Objection / response to a claim under a construction contract
To the Specialized Interdistrict Economic Court of East Kazakhstan Region
To Judge Alyokhina N.P.
East Kazakhstan region. Ust-Kamenogorsk, Shakarim St., 60.
Phone: +7-705-
E-mail: 160202@sud.kz
From the representative of IP LLP,
OBJECTION
(to the statement of claim of the plaintiff of LLP "C.kz" in accordance with art. 166 of the CPC)
The claim of "C" LLP is being considered in your proceedings.kz" to IP LLP for compensation of the material damage caused. You have scheduled a court hearing in this case for February 14, 2025 at 5 p.m.
Having studied the essence and content of the claim, we consider it unsatisfactory due to the following circumstances.
In fact, on August 28, 2023, a Subcontracting Agreement No.DP-28/08/23 was concluded between the Plaintiff and the Defendant, which was terminated by the Termination Agreement dated October 10, 2023.
At the same time, during the investigation of the circumstances of the case, we learned that from the end user represented by the AXIS of the Moscow Railways located in the city of Ufa, on the street named after I. Yesenberlina, 68, in particular, by the chairman of K/ M.B. no complaint letter was received to either IP LLP or C kz LLP. It follows that there is no claim from the end user. Accordingly, we have not previously received notifications from the Plaintiff about the need to correct certain parts of the types of work performed within the warranty period. In this regard, we consider the Plaintiff's claims to be incorrect and unfair, since it forms the principle of illegality. We also consider the fact of claiming damages in the amount of 1,500,000 tenge and its repayment by 05.12.2024 with all additional components to be incorrect and unlawful, characterizing the Plaintiff's company and its executives as mercantile, who are in search of illicit enrichment at the expense of law-abiding subjects of law, which also constitutes a criminal offense.
At the same time, our specialists conducted an inspection of the APS as part of the warranty service of this facility. During the survey, it was found that a part of the equipment needed to be replaced and the system reconfigured. As a result, we contacted the chairman of the AXIS of the Ministry of Railways, M.B. Kasimov, to whom we explained the situation and agreed on the procedure and mechanism for elimination, which was also subsequently eliminated. This fact is confirmed by an official document signed by the parties.
At the same time, according to the terms of clause 3.9 of the DP-28/28/23 Contract, the Contractor has the right to deduct from the amount of the guarantee deduction compensation for all costs and losses incurred as a result of non-fulfillment or improper fulfillment by the Subcontractor of its obligations under this Agreement, having previously notified the Subcontractor in writing.
In our case, we have not received such a notification. It follows that the Plaintiff is deprived of the right to withhold monetary compensation from the amount of the guaranteed deduction. This is also due to the fact that there are no facts of non-fulfillment or improper fulfillment of our obligations. This fact is also confirmed by the Acts of Completed Works No. 2 dated September 25, 2023, signed by both the Defendant's side and the Plaintiff's side.
At the same time, we do not dispute that under the above-mentioned Subcontracting Agreement we have debts to C kz LLP in the amount of 160 681.29 tenge. At the same time, we do not object to deducting this amount from the debt incurred under the work contracts dated 08/28/2023 and 09/22/2023 to our company by making mutual settlements.
According to the Plaintiff's claims arising from Work Contracts No. 28/10/23 dated August 28, 2023 and No. P51 dated September 22, 2023, we explain the following to the court. These claims are not based on the norms of the current substantive and procedural law of the Republic of Kazakhstan and, accordingly, we do not fully recognize them and consider the Plaintiff's claims in this part not to be fully satisfied.
This is due to the fact that in nature there is a decision of this court dated January 23, 2025 on the full satisfaction of the claims of IP LLP against C kz LLP for debt collection and penalties, which were formed from the above-mentioned Work Contracts No. 28/10/23 dated August 28, 2023 and No. P51 dated September 22, 2023.. It follows from this that there is a court decision between the same parties and on the same subject, which has not been annulled and, according to the norms of art. 76 of the CPC RK, does not require new evidence. Thus, I consider it unacceptable to review them in the framework of the present legal proceedings.
According to the norms of Article 8 of the Civil Code of the Republic of Kazakhstan, Citizens and legal entities, at their discretion, dispose of their civil rights, including the right to their protection.
The exercise of civil rights should not violate the rights and legally protected interests of other subjects of law, and should not cause damage to the environment.
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.
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.
No one has the right to take advantage of their unscrupulous behavior.
In our opinion, the Plaintiff's actions violate the norms of Article 8 of the Civil Code of the Republic of Kazakhstan indicated by us, and we consider the fact of abuse of the norms of the current substantive and procedural law to be proven.
Based on the above and guided by the norms of the current substantive and procedural law of the Republic of Kazakhstan, we ask the Court:
1. To refuse to satisfy the claim of the Plaintiff of C kz LLP to IP LLP for compensation of material damage in full due to the absence of such facts.
In the application:
1. A copy of the power of attorney dated October 28, 2024.
2. A copy of Order No. 17/k dated 10/28/2024.
3. Acts of completed works No. 2 dated 09/25/2023.
4. The Troubleshooting Act dated 12/12/2024.
5. Subcontracting agreement No.DP-08/28/23 dated 08/28/2023
6. Agreement on termination of the subcontracting agreement... dated 10.10.2023.
Representative
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
