Pre-trial claim under a work contract
Kaz.. LLP
BEAN ..
…
Almaty, Turksib district, 92 B..a street
..
from: LLPC.kz "
represented by Director D. O.F.
BEAN ..
Almaty, ul. ..., 280, 13th floor.
8 (727) ….
Representative by proxy:
Law and Law Law Firm
BIN 201240021767
79 Abylai Khan Ave., office 304, Almaty.
info@zakonpravo.kz / www.zakonpravo.kz
+7 708 971 78 58; + 7 727 971 78 58.
PRE-TRIAL CLAIM
On July 18, 2019, between LLPC.kz " and you, Kaz... LLP, have concluded subcontracting agreement No. 13/PD/2019 dated July 18, 2019, where the main subject of the agreement is the performance of work by the Subcontractor according to Specifications that are an integral part of the agreement. Under subcontractor agreement No. 13/PD/2019 dated July 18, 2019, we fulfilled our obligations fully and properly. You, under the subcontract agreement No. 13/PD/2019, made the payment late. The calculations of the penalty were made in the form of a table as follows.
Contract
Completed works, amount
Date of completion
Date of payment under the agreement
Date of actual payment
Payment amount
The amount that is considered overdue
Number of days overdue, working days
penalty fee
The act of completed works
The Act of completed works (hereinafter referred to as AWP) No. 11 in the amount of 1,100,000 tenge was signed by the parties on 05/25/2020, however, according to the account statement belonging to C. kz LLP, it can be verified that the actual payment date is 07/03/2020. Accordingly, the LLP "C.kz " he provides a table of calculations of the penalty in the claim, where he calculated the 20-day delay in payment for ADR No. 11. The right of claim of "C" LLP.kz" penalties for late transfer of money are provided for in clause 12.3. of the Subcontract Agreement No. 13/PD/2019 dated July 18, 2019.
A similar late payment was made under ADR No. 13, 17 dated 05/25/2020. The penalty calculations in the table given in the claim correspond to reality. The confirmation of the above-mentioned ATS No. 11, 13 and 17 dated 05/25/2020 by the parties is the signed Reconciliation Report of mutual settlements for the period from 01.01.2020 to 12/16/2020 between the parties under the Subcontract Agreement No. 13/PD/2019 dated July 18, 2019.
According to ADR No. 40, 42 dated 11.11.2020, you paid 350,000 tenge late on 05.26.2021, i.e. You have paid for the LLP "C.kz " after 117 business days and an incomplete amount. You paid the remaining 50,000 tenge only on 11/08/2021.
In total, a penalty (penalty fee) in the amount of 97,480 tenge was incurred under subcontract No. 13/PD/2019.
Under the supply agreement No. 05/20 dated May 29, 2020:
On May 29, 2020, between LLPC.kz " and you, Kaz.. LLP, have signed a supply agreement No. 05/20 dated May 29, 2020, where the main subject of the agreement is the supply of shut-off valves TU 3791-001-70780838-2005 model H-A2-20-K-R1-U1\UHL1. LLP "C.kz " under the delivery agreement No. 05/20 dated May 29, 2020, I fulfilled my obligations and delivered the goods within the time limits specified in the contract. You made the payment late under subcontractor No. 05/20. The calculations of the penalty were made in the form of a table as follows:
LLP "C.kz " I received an advance payment from you in the amount of 4,900,000 tenge dated 06/02/2020. The second payment in the amount of 2,168,847.5 tenge was received on 06/18/2020. LLP "C.kz " delivered and shipped the goods on 30.06.2020. LLP "C.kz " the practical goods were delivered with a slight delay due to the pandemic (the reason for the delay was the difficulties on the border of Kazakhstan and Russia, which arose due to the pandemic). Subsequently, the manufacturer of this product sent us a notification about the shipment, and confirmed that they were ready to ship the goods on June 26, 2020. In accordance with clause 3.2. The remaining amount in the amount of 2,168,847 tenge 50 thousand is paid to the Supplier at the time of shipment of the goods. Product of LLPC.kz " it was shipped on June 30, 2020. However, you only partially paid 1,000,000 tenge six months later, i.e. on January 29, 2021. Although, in accordance with clause 3.2. of the Contract, they had to pay an amount of 2,168,847 tenge at the time of shipment of the goods.
Accordingly, the LLP "C.kz " using the right provided for in clause 5.5. of the Supply Agreement No. 05/20 dated May 29, 2020, requests payment of the penalty amount provided for in the table in the amount of 116,884 tenge.
Under subcontractor agreement No. 77 dated October 19, 2020:
Also on October 19, 2020, between LLPC.kz " and you, Kaz.. LLP, have signed subcontracting agreement No. 77 dated October 19, 2020, where the main subject of the agreement is the performance of work by the Subcontractor according to Specifications that are an integral part of the agreement. According to subcontractor agreement No. 77 dated October 19, 2020, the Subcontractor fulfilled all obligations under which payments were made, i.e. for which goods or services you paid for, for those funds of "C" LLP.kz has fulfilled its obligations.
According to clause 3.2. of the Subcontract Agreement No. 77 dated October 19, 2020, the Customer makes an advance payment to the Subcontractor in the amount of 20,000,000 tenge, within 5 (five) calendar days from the date of signing this Agreement. However, on 10/22/2020, you sent only 15,000,000 tenge, and a month later, on 11/25/2020, you paid the advance payment in full, i.e. the balance of 5,000,000 tenge was paid on 11/25/2020. According to clause 4.1. of the Contract, the subcontractor begins to perform the work from the date of payment of the advance payment provided for in clause3.2. of this Agreement. For an advance payment in the amount of 20,000,000 tenge to "C" LLP.kz has fulfilled all obligations.
Clause 3.3. of the Subcontract Agreement No. 77 dated October 19, 2020 also stipulates that subsequent payments for the cost of work are made on the basis of signed f2b Certificates in the amount of 20,000,000, carried out by the Customer within 10 (ten) banking days from the date of signing the Acts. The final payment is made within 10 (ten) business days after signing the certificates of completed works on the basis of the invoice issued by the Subcontractor.
It should be borne in mind that according to the reconciliation report of mutual settlements for the period 01.01.2021 to 03.12.2021 under the subcontract agreement No. 77 dated October 19, 2020, signed by the parties, you can make sure that on December 3, 2021, you have a debt to "C" LLP.kz" in the amount of 802,853 tenge.
Moreover, according to the reconciliation report of mutual settlements for the period 07/01/2019 to 01/31/2024 under subcontract No. 77, as of January 31, 2024, you had a debt to LLP "C.kz" in the amount of 1,650 853 tenge for services rendered.
It is also important to note that there were delays in payment under this agreement, whereas according to clause 12.3. of the agreement, it is stated that for late transfer of money within the time limits stipulated in the terms of the agreement, the Subcontractor has the right to demand payment of penalties, and the Customer, at the request of the Subcontractor, pays a penalty in the amount of 0.1% of the unpaid amount for each day delays. The number of days of delay was attached to this claim, where we calculated the amount of penalty in the amount of 368,165 tenge, according to the table below.
Under the supplementary agreement dated October 18, 2021, to the subcontract agreement No. 77 dated October 19, 2020:
According to the reconciliation report of mutual settlements for the period 07/01/2019 to 01/31/2024 under the additional agreement dated 10/18/2021 to the subcontract agreement No. 77, as of January 31, 2024, you have a debt to "C" LLP.kz" in the amount of 149,105 tenge.
According to the additional agreement dated October 18, 2021 to the agreement No. 77 dated October 19, 2020, there was also a delay on your part.
Contract
Completed works, amount
Date of completion
Date of payment under the agreement
Date of actual payment
Payment amount
The amount that is considered overdue
Number of days overdue, working days
penalty fee
The act of completed works
Under subcontract No. 01.2/PD/2021 dated February 12, 2021:
According to clause 1.1 of the Contract, the Subcontractor undertakes to carry out work on Specifications that are an integral part of the contract at the Customer's facilities: "Construction of a hangar and neighboring buildings", "Installation of two additional 1000 m3 tanks for fuel storage", located at: East Kazakhstan region, Ayagoz district, 27 km. from the village of Aktogay, the territory of KAZ Minerals Aktogay LLP, and the Customer undertakes to accept the results of the work and pay for them under the terms of the Contract.
According to the reconciliation report of mutual settlements for the period from 01.01.2021 to 08.02.2022, under subcontract No. 01.2/PD/2021 dated February 12, 2021, the Defendant owed 269,611 tenge to the Plaintiff on February 8, 2022.
Also in the claim, we provide a table for calculating penalties for overdue payments, where 221,030 tenge was calculated as a penalty.
Contract
Completed works, amount
Date of completion
Date of payment under the agreement
Date of actual payment
Payment amount
The amount that is considered overdue
Number of days overdue, working days
penalty fee
The act of completed works
As a result, for all payments, the penalty for late payments according to the certificates of completed works amounted to 1,075,364 tenge.
Based on the reconciliation report of mutual settlements for the period from 07/01/2019 to 01/31/2024, it was found out that the Defendant owed 2,069,569 tenge to the Plaintiff (subcontractor).
By this request, we ask you to accept and sign the acts of work performed under the above-mentioned agreements regarding the services provided by C LLP.kz" in accordance with the specified debts and pay the debt in the amount of KZT 3,144,933 by May 15, 2024. If you do not pay within the specified period, we reserve the right to apply to the court on this issue with a claim for recovery of the amount owed under the above-mentioned agreements.
According to paragraph 1 of Article 113 of the Civil Procedure Code of the Republic of Kazakhstan, 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. According to non-property requirements, the amount of expenses is collected within reasonable limits, but should not exceed three hundred monthly calculation indices.
152 and 279 of the Civil Procedure Code of the Republic of Kazakhstan and Article 402 of the Civil Code of the Republic of Kazakhstan, stipulating that the judge returns the statement of claim, and the court leaves the statement of claim without consideration if the plaintiff fails to comply with the pre-trial procedure established by law for this category of cases, the mandatory procedure for preliminary pre-trial dispute resolution and the possibility of this procedure is not lost and preserved.
With respect,
Representative by proxy ___________/Kenesbek I.M.
Attention!
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
