Response to a Claim for recovery of an amount under a service agreement
Specialized Inter-district Economic Court of Almaty
To Judge Baskanbayeva S.S.
Almaty, Baizakov St., 273 B.
from the Defendant: IP "" (IP L.S.) represented by xxxxxxxxxxxx
IIN xxxxxxxx
Almaty, Medeu district xxxx
Representative by proxy:
Law and Law Law Firm
BIN 201240021767
79 Abylai Khan Ave., office 304, Almaty.
info@zakonpravo.kz / www.zakonpravo.kz
+ 7 727 971 57 58; +7 708 971 57 58.
Plaintiff: LLP ""
Representative: xxxxxxxx
Almaty, xxxxxx street
xxxxxxxx
………
Feedback
on the Statement of Claim for the recovery of the amount
Q, you are in the process of civil case No.7527-21-00-2/399 dated 11.01.2021 on the Claim of LLP "......." ( hereinafter referred to as the Plaintiff) to IP "" in the person of xxxxxxxx (hereinafter referred to as the Defendant) and also to a third party IP D.T. for the recovery of the amount owed.
The plaintiff motivates his arguments in the Statement of Claim: that on October 23, 2020, according to the details of the Defendant, it was transferred via the Kaspi Rau payment system to the KZ settlement account.......... (KaspiBank JSC), 800,000 tenge was paid from the Plaintiff.
According to these arguments, I would like to bring to the attention of the court that the above account is an individual account of an individual xxxxxxxxxx to which the Caspi Gold card is attached, whereas it follows from the arguments that the Plaintiff transferred to the IP account "...................".
In addition, the plaintiff stipulates in the Lawsuit that on October 23, 2020, the director of LLP "......" P O V, met with the defendant xxxxxx at the location of her sewing workshop: Almaty, Pushkin St...... LLP "........" They wanted to place an order with the Defendant for sewing decorative elements - Christmas hats for bottles. The defendant said that she could take such an order and about the need to make an advance payment. Subsequently, on October 24, 2020, an agreement was supposed to be concluded defining the terms of sewing products by the defendant and other essential terms of the agreement. Later that day, after receiving the money to her account, the defendant told the Plaintiff that she would not be able to fulfill the order in such a short time and in the required quantity. That is, further agreements between the Plaintiff and the Defendant did not lead to the conclusion of a contract or any other written obligations. From sole proprietor "............" to the address of the LLP "............" the service was not provided. On October 23, 2020, "......" LLP was forced to place an order in another sewing workshop, based on an agreement with IP "D.T."
We do not agree with the above arguments, since in fact, the Defendant's sewing workshop on October 23, 2020 had a meeting with Defendant B.. L..., Plaintiff xxxxxx and a third party IP D.T., represented by xxxxxxxx tel: xxxx and with her sister xxxxxx IIN xxxx. xxxx. During which, in fact, an order for sewing decorative elements was discussed - Christmas hats for bottles. During the meeting, there was no discussion about concluding a contract between the Plaintiff and the Defendant, but negotiations were underway to conclude a contract with the Plaintiff and a third party, IP xxxx, Etc., and the intention to conclude a contract between them, since all accounts of the Third Party were blocked (see application Register of Debtors of the Ministry of Justice of the Republic of Kazakhstan), a third party in the presence of the Plaintiff and the Defendant asked the Plaintiff to transfer an advance payment in the amount of 800,000 tenge to the Defendant's Account, as she has arrests on accounts from Private bailiffs, to which the Plaintiff agreed and credited, and the Defendant in turn transferred the money to a Third Party, as the Third Party may testify and her sister xxxxxx. Thus, there could be no question of the Defendant providing services to the Plaintiff. According to paragraph 1, art. 378, Civil Code of the Republic of Kazakhstan, an agreement between two or more persons on the establishment, modification or termination of civil rights and obligations is recognized as a contract.
In addition, the Plaintiff in the Lawsuit claims that the contract between the Plaintiff and the Defendant was not concluded and the defendant illegally enriched herself. According to these arguments, I would like to note the fact that the Plaintiff transferred funds about the individual xxxx L.S., and how the Plaintiff redistributes the Claims to the sole proprietor. "...." it is not clear to us then how the sole proprietor "......" did not receive funds to her account and did not conclude an agreement with the Plaintiff.
According to Clause 3 of Article 148 of the Civil Code of the Republic of Kazakhstan, to conclude a contract, it is necessary to express the agreed will of two parties (a bilateral transaction) or three or more parties (a multilateral transaction). Paragraph 1 of Article 386 of the Civil Code of the Republic of Kazakhstan stipulates that the contract enters into force and becomes binding on the parties from the moment of its conclusion (Article 393 of the Civil Code). According to Article 393 of the Civil Code of the Republic of Kazakhstan, a contract is considered concluded when an agreement has been reached between the parties in the required form on all essential terms. Essential are the terms of the subject of the contract, the terms that are recognized as essential by law or are necessary for contracts of this type, as well as all those conditions regarding which, at the request of one of the parties, an agreement must be reached. If, in accordance with legislative acts, the transfer of property is necessary for the conclusion of a contract, the contract is considered concluded from the moment of transfer of the relevant property. In addition, in accordance with paragraph 1 of art. 394 of the Civil Code of the Republic of Kazakhstan, if the parties have agreed to conclude a contract in a certain form, it is considered concluded from the moment it is given the agreed form, at least according to the legislation, this form was not required for this type of contract.
At the same time, according to the requirements of the norms set out in Article 151 of the Civil Code of the Republic of Kazakhstan, transactions are made orally or in writing (simple or notarized). A transaction for which the legislation or agreement of the parties does not establish a written (simple or notarized) or other specific form may be made orally, in particular, all transactions executed at the very time of their commission. A transaction confirmed by the issuance of a token, ticket, or other commonly accepted confirmation mark is deemed to have been concluded orally, unless otherwise established by law. Silence is recognized as an expression of the will to make a deal in cases stipulated by law or by agreement of the parties. Transactions in fulfillment of a written contract may be made orally by agreement of the parties, if this does not contradict the legislation.
Such a transaction is considered completed when the person's will to make the transaction is evident from his behavior. According to P. 2 articles, in addition to oral and written forms, other specific forms are also possible. In this regard, the question arises as to what is meant in the stated norm by the concept of "another definite form". Considering the norm provided for in paragraph 3 of art. 151 of the Civil Code, according to which a transaction confirmed by the issuance of a token, ticket or other commonly accepted confirmation mark is recognized as concluded orally, unless otherwise established by law, it can be argued that transactions through the commission of specific actions qualify as oral. Expression of will by silence in cases stipulated by law or by agreement of the parties (paragraph 4 of Article 151 of the Civil Code of the Republic of Kazakhstan), taking into account the general provision provided for in paragraph 1 of art. 151 of the Civil Code of the Republic of Kazakhstan also gives reason to believe that this form of expression of will also refers to the oral form.
In this regard, we believe that LLP "...." having paid for professional, scientific and technical services xxxx by a payment order dated October 23, 2020 to a personal account, received additional services to support its transaction concluded with the sole proprietor " ........... " and by accepting completed goods and orders from a third party on invoices, it confirms that the verbal obligations of the parties have been fulfilled.
In addition, on October 23, contract No. 1 was signed between ...... LLP and IP xxxxxx, the subject of which is the manufacture and supply of textile products. However, to date, payment for this transaction has not taken place, although according to all attached documents and invoices, over 16 thousand items have been completed and goods worth more than 800,000 (eight hundred thousand) tenge have been transferred.
In accordance with art. 50 of the CPC RK, the Court, having established that the claim was brought against the wrong person who should be responsible for the claim, may, at the request of the plaintiff, without terminating the case, allow the replacement of the improper defendant with the proper one. If the plaintiff does not agree to replace the improper defendant with a proper defendant, the court considers and resolves the case according to the claim.
In the Statement of Claim, the Plaintiff, confirming our above arguments, stipulates the conclusion of an agreement between the Plaintiff and a Third Party for sewing decorative elements - Christmas hats on bottles. In addition, the selfish thoughts of the Plaintiff to discredit the good name of xxxxxxxx, who is a public figure who helps mothers with many children free of charge, who organized a training center for teaching sewing courses to mothers with many children on the territory of the Central Mosque of Almaty, as evidenced by information from the media .......................
In accordance with Part 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, 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.
We also believe that the Plaintiff violates the requirements of good faith, reasonableness and fairness provided for in Part 4 of Article 8 of the Civil Code of the Republic of Kazakhstan.
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.
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.
166 of the Civil Procedure Code of the Republic of Kazakhstan, where the defendant submits to the court a response to the Statement of Claim with attached documents that refute the arguments regarding the claim.
113 of the Civil Procedure Code of the Republic of Kazakhstan, it is stipulated at the request of the party in whose favor the Decision was made, the court awards, on the other hand, the costs incurred 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 (payment order, fiscal receipt). 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.
Based on the above and in accordance with art. 166 of the CPC RK,
I ask the Court:
· The claims of the Plaintiff LLP "....." to the Defendant IP "...." on the recovery of the amount of satisfaction – to refuse;
· To oblige LLP "....." to sign a tripartite reconciliation act between , in order to bring in accordance with clause 1.3. of the agreement LLP "......", IP "...." and IP Etc. in the amount of 800,000 (eight hundred thousand) tenge.
· In case of refusal to satisfy and / or partial satisfaction of the Claim, to recover from the Plaintiff in favor of the Defendant IP "...." representative expenses in the amount of 100,000 tenge.
With respect,
Proxy Representative Lawyer:
________/ Sarzhanov G.T.
"___" __________ 20... G.
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