Counterclaim to the claim for the recovery of the amount under the contract RK
Almaty city
inter-district Economic Court
Judge G. S. Kassymbaeva
050008, Almaty, Baizakova STR., 273 B
8 (727) 333-10-70
020203@sud.kz
Defendant: LLP " M.B.G."
Bin . ….
Almaty, B. STR., House 194, 10th floor, office 1009
+7 705 …
Representative by power of attorney:
Legal office"Law and law"
Bin: 201240021767
Almaty, PR. Abylai Khan, 79, office 304
info@zakonpravo.kz / www.zakonpravo.kz
+7 708 578 5758; +7 727 971 78 58.
Comment
to the claim for the recovery of the amount under the contract
You have a civil case No. 7527-24-00-2/3645 dated 03/26/2024 on the claim of the Limited Liability Partnership of BM F.C. LLP (hereinafter referred to as the Plaintiff) against M. B. G. LLP (hereinafter referred to as the Defendant) for the recovery of the amount under the contract.
Where the plaintiff demands:
1. To collect from "M. B. G." LLP in favor of "BM F.C." LLP the amount of the Contract in the amount of 810 00 tenge.
2. To collect from "M. B. G." LLP in favor of "BM F.C." LLP the costs of paying the state fee in the amount of 24,300 tenge.
Thus, Agreement No. 743 dated 03/09/2023 (hereinafter referred to as the Agreement) was concluded between the parties 151, 152, 378 of the Civil Code of the Republic of Kazakhstan, which stipulates that an agreement between two or more persons on the establishment, modification or termination of civil rights and obligations is recognized as a contract, which is not disputed by the parties in this civil case.
According to the terms of the concluded Agreement, clause 1.1 "The Customer assigns, the Contractor undertakes the development of the Online store's website in accordance with the terms of reference (Appendix No. 1 to this Agreement), which is an integral part of this Agreement."
In accordance with clause 2.1. of the Agreement, "The cost of work under this Agreement is: 2,700,000 tenge."
In accordance with clause 2.2 of the Agreement, "The down payment is 30% of the total cost of work under this agreement: 810,000 tenge. It is paid by the Customer within 3 banking days from the date of signing the Contract.
Thus, according to the KKM Receipt and the cash receipt order, the Plaintiff paid the first installment in the amount of 810,000 tenge.
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.
According to the terms of the concluded Agreement, p.3.9. Approval and comments from the Customer are reflected in the whats app correspondence or via e-mail. However, none of these means of communication reflected any comment on the service, either in terms of quality or in terms of service delivery time (all correspondence reflected in the service approval group is attached).
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.
According to P.5.6. If there are shortcomings in the work, the Parties must draw up a bilateral act. However, there is no initiation of this act on the part of the Customer with a list of shortcomings.
In addition, according to clause 8.1. of the Agreement, the Party that initiates the termination of the agreement must notify the other Party in writing 10 calendar days in advance. However, this condition was not met by the Customer.
During the work and its delivery, the Customer did not make any claims to the quality and time of service provision. On the contrary, he stated that he would come to the contractor's office and pay for the services on 04/19/2023. This is proof that the Defendant's contractual obligations were fulfilled properly, in accordance with the procedure and terms established by the Contract. However, after the statements that the payment would be made at the office on 04/19/2023, the Customer stopped contacting until 04/25/2023, and sent a claim on 04/25/2023.
I ask the court to note that the Customer in the claim does not provide any evidence to support his position, but only states that after reading negative comments on the Internet, he had a negative attitude towards the Contractor.
We consider such statements by the Plaintiff to be unfounded, since the burden of proof lies on the party making the claims, the Plaintiff. But the Plaintiff does not provide any evidence, but only indicates that the claims are based on assumptions caused by comments on the Internet.
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.
Such arguments cannot serve as admissible evidence in court.
At the same time, it should be noted that it is the Plaintiff who violates contractual obligations. Thus, in order not to pay the cost of properly rendered services, the Plaintiff refuses to sign acts on the completion of work stages, despite the fact that he had no complaints about their quality during the work.
Moreover, the Plaintiff himself claimed the results of the work, as evidenced by correspondence in the WhatsApp group. Such actions are regarded as a unilateral refusal to fulfill contractual obligations on the part of the Plaintiff, which, in accordance with the norms of the law, namely, according to art.273 of the Civil Code of the Republic of Kazakhstan, is unacceptable.
The plaintiff's actions violate Articles 4 and 5 of the CPC RK Tasks and Principles of civil proceedings. Violation of the principles of civil proceedings, depending on its nature and materiality, entails the cancellation of judicial acts.
Article 6. The Civil Code of the Republic of Kazakhstan "Interpretation of the norms of civil legislation" stipulates: The norms of civil legislation must be interpreted in accordance with the literal meaning of their verbal expression.
Thus, Dear Court, the Plaintiff's arguments that the terms of the Contract are not being fulfilled are not valid and are not justified on the basis of the above arguments.
I would like to draw the court's attention to the fact that the Website consists of complex codes that constantly require updating and maintenance by specialists who, with each update of the contributing software, need to be edited and updated.
Article 72 of the CPC RK. In "Duty
evidence" is provided for by each
the party must prove the circumstances to which it refers as the basis of its claims, which is not observed in the statement of claim.
However, we see that on the part of the Plaintiff, all the evidence was provided in Russian, that is, the Contract, the payment receipts and the Pre-trial Claim, while the Claim was drawn up in Kazakh.
Being a decent and responsible person, the Defendant has never refused to fulfill his Contractual obligations to the Plaintiff. However, the Plaintiff himself did not undertake any constructive dialogue to resolve the current situation. To date, the Defendant has fulfilled all the terms of the contract, however, the Plaintiff himself has been abusing the clauses of the contract and the norms of legislation for his own unscrupulous selfish purposes.
We consider the Plaintiff's arguments to be unsubstantiated and unjustified from the point of view of relevance and admissibility as evidence in accordance with art. 68 of the CPC RK, each evidence is subject to assessment taking into account relevance, admissibility, reliability, and all the evidence collected together sufficiency to resolve a civil case – in this civil case, we observe the groundlessness of Claims and Defamation in relation to The defendant.
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, 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.
The plaintiff in this civil case does not dispute in his claims the Contract for the development of the online store No. 743 dated March 09, 2023.
In addition, the Act of work performed sent to the Plaintiff confirms the proper fulfillment of contractual obligations, which the Plaintiff did not receive a reasoned refusal, in accordance with the norms of Articles 271, 272 of the Civil Code of the Republic of Kazakhstan, Obligations arise from the 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.
Thus, we consider that the Plaintiff, without recognizing the above-mentioned documents as invalid or without terminating them in court, has no right to demand the recovery of the amount under the contract, since the Contract and the Act of Work performed comply with the requirements of the legislation and have legal force for the parties.
By virtue of art. 219 part 2 of the CPC, the Court does not have the right to change the subject or the basis of the claim on its own initiative and is obliged to resolve the case within the limits of the claims stated by the plaintiff.
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.
Between the Law and Law Law Firm and the MOVE BUSINESS GROUP LLP, an agreement No. 1804/24 was concluded for the provision of legal assistance (hereinafter referred to as the Agreement), according to which the Law and Law Law Firm provides the plaintiff with representation services in all judicial instances in the above–mentioned civil case.
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