The recovery of the amount of additional gas consumption, the accrued penalty for unauthorized connection for the actually consumed gas was refused.

On June 17, 2015, the Specialized Interdistrict Economic Court of Almaty city, in absentia, considered in open court a civil case on the claim of KazTransGas-Almaty LLP against IP Hotel R... for debt collection, guided by Articles 217-221,260- 262 of the CPC RK, the Court of the Republic of Kazakhstan: Claims of LLPKazTransGas-Almaty" to satisfy the IP "Hotel R ..." on debt collection in full. To collect from IP "Hotel R..." in favor of KazTransGazAlmaty LLP the amount of additional gas consumption accrued for unauthorized connection in the amount of 2,826,634 tenge, for actually consumed gas in the amount of 152 179 tenge, a fine in the amount of 34 128 tenge, as well as the cost of paying state duty in the amount of 90 388 tenge, a total of 3 103,329 (three million one hundred three thousand three hundred twenty-nine) tenge. Subsequently, we wrote Complaints to the court on the above-mentioned circumstances of the case and on February 19, 2018, the Specialized Interdistrict Economic Court of Almaty, having considered the Application for the cancellation of the absentee decision of the specialized Interdistrict Economic Court of Almaty dated June 17, 2015 in a civil case against the claim of KazTransGas-Almaty LLP against IP Hotel R.." on debt collection, I DETERMINED: The application of the IP "Hotel R ..." in the person of R. J.T. to satisfy the cancellation of the absentee decision of the specialized interdistrict Economic Court of Almaty dated June 17, 2015 in a civil case on the claim of KazTransGas-Almaty LLP to IP Hotel R... for debt collection. To cancel the decision in absentia of the specialized interdistrict Economic Court of Almaty dated June 17, 2015 in the civil case on the claim of KazTransGas-Almaty LLP against IP Hotel R. for debt collection. On April 12, 2018, the Specialized Interdistrict Economic Court of Almaty, having considered the evidence provided and the arguments of the parties, stated: The plaintiff filed the above-mentioned lawsuit against the defendant (taking into account the clarification of the claims), arguing that on 06/02/2011 the Rahman Hotel was disconnected from gas supply due to existing debts.

The recovery of the amount of additional gas consumption, the accrued penalty for unauthorized connection for the actually consumed gas was refused.

On 08/04/2014, the defendant was disconnected from the gas supply by sealing the tap for unauthorized connection, as a result of which, due to violations by the defendant of the Gas Supply Rules, on 10/01/2014, the defendant was charged 2,826,633.71 tenge in gas equipment capacity. In addition, the defendant had a previously unpaid amount of debt in the amount of 152,179.06 tenge, for which a penalty in the amount of 34,128.33 tenge was accrued. On 27.01.2015, a warning about disconnection from gas supply was sent to the defendant, indicating the amount of debt, but the debt was not paid. In connection with the above, the plaintiff requests to recover from the defendant the amount of additional gas consumption accrued for unauthorized connection in the amount of 2,826,633.71 tenge, for actually consumed gas in the amount of 152 179.06 tenge, a fine in the amount of 34 128.33 tenge, the cost of paying state duty in the amount of 91 144.42 tenge and 160 tenge for the payment of budget payment (the bank's commission), a total of KZT 3,104,245.52. At the hearing, the plaintiff's representative fully supported the claims, citing the arguments specified in the statement of claim and the clarification to it. The representative of the defendant at the hearing acknowledged the claim in terms of claims for debt collection for the gas actually consumed in the amount of 152 179.06 tenge and penalties in the amount of 34 128.33 tenge, and asked to dismiss the rest of the claim. As an objection, the defendant indicated that he had not been the owner of the R.. hotel since 2012, and therefore had nothing to do with the debt incurred as a result of additional charges on the capacity of the gas equipment due to the establishment of an unauthorized connection to the gas supply in 2014. After hearing the explanations of the parties and examining the materials of the civil case, the court comes to the following conclusion.

According to the case file, Gefest Plus LTD LLP, Almatygaz Subscriber Settlement Center LLP, Almaty Gas Networks LLP and the defendant signed Contract No. 1664 for the supply of natural gas to legal entities and utility companies on 01.01.2009 (hereinafter referred to as the Contract), according to clause 1.1. of which The Supplier undertakes to supply, and the Consumer undertakes to accept and timely pay for natural gas in the quantity and price stipulated by the terms of the Contract. Further, according to Agreement No. 02/12-GKP dated 04/02/2012, Gefest Plus LTD LLP, which is the Supplier under the Contract, was replaced by Gaz Control Device LLP, which was subsequently joined to KazTransGas-Almaty LLP (certificate of re-registration dated 02/06/2015). Subsequently, KazTransGaz-Almaty LLP was re-registered in KazTransGazAlmaty JSC, which was joined to KazTransGaz-Aimak JSC, in connection with which the court replaced the plaintiff of KazTransGaz-Almaty LLP with the legal successor of KazTransGaz-Aimak JSC. In accordance with paragraph 47 of the Rules for the retail sale and use of commercial and liquefied Petroleum Gas, approved by Resolution of the Government of the Republic of Kazakhstan dated 08/10/2012 No. 1041 (in force at the time of the dispute), if representatives of the supplier discover unauthorized connection to the gas supply, increased capacity of installed gas equipment, gas consumption, bypassing the metering device, damage, disruption seals, changes in the gas supply scheme, any impact on the metering device in order to distort the readings, allowing for the possibility of unauthorized selection (theft) of gas by the consumer, which could not be detected by the supplier's representative during previous visits, the supplier recalculates the gas consumption according to the capacity of the installed gas-consuming equipment of the consumer for the period from the date of the last verification of metering devices and (or) the scheme of their inclusion to the day of detection, but not more than the limitation period.

Clause 7.2. of the Contract corresponds to the above-mentioned clauses of the Rules and provides for the grounds for consumer liability for changing the gas metering scheme by the Consumer, unauthorized dismantling/installation/replacement/additional installation of gas metering devices/ gas equipment and pipelines not provided for in the Contract, violation of the integrity of the seals of the manufacturer, the transporter, the verification organization on the gas metering device, violation of seals on the faucet at the inlet and on the pipes of the gas flow meter and other violations. As follows from the Act on disconnecting the consumer from the gas supply by sealing the act at the inlet dated 08/04/2014, the supplier (plaintiff) recorded an unauthorized connection of the gas supply facility and disconnected from the gas supply by sealing the tap at the inlet. According to the calculation of additional charges for gas consumed by the capacity of gas installations, made in accordance with the Act dated 08/04/2014, on 10/01/2014, the defendant was charged gas consumption in accordance with the above-mentioned condition of the contract for the period from 08/04/2014 to 04/04/2012 in the amount of 2,826,633.71 tenge. Subsequently, on 12.12.2014, the subscriber was disconnected again for unauthorized connection, which is confirmed by the act of disconnecting the consumer from the gas supply from the same date.

The recovery of the amount of additional gas consumption, the accrued penalty for unauthorized connection for the actually consumed gas was refused.

A warning about disconnection from gas supply for No. 724260 dated January 27, 2015 and the amount of outstanding debt in the amount of 2,969,810 tenge was sent to the defendant. At the same time, the court found that on the basis of the resolution on lifting the seizure of property and transferring the debtor's property to the recoverer dated 09/20/2012, an apartment building with a plot of land located at 10 Z Street, Almaty, was transferred in kind to the ownership of Kazkommertsbank JSC as part of the execution of the decision of the Auezovsky District Court. the Almaty city Court on debt collection from R.J.T. in favor of Kazkommertsbank JSC. As follows from the information provided by the Ministry of Justice of the Republic of Kazakhstan dated 03.03.2018, the ownership of Kazkommertsbank JSC to the specified real estate object was registered on 09.09.2013 on the basis of the resolution on the transfer of immovable property dated 20.09.2012, which entered into force on 01.10.2012. In such circumstances, the court considers the defendant's arguments to be justified that at the time of drawing up the act on disconnection from gas supply dated 08/04/2014, the defendant was not the owner of the gas supply facility, and could not be responsible for the integrity and safety of the seal installed on the tap at the inlet, or for the actions of third parties for unauthorized connection to gas supply. 359 of the Civil Code of the Republic of Kazakhstan, the debtor is responsible for non-fulfillment and (or) improper fulfillment of obligations in the presence of guilt, unless otherwise provided by law or contract. However, the act on disconnecting the consumer from the gas supply dated 08/04/2014 on the grounds of unauthorized connection was drawn up during the period when the defendant was not the owner of the gas supply facility, which is confirmed by the case materials. Moreover, it was signed by a third party, a certain Nurkasimov. The plaintiff did not provide the court with evidence that this person signed the act dated 08/04/2014 on behalf and on behalf of the defendant, and the defendant himself denies the fact of being at the gas supply facility and consuming services during the specified period.

 In such circumstances, the court concludes that the plaintiff has not proven the defendant's guilt in unauthorized connection to the gas supply of the facility located at the address: Almaty, ul.Z.. 10, recorded in the act of 08/04/2014. In connection with the above, there are no grounds for bringing the defendant to responsibility provided for in clause 7.2. of the Contract and clause 47 of the Rules, and claims regarding the recovery from the defendant of the amount of additional gas consumption accrued for unauthorized connection in the amount of 2,826,633.71 tenge are not subject to satisfaction. Regarding the claims for debt collection for the gas actually consumed by the defendant in the amount of 152,179.06 tenge and penalties in the amount of 34,128.33 tenge, the court concludes as follows. According to clause 1 of Article 685 of the Civil Code of the Republic of Kazakhstan, the customer is obliged to pay for the services rendered to him within the time limits and in the manner specified in the contract for the provision of paid services. In accordance with clause 6.5. of the Contract, the consumer, no later than five working days before the start of the delivery month, makes an advance payment in the amount corresponding to the amount accrued for the month preceding the delivery month. The final payment for the amount of gas received is made by the consumer no later than the 15th day of the month following the month of delivery. It was established that the debt for the volume of gas actually consumed was formed before the termination of the ownership right of IP "Hotel R.." to the gas supply facility on the basis of invoice No. 16123 dated 31.10.2012 in the amount of 33 455.96 tenge and invoice No. 11256 dated 31.05.2013 in the amount of 119,060.53 tenge, and amounts to 152 179 tenge. In accordance with Article 298 of the Civil Code of the Republic of Kazakhstan, 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. The amount of the penalty was calculated by the plaintiff in accordance with clause 7.4. of the Contract and brought for collection in the amount of 34,128.33 tenge. At the court hearing, the defendant acknowledged the amount owed for the gas actually consumed, as well as the obligation to pay penalties, and the court accepted the claim in this part. In connection with the above, considering that the amount of debt for the actually consumed gas was formed by the defendant before the termination of his ownership of the object, taking into account the defendant's recognition of the claim in terms of claims for recovery of the amount of debt for the actually consumed gas in the amount of 152,179 tenge and penalties in the amount of 34,128 tenge, which was accepted by the court 171 of the CPC, claims in this part are subject to satisfaction. Thus, the claim of JSC "KazTransGaz-Aimak" to IP "Hotel R ..." represented by R. Zh. T. to be partially satisfied, the amount of 152,179 tenge and a fine of 34,128 tenge are to be recovered from IP "Hotel R." in favor of KazTransGas-Aimak LLP. The rest of the claim must be satisfied. The court explained to the plaintiff the right to clarify, increase or decrease the claims in connection with the evidence provided by the defendant of the alienation of the gas supply facility and the change in the delay period, but the plaintiff did not use this right, and the court considered the case within the limits of the stated requirements and clarifications to them.

The recovery of the amount of additional gas consumption, the accrued penalty for unauthorized connection for the actually consumed gas was refused.

109 of the CPC, the amount of state duty in the amount proportional to the satisfied part of the claim, which amounts to 5,589 tenge, is subject to collection from the defendant in favor of the plaintiff. Due to the lack of documents confirming the payment of the commission to the bank for the payment of the budget payment, the payment in the amount of 160 tenge is not refundable. Based on the above and guided by Articles 223-226 of the Civil Procedure Code of the Republic of Kazakhstan, the court DECIDED: To partially satisfy the claim of KazTransGas-Aimak LLP to IP Hotel Rahman represented by RZT for debt collection. To collect from IP "Hotel Rahman" in the person of RZT in favor of KazTransGas-Aimak LLP the amount of 152,179 (one hundred and fifty-two thousand one hundred and seventy-nine) tenge, a fine in the amount of 34,128 (thirty-four thousand one hundred and twenty-eight) tenge, as well as the cost of paying the state fee in the amount of 5,589 (five thousand five hundred eighty-nine) tenge, a total of 191,896 (one hundred ninety-one thousand eight hundred ninety-six) tenge. To dismiss the rest of the claim.

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