OS DK - 9Cb/183/2007sk en

District Court in Dolny Kubin

17 June 2008 [9 Cb/183/2007]

JUDGMENT

IN THE NAME OF THE SLOVAK REPUBLIC
[slovenske znenie]

The District Court in Dolny Kubin, deciding by a single judge, JUDr. Rastislav Stieranka, in the case of Plaintiff S. K. [Seller], with its residence in M., K., Republic of Poland, versus Defendant O., spol. S.r.o. [Buyer], with its registered office in N., D. K. [Slovak Republic], represented by attorney JUDr. A.S., regarding payment of 479,987.- Slovak koruna [Sk] 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 479,987 Sk and interest of 0.03 % per day:

-         On the sum of 611.52 Sk for the period from 3 July 2006 until payment;

-         On the sum of 88,610.46 Sk for the period from 4 July 2006 until payment;

-         On the sum of 234.55 Sk for the period from 29 June 2006 until payment;

-         On the sum of 234.55 Sk for the period from 29 June 2006 until payment;

-         On the sum of 2,219.03 Sk for the period from 5 July 2006 until payment;

-         On the sum of 56,008.87 Sk for the period from 1 August 2006 until payment;

-         On the sum of 42,272.60 Sk for the period from 4 August 2006 until payment;

-         On the sum of 49.39 Sk for the period from 4 August 2006 until payment;

-         On the sum of 39,027.53 Sk for the period from 30 July 2006 until payment;

-         On the sum of 34,876.25 Sk for the period from 3 August 2006 until payment;

-         On the sum of 43,077.05 Sk for the period from 8 August 2006 until payment;

-         On the sum of 44,343.04 Sk for the period from 11 August 2006 until payment;

-         On the sum of 61,359.97 Sk for the period from 14 August 2006 until payment;

-         On the sum of 48,893.74 Sk for the period from 18 August 2006 until payment;

-         On the sum of 18,168.73 Sk for the period from 18 August 2006 until payment; and

-         The sum of 28,794.- Sk as a reimbursement of costs of the proceedings within three days after the judgment comes into force.

The Court dismisses the case in the remaining part of the claimed interest.

REASONING

The [Seller] claimed in the proceedings by its action filed with the court on 17 September 2007 its right to payment of 479,987.- Sk with appurtenances.

The [Seller] justified its claim by stating that it delivered goods to the [Buyer] upon [Buyer]’s purchase orders. The [Seller] confirmed handing over the goods by issuing separate documents. The purchase price for the goods delivered was invoiced by the [Seller] with reference to particular bills of lading. The [Buyer] partially paid some of the invoices and other invoices were not paid at all. The [Seller] proved its statements by submitting the invoices and the confirmations of delivery. The [Buyer] argued that it has a claim against the [Seller] amounting to 317,185.- Sk which is eligible for set-off and presents evidence of an unpaid purchase price for goods delivered by the [Buyer] to the [Seller]. The [Buyer] also argued that there are certain discrepancies in [Seller]’s enumeration of the deliveries performed. The [Buyer] stated that it can prove its statements by providing its accounting books and proposed interrogation of a witness, a former executive of the [Buyer].

After the initial hearing held on 25 March 2008 (rec. no. 70), the court held another hearing (rec. no. 71) in absence of the [Buyer] and its legal counsel, as they failed to appear before the court, though being duly summoned (sec. 48 part 2 of the Slovak Civil Procedure Code – hereinafter referred to as “CPC”). Although the legal counsel of the [Buyer] offered justifications its absence, he did not ask for adjournment of the hearing. Despite the [Buyer]’s proposal for evidence made at the hearing on 25 March 2008, the [Buyer] did not present any documents, although the court asked the [Buyer] to do so at the same hearing (rec. no. 73). The [Buyer] failed to fulfil this obligation despite the penalty imposed by the court (rec. no. 87). The hearings ordered on 29 April 2008 and 27 May 2008 were adjourned because of excuses made by the [Buyer], which tended to be obstructive (rec. no. 93, 104). The conflict with other hearings in case of the [Buyer]’s legal counsel was not a justified reason for adjournment, since the [Buyer] agreed that its attorney can arrange for a attendance of a substitute attorney (rec. no. 64). The [Buyer] therefore had no obstacles to appear at the hearings held on 29 April 2008 and 17 June 2008 and to submit its accounts in order to evidence its arguments against the claim of the [Seller]. The [Buyer] provided no evidence about the discrepancies in the claimed course of delivery of the goods and did not duly claim setting off of its claim against the [Seller] (sec. 98 CPC).

With reference to the evidence gathered, the court found the claim of the [Seller] to be justified. The parties concluded a contract of sale upon oral purchase orders presented by the [Buyer] to the [Seller]. Such a relationship shall be governed by the provisions of the UN Convention on Contracts for the International Sale of Goods from 11 April 1980 (hereinafter referred to as the “Vienna Convention”) which was published in the Collection of Acts as no. 160/1991 Coll. Under sec. 10 part 1, 2 a) of act no. 97/1963 Coll. shall the relationship (with regards to its character and location of the parties to the dispute) be governed by the Polish law. Under art. 91 part 2 of the Constitution of the Republic of Poland, international treaties ratified by the Poland shall be applied prior to the domestic law. Poland ratified the Vienna Convention on 13 March 1995 which was published in its collection of acts (Dziennik Ustaw) as no. 286/1996. Under art. 58(1) of the Vienna Convention, the buyer must pay the price when the seller places either the goods or documents controlling their disposition at the buyer's disposal. Therefore the [Buye was in default with payment of the price at the first day after delivery of the goods. Under art. 78 of the Vienna Convention, if a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest on it.

The interest rate is not prescribed in the Vienna Convention. The court therefore applied relevant provisions of the Polish law. Under art. 481 of the Polish Civil Code, the maximum interest rate is prescribed by a special regulation. Under regulation of the Council of Ministers no. 1662/2005, the interest rate in force from 15 October 2005 is 11.5 % annually and is in force until present days.

The [Seller] proved the delivery of the goods to the [Buyer], while the [Buyer] neither proved, nor even specified its argument about the existence of its claim eligible for set-off (legal grounds, amount, due date) and the argument about discrepancies in delivery. The [Seller] evidenced by the invoices and the certificates of delivery that it delivered the goods to the [Buyer] in the amount specified in the action. Furthermore, several invoices were partially paid by the [Buyer]. With reference to the abovementioned facts, the court upheld the [Seller]’s action in its entirety. The court dismissed the action with regards to part of the claimed interest, since the [Seller] claimed the right to interest from the due date of each invoice (including this day), while the right to interest commences from the first day after the due date (art. 58(1) of the Vienna Convention).

 
The court ruled on the reimbursement of the costs of judicial proceedings under sec. 142 part 3 and granted a full reimbursement of the costs to the [Seller] in the amount of 28,794.- Sk, since it was not successful with its action only in a marginal part of it. The [Seller] was granted the right for reimbursement of court fee for the action, since it did not claim reimbursement for any other costs.

Instruction: An appeal against this judgment must be filed via the District Court in Dolny Kubin within fifteen days of its receipt (sec. 204 part 1 CPC).

District Court in Dolny Kubin, 17 June 2008.

JUDr. Peter Bebej, Judge