Petition for recognition of evidence as inadmissible RK
Specialized interdistrict
Economic Court of Almaty
To Judge Aketaev D.A.
050008, Almaty, ul. Baizakova, 273 B
8 (727) 333-10-70
020203@sud.kz
from the Defendant: M.B.G. LLP
BEAN .
Almaty, 194 B. Street, 10th floor, office 1009
+7 705 ….
Representative by proxy:
Law and Law Law Firm
BIN 201240021767
79 Abylai Khan Ave., office 304, Almaty
info@zakonpravo.kz / www.zakonpravo.kz
+7 708 578 5758; +7 727 971 78 58.
The petition
on the recognition of evidence as inadmissible
Your proceedings include civil case No. 7527-24-00-2/2745 on the claim of the Limited Liability Partnership of T.S. 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.
The plaintiff applied to the Successful IT Solutions Company.
Thus, the Plaintiff received an Expert Opinion no. without a number dated 12/01/2023 compiled by the Successful IT Solutions Company represented by Director Zhakupov Chingiz Arlievich.
When studying the Conclusion, we found that:
1. According to the Notice of Commencement of activity as an Individual Entrepreneur (IP Successful IT Solutions), the company "Successful IT Solutions" was registered on May 17, 2021. Since the registration of the IP, Successful IT Solutions has been operating. According to the Register of Tax deductions (https://goszakup.gov.kz/ru/registry/tax?filter%5Bbin%5D=831020399093&search =) In 2021, I paid 21,142.98 tenge of tax to the budget, and in 2022, I paid 12,116.19 tenge to the budget. However, IP Successful IT Solutions in 2023 and in the first half of 2024 did not show income where it can be argued that it did not operate;
2. IP "Successful IT Solutions" carries out its business activities under OKED No. 62020 - Consulting services in the field of information technology. In the materials of the Expert Opinion no. without a number dated 12/01/2023, it can be seen that the Customer is T.S. LLP and the contractor is Successful IT Solutions, and the conclusion does not stipulate that the Contractor provides services free of charge. Thus, there is no Service Agreement concluded between the parties and a receipt from the KKM for payment, which is a gross violation of the Tax legislation of the Republic of Kazakhstan by virtue of art. 31 of the Tax Code of the Republic of Kazakhstan.
The above facts speak about the competence and work experience of an alleged expert or specialist in the field of programming.
If cases of violations of legality are identified, the court has the right to issue and send a private ruling to the authorized body in accordance with art. 270 of the CPC RK.
3. Chingiz Arlievich Zhakupov drew up an Expert opinion no. without a number dated 12/01/2023, while he is not a member of the Chamber of the Republican Chamber of Judicial Experts, which can be checked at the link https://rpse.kz /, does not have a license issued by an authorized state body to engage in expert activity;
4. Chingiz Arlievich Zhakupov attached to the materials of the Expert opinion Certificates of completion of the online course of study at the National Open University "Intuit" in different years on the course "Programming languages RNN, C++, etc." which is located in the Russian Federation, the city of Moscow https://intuit.ru/content/contacts . However, these certificates can serve as additional information that Chingiz Arlievich is a specialist when confirming his Diploma of higher education, as well as his work experience. Thus, we believe that Chingiz Arlievich is also not a specialist in the field of programming, since evidence of employment and a Diploma of higher or secondary specialized education in the field of programming were not attached.
5. The expert opinion submitted to the court by the Plaintiff's party dated 12/01/2023, No number, no examination of the subject of the study, Zhakupov Ch.A., in accordance with Art. 420 of the Criminal Code of the Republic of Kazakhstan has not been warned about criminal liability for knowingly giving a false conclusion, it is not numbered, laced or stamped by an expert or specialist, or if the conclusion is drawn up in electronic format or signed with an electronic digital signature of the expert, it is not indicated what work experience the expert has in the specified specialty, which Methodological manuals, Literature and etc., research methods are not specified, and what equipment and tools were used in the study are not indicated. Which contradicts art. 38, 39 Contents and Expert Opinions of the Law of the Republic of Kazakhstan On Forensic expertise.
The following questions were put to the expert:
1) Does the result of the work performed by TOO "M.B.G." under contract No. 667 dated 02/09/2022 meet the requirements of the Terms of Reference (Appendix No. 1 to the contract)?
2) Has the two-way integration of the online store with 1C been completed in accordance with agreement No. 699 dated 06/18/2022?
3) Is it possible to use the results of the work performed by the defendant as a ready-made working website as of the current date?
4) What is the volume and cost of the work actually performed under contract No. 667 dated 02/09/2022 and their consumer value for the customer?
5) What is the cost of completing the work under contract No. 667 and No. 699 at the present time?
According to the conclusion, it was identified and established:
"Based on the information contained in the technical assignment, as well as other information obtained during the examination of the project, the company "Successful IT Solutions" came to the following conclusion:
In its current form, the site https://tkb .kz is not ready for use by the customer. The required functionality is not working:
1. Basic functionality such as ordering a product does not work
2. Integration with 1C has not been completed,
3. Online payment is not enabled
The mobile application is not available / has not been made. The total cost of the amount of work done by TOO "M.B.G." averages 570,000 (Five hundred and seventy thousand) tenge.
The cost of work under contracts No. 667 dated February 09, 2022 and No. 699 dated 06/18/2022 currently amounts to 2,950,000 (two million nine hundred and fifty thousand) tenge.
Taking into account that there is no administrative access to the site, therefore there is no way to make a backup copy. These access rights must be available to TOO "M.B.G." and must be transferred to the customer, T..s LLP. These circumstances also enable the contractor of TOO "M.B.G." to delete the code and make the site inaccessible, impossible to use. If the codes are deleted, the cost of re-creating the site and application and other work under contracts No. 667 dated February 09, 2022 and No. 699 dated 06/18/2022 will be significantly more expensive.
- Dear court, the act was signed on June 30, 2022. And the expert provided an opinion on 12/01/2023 and did not make an assessment on file changes since the signing of the act of completed work, which is fundamentally incorrect, since during this period any changes on the website and in the mobile application could have been made by the customer himself in 1.5 years.
We believe that the expert should have checked the file changes from the date of signing the certificates of completed work, and not the status of the site at the time of granting access to it and or the site.
In addition, the Defendant was not notified that the Plaintiff was conducting an expert examination at the Successful IT Solutions Company and or receiving a specialist's opinion, whereas if the Plaintiff's party had properly notified the Examination, the Defendant could have asked his questions, provided arguments and evidence for an objective study.
When examining an Expert opinion…
To Zhakupov Ch.A., the Plaintiff was asked the question of whether the two-way integration of the online store with 1C was connected in accordance with contract No. 699 dated 06/18/2022?
On this issue, how can the Defendant integrate if the Plaintiff has not provided an api for integration. These legal relations are regulated by another Agreement No. 699 for the bilateral integration of the online store with 1C dated June 18, 2022. in the civil case No. 7527-24-00-2/2627.
Also, the plaintiff's party, Ch.A. Zhakupov, was asked a research question - What is the volume and cost of the work actually performed under contract No. 667 dated 02/09/2022 and their consumer value for the customer? - What is the cost of completing the work under contract No. 667 and No. 699 at the present time?
On this issue, I would like to note that we are in a time of free market pricing, that is, in a Market economy — an economic system based on the principles of entrepreneurship, a variety of forms of ownership and production, free market pricing, contractual relations between business entities with minimal economic intervention by the state in economic activity and state regulation of the economy.
In this case, we consider that determining the cost of work is not within the competence of Zhakupov Ch.A., and this issue should be handled by Specialists and Experts in pricing in financial or auditing activities.
In paragraph 6, the final conclusion is the examination of the site and conclusions Based on the information contained in the technical assignment, as well as on other information obtained during the examination of the project, the company "Successful IT Solutions" came to the following conclusion.
- The expert points to other information, then does not describe in the conclusion what other information he was based on in the conclusion, and it is not known.
Article 9. The comprehensiveness, completeness, objectivity and scientific validity of forensic expert research, the Law stipulates that when conducting a forensic examination, a forensic expert must take all measures for a comprehensive, complete and objective examination of objects based on special scientific knowledge. The expert's opinion should be based on provisions that make it possible to verify the validity and reliability of conclusions based on generally accepted scientific and practical data.
Also, Zhakupov Ch.A., in his Expert Opinion indicates that "At the moment, there is only a website template on a virtual server hosted by hoster.kz at: https://tkb.kz There is access to the hosting, but there is no virtual server, based on this, it is not possible to check the site code, configure the database, and this does not give a complete picture of the work done. Also, these circumstances allow the performer TOO " M.B.G." to delete the code and make the site inaccessible, impossible to use."
- The arguments of access from the site before signing the Act of completed work, the Plaintiff was provided with all materials and, of course, access to the site and the application, and after the Acts of Completed work were signed, which is not disputed by the Plaintiff.
In addition, Ch.A. Zhakupov, assuming himself as an expert or specialist in accordance with the Law of the Republic of Kazakhstan "On Forensic Expertise", has no right to rely on assumptions and/or unconfirmed possibilities without objectivity and scientific validity.
Also, in the case materials and in the Court Room, we did not find the signed, numbered and sealed conclusion "Successful IT Solutions Company" for studying and submitting a reasoned objection to the expert opinion, but only an electronic version without a seal was provided for review.
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.
In accordance with Clause 5 of Article 68 of the CPC RK, circumstances cannot be considered established if only copies of documents are provided to confirm them, when the need to present the original follows from the requirements of the law.
The court also cannot consider the circumstances proved, which are confirmed only by a copy of a document or other written evidence when challenging its content, if:
1) the original document has been lost and has not been handed over to the court;
2) the copies of this document submitted by each of the disputing parties are not identical to each other;
3) it is impossible to establish the content of the original document with the help of other evidence.
Accordingly, the Plaintiff's arguments on the examination conducted in the Successful IT Solutions Company are unacceptable and not relevant as evidence.
The expert's opinion cannot serve as a basis for the satisfaction of the claim, since it does not disclose the essence of the dispute.
The defendant has a mobile download application published in the Google Play app in 2022. Google Play is a serious organization that would never accept and add a NON-working application to its market without verification.
It should be noted that a considerable amount of time has passed since the transfer of work on June 30, 2022, and changes could have been made to the website and mobile application, respectively.
According to Article 5 of the Law of the Republic of Kazakhstan "On Forensic expert activity", an expert performing his expert activity is obliged to adhere to the principles of comprehensiveness, completeness, objectivity and scientific validity of forensic expert research.
Article 92 of the CPC stipulates that an expert's opinion is not binding on the court when adopting a judicial act.
In connection with the above, we believe that in this case there is a low-quality and biased examination. The main principles of independent experts are objectivity and reliability, which is not respected when making an opinion. These violations affect the interests of the defendant.
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.
It can also be noted that in addition to changing the files on the server, there is also the admin panel of the site, where you can also easily delete all the content, which the customer did. At the time of delivery, everything was working as expected. And there is a clause in the contract, if the customer himself makes changes to the code, the contractor is no longer responsible for the correct operation of the site.
Regarding the content of the website, clause 3.6. of the Agreement clearly stipulates: "The materials necessary to fill out and design the website and mobile application are provided by the customer. The period for the provision of services is extended accordingly to the time of delay – thus, we claim that the Plaintiff himself did not provide the specified materials to the Defendant.
68, 72 of the Civil Procedure Code of the Republic of Kazakhstan, a copy of the documents is considered and is not subject to application, taking into account relevance, admissibility and reliability as evidence.
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.
- The provisions of Articles 271, 272 of the Civil Code of the Republic of Kazakhstan stipulate that 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 72 of the CPC RK stipulates that each party must prove the circumstances to which it refers as the basis of its claims.
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.
According to paragraph 4 of Article 8 of the Civil Code of the Republic of Kazakhstan, citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation and the moral principles of society. 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.
In accordance with Clause 5 of Article 68 of the CPC RK, circumstances cannot be considered established if only copies of documents are provided to confirm them, when the need to present the original follows from the requirements of the law.
The court also cannot consider the circumstances proved, which are confirmed only by a copy of a document or other written evidence when challenging its content, if:
1) the original document has been lost and has not been handed over to the court;
2) the copies of this document submitted by each of the disputing parties are not identical to each other;
3) it is impossible to establish the content of the original document with the help of other evidence.
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 and on the basis of the above in accordance with Articles 67, 68, 72, CPC RK,
I ask the Court:
· To declare them inadmissible and not considered as evidence and exclude them from the materials of the civil case No. 7527-24-00-2/2745:
- Expert opinion no. without a number dated 12/01/2023 compiled by the Company "Successful IT Solutions" represented by Director Zhakupov Chingiz Arlievich.
With respect,
Representative by proxy
___________/ Sarzhanov G.T.
"___" __________ 2024 the year
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