Statement of claim for debt recovery
Specialized Interdistrict Economic Court of Almaty
273b Baizakov St., Turksib district, Almaty.
from the Plaintiff: LLPC.kz "
represented by Director D.O.F.
BEAN .
280 T.bi str., 13th floor, Almaty.
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.
Defendant: Kaz.. LLP
BEAN ..
Almaty, Turksib district, B.92 St.
Statement of claim
about debt collection
On July 18, 2019, between LLPC.kz " (hereinafter referred to as the Plaintiff) and Kaz.. LLP (hereinafter referred to as the Defendant) concluded a subcontracting agreement No. 13/PD/2019 dated July 18, 2019, where the main subject of the agreement is the performance of work by the Plaintiff (subcontractor) according to Specifications that are an integral part of the agreement. The plaintiff under subcontractor agreement No. 13/PD/2019 dated July 18, 2019, as a subcontractor, fulfilled its obligations fully and appropriately. The defendant made the payment late under subcontract No. 13/PD/2019. The calculations of the penalty were made in the form of a table as follows:
In total, under subcontract No. 13/PD/2019, the Defendant received a penalty in the amount of 97,480 tenge.
On May 29, 2020, the Plaintiff and the Defendant entered into 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. The plaintiff, as a supplier under the supply agreement No. 05/20 dated May 29, 2020, fulfilled its obligations and delivered the goods within the time limits specified in the contract. The defendant made the payment late under subcontractor No. 05/20. The calculations of the penalty were made in the form of a table as follows:
In total, under the subcontract No. 05/20, the Defendant received a penalty in the amount of 116,884 tenge.
Also on October 19, 2020, a subcontracting agreement No. 77 dated October 19, 2020 was concluded between the Plaintiff and the Defendant, where the main subject of the agreement is the performance of work by the Plaintiff (subcontractor) according to Specifications that are an integral part of the agreement. Under subcontractor agreement No. 77 dated October 19, 2020, the Plaintiff (subcontractor) fulfilled all obligations specified in the contract. The equipment "BB Detector Pilot-M" for a total cost of 3,540,000 tenge was not delivered due to the fact that the Defendant did not make payment for the supply of this equipment in full. On April 05, 2021, the Plaintiff (subcontractor) sent to the Defendant (customer) an invoice for payment No. 5 in the form of an advance payment for the equipment "BB Detector Pilot-M" in the amount of 3,540,000 tenge. However, according to the reconciliation report of mutual settlements for the period from 01.01.2021 to 03/17/2022, where on April 21, 2021, the Defendant made a partial payment in the amount of 3,000,000 tenge.
Many of the work on the part of the Plaintiff (subcontractor) was carried out at the expense of the Plaintiff's company (subcontractor) hoping to pay for the work performed. Based on the reconciliation report of mutual settlements for the period from 01.01.2021 to 17.03.2022, it was found out that the Defendant owed 2,069,569 tenge to the Plaintiff (subcontractor).
It is also important to note that all of the above-mentioned agreements were delayed in payment, 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 Plaintiff, as a 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 of delay. The number of days of delay was attached to this claim "Sheet 1", where we calculated the amount of penalty in the amount of 368,165 tenge, according to the table below.
It should also be noted that the parties concluded agreement No. 01.2/PD/2021 dated 12.02.2021 and an additional agreement dated 18.10.2021 to agreement No. 77 dated October 19, 2020, which also allowed delays on the part of the Defendant. We have attached a late payment table to the claim, where we calculated each payment.
As a result, for all payments, the penalty for late payments according to the certificates of completed works amounted to 1,075,364 tenge.
We have sent a pre-trial claim to the Defendant, where they offered to voluntarily pay money in the amount of 2,069,569 tenge. The claim was sent on April 4, 2022 to the Defendant's e-mail in accordance with Articles 152 and 279 of the CPC RK and Article 402 of the Civil Code RK.
Subsequently, a response was received from the Defendant, where the Defendant refers to the fact that the Plaintiff allegedly did not fulfill contractual obligations and, accordingly, the amounts were not paid.
It is particularly important to note that all attached electronic invoices have been delivered and accepted by the Defendant.
According to paragraph 4 of Article 8 of the Civil Code, 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 must comply with the rules of business ethics. Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed.
However, the defendant violated the specified and assumed obligations (Violation of an obligation means 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 of part 1 of Article 349 of the Civil Code of the Republic of Kazakhstan), which is not permissible according to Article 272 of the Civil Code of the Republic of Kazakhstan.
By virtue of Article 272 of the Civil Code of the Republic of Kazakhstan, 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.
According to the requirements of paragraph 1 of Article 6 of the Civil Code of the Republic of Kazakhstan, the norms of civil legislation must be interpreted in accordance with the literal meaning of their verbal expression. If there are possible different understandings of the words used in the text of legislative norms, preference is given to the understanding that corresponds to the provisions of the Constitution of the Republic of Kazakhstan and the basic principles of civil legislation set out in this chapter, primarily in its article 2.
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.
In accordance with art.272 of the Civil Code of the Republic of Kazakhstan, where the obligation is stipulated, it 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. 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.
According to paragraph 1, Article 277 of the Civil Code of the Republic of Kazakhstan, where an obligation provides for or allows determining the day of its fulfillment or the time period during which it must be fulfilled, the obligation must be fulfilled on that day or, accordingly, at any time within such a period.
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.
In accordance with art. 29 of the CPC RK, a claim is filed in court at the defendant's place of residence.
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.
On the basis of the above and in accordance with art. 148 of the CPC RK,
I ask the Court:
Recover from the Defendant Kaz LLP.. in favor of the Plaintiff Kaz LLPC.kz " the amount of debt in the amount of 2,069,569 tenge;
Recover from the Defendant Kaz LLP.. in favor of the Plaintiff Kaz LLPC.kz " the resulting penalty in the amount of 1,075,364 tenge;
Recover from the Defendant Kaz LLP.. in favor of the Plaintiff Kaz LLPC.kz " court costs in the form of a paid state fee in the amount of 92,347.99;
To recover from the Defendant Kaz LLP.. in favor of the Plaintiff Kaz LLPC.kz " representative expenses in the amount of 300,000 tenge.
With respect,
Lawyer: ____/ Sarzhanov G.T. "____" ___________ 2023 G.
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