The case of debt collection
Case No.7520-22-00-2/5584 dated 07/22/2022
In the proceedings of the District Court No. 2 of Almaly district of Almaty, there was a Civil case No. 7520-22-00-2/5584 dated 07/22/2022 on the claim of the Limited Liability Partnership "Almaty Thermal Networks" (hereinafter referred to as the Plaintiff) against the Defendant D.O.F. (hereinafter referred to as the Defendant) for the recovery of accounts receivable.
The plaintiff in his statement of claim argues that on February 28, 2014, Almaty Thermal Networks LLP sent Contract No. 190001 by registered mail (ex. 21.4/1357/14 ) for signing to the consumer D.O.F., IIN ......, prozh. Almaty, Tole bi str., d....., sq. m.5. - We disagree with the above arguments of the Plaintiff. The Defendant did not receive any contracts from the Plaintiff on purpose and or by registered mail and, accordingly, did not sign the Contract.
In addition, the plaintiff in the lawsuit argues that according to the Survey Reports, the object of thermal energy consumption is an office located at Tole bi Street, Almaty. e.., 13th technical floor, the consumer does not use the hot water supply system, the heating system is unified with a residential multi-storey building – we agree with the Plaintiff's arguments, since in reality the Defendant does not use the hot water supply system and only pipes pass through the Defendant's non-residential premises, where the Defendant has been asking the Plaintiff for several years to wrap or insulate pipes or recalculate only for the heat that comes from the passing pipes and not per square meter as the Plaintiff expects. The defendant uses heat from electricity and, accordingly, does not need services to provide a hot water supply system.
In accordance with Article 6 of the Civil Code of the Republic of Kazakhstan, the norms of civil legislation should be interpreted in accordance with the literal meaning of their verbal expression.
In the Statement of Claim, the Plaintiff stipulates that the Defendant does not fulfill its obligations to the Plaintiff properly, does not make payments, as a result of improper fulfillment of obligations to the Plaintiff, the Defendant has accounts receivable for thermal energy in the amount of 4,425,537 tenge, as of 09/20/2021 – Dear court, these arguments of the Plaintiff are absurd, as the Defendant will to pay for the services provided by the Plaintiff, while the Defendant practically does not use Hot water and heat energy.
68, 72 of the Civil Procedure Code of the Republic of Kazakhstan, Each party must prove the circumstances to which it refers as the grounds for its claims and objections, each evidence is subject to assessment taking into account relevance, admissibility, reliability.
In addition, a fine of no more than 1.5 times the refinancing rate established by the National Bank of the Republic of Kazakhstan on the day of the subscriber's actual fulfillment of the monetary obligation was duly charged for non-fulfillment of obligations, for each day of late payment, but not more than the amount of the principal debt. The amount of the penalty (penalty) to the amount of the unfulfilled obligation is 1,802,948 tenge, which the defendant is also obliged to pay on the basis of art. 295 of the Civil Code of the Republic of Kazakhstan - By virtue of Article 5 of the Civil Code of the Republic of Kazakhstan, in cases where the relations provided for in paragraphs 1 and 2 of Article 1 of the Code are not directly regulated by legislation or agreement of the parties and there are no customs applicable to them, the norms of civil legislation governing similar relations (analogy of the law) apply to such relations, since this does not contradict their essence.
Regarding the accrued penalties, they disagree because this amount of penalty is excessively large compared to the creditor's losses whereas according to art. 35 of the Law on Banks and Banking Activity states "The amount of the penalty (fine, penalty fee) for violating the obligation to repay the loan amount and (or) pay remuneration under a bank loan agreement concluded with an individual may not exceed 0.5 percent of the overdue payment amount for each day of delay, after ninety days of delay. ninety days of delay may not exceed 0.03 percent of the overdue payment amount for each day of delay, but not more than ten percent of the loan amount for each year of the bank loan agreement."
According to Article 297 of the Civil Code of the Republic of Kazakhstan, if the penalty payable is excessively large compared to the creditor's losses, the court has the right to reduce the penalty, taking into account the degree of fulfillment of obligations by the debtor and the debtor's interests that deserve attention, the court reduces 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.
272 of the Civil Code of the Republic of Kazakhstan, 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.
In accordance with Part 4 of Article 8 of the Civil Code of the Republic of Kazakhstan, 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 - also 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.
We also believe that the Plaintiff violates the requirements of good faith, reasonableness and fairness provided for in Part 4 of Article 8 of the Civil Code of the Republic of Kazakhstan.
In accordance with Article 8 of the CPC, everyone has the right to apply to the court for protection of violated or disputed constitutional rights, freedoms or protected interests.
In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties choose their position, ways and means of defending it independently and independently of the court, other bodies and persons during civil proceedings.
By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests.
166 of the Civil Procedure Code of the Republic of Kazakhstan, where the defendant submits to the court a response to the Statement of Claim with attached documents that refute the arguments regarding the claim, as well as copies of the response and the documents attached to it.
Based on the above and in accordance with art. 166 of the Civil Procedure Code of the Republic of Kazakhstan, the COURT WAS ASKED to dismiss the Plaintiff's claims against the Defendant for the recovery of receivables.
On October 28, 2022, the District Court No. 2 of the Almaly district of Almaty, consisting of: Having considered the civil case on the recovery of accounts receivable in open court, guided by Articles 223-226,229 of the CPC, the court DECIDED: Partially satisfy the claim of the Almaty Thermal Networks Limited Liability Partnership on the recovery of accounts receivable. Collect from D.O.F. in favor of Almaty Thermal Networks LLP, the amount of accounts receivable in the amount of 1,516,061 tenge, a fine in the amount of 89,904 tenge, a state duty in the amount of 48,179 tenge, expenses for the completed executive inscription in the amount of 6,605 tenge. The rest of the claim must be dismissed.
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
