of July 29, 2004
About compliance of the resolution of Judicial Board on cases on economic disputes of the Supreme Court of the Azerbaijan Republic of December 25, 2003 to the Constitution and the laws of the Azerbaijan Republic in connection with the claim Seid Hamushi Seid of Kazim Magommedali Oglou
Name of the Azerbaijan Republic
Plenum of the Constitutional Court of the Azerbaijan Republic as a part of F. Abdullaev (chairman), F. Babayev, B. Garibov, R. Gvaladze, E.Mamedov, S. Salmanova (judge-speaker) and A. Sultanova,
with participation of the court secretary I. Ismaylov,
zayavitelya-Seid Hamusha Seid of Kazim Magommedali to ogl, representative zayavitelya-E.Saryveliyeva,
perevodchikov-Firudina Kusedgi and Seid Imani Dzhorabchy,
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 judicial proceedings the constitutional complaint case of S. Hamusha about compliance of court resolution of the Constitution and to the laws of the Azerbaijan Republic.
According to the letter of the chairman of the Supreme Court of the Azerbaijan Republic of July 19, 2004, the constitutional case was considered without participation of the representative of defendant.
Having heard the report of the judge S. Salmanova, performance of the applicant S. Hamusha, the representative applicant E.Saryveliyev, having studied and having discussed case papers, the Plenum of the Constitutional Court of the Azerbaijan Republic ESTABLISHED:
The decision of Economic Court of the Azerbaijan Republic on the disputes arising from International Treaties of July 31, 2003 the claim Seid Hamushi Seid of Kazim Magommedali to ogl to Product commercial firm "A.M.A.Y" about collection of 3.721.776 (three million seven hundred twenty one thousand seven hundred seventy six) US dollars of principal debt, 17.350.753 (seventeen million three hundred fifty thousand seven hundred fifty three) US dollars of percentage charge, generally, of 21.072.529 (twenty one million seventy two thousand five hundred twenty nine) US dollars was rejected. The decision of Economic Court of the Azerbaijan Republic of September 26, 2003 the petition for appeal was partial is satisfied, was determined to exact 3.721.776 (three million seven hundred twenty one thousand seven hundred seventy six) US dollars of principal debt, 9.508.203 (nine million five hundred eight thousand two hundred three) US dollars of the added percent to them, generally, 13.229.979 (thirteen million two hundred twenty nine thousand nine hundred seventy nine) US dollars, 99.000 manats of the state fee according to the action for declaration, 120.000 manats according to the petition for appeal, and other part of the claim was rejected.
On the basis of the writ of appeal of the parties Judicial Board on Cases on Economic Disputes of the Supreme Court of the Azerbaijan Republic (further SKDES) the resolution of December 25, 2003, having changed the decision of Economic Court of the Azerbaijan Republic, partially satisfied the writ of appeal of Product commercial firm "A.M.A.Y", and rejected S. Hamusha's claim for return of money debt.
The chairman of the Supreme Court responded with the letter of March 18, 2001 to the additional writ of appeal of the applicant that for consideration of the claim on the Plenum of the Supreme Court there are no bases.
According to the applicant, Trial Court, it is groundless having noted that to PKF "A.M.A.Y" goods were sent not S. Hamusha, and separate firms that in computer memory of regional department of Management of state registration of legal entities of the Azerbaijan Republic no information concerning finding of Tural Co to the address is revealed: Baku, Moscow пр; 101, lack of information on import of goods of PKF "A.M.A.Y" from S. Hamusha and availability of delivery notes on the sent goods in the letter of the State Customs Committee of the Azerbaijan Republic of June 19, 2003 No. 16/04-22/2003, omission by the claimant of claim term, and also, considering emergence of legal relations between the parties till September 1, 2000, based on Article 73, 77 and 82 Civil Codes (further group of companies), acting from 1964 to September, 2000, did not satisfy the claim.
In the claim it was specified that the applicant by means of M / sent KFT "Almarashid Tredinq Shahad Saghed International" of the United Arab Emirates in 1998-1999 to "Synag" to the address of Tural Co of PKF "A.M.A.Y", at the address: Azerbaijan Republic, Baku, Moscow пр; 101, meat products, and in September-October, 1999 from Tredinq Seid Behzad Gaziziade Mogadam to A.M.A.Y the equipment for production of macaroni, cable and electric boards, meat and fat tail products. In the letter sent on October 20, 1998 to firm carrier, PKF "A.M.A.Y" specified that all goods from her name will be received by Tural Co, and took all responsibility.
In the claim it was also specified that, according to the arrangement between the parties, S. Hamusha PKF "A.M.A.Y" transferred 23 names of different goods for the total amount of 3.721.777 US dollars, however cost of these goods and percent added to them till today were not paid by the defendant. In case papers there are invoices and delivery notes about sending goods of PKF "A.M.A.Y". Confirmation of failure to pay cost of goods of PKF "A.M.A.Y" is the settlement protocol (agreement) signed on October 17, 2001 in Embassy of the Islamic Republic of Iran in the Azerbaijan Republic between S. Hamusha and the president of PKF "A.M.A.Y". According to this agreement, the president of PKF "A.M.A.Y" did not deny the debt, that is agreed to repay debt, 3.721.776 US dollars, and also to pay five percent from the acquired profit, and this agreement of the party was certified the signatures. The agreement was constituted in farsidsky and Azerbaijani languages on the form of Embassy of the Islamic Republic of Iran in Baku, both copies were signed by all persons participating in meeting, and the defendant certified seal this document. In the appendix attached to the agreement names and cost of 23 types of the goods which were purchased by PKF "A.M.A.Y" were specified. Irrespective of the fact how this document hereinafter is referred to as ("the agenda about the organization of meeting", "the protocol of intention", "the protocol of calculation", etc.), on the content and essence is the agreement on recognition of the available debt signed between the parties.
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