OS BA II - 54Cb/111/2007sk en

District Court Bratislava II

7 November 2007 [54Cb/111/2007]

JUDGMENT

IN THE NAME OF THE SLOVAK REPUBLIC

[slovenske znenie] 

The District Court Bratislava II, deciding by a single judge JUDr. Eva Hudobova, in case of Plaintiff O.H.K. [Seller], with its registered office in ___, B., M.R, Ireland, Identification number: X, represented by attorney JUDr. M.H., versus Defendant R.P., Spol. S r.o. [Buyer], with its registered office in ___, B., Slovak Republic, Identification number: X, regarding payment of 50,880.70 EUR and appurtenance

h a s   d e c i d e d   a s   f o l l o w s:

The [Buyer] is o b l i g e d to pay to the [Seller] the sum of 50,880.70 EUR and interest of 14 % annually:

On the sum of 1,333.20 EUR for the period from 14 March 2006 until payment;

On the sum of 7,272.- EUR for the period from 13 April 2006 until payment;

On the sum of 1,548.- EUR for the period from 1 July 2006 until payment;

On the sum of 3,023.- EUR for the period from 1 July 2006 until payment;

On the sum of 1,548.- EUR for the period from 1 July 2006 until payment;

On the sum of    453.- EUR for the period from 1 July 2006 until payment;

On the sum of 1,547.50 EUR for the period from 13 July 2006 until payment;

Everything within three days after the judgment comes into force.

The [Buyer] is obliged to pay to the [Seller] a sum in amount of 167,676.50 Slovak koruna [Sk] as a reimbursement of costs of the proceedings within three days after the judgement comes into force.

REASONING

The [Seller] claimed by its action from 1 December 2006 delivered to the court on                  4 December 2006 its right to payment of 50,880.70 EUR with appurtenance based on unpaid invoices for the goods delivered.

On 1 February 2007 the court issued Order to pay no. 33 Rob/2235/2006-102 whereby it ordered the [Buyer] to pay to the [Seller] a sum of 50,880.70 EUR with appurtenance and to pay to [Seller] a reimbursement of costs of the proceedings.

The [Buyer] filed a protest with the court in a prescribed period of time and argued that [Buyer] had no knowledge of any due debts towards the [Seller] in the amount claimed in these proceedings.

The [Seller] did not justify its absence at the hearing held on 7 November 2007, although the [Seller] had been duly summoned and instructed in accordance with sec. 120 part 4 of the Code of Civil Procedure (hereinafter referred to as “CPC”). The court therefore tried and decided the case in the absence of the [Seller] according to sec. 101 part 2 CPC.

The Court examined the evidence by interrogation of the attorney of the [Seller], reading of documents provided by the [Seller]:

-         Purchase order no. 10238 of 31 January 2006, invoice no. EX 50/2006 due on 13 March 2006 for 1,333.20 EUR, certificate of delivery of 9 February 2006;

-         Purchase order no. 10305 of 31 January 2006, invoice no. EX/63/2006 due on 12 April 2006 drawn for 34,156.- EUR, certificate of delivery no. 2006/549 of 6 March 2006;

-         Purchase order no. 10718 of 21 March 2006, invoice no. EX/64/2006 due on 12 April 2006 drawn for 7,272.- EUR, certificate of delivery of 27 March 2006;

-         Invoice no. EX/77/06 due on 30 June 2006 drawn for 1,548.- EUR, certificate of delivery no. 2006/1325 of 18 May 2006;

-         Purchase order no. 11590 of 2 June 2006, invoice no. EX/80/2006 due on 30 June 2006 for 3,023.- EUR, certificate of delivery of 6 March 2006;

-         Purchase order no. 15475 of 9 May 2006, invoice no. EX/79/2006 due on 30 June 2006 drawn for 1,548.- EUR, certificate of delivery of 26 May 2006;

-         Invoice no. EX/79/2006 due on 30 June 2006 drawn for 453- EUR, certificate of delivery of 20 April 2006;

-         Purchase order no. 11707 of 15 June 2006, invoice no. EX/85/2006 due on 7 December 2006 drawn for 1,547,- EUR, certificate of delivery of 21 June 2006,

and thereby determined the factual situation described hereinafter.

The [Seller] delivered the goods to the [Buyer] upon [Buyer]’s several purchase orders. The goods delivered were invoiced by eight invoices amounting to 50,880.70 EUR. The [Buyer] affirmed the delivery of the goods by seals marked on the certificates of delivery and he also did not object the delivery. Nevertheless, these invoices had not been paid in the prescribed period or ever after.

According to sec 409 part 1 of the Slovak Commercial Code (hereinafter referred to as “CC”), under the contract of sale, the seller undertakes to deliver to the buyer movable property (goods) determined individually, or at least according to kind and to assign to the buyer the title to the said goods while the buyer undertakes to pay the purchase price.

Under sec. 447 CC, the buyer undertakes to pay the purchase price and to take over the delivered goods in accordance with the contract. The buyer is obliged to pay the purchase price in accordance with sec. 450 part 1 CC, unless the contract stipulates otherwise, when the seller, in accordance with the contract and this Act, enables the buyer either to dispose of the goods, or to dispose of the documents authorizing the same.

Under sec. 369 part 1 CC, if a debtor is in default in fulfilment of a monetary obligation or its part, and no rate for paying interest on the sum has been agreed upon, the debtor is obliged to pay interest on the sum 10 % higher than is the current official interest rate of the National Bank of Slovakia on the day before the first day of the half-year in which the default started. The interest rate established in this manner is applicable for the entire period of this half-year.

According to article 62 of the UN Convention on Contracts for the International Sale of Goods published in Collection of Acts as no. 160/1991, the seller may require the buyer to pay the price, take delivery or perform his other obligations, unless the seller has resorted to a remedy which is inconsistent with this requirement.

From the evidence gathered in the proceedings the court found to be proved that the parties to the dispute concluded contracts of sale under which the [Seller] duly and on time delivered the goods to the [Buyer] upon [Buyer]’s several purchase orders. The [Seller] affirmed the delivery of the goods by seals marked on the certificates of delivery. The [Buyer] was obliged to pay to the [Seller] the purchase price for the goods delivered. Since the [Buyer] did not fulfil its obligation to pay the purchase price emerging from the contract duly and on time, the [Buyer] got into default with payment of its monetary obligation.

By non-fulfilment of its obligation to pay the purchase price in the period of maturity prescribed in the invoices, the [Buyer] got into default in fulfilment of its monetary obligation, and the court therefore ordered [Buyer] to pay to the [Seller] the principal and interest of 14 % annually commencing from the first day after the date of maturity of each invoice until its payment in accordance with sec. 369 part 1 CC.

With reference to the abovementioned facts and legal provisions concerned, the court qualified the [Seller]’s claim as being factually and legally justified and the court upheld the action in its entirety.

The court granted to the [Seller], as the successful party to the dispute, in accordance with sec. 142 part 1 CPC reimbursement of the costs of the proceedings consisting of the court fee for the action in amount of 108,444.- Sk and the costs of representation by the plaintiff including 3 acts of legal aid (preparation, written action and presence at the hearing held on 7 November 2007) in accordance with sec. 10 part 1, sec. 14 part. 1 d), sec. 16 part 3 of ordinance no. 655/2004 Coll.). Since the [Seller] asserted its right for VAT and proved to the court its duty to pay the VAT, the tariff rates under sec. 9 to 14 were raised correspondingly and the VAT was granted in amount of 9,376.50 Sk. The [Seller] was entitled to the reimbursement of the costs of legal proceedings in total amount of 167,679.50 Sk.

I n s t r u c t i o n: An appeal against this judgment must be filed with the District Court Bratislava II within 15 day from its receipt in two versions.

District Court Bratislava II, 7 November 2007.

JUDr. Eva Hudobova, Judge