of January 17, 2005 No. 10-0405/6929
Violation and the wrong application of regulations of substantive or procedural law are the basis to cancellation of the decision
Audit-Olga LLC appealed to economic court with the action for declaration to OJSC Tashtransspetsstroy about collection of 1,2 of one million bags of principal debt, 180 thousand bags of penalty, 600 thousand bags of penalty fee, 180 thousand bags interest for using others means, only 2160000 bags.
The claim is satisfied with the decision of the first instance partially, 800 thousand bags of principal debt, 600 thousand bags of penalty fee and 180 thousand bags of bank interests, only 1580 thousand bags are collected from the defendant.
Case in appellate instance was not considered.
OJSC Tashtransspetsstroy appealed to the Supreme Economic Court with the writ of appeal in which it asks to cancel the judgment and having considered case with the assistance of both parties, to make the relevant decision, and the prosecutor's office in the prosecutor's appeal also asks to cancel the decision, to send case for new trial.
Judicial board, having checked case papers, having discussed the arguments stated in the claim and protest considers necessary to cancel the judgment and to send case for new trial on the following bases.
From case papers it is seen that between Audit-Olga"ispolnitelem and OJSC Tashtransspetsstroy — the Customer Signed on November 10, 2003 the Agreement N 10, in Which the Contractor, at the request of the Customer Shall Render Services in Conducting Independent Examination and the Analysis of the Financial Reporting Zakazchika LLC, for the purpose of determination of its reliability and compliance to legal and other acts of the Republic of Uzbekistan, and also check of conducting financial accounting, its completeness and reality. Upon termination of work, the contractor provides to the customer audit opinion, the reference report on check. The payment amount under the agreement constituted 900 thousand bags. The customer undertook to make 100% advance payment within three days from the date of the conclusion of the agreement.
Besides, between the parties the supplementary agreement N1 was signed on December 20, 2003 to the agreement N 10, in which the parties came to the agreement on performance of works in two stages: the first and the second half of the year for which the advance payment - for the first in the amount of 55% was subject, for the second - 45%. Also, this day between the parties the second supplementary agreement in which the parties changed the extent of contract price to 1700 thousand bags, in connection with increase in amount of works was signed. The agreement and supplementary agreements to it are signed by agents of the parties and fastened by their seals.
Prior to works between the contractor, the customer and DHO "IMK" the agreement of transfer of debt according to which from DHO "IMK" on account of advance payment for the customer the amount of 500 thousand bags was transferred into the account of the contractor was signed.
Having specified fulfillment of requirements of the agreement in return, conducting check, delivery of the conclusion and reference calculation to the defendant, but also partial payment from the defendant, the claimant appealed to economic court with this claim.
Having referred to validity of the claim case papers, the Trial Court satisfied the claim partially, having collected the amount of other debt, and also penalty fee and bank interests.
However, in case of decision by Trial Court mistakes of substantive and procedural law are made.
The Trial Court does not check the fact of legality of debt repayment of the defendant by the third party in the presence of the Presidential decree of the Republic of Uzbekistan "About measures for increase in responsibility of business entities for calculations with the budget" of the January 9, 1996 prohibiting debt repayment through the third parties.
The agreement N 10, signed between the parties, from the customer is signed by the external managing director of the company, i.e. this fact specifies availability of signs of bankruptcy of the defendant. Under these circumstances the court needed to specify production stage of case on bankruptcy of the defendant and whether the claimant was entered into the list of creditors.
In case of satisfaction of requirements of the claimant regarding collection of the amount of penalty fee and bank interests by court requirements of Art. 327 of Civil Code of the Republic of Uzbekistan in which it is specified that bank interests are subject to collection if other size of percent is not established by the law or the agreement are not considered.
Besides, consideration of this case was in essence appointed determination of court of July 30, 2004 to August 24, 2004. In case papers there is statement of defense that in day of meeting the claimant's representative on meeting was not and asked to leave case without consideration. In appointed day the merits of the case were not considered, but in the protocol of judicial session of August 24, 2004 holding meeting with participation of representatives of both parties is specified.
In case papers are available: the specified calculation of the claimant about penalty for untimely payment of August 25, 2004 and the power of attorney of August 25, 2004 issued Yu. What follows from that representatives of the claimant were in court on August 25, 2004. In violation st.st.125-126 HPK of the Republic of Uzbekistan, Trial Court the merits of the case are considered not in appointed, and next day and without participation of the defendant's representative who was in court in due time.
According to Art. 169 of HPK RUZ the assumption Trial Court of material and procedural offenses is the basis for cancellation of the decision.
According to the above the judicial board considers that the writ of appeal of the claimant is subject to satisfaction partially, and the prosecutor's protest completely, the decision of economic court cancellation and case to the direction on new trial.
In case of new trial of case the court needs to correct the above-stated errors, to involve in case of DHO "IMK" as the codefendant, to give legal treatment to the agreements signed between the parties, to find out production stage of case on bankruptcy of the defendant, to provide appearance of agents of the parties on court session and in case of set of collected documents to pass the reasoned and legal decision.
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