Arbitration. Dispute over work on setting up business processes for labeling goods in 1C:Ka2 and data exchange with automated process control systems and GIS MT "Honest sign" in accordance with customer requests.

OUR CLIENT's requirements for debt collection for the implementation of work on setting up business processes for labeling goods in 1C:In accordance with the customer's requests in the amount of 1,225,440 rubles, the debts were satisfied - in the amount of 814,6139.68 voluntarily after filing a lawsuit with the court, 410,800.32 by court decision, a counterclaim to recover from OUR PRINCIPAL the amount of 1,347,512.30 rubles was denied. in full.

As follows from the case file and established by the court of first instance, OUR CLIENT and EcoMolProduct CJSC concluded an agreement for the supply of equipment and work No. 001/280421 (hereinafter referred to as the Agreement), according to which the supplier undertakes to supply the equipment to the buyer and perform design, installation and commissioning work in accordance with the specifications, and also perform work on setting up business processes for labeling goods in 1C:Ka2 and data exchange with automated process control systems and GIS MT "Honest sign" in accordance with the applications.

According to clause 1.2 of the Contract, the buyer is obliged to accept and pay for the equipment and work in accordance with the procedure provided for in the Contract, specifications and applications.

By virtue of clauses 3.1. and 3.2. of the Contract, the terms of delivery of equipment, design, installation and commissioning are defined in the specifications, and work on setting up business processes for labeling goods is specified in the applications.

In accordance with specification No. 1, the cost of the software and equipment is 13,475,123 rubles, payment terms: 50% - advance payment within 5 working days from the date of signing the Specification, 40% - within 5 working days after delivery of the equipment and signing of the Consignment note, 10% - within 5 working days after acceptance the results of the work and the signing of the act.

According to application No. 1, the cost of the work is 1,225,440 rubles. The customer guarantees payment in accordance with the agreed payment schedule.

In support of the initial claim, OUR CLIENT indicated that, in accordance with the terms of the Contract, the specifications and the application, he fulfilled his obligations in full and transferred the equipment and the result of the work to the defendant.

The failure of EcoMolProduct CJSC to fulfill in full and on time its counter obligations to pay for the equipment supplied and the work performed, as well as the abandonment of a claim for repayment of the debt without satisfaction, served as the basis for OUR PRINCIPAL's appeal to the arbitration court with an initial claim for the recovery of 1,225,440 rubles of debt.

By payment orders, the defendant paid the amount owed in the amount of 1,225,440 rubles, in connection with which the plaintiff clarified the claims in accordance with Article 49 of the APC of the Russian Federation and asked to recover 410,800.32 rubles from the defendant.

Objecting to the satisfaction of the initial claim and in support of counterclaims to recover from OUR PRINCIPAL 1,347,512.30 rubles. penalties for late delivery and installation of equipment, EcoMolProduct CJSC stated the following.

In accordance with clause 4.7. of the Contract, the date of delivery is considered to be the date of acceptance of the equipment by the buyer at the buyer's warehouse at the address: 238423, Kaliningrad region, Bagrationovsky city district. When handing over the equipment, the supplier provides the buyer with a set of documentation in accordance with the specification, the originals of the consignment note, and an invoice.

Clause 4.16 of the Contract stipulates that, based on the results of the work, the supplier sends the customer an act of completed work and an invoice.

The plaintiff submitted two invoices signed by the parties, No. 1 in the amount of 2,850,650 rubles and No. 2 in the amount of 158,000 rubles, the correlation of which with specification No. 1, according to the defendant, indicates that the parties confirmed the transfer of equipment and the performance of work specified in paragraphs 1, 2, 23, 24, 25, 26, 27, 28 of specification No. 1, while for other equipment, in violation of the terms of the Contract, neither the bill of lading signed by the parties nor the act of work performed have been submitted.

The submitted invoices, invoices, and universal transfer documents signed between Bekas LLC and OUR PRINCIPAL cannot be acceptable evidence of the proper fulfillment of obligations by OUR PRINCIPAL under the Contract with EcoMolProduct CJSC.

In this regard, EcoMolProduct CJSC believes that it is impossible to determine the deadline for the final payment of the equipment supplied and the work performed by the plaintiff due to the lack of documents that determine the payment terms, and therefore the calculation of the penalty imposed by the plaintiff cannot be considered correct and justified.

In addition, EcoMolProduct CJSC indicated that one of the parts of the equipment, namely: item 18 of the "Labeljet 210 Label Applicator" specification worth 1,365,630 rubles, turned out to be defective, which led to the inability to use all the equipment as a whole, despite repeated instructions from EcoMolProduct CJSC about the need for to provide documents and replace defective equipment, OUR CLIENT avoided replacing the above-mentioned defective equipment, and did not submit properly executed documents in accordance with clause 4.8. of the Agreement.

The specified defective equipment was replaced by the forces and at the expense of Bekas LLC, and the entire set of equipment was put into operation only after the defective part was replaced.

In this regard, EcoMolProduct CJSC, on the basis of clause 6.2 of the Agreement, accrued and levied a penalty in the amount of 1,347,512 rubles. 30 kopecks from EcoMolProduct CJSC as part of a counterclaim.

OUR CLIENT asked the court to dismiss the counterclaim, citing the lack of delay on his part. According to the plaintiff, at the conclusion of the Contract, the parties agreed on delivery dates for only one item for the DOOR BLUE cheese and Bucket packing line, the delivery dates for which were not violated by the supplier. For the rest of the items, the parties did not set delivery dates, so there are no grounds for collecting a penalty imposed by the defendant.

Bekas LLC supported the plaintiff's position, explaining that the equipment was supplied by Bekas LLC directly to EcoMolProduct CJSC on the basis of an agreement concluded with OUR PRINCIPAL, while the equipment was accepted by the defendant without any comments.

The court of first instance, having examined and evaluated, in accordance with Article 71 of the Code of Administrative Procedure of the Russian Federation, the evidence presented in the case file, guided by the articles 309, 329, 330, 431 509, 509, 516, 702, 753 Of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), recognized the claims of the original claim as justified and subject to satisfaction, He refused to satisfy the counterclaim.

Having studied the case materials, having heard the explanations of the representative of EcoMolProduct CJSC, having checked the arguments of the appeal, the court of appeal finds no grounds for its satisfaction and cancellation of the contested judicial act, in connection with the following.

According to Article 329 of the Civil Code of the Russian Federation, the fulfillment of obligations may be secured by a penalty, pledge, retention of the debtor's property, surety, bank guarantee, deposit, and other means provided for by law or contract.

A penalty (fine, fine) is an amount of money determined by law or contract, which the debtor is obliged to pay to the creditor in case of non-fulfillment or improper fulfillment of the obligation, in particular in case of late fulfillment. Upon request for payment of a penalty, the creditor is not obliged to prove the damage caused to him (Article 330 of the Civil Code of the Russian Federation).

Clause 6.3 of the Contract stipulates that in the event of a violation by the buyer of the due date for the equipment or incomplete work specified in the relevant specification and/or application for the contract, the supplier has the right to collect a penalty in the amount of 0.1% of the amount owed for each calendar day of delay, but not more than 10% of the amount owed.

As the court of first instance correctly pointed out, by the specification of equipment and works No. 1, the parties defined the types of equipment: the KUSTNER Line, the TREPKO Line, the CORAZZA sector Lines, the DOOR BLUE Cheese Packing Lines and Buckets, while the deadline for completing design work and supplying equipment for the DOOR BLUE cheese packing line and Buckets is 06/07/2021, subject to receipt of an advance payment 50%, and the deadline for the completion of work and the supply of equipment for the KUSTNER line, the TREPKO line and the CORAZZA line sectors were not set or agreed upon by the parties.

The fact that OUR PRINCIPAL fulfilled his obligations to CJSC EcololProduct for the supply of equipment and the performance of work under the Contract is confirmed by the following documents: invoice No. 1 in the amount of 2,850,650 rubles (equipment supply; signed by the parties); invoice No. 2 in the amount of 158,000 rubles (equipment supply; signed by the parties); invoice No. 7 in the amount of 9,109,042 rubles (delivery of equipment; sent by the postal organization SDEK - 24199220 and received by CJSC EcoMolProduct); invoice No. 13 in the amount of 1,357,431 rubles (performance of work; sent by the postal organization SDEK - 24692355 and received by CJSC EcoMolProduct); act No. 3 in the amount of 637,560 rubles (sent by the postal organization SDEK - 24199220 and received by CJSC EcoMolProduct); invoice No. 8 in the amount of 587,880 rubles (performance of work; sent by the postal organization SDEK - 22897064 and received by CJSC EcoMolProduct).

The defendant's arguments that the CDEK courier delivery invoices presented in the case file do not list the plaintiff as the sender, but another legal entity (ESEMJI LLC) are rejected by the court of Appeal as untenable, since they do not refute the fact that the defendant received these documents.

The defendant's arguments that the equipment was supplied by an outside organization, and not by the plaintiff, were legitimately rejected by the court of first instance, since they are not essential to resolving the dispute.

The case materials, including the explanations of a third party set out in the review, confirmed that in order to speed up the installation process, the equipment was delivered to EcoMolProduct CJSC directly by Vekas LLC under contract No. 864 concluded with OUR PRINCIPAL, through the involvement of a freight forwarder, Business Lines LLC, which is confirmed by forwarding documents. receipts No. 21- 01191282659, 21-00221143261, 21-00021436654 and explanations of LLC "Business Lines" submitted at the request of the court of first instance.

The equipment and the work on its installation and commissioning were accepted by EcoMolProduct CJSC without any objections in terms of timing and quality, while the representative of Vekas LLC also trained the personnel of EcoMolProduct CJSC.

Thus, satisfying the claims of OUR PRINCIPAL in the initial claim, the court of first instance reasonably proceeded from the plaintiff's evidence of the fact of fulfillment of obligations under the Contract and the late fulfillment by the defendant of obligations to pay for the equipment supplied and the work performed.

The calculation of the penalty for the original claim (vol. 2, l.d. 44-45) was verified by the Court of Appeal, found to be arithmetically correct, consistent with the terms of the Contract and the circumstances of the case.

At the same time, having established the fact of proper fulfillment of obligations by the plaintiff to the defendant, the court of first instance also came to the legitimate conclusion that there were no grounds for recognizing the counterclaims of EcoMolProduct CJSC as legitimate and justified.

Thus, the DORBLOU cheese and Bucket packing line, the delivery date of which was agreed upon by the parties in the specification, was delivered to the defendant, which is confirmed by invoice No. 1 signed by the parties in the amount of 2,850,650 rubles. Other equipment, the specific delivery dates of which were not determined by the parties, was also fully delivered to the defendant.

The defendant's arguments about the impossibility of using the equipment after its installation due to a defect in the Labeljet 210 label applicator were lawfully rejected by the court of first instance, since the defendant did not provide evidence of the impossibility of using the equipment as a whole in the case file.

Explanations from a third party of Vekas LLC that the specified piece of equipment had only a visual defect, but was in working order and performed its function in full without suspending the operation process, while the applicator was replaced under warranty solely for the reason that the manufacturer of the equipment officially ceased its activities after the territories of the Russian Federation, which could lead to a shortage of goods in the future, have not been refuted by the defendant, and no evidence to the contrary has been provided in the case file.

At the same time, contrary to the arguments of the complainant, the indication in act No. 1 of the warranty replacement work that the supplier of Vekas LLC recognizes the fact that the applicator is defective, as well as the fact that this defect was manifested during the commissioning process, does not indicate that the specified equipment element (Labeljet 210) did not perform Its function was fully performed without suspending the operation process, and the entire set of equipment was put into operation only after the defective part was replaced.

In these circumstances, the court of appeal sees no grounds for satisfying the appeal, the arguments of which do not refute the legality of the court's conclusions and cannot serve as a basis for the cancellation of the judicial act.

The court of first instance established all the factual circumstances and examined the evidence presented by the parties to the case, correctly applied the applicable rules of substantive law, the circumstances established by Article 270 of the Code of Administrative Procedure as grounds for cancellation or amendment of the judicial act, the court of appeal has not established.