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of May 12, 2006 No./13549


Obligations shall be fulfilled properly in accordance with the terms of the obligation and requirements of the legislation.

JSC K appealed to economic court with the claim to KN LLC for agreement cancelation of car rental and about reclamation of property from others adverse possession.

During consideration of the case by the defendant the counter action for declaration about collection from the claimant of 3619697 bags constituting compensation amount of costs of the lessee for repair and servicing of the leased car, 120000 bags - penalty for early agreement cancelation of lease and 500000 bags - the losses connected with recovery of the violated right is submitted.

Requirements of the claimant are met by the judgment completely. The demand in reconvention is met regarding collection with JSC K for benefit of KN LLC of 3619697 bags of principal debt and penalty in the amount of 60000 bags. Other part of the counter action it is refused.

The decision is changed by the resolution of appellate instance. Satisfaction of the counter action regarding recovery of penalty for early agreement cancelation it is refused. In other part the decision is left without change.

The claimant, challenging the collected amount in the amount of 3619697 bags appealed to the Supreme Economic Court with the writ of appeal about change of court resolutions.

Judicial board, having studied case papers, having discussed arguments of the writ of appeal, considers the claim unreasonable on the following bases.

According to p.1 Art. 554 of RUZ Group in case of termination of the contract of property hiring the employer shall return to the lessor property in that condition in which he received it, taking into account ordinary wear and tear or in the condition caused by the agreement.

According to Art. 236 of RUZ Group of the obligation shall be performed properly in accordance with the terms of the obligation and requirements of the legislation.

According to item 3.10 of the lease agreement of the car of October 18, 2004 after lease term if the lessee made car repairs with installation of new details or parts of the car, autotires, the accumulator, or car repairs, its parts, details are made, the lessor shall compensate to the lessee of costs on repair, replacement of details, parts completely (by provision of the documents confirming repair, replacement), to compensate the costs of the lessee connected with commissioning technically of the defective car and also all expenses / costs of Items 3. 5, 3.6 agreements (costs for fuels and lubricants are compensated according to the approved expense budget of fuel and lubricants material (costs over the estimate are made at the expense of the lessee) no later than the termination of lease term (in case of submission of the documents confirming expenses/costs).

As this term of the contract provides obligation of the lessor after the termination of lease term to compensate car repair costs, according to item 3.10 of the agreement in connection with the expiration of its term there is the claimant's obligation as lessor, on cost recovery on car repairs.

With respect thereto, legally taking into account the proofs which are available in case papers are collected by courts from the claimant repair costs and operation of the car in the amount of 3619697 bags according to the counter action of the defendant.

The court of cassation instance does not take into account the claimant's argument that the lease agreement is the enslaving transaction as the requirement about recognition of the transaction enslaving was not declared by the claimant before decision making by Trial Court. However this circumstance does not deprive of the claimant of the right to address with the new claim for it.

The judicial board considers that it is necessary to leave the writ of appeal of the claimant without satisfaction, and the resolution of appellate instance - without change.

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