Consideration of a civil case often requires obtaining additional information - the opinion of a specialist in a narrow field. Each of the participants in the trial, if there are objective grounds, has the right to file a petition to appoint an expert examination in a civil case. When a claim is considered by a court of general jurisdiction, when filing a petition you must be guided by the Code of Civil Procedure of the Russian Federation (Articles 79 - 87). If we are talking about an economic dispute and, accordingly, an arbitration court, the rules of the Arbitration Procedure Code of the Russian Federation are applied (Articles 82 - 87).
Concept of expertise
The main purpose of the examination is to obtain additional evidence that cannot otherwise be obtained. The decision on its necessity is made exclusively by the court, issuing an appropriate ruling. The initiative in this case can come from both the judge and the persons participating in the case.
The experts are asked clearly formulated questions. The answers to them should help establish the circumstances essential to the case and confirm or refute the arguments of each party.
Petition for appointment of an expert examination in a civil case
The research may be entrusted to such categories of departments as:
- Forensic Science Institution;
- The specific institution that carries out such analyzes;
- Several organizations.
Any party to a lawsuit has the right to know the decision on the execution of the analysis on a particular issue. But only the judge decides which issues are to be considered in a particular civil case.
When experts have drawn up their conclusion about this study, the data obtained is sent to the court. After the judge familiarizes himself with this decision, the right to familiarize himself is transferred to both parties. If one of the parties does not agree with the specified expert opinion, this does not provide grounds for repeat research.
This requires strong evidence and evidence. If compelling reasons satisfy the judge, a decision is made to repeat the study, but not necessarily at the same institution. For a more accurate and complete analysis, it is better to use several sources, because there are cases when errors occurred. Repeated consultations on such issues may occur if the opinions of several specialists do not reach a common decision.
Petition for appointment of handwriting examination
This type of consultation, such as handwriting consultation, is prescribed to establish:
- person's gender;
- citizen's age;
- the statute of limitations of the manuscript or signature;
- the conditions in which the text was written;
- circumstances that were present at the time of writing.
Therefore, to conduct this type of analysis, only handwritten texts, letters, statements, and so on are used.
Handwriting examination allows law enforcement agencies to answer questions such as:
- Citizen N completed this handwritten work;
- Did citizen N put his signature on a specific document with his own hand or was he assisted;
- The text was written by one or more people.
If you are not sure of the veracity of the expert opinion provided, you can file a petition with the court for a re-analysis. At the same time, do not forget to provide all the compelling arguments you have.
Read about the nuances of the explanation of the court's decision at the following link:
Request for appointment of an automotive technical examination
Automotive technical expertise serves police officers to establish the facts of a road accident. And it helps answer some questions:
- road laying condition;
- technical condition of vehicles.
During this analysis, the participants in the accident can be identified, as well as the location of the accident. The quality of such an audit depends directly on the initial materials provided from the accident scene. In case of incomplete provision of materials, the analysis may not correspond to reality. Therefore, when making a decision, the judge also takes into account indirect evidence.
In order for any party to submit a request for an auto technical analysis, it is necessary to submit an application to law enforcement agencies.
Additional information: Sample order to extend the powers of the director of an LLC.
Petition to order a genetic examination
Genetic forensic testing is carried out mainly to clarify paternity or to challenge paternity. DNA analysis can also determine the relationship between certain people. This analysis serves not only to identify the relationship between father and child.
In order to carry out such an analysis, it is necessary to provide genetic material, usually blood. Both people who want to find out if they are relatives must donate blood.
DNA examination mainly answers such tasks as:
- whether the genetic material belongs to the research object or another citizen;
- whether there is a paternal relationship between the defendant and the child;
- whether the defendant is the mother of a specific child;
- Is it possible for a certain man to become pregnant?
This kind of examination is carried out by various judicial, public and private medical institutions. But this requires the presence of specific equipment. To file a petition on such an issue, you must file an application with the court.
Types of examination
Procedural legislation makes it possible to distinguish the following types of examination.
Depending on the stage:
- primary;
- repeated;
- additional.
According to the expert composition:
- sole;
- commission.
The conclusion can be given both in one area and in several (comprehensive examination).
Attention! The applicant needs to understand what kind of conclusion the expert should give. The questions asked to the specialist will be of primary importance. Can be considered as a sample of an accident. Here it is possible to carry out the following types of road transport examination: technical-diagnostic, auto-technical, traceological.
Appointment of examination
An appeal to the court with a request to conduct an examination in a certain area is formalized in the form of a petition. The court must consider it and make an appropriate determination.
The parties to the case and other participants in the process have the right to:
- Present questions that the expert should answer. The court has the right to disagree with the wording, while explaining the reason for the rejection.
- Ask the court to entrust the examination to a specific organization or specialist, as well as reject candidates.
- Familiarize yourself with the court ruling ordering an examination.
- Be present during the examination if circumstances permit.
- Read the text of the expert report.
- Ask the court to conduct an additional examination.
| To the Arbitration Court of the Moscow Region Address: 107053, Moscow, Academician Sakharov Ave., 18 |
| From the plaintiff: LLC "SP" Location address: Moscow region, <…> |
| Defendant: OOO "PRS" OGRN <…> INN <…> Location address: Moscow region, city <…> |
| Third party: NPS “SR” OGRN <…> INN <…> |
| Claim price: 6,040,547 rubles 60 kopecks , of them: 2 476 373,02 – penalty for delay in completion of work; State duty: 53,202 rubles 74 kopecks Case: No. A41-<…>/14 |
OBJECTIONS regarding the appointment of a judicial construction and technical examination
In the proceedings of the Arbitration Court of the Moscow Region (hereinafter also referred to as the “court”
) there is an arbitration case
No. A41-<…>/14
(hereinafter also referred to as
“arbitration case” / “case”
) on the claim of SP LLC (hereinafter also referred to as
“customer”
) to PRS LLC (hereinafter also referred to as
“contractor”
) for the collection of funds.
Despite the facts stated below and the following actions of PRS LLC:
- — At the stage of pre-trial settlement of the dispute, the contractor twice received written demands from SP LLC to conduct an examination in order to determine the inadequate quality and incomplete scope of work performed under the contract, but twice ignored these requirements.
- — At the stage of pre-trial settlement of the dispute, the contractor once directly refused to conduct any examinations in order to determine the inadequate quality and incomplete scope of work performed under the contract ( an act with a note about the contractor’s refusal is available in the materials of the arbitration case
-
Volume I, pp. 75
). - — The presence in the materials of the arbitration case of an expert opinion on the results of the examination, in which the contractor refused to participate and repeatedly avoided.
- — Repeated receipt by the contractor of written demands from SP LLC to eliminate identified deficiencies in the work ( available in the materials of the arbitration case
-
Volume I, pp. 72
). - — Repeated receipt by the contractor of written notifications from SP LLC regarding the establishment of reasonable deadlines for eliminating deficiencies in the work;
during the consideration of the arbitration case of PRS LLC, abusing its procedural rights, and in order to delay the trial
filed a petition in accordance with Art. 82 of the Arbitration Procedure Code of the Russian Federation on the appointment of a judicial construction and technical examination.
Structuring the text of the petition showed that in addition to the requirements for the appointment of a forensic construction and technical examination by the contractor, the arguments about the unfoundedness of the expert’s conclusions based on the results of the examination, which the contractor refused to participate in and repeatedly avoided, were
(
the expert opinion is available in the materials of the arbitration case
–
Volume I, case file 82 – case file 101
).
LLC "SP" declares that the arguments of LLC "PRS" about the unfoundedness of the expert's conclusions based on the results of the examination , in which the contractor refused to participate and repeatedly avoided
and the petition to appoint a judicial construction and technical examination are unlawful, unfounded and clearly aimed solely at delaying the trial and disrupting the court hearing, as well as causing property damage to SP LLC.
According to Part 5 of Art.
159 of the Arbitration Procedure Code of the Russian Federation, the arbitration court has the right to refuse to satisfy an application or petition if they were not timely filed by a person participating in the case due to abuse of their procedural rights and are clearly aimed at disrupting the court session, delaying the trial, preventing the consideration of the case and the adoption of legal and a reasonable judicial act.
I would like to draw special attention to the fact that the dispute regarding the work performed improperly and incompletely by the contractor arose on March 13, 2014 (PRS LLC received a notice of termination of the contract by SP LLC due to failure to fulfill the contractor’s obligations). The statement of claim and the materials of the expert opinion, in which the contractor refused to participate and repeatedly evaded,
was received by PRS LLC on June 05, 2014.
The preliminary hearing was held on July 9, 2014. Abusing its procedural rights and acting in bad faith, PRS LLC filed a petition to appoint a judicial construction and technical examination only on August 14, 2014, that is, 7 (seven) calendar months after the dispute arose.
The above actions of PRS LLC are dishonest, aimed solely at delaying the trial and disrupting the court hearing, preventing the consideration of the case and the adoption of a lawful and justified judicial act, as well as causing property damage to SP LLC.
In order to save procedural means, the arguments of PRS LLC about the unfoundedness of the expert’s conclusions based on the results of the examination, in which the contractor refused to participate and repeatedly avoided
are set out in the odd-numbered paragraphs of these objections. The objections of SP LLC to each argument of PRS LLC will be set out in even-numbered paragraphs of these objections.
1.
Argument of PRS LLC regarding non-receipt of notification of the date and time of the examination.
LLC "PRS" in the petition indicates that the contractor was not notified by the customer about the date and time of the examination, and therefore was not present during its conduct.
2.
Objections of SP LLC
.
PRS LLC abuses its rights in violation of paragraph 1 of Art.
10 of the Civil Code of the Russian Federation and violates procedural duties in violation of
Part 2 of Art.
41 Arbitration Procedure Code of the Russian Federation .
LLC "PRS" twice received and ignored the requirements of LLC "SP" to conduct an examination in order to determine the quality and volume of work performed under the contract ( Requirement for an examination dated 04/03/2014 No. <...>
–
I volume l.
d. - 72 ).
After twice receiving and ignoring the requirements of SP LLC to conduct an examination, PRS LLC, represented by Director K.A.P., Head of VET D. and Deputy. Director B., there was a complete refusal to conduct any examinations in order to determine the inadequate quality and incomplete scope of the work performed under the contract, which is confirmed by the signature of these persons ( I volume ff. - 75
).
Thus
, the notification of the contractor about conducting an examination in relation to the poor quality and incomplete work performed by him under the contract has no legal significance in the case, since in the aggregate of the contractor’s three-time refusal to conduct any examinations in order to determine the inadequate quality and incomplete work performed under the work contract, PRS LLC clearly and unequivocally expressed its will that there was no need for its participation in conducting any examinations.
Subsequent dishonest attempts by PRS LLC to recognize the actions of SP LLC (conducting an examination, in which PRS LLC refused to participate and repeatedly evaded
, without the participation of the contractor) as some kind of violation, for formal reasons, of the rights of the limited liability company PRS , cannot serve as a basis for satisfying the demands of PRS LLC to appoint an expert examination when considering this legal dispute and recognizing as legitimate the arguments of PRS LLC about the unfoundedness of the expert’s conclusions based on the results of the
examination, in which the contractor refused to participate and repeatedly avoided.
3. Argument of PRS LLC about the expert’s incorrect definition of the object of expert research.
PRS LLC indicates in its petition that the subject of the expert examination was the work provided for in the contract, to which PRS LLC has nothing to do.
4.
Objections of SP LLC
. PRS LLC, once again, repeatedly using attempts to cling to any formal methods, is trying to mislead the court.
The expert opinion was drawn up based on the results of an examination of the work performed specifically by PRS LLC under an agreement concluded between SP LLC and PRS LLC (Agreement No. <...> contract for construction and installation work dated August 07, 2014), that is confirmed by the following materials of the arbitration case:
- 4.1.
The examination materials reflect the object of the study - a non-insulated warehouse building located at the address: <...> (
I volume, pp. pp. 88, 89, 91, 95
). The specified object is the object provided for by the contract. - 4.2.
The expert opinion, among other things, reflected the lack of results in the execution of work under additional agreement No. 1 to the contract (
I volume ld. ld. – 88, 91, 95
). - 4.3.
The subject of the expert study was the work provided for by contract No. <…> contract for construction and installation work dated August 07, 2014, as well as additional agreement No. 1 to it (
I volume ld. ld. 91, 92, 95
).
Thus,
the entire expert opinion is drawn up in relation to the work provided for in the agreement concluded between SP LLC and PRS LLC. The arguments of PRS LLC that the subject of the expert examination were works stipulated by the contract, to which PRS LLC has nothing to do, are false, unfounded, unlawful and aimed at misleading the court.
5. Arguments of PRS LLC about the unfoundedness of the expert’s conclusions.
PRS LLC indicates in its petition that the expert’s conclusions about the contractor’s violation of construction and installation work technology and the use of low-quality materials and structures in the construction process are unfounded.
6. Objections of SP LLC.
The arguments of PRS LLC were stated
in violation of Part 1 of Art.
65 Arbitration Procedure Code of the Russian Federation .
The materials of the arbitration case contain documents confirming the organizational, professional, and qualification status of the expert organization and the expert. The inspection of poor quality and incomplete work performed by the contractor was carried out by an expert who visited the site of their improper execution. The expert opinion contains conclusions based in strict accordance with current legislative and regulatory documents in construction (SNiP, Civil Code of the Russian Federation, GOST, etc.), and therefore they cannot be considered unfounded.
The contractor, once again, is attempting to unlawfully mislead the court.
7. Arguments of PRS LLC about the expert’s erroneous reference to the design documentation completed by PRS LLC.
PRS LLC argues in its petition that the expert erroneously refers to the design documentation completed by the contractor. The contractor motivates his arguments by the fact that PRS LLC did not develop project documentation, due to his lack of obligation to prepare project documentation.
8. Objections of SP LLC.
PRS LLC once again provides false information.
The contractor's arguments about non-acceptance of obligations to carry out design work are refuted by clause 2.2. agreement: “ The work will be carried out in 6 stages.
Stage 1. Design work and linking the building to the general plan
».
Thus,
PRS LLC was obliged to carry out design work.
In addition, the local estimate drawn up by the contractor directly indicates the “Base”: Project.
Thus,
the local estimate was drawn up by the contractor based on the design documentation.
Design work is engineering and architectural design work, during which the entire cycle of work is documented from concept and sketch to calculations of all elements. Design work is carried out for an accurate idea of how exactly the future object will be built and an accurate representation of the future object before the start of work and related tasks. PRS LLC assumed obligations to carry out design work and link the building to the general plan (clause 2.2 of the agreement). To confirm the fulfillment of this clause of the contract, the contractor submitted project documentation to SP LLC, consisting of:
- — General plan of the building provided for in the contract. The document drawn up based on the results of the design work was signed on behalf of PRS LLC by director K., architect R. and designer D.. The work was carried out according to the order (assignment) of LLC SP, which is also reflected in the document drawn up based on the results of execution stipulated by the work contract.
- — Architectural solutions for the building provided for in the contract. The document drawn up based on the results of the above work was signed on behalf of PRS LLC by director K., architect R. and designer D. The work was carried out according to the order (assignment) of SP LLC, which is also reflected in the document drawn up based on the results of execution, works provided for in the contract.
- — “Reinforced concrete structures” in relation to the building provided for in the contract. The document drawn up based on the results of the above work was signed by PRS LLC. The work was carried out according to the order (assignment) of SP LLC, which is also reflected in the document drawn up based on the results of the work stipulated by the contract.
- — “Metal structures” in relation to the building provided for in the contract. The document drawn up based on the results of the above work was signed by PRS LLC. The work was carried out according to the order (assignment) of SP LLC, which is also reflected in the document drawn up based on the results of the work stipulated by the contract.
Thus,
These documents and the agreement confirm not only the fact that the responsibility for the preparation of design documentation was assumed by PRS LLC, but also the fact that the composition and content of the specified design documentation were known to the contractor.
Hence,
the above false arguments of PRS LLC are fictitious, unsubstantiated and aimed solely at causing harm to SP LLC and misleading the court.
9. Argument of PRS LLC about numerous discrepancies between the design documentation transferred to the expert and the design documentation provided by the contractor to the customer.
PRS LLC claims in its petition that based on the expert’s conclusion, the design documentation provided by the customer to the expert organization has numerous discrepancies with the design documentation allegedly received by the contractor from Mendeleev Metal Structures Plant LLC and presented by the contractor to the customer.
10. Objections of SP LLC.
The above statements by PRS LLC are unfounded and untrue.
LLC "PRS" transferred to LLC "SP" the design documentation specified in paragraph 8 of these objections. It was this design documentation that SP LLC handed over to the expert for examination, in which the contractor refused to participate and repeatedly avoided.
There are no discrepancies between the design documentation submitted to the expert and the design documentation submitted by the contractor to the customer (clause 8 of these objections). The above arguments of PRS LLC are false.
11. Argument of PRS LLC about the expert’s incorrect conclusions regarding the methods used by the contractor to carry out work on reinforcing foundation frames.
PRS LLC indicates in its petition that the expert made an erroneous conclusion regarding the inadmissibility of welding reinforcement during the work. PRS LLC also provides links to the following documents:
- 11.1.
Clause 8.2.3. SP 63.13330.2010. - 11.2.
Order of the Government of the Russian Federation dated June 21, 2010 No. 1047-r. - 11.3.
Clause 5.5. TSN 102-00. - 11.4.
Standard STO ASChM 7-93. - 11.5.
GOST 52544-2006.
12. Objections of SP LLC.
PRS LLC made attempts to confuse both the customer and the court.
The expert report does not contain any expert conclusions about the inadmissibility of welding reinforcement during work on reinforcing foundation frames. In fact, the expert identified deviations of PRS LLC from the project that were not agreed upon with SP LLC, namely, the contractor welded it instead of tying the reinforcement.
In order to save procedural means and respect the court, SP LLC will not describe the illegality and unreasonableness of the contractor’s actions, expressed in citing references to those specified in clause 11.1. – clause 11.5. of these objections documents, since they do not relate in any way to the expert’s presented conclusions.
The sole purpose of PRS LLC is to create conditions for the court and SP LLC that make it difficult for a fair and objective resolution of the dispute that has arisen.
13. Arguments of PRS LLC about the expert’s erroneous determination of the ratio of the plinth and grillage in poorly performed and incomplete work.
PRS LLC claims that the concepts of plinth and grillage were allegedly replaced by the expert.
14. Objections of SP LLC.
PRS LLC, once again, is making attempts aimed at misleading the customer and the court.
LLC "PRS" in violation of Part 1 of Art.
10 of the Civil Code of the Russian Federation abuses the right.
To examine the object of examination (work provided for in the contract), the expert used a project provided by the contractor.
According to the “Architectural Solutions” section of this project, both the presence of a grillage and the presence of a plinth are provided.
The statements of PRS LLC about the absence of a grillage and the expert’s erroneous determination of the base instead do not correspond to reality and are false, given solely for the purpose of casting doubt on the results of the examination, in which the contractor refused to participate and repeatedly avoided.
15. Arguments of PRS LLC regarding the definition of the concept of “building base” and its practical purpose.
PRS LLC in its petition provides a biased definition of the concept of “basement of a building” and its practical purpose.
16. Objections of SP LLC.
This biased determination was made by the contractor solely for the purpose of evading responsibility for compensation for property damage caused to the customer.
PRS LLC defines that the base of a building “ is the enclosing, non-load-bearing part of the structure designed to protect the lower, near-ground part of the building from the penetration of moisture from outside and prevent the shedding of earth masses when there is a difference in height between the internal and external parts of the building
" This definition does not correspond to reality and, once again, demonstrates the lack of professionalism and incompetence of PRS LLC in the field of construction and contract work.
The normative definition of the concept of building base and its practical purpose is established in SNiP I-2 “Construction Terminology”
and means the following: “
BASE
- the lower part of the outer wall of a building or structure, lying directly on the foundation and subject to frequent mechanical, temperature and other influences.”
Thus, PRS LLC presents erroneous arguments that demonstrate the unprofessionalism and incompetence of PRS LLC in the field of construction and contract work.
17. The argument of PRS LLC about the absence in the design and actually erected structure of support of load-bearing structures on the plinth and the absence of grounds allowing to classify the plinth as a grillage.
PRS LLC claims that from the design and the actually erected structure it is clear that there are no “
supports
” of load-bearing structures on the plinth and there are no grounds to classify the plinth as a grillage.
18. Objections of SP LLC.
PRS LLC, once again, presents a biased and untrue argument. The refutation of the contractor’s indicated argument follows from clauses 14 and 16 of these objections and demonstrates the lack of professionalism and incompetence of PRS LLC in the field of construction and contract work.
19. Argument of PRS LLC about the absence, in accordance with the conclusion of the examination, in which PRS LLC refused to participate and repeatedly evaded the need for the contractor to have an SRO certificate.
PRS LLC claims that, in accordance with Art. Art. 47, 48, 52 of the Town Planning Code of the Russian Federation and the conclusion of the examination, in which PRS LLC refused to participate and repeatedly evaded, the contractor does not need to have an SRO certificate to carry out the work provided for in the contract.
20. Objections of SP LLC.
LLC "PRS" carried out an incorrect interpretation of the rules of substantive law.
SP LLC and PRS LLC entered into the contract proposed by the contractor in full compliance with clause 4 of Art. 421 and paragraph 1 of Art. 432 Civil Code of the Russian Federation
, at its own discretion, determining its provisions on all essential terms.
According to the preamble of the agreement, PRS LLC acted on the basis of Certificate No. <…> of admission to work that affects the safety of capital construction projects, issued by NP SROS “SR” dated <…>.
According to additional agreement No. 1 dated August 19, 2013 to the contract, PRS LLC assumed obligations to carry out geological surveys on the customer’s territory to determine the composition and bearing capacity of soils with the involvement of a specialized organization
and subsequent provision to the customer of a survey report. The customer's repeated written demands to provide information about the proposed contractor for geological surveys that were never carried out (provided for in additional agreement No. 1) were left by the contractor without a reasoned response.
Thus,
The current legal situation regarding the required availability of an SRO certificate for LLC "" and its obligatory provision to the customer is regulated not by the provisions of the norms of the Town Planning Code of the Russian Federation, but by the provisions of the norms of the Civil Code of the Russian Federation on freedom of contract, the grounds for the emergence of civil rights and obligations, their proper use and execution, as well as inadmissibility of unilateral refusal to properly fulfill obligations. PRS LLC carried out an incorrect interpretation of substantive law, once again demonstrating the unprofessionalism and incompetence of the contractor.
21. Questions submitted by PRS LLC for approval of the examination.
PRS LLC requests that the following questions be raised for approval of the examination:
- 21.1.
On determining the types, volumes and costs of work that were performed at the facility at the address: <…> in accordance with the contract dated August 7, 2013 No. <…> and additional agreements thereto: No. 1 dated 08/19/2013, No. 2 dated 08.26.2013, No. 3 of 10.10.2013, No. 4 of 10.11.2013 - 21.2.
On determining the compliance of the specified types, volumes and costs of work with those specified in the estimates agreed upon by the parties, attached to the specified contract and additional agreements. If they have not been completed in full, indicate the types, volumes and cost of the work actually performed. - 21.3.
On determining the compliance of the foundation and plinth at the facility at the address: <…> with the agreement dated August 7, 2013 No. <…> and current regulatory requirements.
22. Objections of SP LLC.
The questions presented by PRS LLC, given the evidence available in the materials of the arbitration case, do not have legal significance for resolving the dispute.
- 22.1.
The types, volumes and cost of work provided for by the contract and additional agreement No. 1 have already been established by the conclusion of
the examination, which the contractor refused to participate in and repeatedly evaded
(
more details are set out in the introduction and in paragraph 1 of these objections
). The parties have no dispute regarding the work provided for in Additional Agreement No. 2 and Additional Agreement No. 3. Moreover, all work provided for in these additional agreements was presented by the contractor and fully paid for by the customer. - The work provided for in additional agreement No. 4 was not presented to the customer for acceptance; evidence of their completion was not presented in the case materials. The subject of additional agreement No. 4 was: “Installation of reinforced concrete floor coverings for final finishing in an extension with an area of 182.5 sq. m. m." (clause 1 of additional agreement No. 4). According to clause 2 of the said additional agreement, the cost of the work is determined by Local Estimate No. <…> dated 10/11/2013
and amounts to 337,385.58 rubles.
However, the above-mentioned local estimate, which determines the cost of the work, is not included in the case materials.
According to Article 746 of the Civil Code of the Russian Federation, payment for work performed by the contractor is made by the customer
in the amount provided for in the estimate,
within the time frame and in the manner established by law or the construction contract. In the absence of appropriate instructions in the law or contract, payment for work is made in accordance with Article 711 of the Civil Code of the Russian Federation. Thus, the contractor refers to additional agreement No. 4 in the absence of a local estimate signed by the parties that determines the cost of work under this additional agreement. - To justify the performance of the work provided for by additional agreement No. 4 of PRS LLC, the “ Acceptance Certificate of Work on Installation of Industrial Floors for Finishing
” was presented.
However, the presented act, to which PRS LLC refers, is an Acceptance Certificate for work on the installation of industrial floors for finishing. This act contradicts the subject and other essential terms of Additional Agreement No. 4 and does not comply with the requirements of the law. According to clause 3 of additional agreement No. 4, the final payment is made by the customer after signing the certificates of completed work in the form KS-2, KS-3
. Consequently, the parties to additional agreement No. 4 agreed on special forms of primary accounting documents confirming the acceptance and delivery of work. The above-mentioned act, to which PRS LLC refers, does not correspond to the KS-2 form; the certificate of the cost of work performed and expenses (KS-3) was not signed at all by the parties to additional agreement No. 4. - Thus,
the act
does not correspond
to the subject of additional agreement No. 4, does not contain a reference to the specified agreement,
does not determine
the volume, cost of the work performed, determined by the local estimate No. <...> of October 11, 2013 (not included in the materials of the arbitration case), the content of the work and other requirements imposed on them, the object of the work. In addition, this act contradicts the requirements specified in Art. 9 of the Federal Law “On Accounting”, therefore, cannot be relevant, admissible and appropriate evidence. These customer objections are also confirmed by numerous judicial practices, including the practice of the Federal Antimonopoly Service of the Moscow District. - Appointing a judicial construction and technical examination is inappropriate, since the questions presented by the contractor either already have answers in the materials of the arbitration case, or there is no dispute between the parties (due to full payment for the work), or the work has not actually been completed, as a result of which there will be no object of expert research .
- 22.2.
Appointing a judicial construction and technical examination is inappropriate, since the questions presented by the contractor either already have answers in the materials of the arbitration case, or there is no dispute between the parties (due to full payment for the work), or the work has not actually been completed, as a result of which there will be no object of expert research . - 22.3.
Appointing a judicial construction and technical examination is inappropriate, since the questions presented by the contractor either already have answers in the materials of the arbitration case, or there is no dispute between the parties (due to full payment for the work), or the work has not actually been completed, as a result of which there will be no object of expert research .
Based on the above, taking into account the refusal of PRS LLC to participate in the examination and repeated evasion of its conduct, the contractor’s abuse of its procedural rights and improper performance of its procedural duties, the inappropriateness of appointing an examination on the issues presented by the contractor and guided by Art. Art. 41, 62, 159 Arbitration Procedure Code of the Russian Federation
I ask the Court:
Refuse the limited liability company "PRS" to satisfy the request to appoint a judicial construction and technical examination.
Applications:
1) Certified copy of the power of attorney – 1 copy.
| "___" ____________ 2014 | _________________________________ Rybay A.S. (representative of SP LLC by proxy, available in the case file) |
