OS DS - 5Cb/239/2007sk en

District Court Dunajska Streda

8 July 2008 [5 Cb/239/2007]

RESOLUTION
[slovenske znenie]

The District Court of Dunajska Streda, deciding by a single judge, JUDr. Maria Sziegel, in the case of Plaintiff B. [Seller’s assignee], with its registered office in V.Z., represented by JUDr. P.R., attorney, versus Defendant Z., S.r.o. [Buyer], with its registered office in D. S., ___, [Slovak Republic], regarding payment of 55,600.46 Euro [EUR] with appurtenances

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

The court approves the judicial settlement concluded by the parties to the proceedings on 8 July 2008 in the following text:

The [Buyer] undertakes to pay to the [Seller’s assignee] the sum of 36,000.- EUR covering the claim, the costs of asserting the claim, and interest calculated to the day of issuance of this judgement and shall pay the sum in installments of 5,000.- EUR payable on the last day of each month, commencing 30 September 2008. The entire debt shall be due if the [Buyer] does not pay any one installment on time.

The court will decide on the reimbursement of costs of the proceedings by a separate resolution

REASONING

The [Seller’s assignee] initially claimed in the proceedings its right to payment of 71,879.29 Kc as the purchase price for goods (office supplies) delivered to the [Buyer] by the original seller, company D., which assigned its claim to the [Seller’s assignee] by a contract of assignment of 27 November 1996 as amended on 20 May 2003, as it was invoiced by the original seller. The court issued an order to pay on 22 March 2007. It was challenged by a protest of the [Buyer] with respect to the amount of the purchase price. The [Buyer] argued that it had partially paid the purchase price and this partial payment was not taken into account when issuing the order to pay. In response to the [Buyer]’s protest, the court cancelled the order to pay and ordered a hearing (sec. 174 part 2 of the Slovak Civil Procedure Code – hereinafter referred to as “CPC”).

During the proceedings, the [Seller’s assignee] withdrew its action with respect to the sum of 26,278.80 EUR which corresponds to the sum paid by the [Buyer]. The [Seller’s assignee] insisted on the residual part of its claim.

The parties to the dispute presented to the court at the hearing of 8 July 2008 a common motion for settlement under which the [Buyer] undertakes to pay to the [Seller’s assignee] the principal of 36,000.- EUR which included the entire claim of the [Seller’s assignee], as invoiced by the original seller D., which was assigned to the [Seller’s assignee], and also included costs of asserting the claim, costs of the judicial proceedings and interest. The sum shall be paid in installments of 5,000.- EUR payable on the last day of each month, commencing 30 September 2008 and the last installment shall be in the amount of 1,000.- EUR. The entire debt shall be due if the [Buyer] does not pay any one installment on time. The [Buyer] affirmed the settlement motion.

Pursuant to sec. 99 part 1 to 4 CPC, where appropriate, the parties may conclude the proceedings by judicial settlement. The court should always attempt conciliation. The court can recommend to the parties to reach conciliation through mediation.

It is the prerogative of the court to approve the settlement or not; it shall not approve a settlement if it infringes on the law. In such case, the court shall resume the proceedings as soon as the resolution to this effect becomes effective.

The approved settlement has the same effects as a final judgment. However, the court may issue a judgment to quash the resolution approving the settlement if the settlement is not valid under substantive law. A petition to this effect may be filed within three years from the effective date of the resolution approving the settlement.

With reference to the evidence gathered -- the action and documents attached thereto, the protest and interrogation performed at the hearing on 8 July 2008 -- the court found that the [Buyer] concluded with the original seller, company D., a contract of sale under which the [Buyer] bought various textile products and the original seller invoiced the purchase price amounting to 71,879.29 EUR which was not opposed by the [Buyer]. The contract has to be qualified under the Convention on Contracts for the International Sale of Goods concluded in Vienna on 11 April 1980 and published in the Collection of Acts as no. 160/1991 Coll. It was found that the parties to the contract established between themselves a practice, under which the [Buyer] placed a purchase order for delivery of goods from the original seller and the original seller subsequently delivered the goods and invoiced the [Buyer] for the goods. The purchase order contained the seal of the [Buyer] and signature of its executive and was sent by telefax. The [Buyer] also recognized its debt corresponding to the asserted claim by a document dated 30 November 2004.

Since the dispute can be resolved by a judicial settlement, as it concerns a claim for the unpaid purchase price for the goods delivered which was assigned to the [Seller’s assignee], in accordance with sec. 524 part 1 and 2 of the Slovak Civil Code, the court approved the proposed settlement.

Referring to sec. 151 part 2 CPC, the court held that the decision on reimbursement of costs of the proceedings will be made by a separate resolution.

Instruction: An appeal against this judgment is not permissible.

District Court Dunajska Streda, 8 July 2008.

JUDr. Maria Sziegel, Judge