 20a – delivery time is 30 days, installation of equipment is 20 days; goods were not supplied and installation was not performed: power cable VVG 3*1.5 GOST 16442-80 – delivery time is 30 days, installation is 20 days; equipment was not supplied and installation was not performed: galvanized, galvanized turnbuckle, galvanized turnbuckle M8 – delivery time is 30 days, installation is 20 days; goods have not been delivered and installation has not been performed: metal corrugation. 25 mm – delivery time is 20 days, installation is 1- days. In addition, according to the supplementary agreement to Contract No. 77 dated October 18, 2021, prepayment was made by KPS LLP in accordance with the agreement, which is confirmed by payment order No. 1533 dated October 25, 2021. According to clause 2 of the Supplementary Agreement, the equipment is delivered under the supplementary agreement within 30 days.

However, on the part of C kz LLP, the equipment was not delivered in full and was overdue, as confirmed by invoices No. 47 dated 11/24/2021; No. 53 dated 12/10/2021; - Equipment according to invoice No. 52 dated 12/10/2021; No. 54 dated 12/20/2021; No. 55 dated 12/20/2021. Article 349 of the Civil Code of the Republic of Kazakhstan indicates that a violation of an obligation means 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.

Thus, the court has reliably established that on the part of "C kz" LLP, the obligations assumed under the concluded contracts were performed improperly and on time.

By virtue of the requirements of art.293 of the Civil Code, a penalty (fine, fine) is recognized as a monetary amount 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. According to clause 5.2. of the Supply Agreement No. 05/20 (shut-off valves) dated May 29, 2020, in the event of a delay in the delivery of goods due to the fault of the Supplier, by more than 15 calendar days over the period specified in clause 5.1.

According to the Contract, the latter is obliged to pay the buyer a penalty (fine) in the amount of 0.1% of the value of the undelivered goods for each day of delay.

According to clause 12.1. under Subcontractor Agreement No. 77 dated October 19, 2020, in case of violation by the Subcontractor of the deadlines set by the terms of this Agreement, he pays the Customer a penalty in the amount of 0.1% of the contract price for each day of delay, but not more than 10% of the Contract price.

Thus, from the presented calculation by KPS LLP, the total amount of the accrued penalty amounted to 8,123,871 tenge, of which: under supply agreement No. 05/20 (shut-off valves) dated May 29, 2020 - 942,235 tenge, under Subcontract Agreement No. 77 dated October 19, 2020 - 5,636,127 tenge, under an additional agreement to the Agreement No. 77 dated October 18, 2021 - 1,545,509 tenge.

According to Article 364 of the Civil Code, if non-fulfillment or improper fulfillment of an obligation occurred due to the fault of both parties, the court accordingly reduces the amount of liability of the debtor.

The court also reduces the amount of the debtor's liability if the creditor intentionally or negligently contributed to an increase in the amount of losses caused by non-performance or improper performance, or did not take reasonable measures to reduce them.

Based on the above, based on the principle of fairness and reasonableness, taking into account that the Customer was aware of the delivery delays, given that the amount of the penalty is excessively high compared to the amount owed, the court considers it necessary to reduce it to 10 percent of the amount of the accrued penalty, which is 812 387 tenge, in this regard, the specified requirement is subject to partial satisfaction.

In the circumstances described, the court considers that the counterclaim of KPS LLP is subject to partial satisfaction.

In accordance with paragraph 1 of Article 109 of the Civil Procedure Code of the Republic of Kazakhstan, 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 KPS LLP - in proportion to the part of the claims denied to the plaintiff.

223-226 of the CPC, the court DECIDED: Partially satisfy the claim of the Limited Liability Company "C kz" to the Limited Liability Company "KPS" for recognition of acts of completed works as valid, debt collection and penalties.

To recognize as valid the Act of completed works No. 3 dated 01/31/2022 under the subcontract agreement No. 77 dated October 19, 2020;

Act of completed works No. 4 dated 01/31/2022 under subcontract No. 77 dated October 19, 2020;

Act of completed works No. 2 dated 01/31/2022 under the additional agreement dated 10/18/2021, to the subcontract agreement No. 77 dated October 19, 2020;

Act of completed works No. 56 dated December 27, 2021 under the additional agreement dated October 18, 2021, to the subcontract agreement No. 77 dated October 19, 2020;

Act of completed works No. 10 dated 04/29/2021 under subcontract No. 77 dated October 19, 2020.

Collect from the Limited Liability Company "KPS" in favor of the Limited Liability Company "C kz" the amount of debt in the amount of 2,069,569 (two million sixty-nine thousand five hundred sixty-nine) tenge, a penalty of 537,682 (five hundred thirty-seven thousand six hundred eighty-two) tenge, tenge, expenses for paying representative services in the amount of 300,000 tenge, as well as a state duty in the amount of 88,048 (eighty-eight thousand forty-eight) tenge.

The rest of the claim must be dismissed.

The counterclaim of the Limited Liability Company "KPS" to the Limited Liability Company "C kz" for recovery of the penalty must be partially satisfied.

To collect from the Limited Liability Company "C kz" in favor of the Limited Liability Company "KPS" a penalty in the amount of 812 387 (eight hundred twelve thousand three hundred eighty seven) tenge, as well as a state duty in the amount of 24 371.61 (twenty four thousand three hundred seventy one, 61 tiyn) tenge.

The rest of the counterclaims must be rejected.

 

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