A claim for recovery of the amount owed under a subcontract agreement
Specialized Interdistrict Economic Court of Almaty
273b Baizakov St., Turksib district, Almaty.
from the Plaintiff: LLPC.kz "
represented by Director D. O.F.
BEAN.......
280 T. bi str., 13th floor, Almaty.
8 (727) ….
Representative by proxy:
Law and Law Law Firm
BIN 201240021767
79 Abylai Khan Ave., office 304, Almaty.
info@zakonpravo.kz / www.zakonpravo.kz
+7 708 971 78 58; + 7 727 971 78 58.
Defendant: LLP "K..On.S.-1"
BEAN .
Almaty, Turksib district, ul.
+7 701
The claim
about debt collection
On July 18, 2019, between LLPC.kz " (hereinafter referred to as the Plaintiff) and K..To.S.-1 LLP (hereinafter referred to as the Defendant) concluded a subcontracting agreement No. 13/PD/2019 dated July 18, 2019, where the main subject of the agreement is the performance of work by the Plaintiff (subcontractor) according to the Specifications, which are an integral part of the agreement. The plaintiff under subcontractor agreement No. 13/PD/2019 dated July 18, 2019, as a subcontractor, fulfilled its obligations fully and appropriately. The defendant made the payment late under subcontract No. 13/PD/2019. The penalty was calculated in the form of a table as follows (We have attached a table of late payments to the claim, where we calculated each payment.)
The Act of completed works (hereinafter referred to as AWP) 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, the Plaintiff provides a table of calculations of the penalty in the claim, where he calculated a 20-working-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 the Defendant under ADR No. 13, 17 dated 05/25/2020. The penalty calculations in the table given in the claim correspond to reality. 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, the Defendant paid 350,000 tenge in arrears on 26.05.2021, i.e. The defendant paid the Plaintiff after 117 business days and an incomplete amount. The Defendant paid the remaining 50,000 tenge only on 11/08/2021.
In total, under subcontract No. 13/PD/2019, the Defendant received a penalty in the amount of 97,480 tenge.
Under the supply agreement No. 05/20 dated May 29, 2020:
On May 29, 2020, the parties signed a supply agreement No. 05/20 dated May 29, 2020, where the main subject of the agreement is the supply of shut-off valves TU 3791-001-70780838-2005 model H-A2-20-K-R1-U1\UHL1. The plaintiff under the delivery agreement No. 05/20 dated May 29, 2020 fulfilled its obligations and delivered the goods within the time limits specified in the contract. The defendant under subcontract No. 05/20, the payment was made late. The calculations of the penalty were made in the form of a table as follows:
The Plaintiff received an advance payment from the Defendant in the amount of 4,900,000 tenge dated 06/02/2020. The second payment in the amount of 2,168,847.5 tenge was received on 06/18/2020. The plaintiff delivered and shipped the goods on 30.06.2020. The plaintiff delivered the practical goods with a slight delay, which arose due to the pandemic (the reason for the delay was the difficulties on the border of Kazakhstan and Russia, which arose due to the pandemic). Subsequently, the manufacturer of this product sent us a notification about the shipment, and confirmed that they were ready to ship the goods on June 26, 2020. In accordance with clause 3.2. The remaining amount in the amount of 2,168,847 tenge 50 thousand is paid to the Supplier at the time of shipment of the goods. The goods were shipped by the Plaintiff on June 30, 2020. However, the Defendant partially paid only 1,000,000 tenge six months later, i.e. on January 29, 2021. Although, in accordance with clause 3.2. of the Contract, they had to pay an amount of 2,168,847 tenge at the time of shipment of the goods.
Accordingly, the Plaintiff, using the right provided for in clause 5.5. of the Supply Agreement No. 05/20 dated May 29, 2020, requests to pay the amount of the penalty according to the calculations provided in the table in the amount of 116,884 tenge.
Under subcontractor agreement No. 77 dated October 19, 2020:
Also on October 19, 2020, the parties signed subcontracting agreement No. 77 dated October 19, 2020, where the main subject of the agreement is the performance of work by the Subcontractor according to Specifications that are an integral part of the agreement. According to subcontractor agreement No. 77 dated October 19, 2020, the Plaintiff fulfilled all obligations for which payments were made, i.e. for which goods or services the Defendants paid, for which funds the Plaintiff fulfilled his obligations.
According to clause 3.2. of the Subcontracting Agreement No. 77 dated October 19, 2020, the Customer makes an advance payment to the Subcontractor in the amount of 20,000,000 tenge, within 5 (five) calendar days from the date of signing this Agreement. However, on 10/22/2020, you sent only 15,000,000 tenge, and a month later, on 11/25/2020, you paid the advance payment in full, i.e. the balance of 5,000,000 tenge was paid on 11/25/2020. 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, the Plaintiff fulfilled all obligations.
Clause 3.3. of the Subcontract Agreement No. 77 dated October 19, 2020 also 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 Acts. 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.
It should be borne in mind that according to the reconciliation report of mutual settlements for the period 01.01.2021 to 03.12.2021 under the subcontract agreement No. 77 dated October 19, 2020, signed by the parties, it can be verified that the Defendant had debts to the Plaintiff in the amount of 802,853 tenge as of December 3, 2021.
Moreover, according to the reconciliation report of mutual settlements for the period 07/01/2019 to 01/31/2024 under subcontract No. 77, as of January 31, 2024, the Defendant had debts to the Plaintiff in the amount of 1,650 853 tenge for services rendered.
It is also important to note that there were delays in payment under this agreement, whereas according to clause 12.3. of the agreement, it is stated that 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 penalties, 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 delays. The number of days of delay was attached to this claim, where we calculated the amount of penalty in the amount of 368,165 tenge, according to the table below.
Under the supplementary agreement dated October 18, 2021, to the subcontract agreement No. 77 dated October 19, 2020:
According to the reconciliation report of mutual settlements for the period 07/01/2019 to 01/31/2024 under the additional agreement dated 10/18/2021 to the subcontract agreement No. 77, as of January 31, 2024, the Defendant had a debt to the Claimant in the amount of 149,105 tenge.
According to the additional agreement dated 10/18/2021 to contract No. 77 dated October 19, 2020, there was also a delay on the part of the Defendant.
Under subcontract No. 01.2/PD/2021 dated February 12, 2021:
According to clause 1.1 of the Contract, the Subcontractor undertakes to carry out work on Specifications that are an integral part of the contract at the Customer's facilities: "Construction of a hangar and neighboring buildings", "Installation of two additional 1000 m3 tanks for fuel storage", located at the address: East Kazakhstan region, A... 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.
According to the reconciliation report of mutual settlements for the period from 01.01.2021 to 08.02.2022, under subcontract No. 01.2/PD/2021 dated February 12, 2021, the Defendant owed 269,611 tenge to the Plaintiff on February 8, 2022.
Also in the claim, we provide a table for calculating penalties for overdue payments, where 221,030 tenge was calculated as a penalty.
Contract
Completed works, amount
Date of completion
Date of payment under the agreement
Date of actual payment
Payment amount
The amount that is considered overdue
Number of days overdue, working days
penalty fee
The act of completed works
As a result, for all payments, the penalty for late payments according to the certificates of completed works amounted to 1,075,364 tenge.
Based on the reconciliation report of mutual settlements for the period from 07/01/2019 to 01/31/2024, it was found out that the Defendant owed the Plaintiff 2,069,569 tenge.
We sent a pre-trial claim to the Defendant, where they offered to voluntarily pay money in the amount of 3,144,933 tenge. The claim was sent on April 30, 2024 to the Defendant's e-mail in accordance with Articles 152 and 279 of the CPC RK and Article 402 of the Civil Code RK. Subsequently, the Defendant refused to satisfy our claim with his response.
According to paragraph 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 must comply with the rules of business ethics. Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed.
By virtue of Article 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.
According to paragraph 1 of Article 113 of the Civil Procedure Code of the Republic of Kazakhstan, 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.
According to paragraph 1, Article 277 of the Civil Code of the Republic of Kazakhstan, where an obligation provides for or allows determining the day of its fulfillment or the time period during which it must be fulfilled, the obligation must be fulfilled on that day or, accordingly, at any time within such a period.
In accordance with paragraph 1 of Article 349 of the Civil Code of the Republic of Kazakhstan, a violation of an obligation is defined as 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.
According to clause 1 of Article 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.
In accordance with art. 29 of the CPC RK, a claim is filed in court at the defendant's place of residence.
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.
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.
On the basis of the above and in accordance with art. 148 of the CPC RK,
I ask the Court:
o The 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, to be recognized as fulfilled;
o To recognize the Act of completed works No. 4 dated 01/31/2022 under the subcontract agreement No. 77 dated October 19, 2020 as fulfilled;
o To recognize the Act of completed works No. 3 dated 01/31/2022 under the subcontract agreement No. 77 dated October 19, 2020 as fulfilled;
o The 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, to be recognized as fulfilled;
o To recognize the Act of completed works No. 10 dated 04/29/2021 under the subcontract agreement No. 77 dated October 19, 2020 as fulfilled;
o Recover from the Defendant LLP "K..On.S.-1" in favor of the Plaintiff LLP "C.kz " the amount of debt in the amount of 2,069,569 tenge;
o Recover from the Defendant LLP "K..On.C.-1" in favor of the Plaintiff LLP "C. kz" resulting in a penalty in the amount of 1,075,364 tenge;
o Recover from the Defendant LLP "K..On.C.-1" in favor of the Plaintiff LLP "C. kz" court costs in the form of a paid state fee in the amount of 92,347.99;
o Recover from the Defendant LLP "K..On.C.-1" in favor of the Plaintiff LLP "C. kz" representative expenses in the amount of 300,000 tenge.
With respect,
Representative by proxy: Kenesbek I.M.
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