of January 4, 2006 No./10077
If the seller transmitted to breach of agreement of purchase and sale to the buyer smaller goods quantity, than is determined by the agreement, the buyer has the right if other is not provided by the agreement, or to demand to give short quantity of goods or its payment and if it is paid, to demand return of paid amount.
GAVK "U" appealed with the claim to economic court to defendants of "U" and PTK "B" about collection of 517853 bags of cost of shortage of fiber in number of 431 kg.
The claim is satisfied with resolution of the Trial Court.
In appellate instance case was not considered.
Without having agreed with the judgment, PTK "B" addressed with the writ of appeal in which the question of cancellation of the judgment with refusal in satisfaction of the claim is put.
Judicial board, having discussed the arguments stated in the writ of appeal and response, having checked case papers, considers the judgment subject to leaving without change, and the writ of appeal - without satisfaction, on the following bases.
Apparently from case papers, under the contract of September 20, 2004 for rendering services in acceptance of cotton fiber and its shipment for export of PTK "B" (consignor) Bandar Abbas, the receiver of "H" made shipment of cotton fiber on the Shahid Razhai Iranskoy Railway Port station.
Apparently from case papers, under the contract of September 20, 2004 to the receiver's address according to the rail waybill in the car N 23529167, shortage in number of 431 kg of cotton fiber for the total amount of 517853 bags in this connection the claimant took a legal action with the recovery suit of the amount of shortage is found.
It is provided in Item 3.16 of the agreement that shortage of piles of the cotton fiber shipped for export under contracts of the claimant (customer) from the terminal is determined by the reception statement which is drawn up by the representative of shipping company or the consignee, either the commercial act of the railroad, or the act of the independent control organization, or the act of bureau of commodity examinations of Chambers of Commerce and Industry of the country of destination without challenge or participation of the defendant's representative (contractor). The defendant based on these acts shall pay to the claimant the damages caused by shortage of cotton fiber.
According to Art. 399 of the Civil code of the Republic of Uzbekistan if the seller transmitted to breach of agreement of purchase and sale to the buyer smaller goods quantity, than it is determined by the agreement, the buyer has the right if other is not provided by the agreement, or to demand to give short quantity of goods and its payment and if it is paid, to demand return of paid amount.
In this case in case of acceptance of cotton fiber shortage is found about what the commission statement of June 14, 2005 with participation of representatives of the sender, the railroad and SAC of "U" is drawn up.
According to the specified act freight of cotton fiber is delivered in destination in the operational car with undisturbed seals, that is in safety. Therefore the defendant's argument stated in the writ of appeal about assignment of responsibility for shortage on SAC of "U" that is on the freight forwarder, is wrong.
The defendant's argument that the representative of GAVK "U" according to the decision of economic court and the notification of the terminal, did not take part in case of shipment cannot be taken into account as in the request for subcodes of April, 2005 exact shipping date of cotton fiber is not specified. Requirements of the claimant about indemnification are reasonable, and the judgment about satisfaction of the claim at the expense of PTK "B" legal.
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