The Defendant's appeal against the Decision of the Specialized Interdistrict Economic Court to recover the amount of the advance
The Board of Appeal for Civil Cases
Almaty City Court
Almaty, 050000, Kazybek Bi street, 66.
0201@sud.kz
from the Defendant: MB G LLP
BEAN....
Almaty, Baizakova St., house ..., 10th floor, office …
+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 APPEAL
on the decision of the Specialized Interdistrict Economic Court of Almaty dated October 09, 2024
On October 09, 2024, the Specialized Interdistrict Economic Court of Almaty, consisting of the presiding judge O. G.M., with the participation of the plaintiff's representative K. D.B., representatives of the defendant In I.S., lawyer Sarzhanov G.T., having considered in open court, in the courthouse, the civil case No. 7527-24-00-2/10508, on the claim of the Limited Liability Company RM Management Company against the Limited Liability Company M.B.G. about the recovery of the amount of the advance, the court I decided to partially satisfy the claim of the RM Management Company Limited Liability Company. Collect from the limited liability company "M.B.G." in favor of the limited liability company "RM Management Company" debts in the amount of 1,590,000 (one million five hundred and ninety thousand) tenge, a penalty in the amount of 159,000 (one hundred and fifty-nine thousand) tenge and the paid state fee in the amount of 52,470 (fifty two thousand four hundred and seventy) tenge.
The arguments indicated in the court's decision of October 09, 2024, which was rendered in final form on October 11, 2024, do not agree.
We consider the decision of the court of first instance to be illegal, unjustified and subject to cancellation on the following grounds:
Dear Board of Appeal, the Court of First Instance did not take into account the following arguments of the defendant.
Thus, on January 05, 2022, G E D G LLP and M.B.G. LLP signed a contract for the development of a mobile application No. 2021/01112, under the terms of which the Defendant undertakes to develop a mobile application, and the Plaintiff undertakes to pay for the service provided.
According to clause 2.1 of the Agreement, the total cost was 5,300,000 tenge.
In accordance with Clause 2.2 of the Agreement, the down payment amounted to 30% of the total cost of the work, i.e. 1,590,000 tenge, which is paid within 3 banking days from the date of signing this Agreement in accordance with clause 2.5 of the Agreement.
Clause 2.3 of the Agreement The second installment is 40% of the total cost of work under this agreement, which is 2,120,000 tenge, which is paid after the signing of the interim design act by the parties in accordance with clause 2.6 of the Agreement.
Clause 2.4 of the Agreement Third parties the contribution is 30% of the total cost of work under this agreement, which is 1,590,000 tenge, which is paid upon completion of work after signing the act of completed work by the parties in accordance with clause 2.7 of the Agreement.
On January 21, 2022, the plaintiff, in accordance with clause 2.2. of the Agreement, made an advance payment in the amount of 1,590,000 tenge.
After lengthy negotiations about the design of the website and the mobile application and other problems, the parties that arose on the part of the Plaintiff came to an agreement that they did not need a Mobile Application and only needed a Corporate Website.
Thus, an Agreement was concluded between the Defendant and the Plaintiff in the person of RM Management Company LLP for the development of a corporate website No. 2022/00688 dated June 17, 2022, where, in accordance with clause 1.1 of the Agreement, it was stipulated that the Customer commissions and the Contractor undertakes the development of the corporate website in accordance with the terms of reference (Appendix No. 1 to this Agreement), which is an integral part of this Agreement.
Paragraph 2.1 The cost of work under this Agreement was 1,200,000 tenge. (Paid only for the development of a corporate website)
Clause 2.2 The payment procedure is made by transferring funds after signing the loan agreement or other contractual obligations on account of mutual settlements.
That is, the Plaintiff did not pay any additional funds, as they had already been paid 1,590,000 tenge for the development of the website Design under the mobile application development agreement No. 2021/01112 dated January 05, 2022.
The origin of the screenshot obtained from a mobile phone, if necessary, can be provided to the court for review.
After many changes and additions to the Design of the corporate website, on September 14, 2024, the Parties signed and sealed an Interim Acceptance Certificate for the design of the corporate website.
According to clause 3.1 of the Contract, the Contractor undertakes to deliver the finished website to the Customer within 45 working days from the date of approval of the design of all pages of the website, as well as the signing by the Customer of an interim act of completed work.
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Automatically created description
The origin of the screenshot obtained from a mobile phone, if necessary, can be provided to the court for review.
After approving the Design of the site, the Plaintiff, according to the above correspondence, that is, on October 18, 2022, they were supposed to purchase Hosting on the site to upload the site itself, but the Plaintiff did not purchase and the Defendant agreed to purchase Hosting in case the Plaintiff paid money to the Defendant for Hosting purchases. However, the Plaintiff himself did not acquire or transfer the Defendant's funds to purchase Hosting.
683 of the Civil Code of the Republic of Kazakhstan stipulates that under a contract for the provision of paid services, the contractor undertakes to provide services on behalf of the customer (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services.
Hosting is a service for hosting websites. The easiest way to imagine it is as a remote server where all the files of the site are located, constantly connected to the Internet and working around the clock. The hosting is owned by the hosting company, which the site owner agrees with.
Since the Contract for the development of a corporate website for No. 2022/00688 dated June 17, 2022, according to clause 9.1, is valid until June 08, 2023, and the Plaintiff proposed the conclusion of a Contract of Assignment of the right of Claim (assignment) under the Contract for the Development of a mobile application No. 2021/01112 dated January 05, 2022.
On March 20, 2023, G E D G LLP and RM Management Company LLP and M.B.G. LLP concluded a contract of assignment of the right of claim No. 2023/00409 dated 03/20/2023, where RM Management Company LLP (Plaintiff) assumes all rights of claim and obligations of the Customer under Contract No. 2021/01112 dated 05.01.2023.
The above agreements comply with the terms of Articles 151, 152, 378 of the Civil Code of the Republic of Kazakhstan, where it is stipulated that the Agreement recognizes the agreement of two or more persons on the establishment, modification or termination of civil rights and obligations, which in this civil case is not disputed by the parties.
In accordance with Articles 68, 72 of the CPC of the Republic of Kazakhstan, each party must prove the circumstances to which it refers as the grounds for its claims and objections, each evidence is subject to assessment taking into account relevance, admissibility, reliability.
The plaintiff also demands to recover from the Defendant in favor of the Plaintiff a legal penalty in the amount of 159,000 tenge.
Whereas, according to Article 298 of the Civil Procedure Code of the Republic of Kazakhstan, a penalty is levied for non-fulfillment or improper fulfillment of an obligation if there are conditions for holding the debtor accountable for violating the obligation.
In accordance with this article, we consider that the Plaintiff has not provided relevant evidence of a violation of the terms of the contract by the Defendant. Thus, the amount of the penalty according to art. 296 The amount of the penalty is determined in a fixed amount of money or as a percentage of the amount of the unfulfilled or improperly fulfilled obligation is not justified.
Article 297 also stipulates that if the penalty to be paid (fine, fine) is excessively large in comparison with the creditor's losses, the court, at the request of the debtor, has the right to reduce the penalty (fine, fine), taking into account the degree of fulfillment of the obligation by the debtor and the interests of the debtor and the creditor that deserve attention.
I would like to draw the court's attention to the fact that the Website consists of complex codes that constantly require updating and maintenance by specialists who, with each update of the contributing software, need to be edited and updated.
The plaintiff's actions violate Articles 4 and 5 of the CPC RK Tasks and Principles of civil proceedings. Violation of the principles of civil proceedings, depending on its nature and materiality, entails the cancellation of judicial acts.
Article 6. The Civil Code of the Republic of Kazakhstan "Interpretation of the norms of civil legislation" stipulates: The norms of civil legislation must be interpreted in accordance with the literal meaning of their verbal expression.
Thus, Dear Court, the Plaintiff's arguments that the terms of the Contract are not being fulfilled are not valid and are not justified on the basis of the above arguments.
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.
Article 72 of the CPC RK. The "Duty of Proof" provides for Each
the party must prove the circumstances to which it refers as the basis of its claims, which is not observed in the statement of claim.
Being a decent and responsible person, the Defendant has never refused to fulfill his Contractual obligations to the Plaintiff. However, the Plaintiff himself did not undertake any constructive dialogue to resolve the current situation. To date, the Defendant has fulfilled all the clauses of the contract, however, the Plaintiff himself has been abusing the clauses of the contract and the norms of legislation for his own unscrupulous selfish purposes.
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.
392 of the Civil Code of the Republic of Kazakhstan, when interpreting the terms of a contract, the court takes into account the literal meaning of the words and expressions contained therein. The literal meaning of a contract clause, in case of ambiguity, is established by comparing it with other terms and the meaning of the contract as a whole.
Also, the selfish thoughts of the Plaintiff will not find their embodiment, since according to Article 147 of the Civil Code of the Republic of Kazakhstan, Transactions are recognized as actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations.
The plaintiff in this civil case does not dispute in his claims the Contract for the development of the website and mobile application.
In addition, the Interim Acceptance Certificate signed by the Parties for the design of the corporate website on September 14, 2024, according to which the amount paid by the Plaintiff in the amount of 1,590,000 tenge has been fully worked out, is not disputed.
The interim report of completed works confirms the proper performance of contractual obligations in accordance with the provisions of Articles 271, 272 of the Civil Code of the Republic of Kazakhstan. Obligations arise from the 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.
Thus, we consider that the Plaintiff, without recognizing the above-mentioned documents as invalid or without terminating them in court, has no right to demand the recovery of the amount under the contract, since the Contract and the Interim Act of Work performed comply with the requirements of the legislation and are legally binding on the parties.
By virtue of art. 219 part 2 of the CPC, the Court does not have the right to change the subject or the basis of the claim on its own initiative and is obliged to resolve the case within the limits of the claims stated by the plaintiff.
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.
According to Article 224 of the CPC, the court's decision must be lawful and justified. A decision is lawful when it is made in compliance with the norms of procedural law and in full compliance with the norms of substantive law applicable to this legal relationship, or is based on the application, if necessary, of a law governing a similar relationship, or proceeds from the general principles and meaning of civil legislation and the requirements of good faith, reasonableness and fairness.
A decision is considered justified if it reflects facts relevant to the case, confirmed by evidence examined by the court that meet the requirements of the law on their relevance, admissibility and reliability, or are well-known circumstances that do not need to be proven and are collectively sufficient to resolve the dispute.
The court's decision was made in case of non-compliance with the above requirements.
According to Article 427, paragraph 4, of the CPC, the norms of substantive law are considered violated or improperly applied if the court applied a law that is not applicable, misinterpreted the law.
In resolving the dispute, the court did not apply the applicable rules of substantive law, which led to an incorrect resolution of the case and the issuance of an illegal decision.
By virtue of paragraph 2 of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to judicial protection of their rights and freedoms.
Paragraph 1 of Article 14 of the Constitution of the Republic of Kazakhstan, everyone is equal before the law and the court.
In accordance with Articles 401, 402, 403, 404 of the Civil Procedure Code of the Republic of Kazakhstan, it is stipulated that an appeal may be filed against court decisions that have not entered into force. The right of appeal against a court decision belongs to the parties and other persons involved in the case, and are considered by the appellate judicial board for civil cases of the regional and equivalent courts in a collegial composition of at least three judges of the board. Appeals are filed through the court that issued the decision. An appeal may be filed within one month from the date of the final decision, and by persons who did not participate in the trial, from the date of sending them a copy of the decision.
Based on the above and guided by Articles 401, 402, 403, 404 of the CPC RK,
I ask the Court:
· To satisfy the Defendant's appeal against the Decision of the Specialized Interdistrict Economic Court of Almaty dated October 09, 2024;
· The decision of the Specialized Interdistrict Economic Court of Almaty dated October 09, 2024 – to cancel.
With respect,
Proxy Representative lawyer: Sarzhanov G.T.
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