of April 26, 2006 No./5945
Obligations shall be fulfilled properly in accordance with the terms of the agreement and requirements of the legislation.
The liquidating managing director of JV D appealed to economic court with the claim to the defendant of BSF "P" for collection of the amount of principal debt in the amount of 88508428 bags and penalty for evasion from debt repayment in the amount of 13276264 bags.
Requirements of the claimant are met by the judgment partially. The amount of principal debt in the amount of 88508428 bags and penalty in the amount of 3319066 bags is collected from the defendant.
The decision is left by the resolution of appellate instance of February 21, 2006 without change.
Without having agreed with court resolutions, the defendant appealed to the Supreme Economic Court with the writ of appeal about change of the decision and satisfaction of claims in full.
Judicial board, having studied case papers, having discussed arguments of the writ of appeal, considers the writ of appeal unreasonable on the following bases.
As it is seen from case papers, the decision of economic court of the Tashkent region of February 14, 2005 in the matter of JV D it is declared bankrupt and concerning it liquidating production is opened.
In the course of liquidation by the liquidating managing director receivables of BSF "P" which arose in case of agreement performance of November 10, 2003 Under the terms of the agreement of the joint venture are revealed delivered to the defendant of pipe and fitting for the total amount of 127625577 bags.
On October 11, 2004 the parties sign the settlement reconciliation statement according to which the debt of the BSF constituted 88508428 bags. The defendant undertook to pay with the guaranty letter of November 12, 2004 goods till January 12, 2005, however so far did not fulfill the obligation on payment of goods.
The liquidating managing director took a legal action with the claim for recovery by enforcement of debt in the amount of 88508428 bags and penalty for delay of payment in the amount of 13276264 bags.
Trial and Appeal Courts legally also reasonably meet requirements of the claimant partially.
According to Article 236 of RUZ Group obligations shall be fulfilled properly in accordance with the terms of the agreement and requirements of the legislation.
According to Article 437 of RUZ Group under the delivery agreement the supplier-seller performing business activity shall report to the caused time the goods made or purchased by it to the buyer for use in business activity or other purposes, and the buyer shall accept goods and pay them.
As it is seen from case papers, on November 10, 2003 between the parties the agreement is signed. In accordance with the terms of the agreement of the joint venture delivered to the defendant of pipe and fitting for the total amount of 127625577 bags that is confirmed by the invoices attached to case papers.
According to Article 242 of RUZ Group if completion date of the obligation is not established or determined by the claiming moment, then the creditor has the right to require execution, and the debtor has the right to make execution at any time. The debtor shall make execution of such obligation in seven-day time from the date of submission of demand by the creditor if the obligation of immediate execution does not follow from the law, the agreement or being of the obligation.
From case papers it is seen that the first requirement was sent to the joint venture on February 26, 2005 as the guaranty letter of the defendant about payment of goods till January 12, 2005 was not performed.
The applicant's arguments that according to delivery note of November 12, 2004 the goods given by the claimant under the agreement of November 10, 2003 are returned to the claimant in full on the amount of 83999803 bags in this connection the debt to JV D was completely repaid cannot be taken into account as according to the agreement of November 10, 2003 JV D delivered BSF "P" of pipe and fitting for the total amount of 127625577 bags that is confirmed by case papers in spite of the fact that the total amount of the specified delivery agreement constitutes 70000000 bags.
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