Termination of the contract, recovery of the amount of damages and recovery of the amount of the fine
On April 21, 2025, No. 7527-25-00-2/1703 Specialized Interdistrict Economic Court of Almaty city consisting of:
The presiding judge, G.R. Beisenova, with the secretary of the court session, R.S. Chanvesheva, considered in open court via WhatsApp mobile videoconference a civil case on the claim of: Farhad A Z L to the Defendant Limited Liability Partnership "K e" on termination of the contract, on recovery of the amount of damages, on recovery of the amount of a fine.
January 08, 2019 between K le LLP (hereinafter referred to as the Seller/The Defendant) and F. Z.Ltd (hereinafter referred to as the Buyer/Plaintiff) signed contract No.04-1/2019 (hereinafter referred to as the Contract), according to which the defendant undertook to supply batches of wheat (class 4, gluten not lower than 18) with quality indicators according to ART RK 1046-2008, packaging - in a bag, and the plaintiff undertook to accept and pay the cost of the batch of goods under the terms of this contract.
In accordance with clause 3.1 of the Contract, the estimated price for the delivered goods is set at $155 per metric ton. The price of each specific batch of the delivered goods is determined by drawing up Invoices (Invoices) to shipping documents.
The plaintiff filed the above claim with the court, arguing that they had made a payment in the amount of 15,096 US dollars, however, the goods were not delivered on time. The pre-trial claim dated November 26, 2024, was left unenforceable by the defendant. Taking into account the above, he asks the court to terminate the Contract, collect the amount of debt of 15,096 US dollars, and a fine of 1509 US dollars.
The court did not receive a response from the defendant.
At the hearing, the plaintiff's representative Nigmetov S.D. supported the claim and asked him to satisfy it.
The defendant's representative did not ensure his participation in the court session held through the IMCC, was duly notified of the day and time of the hearing, did not inform the court about the reasons for his non-appearance, and did not ask for the case to be considered in his absence.
According to part 4 of Article 196 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the court has the right to consider the case if any of the persons involved in the case, who were duly notified of the time and place of the court session, fail to appear, if it finds the reasons for their failure to appear disrespectful.
On request No. 1.
In accordance with Article 7 of the Civil Code, civil rights and obligations arise, change and terminate from the grounds provided for by the legislation of the Republic of Kazakhstan, as well as from the actions of citizens and legal entities, which, although not provided for by it, but by virtue of the general principles and meaning of civil legislation give rise to civil rights and obligations.
In accordance with this, civil rights and obligations arise, change and terminate: from contracts and other transactions provided for by the legislation of the Republic of Kazakhstan, as well as from transactions, although not provided for by it, but not contrary to the legislation of the Republic of Kazakhstan.
According to Article 147 of the Civil Code, transactions are recognized as actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations.
In accordance with Article 380 of the Civil Code, citizens and legal entities are free to conclude a contract. Coercion to conclude a contract is not allowed, except in cases where the obligation to conclude a contract is provided for by this Code, legislative acts or a voluntarily accepted obligation.
By virtue of paragraph 1 of Article 382 of the Civil Code, the terms of the contract are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law.
According to paragraph 1 of Article 458 of the Civil Code, under a supply contract, the seller (supplier), who is an entrepreneur, undertakes to transfer the goods produced or purchased by him to the buyer within a specified period or time for use in entrepreneurial activities or for other purposes unrelated to personal, family, household and other similar uses.
It was established that on January 08, 2019, the parties signed contract No.04-1/2019, according to which the defendant undertook to supply batches of wheat (class 4, gluten not lower than 18) with quality indicators according to ART RK 1046-2008, packaging - in a bag, and the plaintiff undertook to accept and pay the cost of the batch of goods under the terms of this contract..
In accordance with clause 3.1 of the Contract, the estimated price for the delivered goods is set at $155 per metric ton. The price of each specific batch of the delivered goods is determined by drawing up Invoices (Invoices) to shipping documents.
According to clause 2.2 of the Contract, the goods are delivered in installments, but no later than 4 weeks from the date of receipt of the 100% prepayment to the Supplier's current account.
According to Articles 272, 273 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. Unilateral refusal to fulfill an obligation and unilateral modification of its terms are not allowed, except in cases stipulated by law or contract.
The plaintiff in the lawsuit indicates that the defendant did not deliver the goods in the amount of 15,096 US dollars.
However, from the reconciliation report of mutual settlements as of May 13, 2019 between the parties, it follows that as of May 13, 2019, the debt of K.le LLP to F.A.Z. Ltd amounts to USD 11,381.
It has been established that the goods have not been delivered by the defendant to date, thereby committing a significant breach of obligations under the Contract.
The evidence refuting the arguments of the claim, in particular the delivery of goods, was not presented to the court by the defendant.
In accordance with Article 72 of the CPC, each party must prove the circumstances to which it refers as the grounds for its claims and objections, use remedies, assert, challenge facts, provide evidence and objections to evidence within the time limits set by the judge, which correspond to the fair conduct of the process and are aimed at facilitating the proceedings.
According to paragraphs 1 and 2 of Article 401 of the Civil Code, modification and termination of the contract are possible by agreement of the parties, unless otherwise provided by this Code, other legislative acts and the contract.
At the request of one of the parties, the contract may be amended or terminated by a court decision only:
1) in the event of a material breach of contract by the other party;
2) in other cases stipulated by this Code, other legislative acts or an agreement.
A violation of the contract by one of the parties is considered significant, which entails such damage to the other party that it is largely deprived of what it was entitled to expect when concluding the contract.
Similar provisions are contained in paragraph 1 of Article 476 of the Civil Code.
According to paragraph 2 of Article 476 of the Civil Code, the supplier's violation of the contract is assumed to be significant in the following cases: repeated violation of the delivery time of the goods.
In accordance with paragraph 2 of Article 402 of the Civil Code, a claim to amend or terminate a contract may be filed by a party in court only after receiving a refusal from the other party to the proposal to amend or terminate the contract or failure to receive a response within the time period specified in the proposal or established by law or contract, and in its absence - within thirty days.
In the circumstances described, taking into account that the defendant has significantly violated the terms of the Contract, the court concludes that the contract has been terminated.
On request No. 2.
In accordance with paragraph 5 of Article 403 of the Civil Code, if the basis for termination or amendment of the contract was a material violation of the contract by one of the parties, the other party has the right to demand compensation for damages caused by termination or amendment of the contract.
The plaintiff indicates that the defendant did not deliver the goods in the amount of 15,096 US dollars.
However, according to the reconciliation report of mutual settlements between the parties as of May 13, 2019, as of May 13, 2019, the debt of K.le LLP to F.A.Z Ltd amounts to USD 11,381.
The plaintiff did not provide the court with evidence of payment of 3,715 US dollars.
At the same time, the plaintiff has not provided evidence confirming the existence of damages in the amount of 4,486 US dollars, payment of the cost of bagging and taring of Goods, as well as payment of penalties, in accordance with Articles 72, 73 of the CPC.
Taking into account the above, the amount of USD 11,381 is to be recovered from the defendant in favor of the plaintiff.
At the request of No. 3.
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.
By virtue of 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 (art.359 of this Code).
According to clause 5.1. of the Contract, if the Seller does not ship the Goods within the time period specified in clause 2 of this Contract, he pays a fine to the Buyer in the amount of 0.1% of the value of the Goods not shipped on time for each calendar day of delay, but not more than 10% of the value of the goods not shipped on time.
In accordance with Article 297 of the Civil Code, if the penalty to be paid (fine, fine) is excessively large in comparison with the creditor's losses, the court, at the request of the debtor, has the right to reduce the penalty (fine, fine), taking into account the degree of fulfillment of the obligation by the debtor and the interests of the debtor and the creditor that deserve attention.
The defendant has not applied for a reduction in the amount of the penalty, and therefore there are no grounds for reducing it.
The defendant has not applied for a reduction in the amount of the penalty, and therefore there are no grounds for reducing it.
As follows from the claim, the amount of the fine accrued by the plaintiff is 1,509 US dollars.
However, considering that the value of the goods not shipped on time is 11,381 US dollars, the court concludes that the amount of the fine to be recovered from the defendant in favor of the plaintiff is 1,138 US dollars.
In accordance with paragraph 20 of the Normative Resolution of the Supreme Court of July 11, 2003 No. 5 "On judicial decisions in civil cases", in accordance with paragraph 2 of Article 127 of the Civil Code, the tenge is a legal tender that must be accepted at face value throughout the Republic of Kazakhstan. With regard to Article 229 of the CPC, when satisfying claims for the recovery of monetary amounts, the courts must indicate in the operative part of the decision the amount of the amount to be recovered in numbers and words in the monetary unit of the Republic of Kazakhstan - tenge. When collecting periodic payments, the court must specify the period during which the collection is carried out.
In the case of a claim for the recovery of a sum of money in a foreign currency, the court is obliged, in the reasoning part of the decision, to provide calculations for the transfer of foreign currency into tenge at the exchange rate established by the National Bank of the Republic of Kazakhstan (hereinafter – the National Bank") on the day of the decision.
According to the National Bank of the Republic of Kazakhstan, the exchange rate of the US dollar against the tenge on the day of the court's decision was 521.90 tenge. Accordingly, the amount to be recovered from the defendant in favor of the plaintiff is KZT6,533,666.1, which is equivalent to USD 12,519.
In accordance with part 1 of Article 113 of the CPC, 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, in the amount of the costs 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.
It was established that the plaintiff incurred expenses for the assistance of a representative in the amount of 700,000 tenge, which is confirmed by the Contract for the provision of legal assistance and the receipt.
Considering that the claim has been partially satisfied, as well as based on the criteria of fairness, reasonableness and sufficiency, the costs of paying for the assistance of a representative in the amount of 653,367 tenge, which is 10% of the satisfied part of the claim, are to be recovered from the defendant in favor of the plaintiff.
By virtue of part 1 of Article 109 of the CPC, the costs of paying the state fee in the amount of 196,010 tenge should be collected from the defendant in favor of the plaintiff.
Guided by Articles 223-226, 229 of the CPC, the court DECIDED: To partially satisfy the claim of F.A.Z Ltd.
Terminate the Contract No. 04-1/2019 dated January 08, 2024, concluded between the limited liability company "K le" and "F.A.Z LTD".
To collect from the limited liability partnership "K...le" in favor of F.A.Z Ltd funds in the amount of 11,381 (eleven thousand three hundred and eighty-one) US dollars, a fine of 1,138 (one thousand one hundred and thirty-eight) US dollars, a total of 12,519 (twelve thousand five hundred and nineteen) US dollars, which it is equivalent to 6 533 666.1 (six million five hundred thirty three thousand six hundred sixty six) tenge 01 tiyn.
To dismiss the rest of the claim.
Collect from the limited liability company "K.le" in favor of F.A.Z Ltd. the costs of paying for the assistance of a representative in the amount of 653,367 (six hundred and fifty-three thousand three hundred and sixty-seven) tenge.
Collect from the limited liability company "K.le" in favor of F.A.Z Ltd. the cost of paying the state fee is KZT 196,010 (one hundred ninety-six thousand ten).
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