On recovery from a legal entity of the amount of debt, penalties, representative expenses
Between the LLP “....” represented by Deputy General Director U.E.A., acting on the basis of power of attorney No. 3 dated January 04, 2019 (hereinafter referred to as the Plaintiff) and LLP.....) represented by Director A.B.N., acting on the basis of the Charter (hereinafter referred to as the Defendant), a contract was concluded for the provision of security services from 12/04/19 (hereinafter referred to as the Agreement), according to which the Contractor, on behalf of the Customer, undertakes obligations to protect and protect individuals and property located on the territory of the Multi-storey Residential Complex with a business center and underground parking.....“ (hereinafter referred to as the Facility). In July 2020, all security services under the Contract were performed by the Plaintiff in full, with the required quality, checked and accepted by the Defendant, as confirmed by the act of completed work No. 69 dated 07/31/2020, signed by both parties. The Defendant also received a corresponding invoice from the Plaintiff, No. 000000000... dated 07/31/20. However, the Defendant did not make a payment in favor of the Plaintiff for the performed security services in July 2020. In connection with the improper fulfillment of contractual obligations on August 24, 2020, the Plaintiff informs the Defendant for pre-trial settlement that, in accordance with the terms of the Security Services Agreement dated December 04, 2019 (hereinafter referred to as the Agreement), there is an outstanding debt in the amount of 966,650 tenge for LLP......) for security services rendered. In accordance with section 4 of clause 4.1 of clause 1 of the Contract, the Customer is obliged to
The Plaintiff fulfilled all obligations under the Contract to the Defendant in full in accordance with Article 272 of the Civil Code of the Republic of Kazakhstan, which stipulates that 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. However, according to the Agreement, the Defendant did not return the money, and all oral and written requests from the Plaintiff for a refund were unsuccessful. In section 8, clause 8.1. “For violation of the deadline for payment for Services provided for in clause 5.2. of this Agreement due to the fault of the Customer, the Customer, at the request of the Contractor, pays the Contractor a penalty in the amount of 0.1 (zero point one tenth) percent of the late amount for each day of delay.” Given the long delay in payment for the service, the penalty to be paid is a large percentage of the outstanding amount. In this regard, the Plaintiff reduces the amount of the penalty to 10% of the loan amount, that is, the amount of the penalty will amount to 96,656 tenge, the total debt amounted to 1,063,216 (one million sixty-three thousand two hundred sixteen) tenge.
On recovery from a legal entity of the amount of debt, penalties, representative expenses
By virtue of Article 273 of the Civil Code of the Republic of Kazakhstan, unilateral refusal to fulfill an obligation and unilateral modification of its terms are not allowed. Written correspondence was conducted between the Plaintiff and the Defendant, as evidenced by the Claim for ex. No. 1 dated 08/24/2020, to which an answer was received for ex. No. 59 dated 09/07/2020, claim for high. No. 2 dated 09/28/2020, response to the claim for ex. No. 63 dated 10/15/2020, but all attempts to resolve the situation peacefully were unsuccessful. To this day, the Plaintiff has not received his funds. Thus, the Defendant is not fulfilling his obligations to pay for the services provided. 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. Based on paragraph 1 of Article 113 of the CPC RK, 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. On January 25, 2021, the Judge of the specialized interdistrict Economic Court of Almaty, G.R. Zapparova, having considered the materials on the claim of LLP "....." to LLP "....)" for debt collection and penalties, the Court determined that the Claim should be returned. Regarding the above situation, we previously applied to the Commercial Arbitration Court of Almaty to resolve the dispute. But the Commercial Arbitration Court of Almaty was informed that their activities had been suspended indefinitely. The letter also states that we have the right to apply to another arbitration court. Subsequently, we inquired from other arbitration courts in Almaty and were made aware that we would violate the contractual clause if we applied to another arbitration court to resolve the dispute. Accordingly, the Defendant's side has every right to cancel the arbitration award of the court. 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. Based on the above and in accordance with art. 148 of the CPC RK, the Court was asked to: Recover from LLP “KZ ...) in favor of LLP ".. 82” the amount of debt in the amount of 966,650 (nine hundred sixty-six thousand six hundred fifty) tenge; Recover from LLP “KZ ...) in favor of LLP ".. 82” to collect the amount of penalty in the amount of 96,656 (ninety-six thousand six hundred and fifty-six) tenge from LLP "K Z ..) in favor of LLP “... 82” the costs of paying the state fee, taking into account the bank's commission in the amount of 31,897 (thirty one thousand eight hundred and ninety-seven) tenge;
Collect from “KZ ...“ LLP in favor of ”.... 82" LLP representative expenses in the amount of 96,000 (ninety-six thousand) tenge; To secure the claim, seize all movable and immovable property owned by private ownership, "KZ ...." LLP. May 06, 2021 Judge of the Specialized Interdistrict Economic Court of Almaty Kazymbetova G.N., having considered a civil case on debt collection in a simplified procedure. Guided by Articles 145-147, 223-226 of the CPC, DECIDED: The claims of the Limited Liability Company "..82" to the Limited Liability Company "KZ ...) on the recovery of the amount of debt, penalties – to satisfy. To collect from LLP “KZ ...” in favor of LLP “... 82” the amount of debt in the amount of 966,650 tenge; the amount of penalties in the amount of 96,656 tenge, the cost of paying state duty 31,897 tenge; representative expenses in the amount of 96,000 tenge.
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