Private complaint against the court ruling on the refusal to take measures to secure the claim

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Private complaint against the court ruling on the refusal to take measures to secure the claim

24 January 2026

Private complaint against the court ruling on the refusal to take measures to secure the claim

The Judicial Board for Civil Cases

East Kazakhstan Regional Court

071600, Ust-Kamenogorsk, ul.Ualieva,5

723-1601@sud.kz

8 (7232) 56-04-26, internal number: 0139, 0138.

from the Plaintiff: C. kz LLP

represented by Director D. O.F.

BEAN .

280 T. bi street, 13th floor, Almaty.

8 (727) …...

Representative by proxy:

Lawyer Sarzhanov Galymzhan Turlybekovich

Law and Law Law Firm

BIN 201240021767

79 Abylai Khan Ave., office 304, Almaty.

info@zakonpravo.kz / www.zakonpravo.kz

+7 708 578 57 58; + 7 727 971 78 58.

Private complaint

on the court's ruling on the refusal to take measures to secure the claim

On January 13, 2025, Judge of the specialized interdistrict Economic Court for East Kazakhstan region Nursapinov N.S., having considered the plaintiff's application for securing the claim in civil case No.6309-24-00-2/3702, in the claim of LLP "C. kz" (hereinafter referred to as the plaintiff) to I. P. LLP (hereinafter referred to as the defendant) for compensation for material damage, Determined that the plaintiff's motion to secure the claim should be refused.

Dear judicial board, we do not agree with the court's ruling of January 13, 2025, as it does not correspond to any morality or meaning of the law and we consider the Ruling illegal, unjustified and subject to cancellation on the following grounds:

According to the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated January 12, 2009 No. 2, on the adoption of interim measures in civil cases, and in accordance with Article 155 of the CPC, the plaintiff must indicate in the application specific arguments that failure to take interim measures may make it difficult or impossible to enforce the judicial act. In accordance with this rule, we have provided the court with more than enough arguments and the court's ruling is not justified and lawful.

Civil case No. 6309-24-00-2/3702, under the chairmanship of Judge N.S. Nursapinov, is being considered in the proceedings of the Council of Economic Cooperation of East Kazakhstan Region. kz" to "I. P." LLP on compensation for material damage.

There are contractual legal relations between the Plaintiff and the Defendant and three contracts have been concluded for the performance of construction and contract work, namely:

1. Contract No. 28/08/23 dated August 28, 2023 for the performance of electrical installation work at the Multi-storey Residential Building facility in the amount of 1,444,480 tenge; (Appendix No. 1)

2. Contract No. 28/10/23 dated August 28, 2023 for the installation and commissioning of fire alarm systems, video surveillance systems and intercom systems at the Multi-storey Residential building (position 87) located at the following address: Ust-Kamenogorsk 070016, Yesenberlin Avenue 68 (Appendix No. 2)

3. Contract No.P 51 dated September 22, 2023 for the installation of a fire alarm system, commissioning in the amount of 1 089 480 tenge., located at: located at East Kazakhstan region, Ust-Kamenogorsk Ave. Kanysha Satpayeva, 55/9. (Appendix No. 3)

The work under the above-mentioned contracts was performed improperly. In addition, some types of work were not performed and many types of equipment that were received by the Defendant were not installed on the construction site, for which there is an inspection report. Whereas the AVR was signed by the parties. All the arguments in the framework of the pre-trial settlement of the dispute did not yield results, and subsequently the Plaintiff is forced to file a lawsuit with the court and petition for interim measures and the appointment of a forensic construction examination.

The Court, rejecting the Plaintiff's application for interim measures, did not take into account the following facts, namely:

Regarding the Contract No. 28/08/23 dated August 28, 2023.

Subcontracting Agreement No. 28/08/23 was concluded on August 28, 2023 to perform electrical installation work at the Brick Tawn Multi-storey Residential Building facility in the amount of 5,846,350 tenge, hereinafter referred to as the Agreement.

According to the specified Agreement, the Defendant had to carry out construction and installation work at the Brick Town residential complex blocks 5,6,7 under construction for a total amount of 5,846,350 tenge until 31.12.2023.

During the execution of clause 3.2.1 of the Contract before the start of work, that is, on August 29, 2023, an advance payment in the amount of 500,000 tenge was made to the Plaintiff's current account.

According to the schedule of work, which is an integral part of the Contract, for the period August-September 2023, the Defendant had to perform the following work, which had to be drawn up and signed by both parties acts of completed work:

According to the statement of contractual prices, which is an integral part of the Contract, the cost of the work that was to be completed as of 30.09.2023 is 2,330,726 tenge.:

However, the Defendant actually, according to the act of completed works of COP 2 signed by the Parties for September 2023, completed works only in the amount of 339 318.70 tenge.

Thus, as of September 30, 2023, the cost of the work to be performed by the Defendant is 2,330,726 tenge. However, the Defendant has done only part of the work in the amount of 339 318.70 tenge. Accordingly, a violation of the Contract in the amount of 1,991,407.30 tenge was recorded, while we do not announce the entire amount of the Contract.

After making calculations, we came to the conclusion that the prepayment was 500,000 tenge – the work done was 339 318.70 tenge, the balance that is subject to refund was 160 681 tenge.

According to clause 5.2. of the Contract, work under the Contract must be started and completed in strict accordance with the deadlines set in the schedule of work.

According to clause 7.5. For non-fulfillment or improper fulfillment of obligations not provided for in clause 7.4., but provided for in the terms of this Agreement, including clauses 4.2., 5.2, 5.7, a fine in the amount of 1,000 tenge to 10% of the total amount of the Annex to this Agreement is imposed on the Subcontractor, at the discretion of the Contractor, and The Subcontractor fully reimburses all losses actually incurred by the Contractor as a result of non-compliance with its obligations.

The fine in the amount of 10% of the total amount of the contract price of 5,846,350 tenge was = 584,635 tenge.

Due to the defendant's failure to fulfill the obligation properly, We have repeatedly sent notifications and claims, but there have only been replies from the Defendant.

A violation of an obligation is understood as its non-fulfillment or improper fulfillment, which contradicts Article 349 of the Civil Code of the Republic of Kazakhstan, which is unacceptable according to Article 272 of the Civil Code of the Republic of Kazakhstan.

According to art. 620 of the Civil Code of the Republic of Kazakhstan, the initial and final deadlines for the work are specified in the contract. By agreement between the parties, the contract may also provide for deadlines for completing certain stages of work (interim deadlines). Unless otherwise stipulated in the contract, the contractor is liable for violations of both the initial and final, as well as intermediate deadlines for the performance of work.

On October 10, 2023, by the Termination Agreement, Subcontracting Agreement No.DP-28/08/23 dated August 28, 2023 was to be terminated by mutual agreement and subject to the condition. (Appendix No. 1)

Under the terms of the agreement, the parties confirmed that:

The plaintiff paid the Defendant an advance payment under this agreement in the amount of 500,000 tenge.

In turn, the Defendant handed over the works for September 2023 in the amount of 339 318.71 tenge, as evidenced by the Act of Completed Works No. 2 dated September 25, 2023.

In accordance with paragraph 3 of the Agreement, the Defendant undertook to perform works in the amount of 41,792.52 tenge specified in sub-paragraphs A/ and B/ of paragraph 3 of the Agreement.

According to paragraph 1.4 of the Agreement, the Defendant undertook to repay part of the prepayment in the amount of 118,888.77 tenge no later than December 30, 2023.

The special terms of this agreement according to clause 1.6 were, the Contract will be considered terminated after the remaining prepayment specified in clause 1.4 is returned and the act of completed work is signed for the work specified in clause 1.3 of the Agreement.

However, the Defendant did not perform the works in the amount of 41,792.52 tenge specified in sub-paragraphs A/ and B/ of paragraph 3 of the Termination Agreement.

Article 403 of the Civil Code provides for the consequences of termination and amendment of the contract. In case of termination or modification of the agreement, the obligations are considered terminated or modified from the moment the parties reach an agreement on modification or termination of the agreement. If the basis for the termination or amendment of the agreement was a material breach of the agreement by one of the parties, the other party has the right to demand compensation for damages caused by the termination or amendment of the agreement.

Thus, the Defendant failed to fulfill its obligations under the Agreement on Termination of the contract dated October 10, 2023. Subcontracting agreement No.DP-28/08/23 dated August 28, 2023 is currently legally binding and obliges the fulfillment of all obligations.

In connection with the non-fulfillment of the specified obligations to the Contract by the Defendant, a Defective Act was sent to the Defendant by the Customer, since the Customer, after the Defendant's work, repeatedly dismantled the cables and, as a result, spent additional funds in the amount of 758,600 tenge for the dismantling and installation of cables.

According to clause 7.5. For non-fulfillment or improper fulfillment of obligations not provided for in clause 7.4., but provided for in the terms of this Agreement, including clauses 4.2., 5.2, 5.7, a fine in the amount of 1,000 tenge to 10% of the total amount of the Annex to this Agreement is imposed on the Subcontractor, at the discretion of the Contractor, as well as The Subcontractor fully reimburses all losses actually incurred by the Contractor as a result of non-compliance with its obligations.

After the Defendant received the Defective Act from the Customer, the Defendant sent a Pre-trial Claim to the Defendant for ext. No. 2811-1/24 dated 11/28/2024 for compensation for material damage.

Subsequently, a response was received, where the Defendant argues that "We do not dispute that a Subcontracting Agreement No.DP-28/08/23 was concluded between us on August 28, 2023, which was terminated by a Termination Agreement dated October 10, 2023. However, we also do not dispute that we have a warranty obligation. However, only for those types of work that we have performed according to the Act of Completed work. It should also be noted that we did not perform any types of work and did not receive payment for work related to the installation of a cable with a cross-section of up to 10 mm.

Thus, the Defendant caused real material damage to the Defendant under the Contract No. 28/08/23 dated August 28, 2023.

1. Refund of overpaid amounts in the amount of 160,681 tenge;

2. A fine in the amount of 10% of the total amount of the contract price statement, which is an integral part of the Contract, in the amount of 5,846,350 tenge, which will amount to 584,635 tenge;

3. Losses incurred according to the Defective Act from the customer, which amounted to 758,600 tenge;

4. For non-fulfillment of obligations to eliminate defects, according to the Act of malfunction, it is estimated at 1,500,000 tenge.

The total amount of our claims under contract No. 28/08/23 is 3,003,916 tenge.

Regarding the agreement No.DP-28/10/23 dated August 28, 2023.

Subcontract No. 28/10/23 was concluded on September 28, 2023 for the performance of electrical installation work at the multi-storey residential building (position 87) located at 68 Iliyas Yesenberlin St. for the amount of 1,464,480. The work has been completed, and certificates of completed work have been signed.

Due to the fact that the parties had borrowed claims on the specified dispute, accordingly, they could not come to a peaceful settlement of the case.

Thus, on November 25, 2024, the Plaintiff conducted an inspection of the facility where an Act of inspection of the facility was drawn up under the specified contract. As a result, a discrepancy in equipment (missing) 87 items in the amount of 1,181,507.68 tenge was established. The amount for work according to the specification of equipment and materials not exhibited was 611,700 tenge. (Appendix No. 9 of the Object Survey Act dated November 25, 2024)

In total, the amount of their debt to us for equipment and unfinished work on the 87th position is 1,793,207.68 tenge.

In addition, in accordance with clause 8 of the Contract, the Subcontractor guarantees the high quality of the work performed, in accordance with the applicable regulatory and technical documentation, GOST SNiP and TU. According to clause 8.2, the warranty period for the work performed by the Subcontractor is set at 60 months from the date of signing the Act of the Working commission for completed work.

Based on the above, we received an Act of Malfunction dated November 12, 2024 from the end user of the MZHD AXIS located at 68 Iliyas Yesenberlin St., represented by Chairman Kasimov M.B. (Dale AXIS). (Appendix No. 4 Act of malfunction dated November 12, 2024)

The act describes the facility, a nine-storey residential building located at 68 Iliyas Yesenberlin Street, with automatic fire alarm equipment, a central control panel, and Devices located on each floor. The entire APS system and the Video surveillance system have critical problems and the need to detect the causes of the failure and eliminate it.

Upon receipt of the Malfunction Report by the Plaintiff, a Troubleshooting Notice was sent to the Defendant for issue No. 1811/24 dated 11/18/2024, which was duly sent and delivered to the Defendant. (Appendix No. 5 Troubleshooting Notification).

In accordance with clause 8.3 of the Contract, they asked to immediately travel to the address of the facility with a representative of the Contractor and organize work to eliminate the causes of the problems. Clause 8.4 of the Contract stipulates that if the subcontractor refuses to draw up or sign an act of discovered deficiencies, the Contractor appoints a qualification examination to confirm them, which will draw up an appropriate Act to fix the deficiencies and their nature, which is the basis for the Contractor to file claims against the Subcontractor

However, after the Defendant received the notification, the defects in the act were not eliminated.

Subsequently, the Plaintiff repeatedly sent a Pre-trial claim to the Defendant, ext. No. 2811/24 dated 11/28/2024, in case of non-fulfillment of obligations to eliminate defects, the Defendant will be forced to fix the defects on his own and assesses the work for 1,500,000 tenge. (Appendix No. 6 Pre-trial claim ext. No. 2811/24 dated 11/28/2024)

In addition, clause 8.3 of the Contract stipulates that if, before the expiration of the warranty period, defects or premature complete or partial destruction of the work performed were detected, which led to the impossibility of normal operation of the work performed by the subcontractor, documented by a bilateral act, the Subcontractor is obliged to perform additional work to eliminate them at its own expense.

Subsequently, the Plaintiff received a response to the Pre-Trial claim. Of the following nature, "during the investigation of the circumstances of the case, we became aware that from the end user, represented by the AXIS of the Moscow Railway named after I. Yesenberlin Street, 68, in particular, by Chairman Kasymov M.B., a letter of claim addressed to both I. P. LLP and C. kz "not received". (Appendix No. 7 response to the Pre-trial claim, ext. No. 2811/24)

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 equipment replacement and system reconfiguration were required. 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 troubleshooting the identified problems, which will take 10 working days free of charge. In this regard, we found a compromise with the chairman of the MZhD axis. (Appendix No. 8 of the coordination of the procedure and mechanism for troubleshooting the identified problems with the AXIS of the MZhD)

Due to the above-mentioned circumstance, the Defendant has not received a letter or information about the elimination of defects from the Plaintiff to this day, thus, we consider that the Plaintiff has not fulfilled its obligations In accordance with clause 8 of the Contract. The Subcontractor guarantees the high quality of the work performed, in accordance with the current regulatory and technical documentation, GOST SNiP and TU.

According to clause 8.2, the warranty period for the work performed by the Subcontractor is set at 60 months from the date of signing the Act of the Working Commissions for completed work.

In accordance with clause 8.3 of the Contract, no work was organized to eliminate the causes of the problems. Clause 8.4 of the Contract stipulates that if the subcontractor refuses to draw up or sign an act of discovered deficiencies, the Contractor draws up an appropriate Act to confirm the deficiencies and their nature, which is the basis for the Contractor to file claims against the Subcontractor.

In accordance with clause 3.8 of the above-mentioned Agreement, it is provided that "Payment under the Agreement is made by the Customer in the amount determined as the difference between the amount indicated in the Certificates of Work Performed signed by the Customer and the amount of the granite retention, based on invoices provided by the Contractor, taking into account the amount of the guarantee retention.

Also, clause 3.9 of the above-mentioned Agreement provides that "The Customer has the right to deduct from the amount of the guarantee deduction compensation for all costs and losses (including material overruns and other losses) that have arisen as a result of the Contractor's failure to fulfill or improper fulfillment of its obligations under this Agreement, having previously notified the Contractor in writing."

Clause 4.2.15 of the Contract stipulates that "The Contractor undertakes to compensate the Customer's losses in the event of improper fulfillment of obligations assumed by the Contractor, resulting in the termination of this Contract.

Clause 5.12 of the Contract stipulates "If the work is performed by the Contractor with deviations from the Contract, which worsened the work, or with other defects that make it unsuitable for the contract provided for in the contract or, in the absence of a corresponding condition in the contract, for normal use, the Contractor is obliged, at the choice of the Customer:

1) Eliminate the shortcomings of the work free of charge within the time limits set by the Customer;

2) Proportionately reduce the price set for the work;

3) Reimburse the Customer's expenses for self-repair of defects.

Thus, the Defendant caused real material damage to the Plaintiff under the Contract No. 28/10/23 dated August 28, 2023.

· Discrepancies in equipment and unfinished work in the amount of 1,793,207.68 tenge;

· For non-fulfillment of obligations to eliminate defects according to the Act of malfunction is estimated at 1,500,000 tenge;

The total amount of our claims under contract No. 28/0/23 is 3,293,207 tenge.

Regarding the agreement No. P-51 dated September 22, 2023.

Contract No. P-51 was concluded on September 22, 2023 in the amount of KZT 1,089,480 with a work schedule until October 30, 2023 at the Multi-storey Residential Building (position 51) facility located at Ust-Kamenogorsk Ave., East Kazakhstan region. Kanysha Satpayeva, 55/9.

An advance payment in the amount of 115,200 tenge was made under this agreement on September 22, 2023.

The works were completed on time, as evidenced by the signed acts of completed works dated 12.10.2023 in the amount of 1,089,450 tenge.

Thus, in accordance with clause 3.8 of the above-mentioned Agreement, it is provided that "Payment under the Agreement is made by the Customer in the amount determined as the difference between the amount indicated in the Certificates of Work Performed signed by the Customer and the amount of the granite retention, based on invoices provided by the Contractor, taking into account the amount of the guarantee retention.

The amount of payment is 1,089,450 tenge according to the ADR dated 12.10.2023 – 10% = 108,945 tenge guarantee deduction with refund in September 2028 - 115,200 tenge prepayment and payable = 865,332 tenge. (Appendix No. 10 of the ADR dated 12.10.2023)

In addition, clause 5.12 of the Contract stipulates "If the work is performed by the Contractor with deviations from the Contract, which worsened the work, or with other defects that make it unsuitable for the contract provided for in the contract or, in the absence of a corresponding condition in the contract, for normal use, the Contractor is obliged, at the choice of the Customer.:

Eliminate the shortcomings of the work free of charge within the time limits set by the Customer;

Proportionately reduce the price set for the work;

Reimburse the Customer's expenses for self-repair of defects.

Paragraph 7.5 of the Agreement also provides that "For non-fulfillment or improper fulfillment of obligations not provided for in paragraph 7.4., but provided for in the terms of this agreement, including paragraphs 4.2., 5.2., 5.7. of this agreement, a fine in the amount of 1,000 tenge to 10% of the total amount is imposed on the Contractor the relevant annex to this agreement is at the discretion of the Customer, and also fully reimburses all actual possible losses incurred by the customer as a result of the Contractor's failure to comply with its obligations."

Clause 8.12 of the contract provides for the Warranty period of the work performed by the Contractor to be set at 60 months from the date of signing the Act of the working commission for the completed work.

Thus, on November 24, 2024, the Defendant conducted an inspection of the facility under the specified contract and drew up an Act of inspection of the facility. As a result, a discrepancy in equipment (missing) 51 items was found. Lack of equipment and materials in the amount of 1,353,262 tenge of work in the amount of 600,000 tenge. (Appendix No. 11 of the Object Survey Act dated November 24, 2024)

The total amount of the Defendant's debt to the Plaintiff for the equipment in two positions amounted to 1,953,262 tenge.

Article 161 provides that a private complaint may be filed against the rulings on the issues of securing a claim, and a motion may be filed by the prosecutor with the court of appeal, whose decision is final. With a private complaint, the material extracted from the case concerning the adopted definition is sent to the court of appeal.

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.

Based on the above, interim measures not taken by the court may cause irreparable damage to the Plaintiff – since failure to take these measures may make it difficult or impossible to enforce the court Decision if it is taken in favor of the plaintiff (applicant), as a result of failure to take these measures, significant damage to the plaintiff (applicant) may be caused in the amount of material damage in the amount of 8,250,385 tenge.

We know for sure that today the Defendant intentionally does not conclude a construction contract and carries out work on the liquidation of the partnership, whereas we have Contractual Relations and a warranty period for obligations.

In accordance with paragraph 10 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated January 12, 2009 No. 2, a motion may be filed by the prosecutor for a ruling on securing a claim in accordance with Article 429 of the CPC, and a private complaint may be filed by the persons whose interests it concerns, within ten working days from the date of making the final ruling.

On the grounds of the above and guided by art. 161 of the CPC RK,

I ask the court:

· To cancel the ruling of January 13, 2025 by Judge N. N.S., Specialized Interdistrict Economic Court in East Kazakhstan region;

· To satisfy the Plaintiff's application for interim measures-since failure to take these measures may make it difficult or impossible to execute the court Decision if it is taken in favor of the plaintiff (applicant), as a result of failure to take these measures, significant damage to the plaintiff (applicant) may be caused in the amount of material damage in the amount of 8,250,385 tenge.

With respect,

Proxy Representative Lawyer: Sarzhanov G. T.

Attention!

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