The businessman managed to keep nearly half a million dollars
The General Prosecutor's Office appealed the Supreme Court of RK ruling in favor of the Kazakhstan business entity
The Kazakh company managed to keep more than 460 thousand USD through the intervention of the Prosecutor General and the Commissioner for the Protection of the Rights of Entrepreneurs of Kazakhstan.
In 2014 LLP "MMC" KazPolimetall" acquired from the Turkish company 4 units of expensive construction equipment. Unfortunately, the Kazakh company has not paid late for the 4th unit: the debt was more than 460 thousand US dollars.
In connection with the violation of terms of payment, the seller applied to the court to LLP "MMC KazPolimetall" with the requirement to return all 4 pieces of equipment and to recover the amount of debt and losses (more than 820 thousand dollars USA).
Return of equipment was due to delivery contracts: in the case of delayed payment by the buyer, the seller has the right to terminate the contract and to refund the equipment. In this case the payments paid by the buyer, are non-refundable.
The Court of First Instance partially satisfied the claims: the amount of debt was recovered only on the last, 4th unit (more than 460 thousand US dollars.), as well as stamp duty and penalty. However, the appellate court decided, in addition, to return to the seller 4th unit itself.
The situation was unprecedented, according to which by the court decision, the Kazakhstani company was sued not only for purchased goods, but also for the entire cost.
The Supreme Court refused to consider the case in the cassation authority and LLP "GMK "KazPolitmetall" to apply for a protest against judicial acts of the General Prosecutor's Office and the Business Ombudsman with a request to protect the property rights of the company.
The Office of Business Ombudsman presented its stance to the Prosecutor General's on this issue, and on 3rd of August 2016. The Prosecutor’s General sent the protest to the Supreme Court on the abolition of judicial decisions for the recovery of 460 thousand USD. On 31st of August the Supreme Court satisfied the protest of Prosecutor’s Office, the sum of 460 thousand USD remained in Kazakh business entity.
"In this case the prosecutor's position is interesting, - commented the expert of the Office of Business Ombudsman Chingiz Temirov. - In its protest, the General Prosecutor's Office refers to Article 441, 442 of the Civil Code. In cases where the buyer has received the goods, not acting on its payment on the original terms, the seller is entitled to demand payment of the goods or the return of unpaid goods (these methods of protection of civil rights are alternative). When the buyer does not produce in the original terms of the next payment for the sold goods on credit, the seller, unless otherwise provided by the contract, the right to refuse to perform the contract and demand the return of goods sold. "
Also in the protest Prosecutor General's Office stated the following: "Neither the Civil Code nor the transactions concluded by the parties involve the simultaneous use of the above methods of protection, because it does not meet the criteria of fairness, reasonableness and equivalence of property relations. Another understanding would contradict not only the civil law and its fundamental principles, but common sense and the principles of formal logic".
In this case was implemented the scheme of objection to the decision of the Supreme Court on refusal to institute any appeal through the Prosecutor General’s Office.
Please, join our Telegram channel to stay up to date on the latest news.
Leave comment:
Comments: