About a million damage to "Azerigas" due to an unreasonable decision - Suspicious examination

  • 19 October 2021 20:28

As it is known, on April 3, 2019, the President of Azerbaijan signed a decree on "Deepening Reforms in the Judicial System.” Following the decree, consistent measures are being taken to increase the efficiency of justice, expand access to justice. Despite the reforms, unfortunately, there are still shortcomings in this field. Thus, from time to time we witness trials that are not objectively investigated. One of such lawsuits is related to the claim of “Azerigas” Production Union (APU) against “Agrosell” Limited Liability Company (LLC) for large debts.

E-huquq.az presents some details about the lawsuit.

Thus, on September 3, 2019, the claimant "Azerigas" PU appealed to the Sumgayit Administrative-Economic Court with a claim for "charge legal fees” against the debt "Agrosell" LLC. The claimant asked the defendant to adopt a resolution to deduct the debt of 525,611.42 AZN and the state duty paid in the amount of 30 AZN for natural gas used in favor of "Azerigas" PU until July 25, 2019.

The claim was satisfied by a court trial in absentia dated November 13, 2019. However, on the basis of the application of the defendant "Agrosell" LLC, the decision of the Sumgayit Administrative-Economic Court dated August 21, 2020 was annulled in absentia and the case was resumed on the merits. Defendant "Agrosell" LLC appealed to the court with a counterclaim "to settle the debt”, the decision to reject the initial claim of "Azerigas" PU and to settle the debt by "Azerigas" PU in the amount of 745 thousand 967. 42 AZN asked to be accepted. In its decision, the Sumgayit Administrative-Economic Court upheld the claim of the claimant “Azerigas” PU against the defendant Agrosell LLC. Thus, the court decided to deduct the debt in the amount of 525,611.42 AZN in favor of “Azerigas” PU. The mutual claim of “Agrosell” LLC was partially satisfied. In other words, it was decided to settle the debt of 43,695.60 AZN to “Agrosell” LLC.

After that, “Agrosell” LLC did not agree with the court's decision and filed an appeal. The complaint demands "to settle the debt.”

The claimant, advocate Sayyad Mirzayev, a representative of “Azerigas” PU, told e-huquq.az that all illegality occurred in the Sumgayit Court of Appeal. Thus, procedural violations were committed during the trial: "The party has filed an appeal, but the court did not provide us with a copy of the application. The second procedural illegality is that the court must appoint an expert examination and provide a copy of the decision to the party. As a party, we have the right to know what questions the expert asked and why this examination was appointed. At the same time, during the examination, the necessary documents were not required from “Azerigas” as a party to draw up a correct opinion, and the attitude was not studied.

Drawing attention to the court's decision, the lawyer said it was clear that the law had been violated. Judge Saadat Bektashi, who presided over the trial at the Sumgayit Court of Appeal, said in a decision that the boilers in the boiler rooms owned by “Agrosell” LLC had been operating in different modes for months. Boilers used in the boiler room has been worked during the day 4-5 hours in November 2018, 4.5-5.5 hours in December 2018, 5-6 hours in January 2019, 4.5-5 in February, and in March 3.5-4.5 hours. However, the expert was not asked about the number of hours of boilers maximum operation per day, and the expert did not provide any information in the "Description of the Research Process" section of the expert's opinion on how many hours this is. In his opinion, the expert, as mentioned above, was satisfied with the words "It appears from the letter with additional materials for the examination" and determined the maximum working hours of the boilers in the boiler room during the day. Based on the information calculated by the defendant at his own request and submitted to the court on 04.05.2021, it was decided that the boilers worked during the day 4-5 hours in November 2018, 4.5-5.5 hours in December 2018, 5-6 hours in January 2019, 4.5-5.5 hours in Februaryto work 3.5-4.5 hours.

Apparently, in the "Description of the Research Process" part of the expert's opinion, he determined the amount of gas already calculated without determining the maximum operating hours of the boilers per day, and the court ruled without referring to this evidence. For information, the volume of gas consumption is directly related to its operation period. That is, we do not supply gas to the defendant for any period of time, and the defendant could use the gas for 24 hours without interruption, and most likely it did. Thus, by not considering the presented evidence objectively, impartially, comprehensively and completely, the court violated the requirements of Article 88 (Evaluation of Evidence) of the Code of Civil Procedure of the Republic of Azerbaijan. I would like to remind you that according to Article 88 of the Code of Civil Procedure of the Republic of Azerbaijan, the court, after considering the evidence objectively, impartially, comprehensively and completely, evaluates the evidence in accordance with the law. No piece of evidence has a pre-determined force for the court. In this case, the Sumgayit Court of Appeal adopted a decision in the form of an expert opinion, without considering the evidence comprehensively and completely, "Sayyad Mirzayev said.

Dissatisfied with the decision, “Azerigas” filed a cassation appeal. The Supreme Court, chaired by Judge Bahman Garibov, rejected the appeal.However, it appears that the decision of the Sumgayit Court of Appeal was illegal and unfounded and should have been overturned due to violations and misapplication of substantive law.

Khayala Bunyatova

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