A claim for the recovery of an advance payment for the development of a mobile application
To a specialized interdistrict
Economic Court of Almaty
Plaintiff: RM Management Company LLP
BIN 160140004651
KZ40998BTB000601251
in JSC "Jsap Bank"
BIK TSESKZKA
KZ4196503F0011572032 (KZT)
in JSC "ForteBank" BIK IRTYKZKA
Astana, Almaty district,
Zh.Zhirentaeva str., zd. 5
Plaintiff's Representative:
Kuldybayeva Dinara Bolatovna
mobile: 8 775 454 49 08
Defendant: M.B.G. LLP
194 Baizakov St., Almaty,
Karasai Batyr St., 6th floor, office 600
BIN 180140035186
Halyk Bank of Kazakhstan JSC
IIC KZ 286017131000025282
HSBKKKX BIC
Mob. 8 …
The claim
about collecting the advance payment amount,
On January 05, 2022, G Et D G LLP and M.B.G. LLP signed a contract for the development of a mobile application No. 2021/01112, under which the Defendant undertakes to develop a mobile application, and the Plaintiff undertakes to pay for the service provided.
On March 20, 2023, Global Expert Development Group LLP and RM Management Company LLP and M.B.G. LLP (the Defendant) concluded a contract of assignment of the right of claim No. 2023/00409 dated 03/20/2023, where RM Management Company LLP (the Plaintiff) assumes all rights of claim and obligations of the Customer under the Agreement No. 2021/01112 dated 05.01.2023.
According to clause 3.1 of the said Agreement, the Defendant undertakes to deliver the finished mobile application to the Plaintiff within 44 working days from the date of approval of the design of all pages of the mobile application. However, to date, the Defendant has not provided the mobile application to the Plaintiff.
On January 21, 2022, the plaintiff, in accordance with clause 2.2. of the Agreement, made an advance payment in the amount of 1,590,000 tenge.
On 07/21/2023, the Plaintiff sent a pre-trial claim to the Defendant's address for the unilateral termination of the Contract and the refund of the advance payment in the amount of 1,590,000 tenge.
The defendant did not respond to the pre-trial claim for unilateral termination of the contract on 07/21/2023, which was received via the courier mail "Rika", which is damaged by notification No. 0000003654424.
Thus, on the part of the Defendant, there is an improper fulfillment of the obligation assumed on the basis of the Contract.
In accordance with the requirements of Articles 272 and paragraph 1 of Article 277 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 within the time period established by it.
At the same time, according to paragraph 1 of Article 349 of the Civil Code, a violation of an obligation is understood 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 paragraph 1 of Articles 292, Articles 293, 294 of the Civil Code, it is regulated that a penalty (penalty, fine) is one of the ways to ensure the fulfillment of an obligation, which is understood as a monetary amount determined by law or contract, which the debtor is obliged to pay to the creditor in case of non-fulfillment or improper fulfillment of obligations, in particular in case of late fulfillment of obligations under the Contract.
At the moment, the Defendant has a debt in favor of the Plaintiff, the amount of prepayment is 1,590,000 tenge, the amount of the contractual penalty in accordance with art. 294 of the Civil Code of the Republic of Kazakhstan is 159,000 tenge, the total amount of the debt was (1 590 000 + 159 000 ) total: 1,749,000 tenge.
It follows from the content of paragraph 4 of Article 8 of the Civil Code of the Republic of Kazakhstan that 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.
By virtue of Article 102 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), it follows that court costs consist of state fees and costs related to the proceedings.
Based on paragraph 1 of Article 109 of the CPC, it was established that the party in whose favor the decision was made, the court awards, on the other hand, all court costs incurred in the case.
Thus, according to this claim, the plaintiff, ResMen Management Company LLP, paid a state fee to the local budget in the amount of 52,470 tenge, which is also subject to recovery from the defendant in favor of the plaintiff in full.
Based on the above, guided by the requirements of Articles 272, 273, 277 of the Civil Code, Articles 223-226 of the CPC, as well as the factual circumstances of this claim.
I ASK THE COURT:
1. To recover from the Defendant, M.B.G. LLP, the amount of debt in the amount of 1,590,000 tenge in favor of RM Management Company LLP;
2. To recover from the Defendant "M.B.G." LLP the amount of the penalty is 159,000 tenge in favor of RM Management Company LLP;
3. To collect from the Defendant "M.B.G." LLP in favor of "RM Management Company" LLP court costs in the form of a paid state fee in the amount of 52,470 tenge.
Application:
1. Contract No. 2021/01122 dated 05.11.2012
2. Contract of assignment of the right of claim (assignment) dated 03/20/2023.
3. Pre-trial claim for ex. No. 01246 dated 07/21/2023
4. Notification of receipt of a letter from the Expert-mail "Rika" No. 0000003654424;
5. Reconciliation report for 08/22/2023;
6. Certificate of state registration;
7. Power of attorney for a representative, extract from the Chamber of Legal Consultants "Expert Pravo 2018"
8. Payment order for payment of the state fee.
Director0
TO0 "RM Management Company" NR.A.
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