of November 19, 2004
About compliance of the resolution of Judicial Board on cases on economic disputes of the Supreme Court of the Azerbaijan Republic of October 9, 2003 to the Constitution and the laws of the Azerbaijan Republic in connection with the claim of Sema-10
Name of the Azerbaijan Republic
Plenum of the Constitutional Court of the Azerbaijan Republic as a part of F. Abdullaev (chairman), F. Babayeva, B. Garibov, R. Gvaladze (judge-speaker), E. Mamedova, I. Nadzhafova, S. Salmanova and A. Sultanov, with participation of the court secretary I. Ismaylov,
applicant CEO of Sema-10 D. M. Aliyev and his representative M. Ya. Novruzov,
according to part V of article 130 of the Constitution of the Azerbaijan Republic considered on proceeding in open court according to the procedure of the constitutional legal proceedings the constitutional complaint case of Sema-10 about compliance of the resolution of Judicial Board on Cases on Economic Disputes of the Supreme Court of the Azerbaijan Republic of October 9, 2003 to the Constitution and the laws of the Azerbaijan Republic.
The constitutional case is considered without participation of the defendant.
Having heard the report of the judge R. Gvaladze, D. M. Aliyev and M. Ya. Novruzov's performance on case, having studied and having discussed case papers, the Plenum of the Constitutional Court ESTABLISHED:
The decision of Local Economic Court No. 1 of the Azerbaijan Republic of May 19, 2003 satisfies the claim of Sema-10 to the Etilenpolietilen plant about debt repayment in the amount of 320. 130. 000th manat:
* it is decided to collect at the Etilen-Polietilen plant for benefit of Sema-10 20. 500. The 000th manat as principal debt;
* penalty in the amount of 298. 275. 000th manat;
* the amount in 1. 355. The 000th manat, required by tax authority.
The decision of the above-stated Trial Court is left by the decision of Economic Court of the Azerbaijan Republic of August 12, 2003 without changes. The decision of Economic Court of the Azerbaijan Republic is changed by the resolution of Judicial Board on Cases on Economic Disputes of the Supreme Court of the Azerbaijan Republic (SKDES) of October 9, 2003, the part of the claim of Sema-10 concerning penalty in the amount of 298. 375. The 000th manat, it is rejected, other part is left without changes.
According to the letter of the chairman of the Supreme Court of the Azerbaijan Republic of April 20, 2004, the claim of Sema-10 shown according to the procedure of the additional cassation is not sent for consideration of the Plenum of the Supreme Court of the Azerbaijan Republic due to the lack of the bases provided in Article 424 of the Code of civil procedure of the Azerbaijan Republic (GPK).
The applicant firm of "Sema-10", including the court order of cassation instance illegal and unreasonable, asks to check compliance of its Constitution and to the civil legislation. The claim is proved by the fact that the court of cassation instance, having applied unliable to application Article 74 of the Civil Code of the Azerbaijan Republic (group of companies) which became effective since 1964 rejected the part of the claim concerning penalty.
Besides, in the claim it is specified that the court of cassation instance in contradiction to requirements of the procedural legislation was beyond the powers and made the decision new in essence.
In connection with the claim Plenum of the Constitutional Court notes following. As it was established by Trial Court, according to the agreement No. 17/18-1-06 00, signed on April 28, 2000 between Sema-10 and the Sumgayit plant "Etilen-Polietilen", Sema-10 undertook the obligation to sell the electric equipment to the Etilen-Polietilen plant, and the plant to pay this equipment. According to terms of the contract, in case of payment delay of the purchased goods the plant it shall pay penalty for each overdue day in the amount of 3%. The firm in different months 2001 delivered to the plant the electric equipment on the amount 92. 000. The 000th manat, the plant paid only 71. 500. 000th manat, and 20. 500. The 000th manat remained not paid. Therefore Sema-10 took a legal action with the recovery suit of principal debt in the amount of 20. 500. The 000th manat, penalty for each overdue day 3%-298. 275. The 000th manat and for the late payment of penalty by the plant in the amount of 1. 355. The 000th manat, appointed tax authority.
All degrees of jurisdiction accepted in indisputable procedure availability of principal debt of the Etilen-Polietilen plant to Sema-10 in the amount of 20. 500. The 000th manat, the requirement of tax authority from Sema-10 about payment of tax for the specified debt in the amount of 1. 355. The 000th manat and origin of debt because of defendant. SKDES of the Supreme Court, including decisions of the courts of the first and appeal instances in the part concerning principal debt and penalty, legal and thorough left these court resolutions without changes.
Court of cassation instance, without having agreed with results of Trial and Appeal Courts, the concerning parts about penalty in the amount of 298. 375. The 000th manat, based on the fact that the agreement was signed in April, 2000, and the claim is made in April, 2003, came to conclusion that the term of presentation of the claim is missed by Sema-10. According to these bases, SKDES of the Supreme Court rejected the part of the claim concerning penalty.
The plenum of the Constitutional Court notes discrepancy of conclusions of court of cassation instance to requirements of the civil legislation. For exact calculation of term of limitation period, determination of the beginning of term has exclusively crucial importance. Incorrect determination of this moment can serve as the reason of artificial prolongation or reduction of term of the claim. As a rule, the person of law from the moment of violation of the right knows or shall know about violation of the rights. Until person does not learn about violation of the rights, it cannot address to state bodies for protection of the violated rights. For this reason the law connects the right of submission of the claim with day when person learned or owed learn about violation of the rights. So, according to Article 78 of group of companies, being valid till September 1, 2000, the current of claim term begins from the date of emergence of the claim right; the claim right arises from the date of when person learned or owed learn about violation of the rights.
By degrees of jurisdiction it was determined that Sema-10 completely vpolnit the term of the contract of delivery concluded with the Etilenpolietilen plant the last paid only part of cost of the received goods. From decisions of the courts of the first and appeal instances it is also visible that the Etilen-Polietilen plant recognizes availability of debt to Sema-10 in the amount of 20. 500. The 000th manat in this connection acts of confrontation of February 25, 2002 and on March 19, 2003 were signed and confirmed to them with seal.
So, apparently from established in the matter of materials, the Etilenpolietilen plant till April, 2003, that is before submission of the claim from Sema-10, recognized availability of debt to this firm.
Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info
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