Petition to the Court of Appeal for the annulment of the decision
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To the Board of Appeal for Civil and Administrative
cases of the Almaty City Court of Almaty, __________,
street _________________. __________@ sud.kz
From the defendant: LLC "________________" INN ________________
Kurchatov Ave., Kursk region, Russian Federation
Kommunisticheskiy, 5 sq. 18
Proxy representative: Law Firm LLP
The Law and the Law" represented by the General Director of Sarzhanov Galymzhan Turlybekovich.
BIN 190240029071. Almaty, 79/71 Abylai Khan ave., office 304
info@zakonpravo.kz / www.zakonpravo.kz + 7 727 978 5755; +7 700 978 5755
Plaintiff: LLP "_______________________" BIN _______________________
Almaty, Makataeva St. __, office _____ +7 _______________________
The petition
on the cancellation of the arbitration award
__ February 20__ permanent Arbitration "_______________________" ( hereinafter referred to as Arbitration) consisting solely of the presiding arbitrator, _______________________, with the participation of the plaintiff's representative, _______________________, in a closed session in the Arbitration room "_______________________", having considered the arbitration case №_______________________ according to the statement of claim of the LLP "_______________________" (hereinafter referred to as the Plaintiff) to LLC "_______________________" ( Next – The defendant) on the recovery of the amount owed, DECIDED: the claim of the LLP "_______________________" to LLC "_______________________" on debt collection - to satisfy in full; To collect from LLC "_______________________" in favor of the LLP "_______________________" the amount of debt in the amount of 11,055,250.00 rubles, which is equivalent to 67,215,921.09 tenge (at the exchange rate of the National Bank of the Republic of Kazakhstan on the date of __.11.20__, 1 ruble is equal to 6.08 tenge); Collect from LLC "_______________________" in favor of the LLP "_______________________" the amount of the arbitration fee in in the amount of 331,657.00 rubles, which is equivalent to the amount of 2,016,475.00 tenge 41 tiyn (at the exchange rate of the National Bank of the Republic of Kazakhstan as of 13.11.2019, 1 ruble is equal to 6.08 tenge).
We disagree with the Arbitration decision on the following grounds: The arbitrator in his decision for №_______________________ dated __.02.20__ year indicates that the Permanent Arbitration "_______________________" reviewed the arbitration case №_________ according to the statement of claim of the LLP "_______________________" to 000 "_______________________" on the recovery of the amount owed, whereas the arbitration case number is No. 2-0157/19. Permanent Arbitration "_______________________" represented by an arbitrator, _______________________ announced her decision __ February 20__ of the year, and the final decision itself was rendered on __ March 20__ of the year whereas in the rules of the Arbitration Court _______________________ Article 40 provides that the decision of the Arbitral Tribunal is considered to have been taken at the place of arbitration. proceedings. The date of the Arbitration decision and its entry into force is the date of its signing. However, in this decision, the Arbitrator intentionally did not specify the date of signing, as she made the decision in violation of all norms and signed it through the media. In addition, the Arbitration award is announced at the arbitration meeting. The arbitrator has the right to announce only the operative part of the decision. The award of the Arbitration must be served or sent to each party within a period not exceeding ten days from the date of the decision – that is, the Arbitrator had to sign the Decision and send it to the parties within 10 days. If in the rules of the Arbitration Court _______________________ as well as in the law On Arbitration, a reasonable time for making a decision is 10 days, then in accordance with Article 223 of the CPC of the Republic of Kazakhstan, the final Decision must be made within a period not exceeding no later than five working days after the announcement of the operative part of the decision.
In these circumstances, we consider the norms of Article 5 of the Civil Code of the Republic of Kazakhstan on the application of civil legislation by analogy to be applicable. The Arbitrator of Permanent Arbitration "_______________________" The Decision specifically notes the recovery of the amount of the arbitration fee in the amount of 331,657.00 Russian rubles 00 kopecks, the equivalent in tenge is 2,016,475.00 tenge 00 tiyn (at the exchange rate of the National Bank of the Republic of Kazakhstan on the date of __.11.20__, 1 ruble is equal to 6.08 tenge) – whereas in the case file there is a Statement by the plaintiff for bx. №_________ dated __.11.2019 on the reduction and installment payment of the arbitration fee from 3% to 0.1%, which will amount to 11,055 rubles from the amount of the claim. Which was satisfied by the Ruling of November 18, 2019 by the Arbitrator of the Permanent Arbitration "_______________________". The arbitration court in the decision indicates a reference to the clause of the contract stating that the Terms of the Contract (art.6) determine the terms and conditions of payment for the subletting of wagons. Payment is made no later than 3 (three) business days after receipt of the invoice. The plaintiff sends a telegraphic instruction on the selection of the required number of wagons for transfer to the subtenant / defendant only after receipt of payment to the settlement account.
Also, that the Defendant undertakes to make one hundred percent advance payment for the subletting of Wagons on a monthly basis by the 25th of each month. In these circumstances, applying the norm of Article 5. of the Civil Code of the Republic of Kazakhstan on the application of civil legislation by analogy, Part 1, art. 359 of the Civil Code of the Republic of Kazakhstan. It provides that the Debtor is responsible for non-fulfillment and (or) improper fulfillment of obligations in the presence of fault, unless otherwise provided by law or contract. The debtor is found innocent if he proves that he has taken all measures in his power to properly fulfill the obligation." Also, in accordance with Part 1 of Article 364 of the Civil Code of the Republic of Kazakhstan, "If non-fulfillment or improper fulfillment of an obligation occurred due to the fault of both parties, the court accordingly reduces the amount of liability of the debtor" - Which, of course, was not properly investigated by the arbitrator. In the operative part of the decision, the Arbitrator indicates and justifies himself by arguing that, for the purpose of a pre-trial settlement of disagreements, a claim was sent to the defendant, the plaintiff, demanding repayment of the debt for the subletting of wagons. The claim was sent on __.10.2019. to the email address of LLC "_______________________" - in refuting these arguments of the Arbitrator, we can explain that the materials of the Arbitration Case do not contain a Pre-trial claim dated __.10.2019. In addition, there is no information in the Statement of Claim for the Pre-Trial Claim dated __.10.2019, which naturally suggests that the Arbitrator independently collected evidence, going beyond the limits of the Claim.
According to clause 7.1 of the Agreement, the claim procedure for dispute resolution is mandatory. The statement of claim contains pre-trial claims dated April 01, 09, 12, 2019, which are not related to this Claim, since these claims were the subject of an arbitration case of the Decision of May __, 2019 permanent Arbitration "_______________________" on the recovery of the amount of debt in the amount of 7,733,700 rubles, which is equivalent to 45,860,841 tenge and the amount of the arbitration fee in the amount of 77,310 rubles, which is equivalent to 458,608.41 tenge tiyn. In the decision, the Arbitrator repeatedly repeats the words that the subject of this dispute differs from the previous one, since the plaintiff in this claim asks to recover the sublease debt for another period and for other wagons (wagon numbers are indicated in the acts of acceptance and transfer of the wagons). The specified acceptance and transfer certificates signed by the parties upon the return of wagons from __.05.2019 to __.08.2019 attached to the case file – In refuting the Arbitrator's arguments, I would like to emphasize that the Statement of Claim does not contain information about the wagons and does not mention the previous Arbitration case, but the judge, in order to satisfy this arbitration case by any means, goes beyond the Claim. If you carefully read the materials of the arbitration case №_______________________ according to the statement of claim of the LLP "_______________________" regarding the collection of the amount owed in the amount of 11,055,250.00, it is possible to find Acceptance Certificates for the entire period from February 05, 2019 to August __, 2019.
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.
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