of December 26, 2005 No. 10-0517/8544
Change of persons in the obligation does not involve change of term of limitation period and procedure for its calculation. Limitation period is applied by court only according to the statement of the party in dispute made before pronouncement of the decision by court.
The claimant - state of emergency of "A" appealed to economic court with the action for declaration to the defendant of JSC N about collection of 154550361,60 of bags.
By the judgment satisfaction of claims it is refused.
In appeal procedure case was not considered.
State of emergency of "A" in the writ of appeal asks the decision to cancel, claims to satisfy.
Judicial board, having discussed arguments of the writ of appeal, having checked case papers, considers the writ of appeal subject to variation, the judgment to leaving without change on the following bases.
As it is seen from case papers, on December 10, 1996 between JSC N (Uzbekistan) and the Southern Kazakhstan mounting firm JSC I (Kazakhstan) the contract N 176, according to which was signed the defendant accepted reservoir metalwork in quantity of 155,43 of tons on the amount 138331, of 12 US dollars. Payment is made partially in the amount of
25.000 US dollars therefore JSC N owed to the legal successor 113331, 12 US dollars. According to the separation balance sheet of JSC YUK PMF I the legal successor of all receivables and payables was JSC Yu.
The judgment of Shymkent of the Southern Kazakhstan area of September 24, 2001 JSC Yu is declared bankrupt, bankruptcy proceedings are initiated, the receiver it is appointed And. The decision of JSC Yu creditor committee of June 24, 2002 approved by determination the vessels N2 of Shymkent of June 25, 2002, And. the right of claiming of debt with the right to claim concession right on contract price is transferred.
April 20, 2005 And. and states of emergency of "A" signed the agreement on concession of the right of claiming of debt according to which passes the right of claiming of debt of the amount in the amount of 113.331,12 to state of emergency of "A" of US dollars under the contract of December 10, 1996.
According to Art. 150 of the Civil code of the Republic of Uzbekistan aggregate term of claim prescription - three years. According to Art. 154 of Civil Code of the Republic of Uzbekistan the current of term of limitation period begins from the date of when person learned or owed learn about violation of the right.
In Item 5.1 of the Contract N 176, signed between JSC N and the Southern Kazakhstan mounting firm JSC I, it is provided that payment for the delivered goods is made upon receipt of goods goods to the receiver within 30 days from the moment of receipt of load and according to this moment, i.e. since December 31, 1997 the claimant had right to impose requirement about obligation fulfillment.
However, neither Southern Kazakhstan mounting firm JSC I, nor her legal successor - JSC Yu timely did not use this right though knew about violation of the rights.
The claimant's arguments that the current of term of limitation period began with the agreement signature moment about right to claim concession, that is on April 20, 2005, are not proved owing to Art. 155 of Civil Code of the Republic of Uzbekistan where it is determined that change of persons in the obligation does not involve change of term of limitation period and procedure for its calculation.
According to the p. 2 of Art. 153 of Civil Code of the Republic of Uzbekistan limitation period is applied by court only according to the statement of the party in dispute made before pronouncement of the decision by court. By the defendant before pronouncement of the decision by court, it was declared use of term of limitation period in this connection the court according to part 3 of the Art. 153 ON the Republic of Uzbekistan passes legal and reasoned decision about refusal in the claim.
The judicial board, proceeding from the above, considers that the court researches all available case papers and reasoned decision is made.
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