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 the translation 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.
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