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RESOLUTION OF THE SUPREME ECONOMIC COURT OF THE REPUBLIC OF UZBEKISTAN

of January 10, 2005 No. 10-0419/9436

(extraction)

In cases when the agreement provides payment of penalty in the form of penalty and penalty fee for the same violation of the obligation, the creditor has the right to require application only of one form of penalty.

The claimant - the BSF "Tara Ramas" appealed to economic court with the action for declaration about collection with JSC DEMIR of amount of debt in the amount of 8973360 bags of principal debt, 815760 bags of penalty and 2719200 bags of penalty fee.

Claims are satisfied by resolution of the Trial Court partially.

Case in appellate instance was not considered.

Judicial board, having studied arguments of the writ of appeal and case papers, considers necessary the writ of appeal to leave without satisfaction, and the judgment without change.

From case papers it is visible that on July 22, 2003 between the parties the agreement N 4, according to which was signed the claimant undertook to provide hotel rooms for accommodation and to make registration of citizens in the hostel of the hotel Container type according to the request of the defendant who, in turn, undertook to pay the provided services and to provide accomplishment by the guests of rules of accommodation. The obligations were fulfilled by the claimant, and provided to the defendant for payment of the invoice which were not paid by the defendant, the claim N22 of April 5, 2004 is left without answer and satisfaction, however the debt on the amount of 5438400 bags for the rendered services is acknowledged about what the settlement reconciliation statement of June 4, 2004 is signed.

Due to the non-execution by the defendant of the agreement obligations of rendering services and impossibility of dispute settlement the peaceful manner, the claimant declares the requirement about collection from the defendant in addition to principal debt in the amount of 5438400 bags, also penalties for untimely payment in the amount of 15% of outstanding amount that constituted 815760 bags and penalties in the form of penalty fee in the amount of % 0,4 for each day of delay (210 days), but no more than 50% of the amount of overdue payment that constituted 2719200 bags.

According to Art. 234 of the Civil code of the Republic of Uzbekistan, the obligation arise from the agreement, owing to damnification and from other bases provided by the law.

As it is seen from case papers, in this case the services agreement takes place. According to Art. 703 of RUZ Group according to the services agreement the contractor shall render services on the instructions of the customer (to make certain actions or to perform the certain activities which do not have the material form, and the customer shall pay these services). Article 705 of RUZ Group provides that the customer shall pay the services rendered to him in terms and according to the procedure, specified in the services agreement.

From case papers, it is visible that the agreement obligations are fulfilled by the claimant in full that is confirmed by the settlement reconciliation statement of June 4, 2004 certified by seal and signatures of the head and chief accountant of the defendant.

According to Art. 236 of RUZ Group obligations shall be fulfilled properly in accordance with the terms of the agreement and requirements of the legislation. Therefore the reference of the claimant to Art. 32 of the Law of the Republic of Uzbekistan "About the contractual legal base of activities of business entities" which for untimely fee provides responsibility in the form of penalty in the amount of 15% of the amount that constitutes 815760 bags from the amount of principal debt, from which payment the defendant evades, the Trial Court correctly came to opinion on justification of these requirements.

The requirement of the claimant regarding penalty in the form of penalty fee in the amount of 0, of % of the amount of overdue payment for each day of delay (210 days) that constitutes 2719200 bags, is subject to refusal in satisfaction based on the Resolution of the Plenum of the Supreme Economic Court of the Republic of Uzbekistan of N77 of February 5, 1999 "About some questions of application by economic courts of provisions of the Civil code of the Republic of Uzbekistan of responsibility" according to which in cases when the agreement provides payment of penalty in the form of penalty and in the form of penalty fee for the same violation of the obligation, the court should consider that the creditor has the right to require application only of one form of penalty. In this case the court legally came to opinion on satisfaction of requirements regarding recovery of penalty and refused part of collection of penalty fee.

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