The court shall terminate the proceedings in the case if there is a court decision or court ruling on the termination of the proceedings in connection with the approval of the parties' agreement on the settlement of the dispute (conflict) by way of mediation that has entered into legal force and has been rendered in a dispute between the same parties, on the same subject and on the same grounds.
The LLP (hereinafter referred to as the Partnership, the Lessor) filed a claim with the JSC (hereinafter referred to as the Company, the Lessee) for the recovery of: - debts in the amount of 83,464,006 tenge; - penalties in the amount of 6,854,353 tenge. The claims were partially satisfied by the decision of the specialized interdistrict Economic Court of Pavlodar region dated February 27, 2017. Debts in the amount of 83,464,006 tenge, a penalty in the amount of 4,500,000 tenge, court costs for the payment of state duty in the amount of 2,638,920 tenge, and payment for the assistance of a representative of 150,000 tenge were collected from the Company in favor of the Partnership. The rest of the claim was denied. By the resolution of the judicial Board for Civil Cases of the Pavlodar Regional Court dated June 28, 2017, the decision of the court of first instance was changed. The judicial act in the satisfied part of the claim has been cancelled. In this part, a new decision was made to dismiss the claim. The Court of first instance, satisfying the claims, motivated its conclusions by the fact that the Company does not fulfill the terms of the Contract for payment for the provided equipment. This fact is confirmed by the invoice dated July 15, 2015 No. 0000000019 in the amount of 83,464,006 tenge (hereinafter referred to as the Invoice), the act of completed works dated July 15, 2015 No. 0000000019 (hereinafter referred to as the Act). The Appeals Board, canceling the decision in the satisfied part of the claim, justified its legal position by the ruling of the specialized interdistrict Economic Court of Astana dated November 16, 2016 on approval of the mediation agreement between the parties. According to the specified definition,
The Company has paid off all outstanding debts under the Agreement to the Partnership. The Court of Appeal concluded that the road construction equipment specified in the Act of Completed Works was reflected in the acts of completed works dated June 30, 2015 No. 0000000047 in the amount of 41,060,243 tenge and dated July 31, 2015 No. 0000000048 in the amount of 49,940,888 tenge. The cassation board agreed with such conclusions of the court of appeal. At the same time, the decision taken following the consideration of the Company's appeal contradicts the requirements of the procedural legislation. According to paragraph 16 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5 "On judicial decision", the court, in accordance with Part 2 of Article 225 and Part 2 of Article 48 of the CPC, resolves the case within the limits of the plaintiff's claims and does not have the right to change the subject or the basis of the claim on its own initiative. The subject of the claim is determined by the specific requirements of the plaintiff (applicant) and is defined as a substantive requirement indicating the nature of the violation or threat of violation of the rights, freedoms or legitimate interests of the applicant. The basis of the claim should be understood as the facts indicated by the interested party, entailing the emergence, modification or termination of the material legal relationship that is the subject of the claim. The Partnership cited the Company's failure to comply with the terms of the Agreement and Additional Agreements as the basis for the lawsuit. The subject of the claim is claims for debt collection in the amount of 83,444,006 tenge and penalties in the amount of 6,854,353 tenge. Meanwhile, by the ruling of the specialized inter-district Economic Court of Astana city dated November 16, 2016, a mediation agreement was approved between the parties, the terms of which state that the Company recognizes the debt owed to the Partnership in the amount of 66,539,779 tenge and undertakes to pay it. The terms of the mediation agreement have been fulfilled by the Company, and the amount owed has been paid to the Partnership. It was reliably established in the court of appeal that the debt under the mediation agreement arose due to the Company's failure to fulfill the terms of the Agreement. Road construction equipment in the Act of completed works in the amount of 83,464,006 tenge is also reflected in the acts of completed works dated June 30, 2015 No. 0000000047 in the amount of 41,060,243 tenge and dated July 31, 2017 No. 0000000048 in the amount of 49,940,888 tenge. These acts of the Partnership were presented as evidence to the specialized interdistrict economic Court of Astana. The acts record the same road-building equipment leased and for the same period of time. Following the consideration of the civil case, the board decided to cancel the judicial acts and terminate the proceedings, since there is a court ruling on the termination of the proceedings in connection with the approval of the mediation agreement between the parties that has entered into force.
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