Recovery of the amount of unjustified enrichment
On February 22, 2024, case No. 3936-23-00-2/593 of the Auliekolsky District Court of the Kostanay region, consisting of: the presiding judge Akhmetova A.B., with the secretary of the court session Nurmoldina L.J., considered in open court the civil case on the claim: THE PLAINTIFF: ABOUT THE DEFENDANT: Individual entrepreneur AND THE PLAINTIFF'S CLAIMS: on recovery of unjustified enrichment
According to the information of the Department of State Revenue for the Auliekolsky district, the defendant, A. E.E., has been registered as an individual entrepreneur since May 03, 2023, the type of activity is "Renting and managing his own real estate."
On October 10, 2023, a loan was issued to Kaspi Bank JSC in the amount of 420 000 tenge in order to purchase a smartphone in installments.
According to the payment document, on October 11, 2023, plaintiff O.G.A. made the purchase of an Iphone 14 mobile phone by using the mobile application of Kaspi Bank JSC, paying the cost of the goods in the amount of 420000 tenge by remote payment in installments for 0-0-12 months to an invoice that indicates the organization's BIN...., which is owned by the defendant IP A. E.E.
According to the response to the request of the Almaty City Police Department, the Bostandyk district Police Department, O.G.A.'s appeal was registered in the Unified Register of Pre-Trial Investigations for No. 237514031002021 under Article 190 of Part 2 of paragraph 4 of the Criminal Code of the Republic of Kazakhstan.
On November 03, 2024, the terms of the pre-trial investigation in the criminal case were interrupted on the basis of Article 45 of part 7 of paragraph 1 of the Criminal Procedure Code of the Republic of Kazakhstan. The paid product was not delivered to her.
The plaintiff appealed to the court with the above-mentioned claim against the defendant. She motivates her claim by the fact that on October 11, 2023, in order to purchase a smartphone in installments, she transferred funds in the amount of 420000 tenge to the account of IE.AE. They promised to deliver the paid goods, but the seller stopped contacting them.
To date, the smartphone has not been delivered. The defendant did not respond to the plaintiff's pre-trial claim for a refund. She clarified the requirements, asks to recover from the defendant the amount of unjustified enrichment in the amount of 420000 tenge, as well as the court costs incurred in the case.
The court did not receive a response from the defendant. At the hearing, the plaintiff, O.A., insisted on the claim and asked to satisfy it in full, referring to the arguments set out in the claim.
The defendant, IP AE.E., did not participate in the court hearing, despite proper notification of the time and place of the trial. This circumstance allows the court, by virtue of paragraph 4 of Article 196 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), to consider a civil case without his participation, recognizing the reason for his absence as not valid.
The representative of the third party, O.V. Kovalik, left the dispute to the discretion of the court at the hearing. At the same time, she explained that the available data confirms the fact that the plaintiff received a loan and transferred funds to an account belonging to the defendant.
According to paragraph 5 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On Judicial Decision" No. 5 dated July 11, 2003, the court's decision must be lawful and justified.
By virtue of Article 7 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), civil rights and obligations arise from the grounds provided for by law, as well as from the actions of citizens and legal entities, which, although not provided for by it, give rise to civil rights and obligations by virtue of the general principles and meaning of civil legislation.
In accordance with this, civil rights and obligations arise: 6) as a result of causing harm to another person, as well as as a result of unjustified acquisition or saving of property at the expense of another person (unjustified enrichment).
According to paragraph 2 of Article 407 of the Civil Code, a contract may be concluded for the purchase and sale of goods available to the seller at the time of the conclusion of the contract, as well as goods that will be created or purchased by the seller in the future, unless otherwise established by legislative acts or follows from the nature of the goods. It was established that on October 11, 2023, through the use of the mobile application of Kaspi Bank JSC, plaintiff O.A. made the purchase of an Iphone 14 brand mobile phone worth 420000 tenge. According to the terms of the contract, the seller is obliged to ship the goods within three 3-days.
However, this product was not delivered to the plaintiff by courier. The procedure for electronic commerce is determined by the Rules of Internal Trade, approved by the Order of the Acting Minister of National Economy of the Republic of Kazakhstan dated March 27, 2015 No. 264. Paragraph 21 of the above-mentioned Rules stipulates that the purchase and sale agreement is considered concluded in proper form from the moment the seller issues a cash or commodity receipt or other document confirming payment for the goods to the buyer, unless otherwise provided by the legislation of the Republic of Kazakhstan or the agreement between the seller and the buyer. It follows from the above that a contract for the purchase and sale of goods was concluded between the parties.
Paragraph 1 of Article 408 of the Civil Code establishes the obligation of the seller to transfer the goods provided for in the contract to the buyer. It has been established that the goods that are the subject of the purchase and sale agreement have not been transferred to the buyer.
By virtue of paragraph 1 of Article 416 of the Civil Code, if the seller refuses to transfer the sold goods to the buyer, the buyer has the right to refuse to execute the contract of sale.
The plaintiff believes that she has concluded a contract for the purchase and sale of goods without receiving it from the seller, has the right to cancel the contract and demand a refund of the amount paid. According to the Rules of Working with Kaspi Pay, the Partner is prohibited from delaying or canceling the delivery of goods, transferring access to Kaspi Pay to third parties, as well as performing any other actions that may lead to financial or reputational risks.
According to clause 4.8 of the "Partner Service Agreement", the Partner is responsible for possible losses or other consequences that may arise as a result of access by third parties who do not have the authority to act on behalf of the Partner.
Thus, the responsibility for transferring access to Kaspi Pay to third parties is assigned to the Partner himself, in this case to the defendant A.E.E. In accordance with paragraph 1 of Article 953 of the Civil Code, a person (acquirer) who, without grounds established by law or transaction, acquired or saved property (unreasonably enriched) at the expense of another person (victim), is obliged to return to the latter unjustifiably acquired or saved property, with the exception of the cases provided for in Article 960 of this Code.
The obligation due to unjustified enrichment refers to non-contractual protected obligations aimed at protecting property, and represent a special type of obligations necessary for the occurrence of which are the following:
1) the acquisition or saving of property at the expense of another person, i.e. the increase or retention of the same amount of property on one side was the result of a corresponding decrease on the other side;
2) the acquisition or saving occurred without the grounds provided for by law, other legal acts or the transaction. Within the meaning of this article, it is seen that unjustified enrichment at the expense of another person without a proper legal basis.
In cases of recovery of unjustified enrichment, the plaintiff is required to prove the acquisition or saving of property by the defendant, and the defendant is required to prove the existence of legitimate grounds for the acquisition or saving of such property or the existence of circumstances in which unjustified enrichment is legally non–refundable.
As follows from the circumstances of the case, the defendant is a client of Kaspi Bank JSC, has a valid bank account of the individual entrepreneur A. E. E.ch.
According to the sales report submitted by the Bank to IP A.E.E., funds in the amount of 420000 tenge were transferred to his account on October 11, 2023. In turn, the defendant has not provided evidence of the existence of legitimate grounds for the acquisition or saving of such property, or the existence of circumstances in which unjustified enrichment is legally non-refundable.
The court draws attention to the fact that the defendant, without the grounds established by law or the transaction, unreasonably enriched himself at the expense of the plaintiff, that is, without a proper legal basis, therefore, he is obliged to return the unjustifiably acquired or saved property to the latter.
At the same time, there are no grounds for applying Article 960 of the Civil Code, since the parties had not previously known each other, and there were no legal relations between them.
Accordingly, there is no reason to believe that the plaintiff transferred the amount of 420000 tenge to an illegal person knowingly and free of charge. The main obligation of an unjustified acquirer in accordance with Article 953 of the Civil Code is to return the unjustified acquired or saved.
The Court takes into account that, in accordance with subparagraph 4 of Article 8 of the Civil Code, citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation, the moral principles of society, and entrepreneurs, as well as the rules of business ethics.
This obligation cannot be excluded or limited by the contract. Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed.
By virtue of Article 72 of the CPC, each party must prove the circumstances to which it refers both on the basis of its claims and objections. In such circumstances, analyzing the above, the court comes to the conclusion that O.G.A.'s claim for recovery of unjustified enrichment from the defendant is satisfied in full. The totality of the evidence presented is sufficient to make a decision on the merits of the claim.
109 of the CPC, the party in whose favor the decision was made, the court awards, on the other hand, all court costs incurred in the case.
By virtue of article 113, at the request of the party in whose favor the decision was made, the court awards, on the other hand, the costs incurred by her to pay for the assistance of a representative (several representatives) who participated in the process and is not in an employment relationship with this party.
the relationship, in the amount of the expenses actually incurred by the party. For property claims, the total amount of these expenses should not exceed ten percent of the satisfied portion of the claim. According to non-property requirements, the amount of expenses is collected within reasonable limits, but should not exceed three hundred monthly calculation indices. Accordingly, it is necessary to collect from the defendant in favor of the plaintiff representative expenses in the amount of 42,000 tenge.
Guided by Articles 223-226 of the CPC, the court DECIDED:
To satisfy the claim of the Regional State Administration to the Individual Entrepreneur AEE for the recovery of the amount of unjustified enrichment.
To recover from the Individual Entrepreneur of the AEE in favor of the Regional State Administration the amount of unjustified enrichment in the amount of 420 000 (four hundred and twenty thousand) tenge, court costs for the payment of state duty in the amount of 4200 (four thousand two hundred) tenge, expenses for the payment of assistance to a representative in the amount of 42 000 (forty-two thousand) tenge.
Overpaid state duty in the amount of 3,990 (three thousand nine hundred and ninety) tenge to be returned to the plaintiff by O.A.
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.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
