A claim for recovery of the amount owed under construction subcontracting and supply contracts
Specialized Interdistrict Economic Court of Almaty
273b Baizakov St., Turksib district, Almaty.
from the Plaintiff: LLPC.kz "
represented by Director D. O.F.
BIN ……
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, B. 92 St.
.
The claim
about debt collection
Between Certa kz LLP (hereinafter referred to as the Plaintiff) and Kaz.Po LLP.Steel-1" (hereinafter referred to as the Defendant) concluded the following agreements:
- Subcontracting Agreement No. 13/PD/2019 dated July 18, 2019;
- Supply agreement No. 05/20 (shut-off valves) dated May 29, 2020;
- Subcontracting Agreement No. 77 dated October 19, 2020;
- Supplementary Agreement to the Subcontracting Agreement No. 77 dated October 18, 2021;
- Subcontracting agreement No. 01.2/PD/2021 dated February 12, 2021.
Under subcontract No. 13/PD/2019 dated July 18, 2019:
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 the ADR) 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.
According to clause 3 of the Supply Agreement No. 05/20, the total value of the Goods under this Agreement is 9,237,695 tenge. Payment of the Contract Price is made by the Buyer in the following order:
- prepayment in the amount of 4,900,000 tenge, paid by the Buyer within three days from the moment of invoicing under the agreement.
- the second payment in the amount of 2,168,847 tenge 50t, 10 days after the prepayment.
- The remaining amount in the amount of 2,168,847 tenge 50t., is paid to the Supplier at the time of shipment of the goods.
The Plaintiff received from the Defendant an advance payment 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 (see the Reconciliation Report common to all contracts and the statement of account).
The plaintiff delivered the 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). According to clause 8.1. Supply Agreement No. 05/20, in the event of extraordinary circumstances, namely military operations, natural disasters, strikes, mass riots and prohibitive or restrictive legislative decisions of state bodies that occurred after the signing of this Agreement and prevent the full or partial fulfillment of any obligations under this Agreement, the period of performance of obligations is extended for the duration of such circumstances.. 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. of the Agreement, 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 the remaining amount 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:
A Subcontracting Agreement No. 77 dated October 19, 2020 was concluded between the parties, where the main subject of the agreement is the performance of work by the Subcontractor (Plaintiff) according to Specifications that are an integral part of the agreement. The specifications are mainly for the installation and supply of equipment to the VM REHS CMTS LLP Vostoktsvetmet warehouse facility in Ust-Talovka.
Clause 3.1. of the Subcontracting Agreement No. 77 stipulates that the procedure and conditions for making advance, interim and final payments are established by the terms of the Agreement.
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, the Defendant sent the amount of KZT 15,000,000 only on October 22, 2020, and a month later, i.e. on November 25, 2020, he paid the advance payment in full, i.e. the balance of KZT 5,000,000.
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 (see the Reconciliation Act signed by the parties).
According to clause 3.3. of the Subcontracting Agreement No. 77, which 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 Certificates. 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.
Under Subcontractor Agreement No. 77 dated October 19, 2020, the Plaintiff fulfilled all obligations under which payments were made.
According to the reconciliation report of mutual settlements for the period 01.01.2021 to 03.12.2021 under subcontract No. 77 (signed by the parties), as of December 3, 2021, the Defendant had a debt to the Plaintiff in the amount of 802,853 tenge, which has not been paid to this day. At the time of signing the reconciliation report for mutual settlements for the period 01.01.2021 to 03.12.2021 under subcontract No. 77, the Defendant stated to the Plaintiff that he had no claims on the rendering work.
In Article 272 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), the obligation must be fulfilled 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.
It should also be noted that the Defendant accepted the work under the Act of Completed Works No. 3 dated 01/31/2022 in the amount of 120,000 tenge and under the Act of Completed Works No. 4 dated 01/31/2022 in the amount of 728,000 tenge. However, the Defendant received the certificates on purpose, but to this day has not paid for the subcontracting work of the Plaintiff and refused to sign the acts without giving reasons for the refusal.
Thus, according to the reconciliation report and according to two acts of completed work on No. 3 and 4, the Defendant has debts to the Plaintiff in the amount of 1,650,853 tenge. All certificates of completed works were provided by the Plaintiff to the Defendant on purpose.
According to clause 4, Article 663 of the Civil Code, a unilateral act of delivery or acceptance of work results can be recognized by a court as valid only if the reasons for refusing to sign the act are recognized by the court as unfounded.
The defendant refers to the fact that in accordance with Appendix No. 4 to the Subcontract Agreement No. 77 dated October 19, 2020, the Detector In Pilot-M equipment for a total cost of 3,540,000 tenge was not delivered on time, and thus did not fulfill its obligations properly.
However, it must be borne in mind that the Defendant did not make a full prepayment for this product. By payment order No. 6 dated 04/21/2021, the Defendant transferred an amount of 3,000,000 tenge. Moreover, according to the account statement in payment order No. 6 dated 04/21/2021, the Defendant indicates in the purpose of the payment that 3 million tenge was paid on account No. 5, i.e. according to the act of completed works No. 5 dated 01/16/2021.
It should also be noted that the Plaintiff, before making an advance payment by the Defendant on payment order No. 6 dated 04/21/2021 in the amount of 3,000,000 tenge, was working in the negative in the amount of 1,283,481 tenge. And after the payment of 3,000,000 tenge by the payment order, the Plaintiff had an amount of 1,716,519 tenge on his balance sheet. Thus, the Plaintiff did not have enough money to purchase and supply the Detector In Pilot-M. equipment.
Due to the fact that the Defendants did not make the full prepayment amount for the Detector In Pilot-M equipment, the Plaintiff spent 3,000,000 tenge on purchases of other equipment paid for by payment order No. 6 dated 04/21/2021.
285 of the Civil Code provides that, if obliged to perform one of two or more actions, the right to choose belongs, unless otherwise provided by the legislation or the terms of the obligation.
It is also important to note that there were delays in payment under this agreement (see the table below), 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 a penalty, 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 of delay. The number of days of delay is indicated in the table where we calculated the amount of the penalty in the amount of 368,165 tenge.
Under the supplementary agreement dated October 18, 2021, to the subcontract agreement No. 77 dated October 19, 2020:
An Additional Agreement was concluded between the parties to the Agreement No. 77 on October 19, 2020, where the parties agreed to exclude "Appendix 1" from the agreement No. 77 and replace it with a new specification in the additional agreement, as well as to supplement the specification with the "Communication" section.
According to the act of reconciliation 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 (see the Act of reconciliation common to all contracts). This debt was formed as follows: The defendant made an advance payment in the amount of 5,093,860 tenge in accordance with payment order No. 18 dated 10/25/2021. By 31.01.2022, the plaintiff partially fulfilled obligations in the amount of 9,554,395 tenge, but the Defendant paid 4,311,430 tenge on 21.02.2022. And thus, the Defendant did not pay the amount according to the act of completed works No. 2 and did not pay the amount of 86,805 tenge according to the act of completed works No. 52 (see the Reconciliation Act common to all contracts). The certificates of completed works were provided by the Plaintiff to the Defendant on purpose.
Also, under this additional agreement, there was a delay on the part of the Defendant in the amount of 271,805 tenge. The calculations are performed as follows.
In accordance with Articles 68, 72 of the CPC 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.
Under subcontract No. 01.2/PD/2021 dated February 12, 2021:
A subcontracting agreement No. 01.2/PD/2021 dated February 12, 2021 was signed between the parties. According to clause 1.1 of the Contract, the Subcontractor undertakes to perform work according to the 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: East Kazakhstan region, Ayagoz 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. The specifications are mainly for the installation and supply of equipment to the hangar facility of Vostoktsvetmet LLP in Aktogay.
The Plaintiff has fulfilled all its obligations under the Specifications under this Agreement. All acts of completed works have been signed under this agreement.
According to clause 3.3. of the Subcontracting Agreement No. 01.2/PD/2021, payment for the cost of work is made on the basis of signed Certificates of completed work, carried out by the Customer within 10 (ten) banking days from the date of signing the Certificates. 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.
The defendant in this case, under this Agreement, also signed all the acts of work performed, accepted all the work, however, according to the latest act of work performed No. 45 dated 11/09/2021 in the amount of 693,900 tenge, the Defendant did not pay the amount of 269,611 tenge.
According to the reconciliation report of mutual settlements for the period from 01.01.2021 to 08.02.2022, as of February 8, 2022, the Defendant had debts to the Plaintiff in the amount of 269,611 tenge.
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, all the above-mentioned Contracts resulted in a penalty for late payments for work and services rendered, which amounted to 1,075,364 tenge.
According to Article 298 of the Civil Code, which stipulates that 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 (Article 359 of this Code).
Also, 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 2,069,569 tenge to the Plaintiff under all the above-mentioned Subcontracting Agreements.
The total price of the claim is KZT 3,144,933.
It is important to note that many certificates of completed work under all the above-mentioned contracts were provided by the Plaintiff on purpose personally to the Director of the company. The Plaintiff always requested signed acts of completed works from the Defendant, however, the Defendant did not sign or refuse to sign the acts, but only postponed the signing until tomorrow. The plaintiff, as a subcontractor, seeing the fact that the work was being paid for, did not immediately suspend work, but, hoping for the Defendant's good faith, performed some work at his own expense. And when the interim and final payments on the part of the Defendant stopped, the Plaintiff, as a contractor, reasonably stopped his work.
683 of the Civil Code of the Republic of Kazakhstan stipulates that under the contract, the contractor undertakes to provide services on behalf of the customer (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services.
According to Articles 67, paragraphs 1, Article 68 of the CPC RK, evidence is considered reliable if, as a result of verification, it turns out that it corresponds to reality. Each evidence is also subject to assessment taking into account its relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a civil case.
Being a decent and responsible person, the Defendant has never refused to fulfill his Contractual obligations to the Plaintiff. However, the Defendant himself did not undertake any constructive dialogue to resolve the current situation. To date, the Defendant has fulfilled all obligations under the AWR, however, the Plaintiff himself has observed abuse of the clauses of the contract and the norms of legislation for his own unscrupulous selfish purposes.
In accordance with Article 8 of the Civil Code of the Republic of Kazakhstan, the exercise of civil rights should not violate the rights and legally protected interests of other subjects of law.
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.
Actions of citizens and legal entities aimed at harming another person, abuse of the right in other forms, as well as the exercise of the right in contradiction with its purpose are not allowed.
392 of the Civil Code of the Republic of Kazakhstan, when interpreting the terms of a contract, the court takes into account the literal meaning of the words and expressions contained therein. The literal meaning of a contract clause, in case of ambiguity, is established by comparing it with other terms and the meaning of the contract as a whole. Also, Article 6 of the Civil Code of the Republic of Kazakhstan "Interpretation of the norms of civil legislation" provides: The norms of civil legislation must be interpreted in accordance with the literal meaning of their verbal expression.
Also, the selfish thoughts of the Plaintiff will not find their embodiment, since according to Article 147 of the Civil Code of the Republic of Kazakhstan, Transactions are recognized as actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations.
In accordance with the provisions of Articles 271, 272 of the Civil Code of the Republic of Kazakhstan, obligations arise from a contract and 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.
Article 169 of the Civil Procedure Code of the Republic of Kazakhstan provides that the plaintiff has the right to change the basis or subject of the claim, increase or decrease the amount of claims by submitting a written application before the court is removed for a decision in the absence of the need for additional procedural actions.
Based on the above and in accordance with art. 169 of the CPC RK,
I ask the Court:
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 valid;
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 valid;
o To recognize the Act of completed works No. 2 dated 01/31/2022 under the supplementary agreement dated 10/18/2021 to the subcontract agreement No. 77 dated October 19, 2020 as valid;
o To recognize 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 as valid;
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 valid;
o Recover from the Defendant LLP "K..On.C.-1" in favor of the Plaintiff LLP "C. kz" the amount of debt in the amount of KZT 3,144,933;
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 103,578 tenge;
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,
Representatives by proxy: Sarzhanov G.T.
Kenesbek I.M.
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