OS DK - 5Cb/68/2007sk en

District Court in Dolny Kubin

6 December 2007 [5Cb/68/2007]

JUDGMENT

IN THE NAME OF THE SLOVAK REPUBLIC
[slovenske znenie]

The District Court in Dolny Kubin, deciding by a single judge, JUDr. Peter Bebej, in the case of Plaintiff G. G. [Seller], with its registered office in B., ___ W., Republic of Austria, represented by JUDr. V. M. – attorney, versus Defendant Ing. A.F. [Buyer] conducting business under the name Ing. A. F. H., with its place of business in M.N.O. [Slovak Republic], regarding payment of 5,492.85 Euro [EUR] and appurtenances

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

The [Buyer] is obliged to pay to the [Seller] the sum of 5,492.85 EUR and interest of 13 % annually on this sum for the period from 16 May 2006 until payment and a sum of 24,138.- Sk as a reimbursement of costs of the proceedings within three days after the judgment comes into force.

The court stays  the proceedings in the residual part of the action.

REASONING

The original [Seller] M. Ö. G. claimed in the proceedings by its action filed with the court on 2 February 2007 its right to payment of 5,492.85 EUR and interest of:

-         13 % annually on this sum for the period from 16 May 2006 until 30 June 2006;

-         14 % annually on this sum for the period from 1 July 2006 until 31 December 2006; 

-         14.75 % annually on this sum for the period from 1 January 2007 until 30 June 2007;

-         14.25 % annually on this sum for the period from 1 July 2007 until payment; and

the reimbursement of costs of the proceedings. The [Seller] justified its claim by stating that it delivered goods to the [Buyer] on 15 May 2006 pursuant to the [Buyer]’s purchase order. The [Seller] billed the price at the time of delivery by invoice no. AR607560 of 15 May 2006 for the sum of 5,866.85 EUR due on the date of issuance. The [Seller] subsequently issued advice of credit no. GS600623 for the sum of 374.- EUR and therefore the debt amounted to 5.492,85 EUR. The [Buyer] did not pay the invoiced sum, despite the call for payment made by the [Seller]’s legal counsel on 31 October 2006 and by the [Seller] on 20 November 2006 and 19 December 2006 where the [Seller] proposed to the [Buyer] that it can pay the debt in installments in a schedule created by the [Buyer]. The [Buyer] subsequently issued the proposed schedule of installments on 27 December 2006, but it did not pay any of the installments. The [Seller] stated that no interest rate was agreed by the parties to the contract and therefore it claimed interest at the statutory rate with reference to sec. 369 part 1 of the Slovak Commercial Code.

The original [Seller] terminated its existence on 12 July 2007 whereupon under a Merger Contract it merged with the present [Seller], as it was noticed to the court by motion of 21 November 2007 delivered to the court on 23 November 2007 with relevant documents.

Before opening of the hearing, on 6 December 2007 the [Seller] partially withdrew its action with respect to the part of the interest exceeding the rate of 13 % annually. The [Seller] therefore asked the court to impose upon the [Buyer] the obligation to pay the sum of 5,492.85 EUR with interest of 13 % annually on this sum for the period from 16 May 2006 until payment and the reimbursement of costs of the proceedings.

At the proceedings held on 6 December 2007, the [Buyer] recognized the debt corresponding to the claim of the [Seller] in its entirety with respect to its amount and grounds, as corrected by the partial withdrawal of the [Seller]. The [Buyer] stated that it was not able to settle the debt because of its bad financial situation and explained that the purchase price was claimed for the goods – plastic pipes.

Under 153a part 1 of the Slovak Civil Procedure Code (hereinafter referred to “CPC”), if a defendant recognizes the debt claimed by a plaintiff at the hearing, or recognizes its grounds or if a plaintiff abdicates its claim, the court will settle the case by a judgment on recognition or abdication.

With reference to the abovementioned, the court took into consideration the recognition of debt corresponding to the asserted claim in its entirety (the principal and appurtenances corresponding to interest of 13 % annually on the sum of 5,492.85 EUR for the period from 16 May 2006 until payment) and upheld the action in its entirety, with respect to sec. 153a part 1 CPC. The court qualified the claim to payment of the sum of 5,492.85.- EUR under art. 53 of the UN Convention on Contracts for the International Sale of Goods. With respect to the interest, the court granted it in the amount claimed, as it corresponded to the period of default of the [Buyer] with payment of the purchase price. With respect to the part of the interest withdrawn by the [Seller], the court stayed the proceedings with reference to sec. 96 part 1, 3 CPC.

Since the contractual relationship was established between residents of EU member states, the jurisdiction of Slovak courts was established under article 2 part 1 of the EC Council Regulation no. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters.

The court ruled on the reimbursement of the costs of judicial proceedings under sec. 142 part 1 and granted a full reimbursement of the costs to the [Seller] in the amount of 24,138.- Sk, corresponding to the paid court fee for the action and the costs of attorneys’ fees, since [Seller] was successful with its action in its entirety.

Instruction: An appeal against this judgment is not permissible in its part which is based on recognition of debt or abdication of claim and it is only permissible if the conditions for issuance of such judgment were not met or the judgment was based on wrong legal consideration and must be filed via the District Court in Dolny Kubin within fifteen days of its receipt (sec. 202 part 1 CPC).

District Court in Dolny Kubin, 6 December 2007.

JUDr. Peter Bebej, Judge