KS ZA - 22Cbm/1/2002-finalsk en

Regional Court in Zilina

8 January 2007 [22 Cbm/1/2002] [Final text]

JUDGMENT

IN THE NAME OF THE SLOVAK REPUBLIC
[slovenske znenie]

The Regional Court in Zilina, deciding by a single judge, JUDr. Erika Canadyova, in the case of Plaintiff P.G.D. [Seller], with its registered office in S.-M., ___, Republic of Austria, represented by JUDr. R.S., attorney, versus Defendant F., spol. s r.o. [Buyer], with its registered office in D.S., ___ Slovak Republic, represented by JUDr. M.B., attorney, …, regarding payment of 12,468.36 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] a sum of 12,468.36 EUR and a reimbursement of costs of the proceedings in amount of 222,106.50 Slovak koruna [Sk] within three days after the judgment comes into force.

REASONING

The [Seller] claimed in the proceedings by its action of 13 June 2002, delivered to the District Court in Zilina, its right to payment of the principal amounting to 12,468.36 EUR and interest of 20 % annually on the sum of 6,249.52 EUR for the period from 31 August 2001 until payment, and on the sum of 6,218.84 EUR for the period from 1 September 2001 until payment and to reimbursement of costs of the proceedings. The [Seller] claimed the principal as a purchase price for delivered goods – PP powdered granulate modixen orientation, HDPE powder, natural fibres and PP natural powder dried and grit. The [Seller] asserted its right to payment of the purchase price by presenting invoices no. 40108033 of 30 August 2001 and no. 40108044 of 31 August 2001 in total amount of 12,468.36 EUR. The [Seller] alleged that the [Buyer] failed to pay these invoices despite several calls for payment.

The District Court in Zilina transferred the case to the Regional Court in Zilina which is competent to try the case.

After filing the action, the [Seller] partially withdrew it with respect to payment of interest of 20 % annually on the sum of 6,249.52 EUR for the period from 31 August 2001 until 29 September 2001, on the sum of 6,218.84 EUR for the period from 1 September 2001 until 29 September 2001, interest of 7 % annually on the sum of 6,249.52 EUR for the period from 30 September 2001 until payment, interest of 7 % annually on the sum of 6,218.84 EUR for the period from 1 October 2001 until payment. The Court stayed the proceedings with respect to this part of the action by its resolution of 6 May 2003, rec. no. 22 Cbm 1/02-93 which came into force on 11 November 2003.

After another partial withdrawal of the action, the Court stayed the proceedings by its resolution of 31 October 2000, rec. no. 22 Cbm 1/02-99 with respect to payment of interest of 10 % annually on the sum of 6,249.52 EUR for the period from 30 September 2001 until payment and on the sum of 6,218.84 EUR for the period from 1 October 2001 until payment. This resolution came into force on 4 December 2003.

The [Seller] partially withdrew its action with respect to payment of the principal amounting to 12,468.46 EUR and interest of 3 % annually on the sum of 6,249.52 EUR for the period from 30 September 2001 until payment and on the sum of 6,218.84 EUR for the period from 1 October 2001 until payment. The Court stayed the proceedings with respect to this part of the action at the hearing held on 9 January 2006. The [Seller] insisted on its action with respect to payment of the principal amounting to 12,468.36 EUR as the purchase price for delivered goods as it was asserted by invoices no. 40108033 of 30 August 2001 for the sum of 6,249.52 EUR and no. 40108044 of 31 August 2001 for the sum of 6,218.84 EUR.

The [Buyer] asked the Court to dismiss the action, alleging that the arguments of the [Seller], including submitted evidence. do not prove concluding of a contractual relationship and performance of contractual obligations. The [Buyer] argued that no goods, as prescribed in the invoices, were delivered to the [Buyer] and that the goods were never handed over to the [Buyer] as specified in the invoices.

The Court decided the case in its previous judgment of 29 March 2001, rec. no.: 22 Cbm/1/2002-127 and dismissed the action and bound the [Seller] to pay to the [Buyer] reimbursement of costs of the proceedings. Upon appeal of the [Seller], the Supreme Court of the Slovak Republic cancelled the previous judgment by its resolution of 20 October 2005, rec. no.:4 Obo/219/204-172 and returned the case to this Court for further proceedings to gather further evidence and examine the documents submitted to the Court by the [Seller] in the appellate proceedings.

The Court gathered evidence by reading the submitted documents, interrogating the witnesses K.M., T.S, M.K. and thereby determined the following factual circumstances.

With reference to the evidence gathered, the Court notes that the [Seller] claims its right to payment of the principal amounting to 12,468.36 EUR as the purchase price for delivered goods, as it was billed by invoice no. 40108033 of 30 August 2000 and invoice no. 40108044 of 31 August 2001. The [Seller] did not specify the factual circumstances about concluding of the contract and agreeing about basic elements of the contract, i.e., about creation of contractual relationship under which it delivered the goods to the [Buyer]. The [Seller] evidenced its statements by submitting copies of invoices no. 40108044 of 31 August 2001 and no. 40108033 of 30 August 2001 drawn for sums 6,218.84 EUR and 6,249.52 EUR. The Court deduced from the invoices that the [Seller] invoiced the price for “PP Pulver, natur trocken, grob” in amount of 12,730.- kg for a unit price 0.43 EUR per kg and “HOPE Staub, Fäden, nature” in amount of 1,790.- kg netto for a unit price 0.36 EUR per kg in the invoice no. 40108044 of 31 August 2001. The [Seller] billed by invoice no. 40108033 of 30 August 2001 a price for the delivered goods “PP powder granulate modixen orientation” in amount of 14,380.- kg netto for a unit price 0.43 EUR per kg. The invoices prescribe the due date as 30 days after receipt of the invoice.

The Court determined by interrogation of Witness M.K. performed at the hearing on 9 January 2006 that this witness was in the year 2001 a partner and executive of the [Buyer]. The witness stated that he was not personally involved in trading with the [Seller], as these matters were managed by the other executive of the [Buyer], Mr. T. S., and that he was never present when handing over goods from the [Seller] but Mr. T. S. used to represent the [Buyer] in these issues. The witness was not able to state how many purchase orders and deliveries were performed between the parties to the proceedings, but confirmed that the [Buyer] was purchasing polypropylene powder from the [Seller]. After inspecting the invoices submitted to the Court by the [Seller], the witness stated that such invoices used to be received by the [Buyer] and the witness said that he thought that the goods were delivered to the [Buyer]. The witness confirmed that the goods were always handed over to the [Buyer] in S. and that the [Buyer] was always represented by Mr. S. The witness confirmed that the documents recorded as no. 138 and 142 were delivered to Mr. S. by the [Seller] when handing over the goods.

The Court investigated the declaration of the Customs Office in Z. of 2 February 2006, rec. no. 204 to 207 that the goods – polyethylene in weight of 15,220.- kg brutto of a price of 12,163.- DM as identified in invoice no. 40108044 were custom cleared for transit by vehicle MA 217 YB where the [Seller] acted as exporter and the [Buyer] acted as importer. The Customs Office in Z. confirmed that the goods entered the territory of Slovakia in P. The Customs Office in Z. also confirmed that the goods – polyethylene in weight of 15,080.- kg brutto of a price of 12,223.- DM as identified in invoice no. 40108033 were custom cleared for transit by vehicle GKB 738X where the [Seller] acted as exporter and the [Buyer] acted as importer. The Customs Office in Z. confirmed that the goods entered the territory of Slovakia in P.

With reference to the evidence gathered, i.e., by the abovementioned documents and the declaration of the Customs Office in Z., the Court concluded that the goods billed by invoices no. 40108033 and no. 40108044 of 30 August 2001 and 31 August 2001 in total amount of 12,468.36 EUR, entered the territory of Slovakia and were delivered to the [Buyer]. Therefore, with reference to the declaration of the Customs Office in Z. of 2 February 2006, rec. no. 204 and 205 and other documents, the Court found to be proved that the goods were actually delivered to the [Buyer].

The Court qualified the relationship of the parties to the proceedings under the UN Convention on Contracts for the International Sale of Goods and granted to the [Seller] the right to payment of the principal under article 59 of the UN Convention which prescribes that the buyer must pay the price on the date fixed by or determinable from the contract and this Convention without the need for any request or compliance with any formality on the part of the seller. The Court considered to be proved in the proceedings that the parties to the proceedings concluded a contract of sale in accordance with article 23 which states that a contract is concluded at the moment when an acceptance of an offer becomes effective in accordance with the provisions of this Convention. The parties to the proceedings also complied with article 30 of the Convention which states that the seller must deliver the goods, hand over any documents relating to them and transfer the property in the goods, as required by the contract and this Convention.

With reference to the abovementioned, the court granted to the [Seller] right to payment of the purchase price under the UN Convention.

The court granted to the [Seller] right to reimbursement of costs of the proceedings consisting costs of legal aid amounting to 222,106.50 Sk.

Instruction: An appeal against this judgment must be filed within 30 days after its receipt via this court to the Supreme Court of the Slovak Republic.

Regional Court in Zilina, 8 January 2007.

JUDr. Erika Canadyova
Judge