A satisfied claim against Glendale Hills
- 2017-09-14
The Court of General Jurisdiction of Malatia-Sebastia District, presided by Judge L. Katvalian, trying/examining civil case against <Glendale Hills> CJSC /hereafter respondent/ versus Karen Mkrtchyan /hereafter claimant/ for modification, resolution and levy of default penalties and cross action claim from Arthur Miqaelyan the representative of <Glendale Hills> CJSC against Karen Mkrtchyan for levy amount.
On 20.05.2008 <Glendale Hills> CJSC and Karen Mkrtchyan signed/concluded purchase and sales agreement on immovable property N 274 and N276. According to 1.1 clause, the parties are obliged to conclude a principal contract under the terms of the contract after the seller sends a notice. According to the 2.1.4 clause of the contracts, the claimant must make payments as stated in the schedule which forms an integral part of the contract, according to which payments must be made by November 30, 2011. The deadline for completion of construction was on 30.11.2011.
On the basis of evidence provided, the court found that the building was constructed in violation of pre-set deadline and has not been finished yet. The claimant has stopped making payments under the contract schedule since 2009 of December and made just a few partial payments.
The court applied articles 345, 347 and 468 of civil code of the RA and found that the construction work had not yet been completed but the deadline was on 30 November 2011. It was obvious that the respondent has violated the construction’s deadline for more than a year, which gave the buyer the right to unilaterally denounce the contract, in which case the seller must return paid amount and default penalties.
In case of non-performance of its contractual obligations, the clause 5.2 is in force.
The court concluded that the claim to rescind the contract is grounded and should be satisfied. In the case where the contracts between the parties are to be rescinded, the court finds that the claim for modification of the contracts must be rejected. Moreover, the court found that the claimant had provided sufficient evidence, which prove the fact that before the expiry of the specified term the claimant had reasons to believe that the respondent had committed an essential violation of the contract, particularly the latter did not fulfill its obligations in full.
It was established that the respondent has committed such violation of its contractual obligations, which gave the claimant a basis to suppose that the respondent would not fulfill its contractual obligations within the specified term. Consequently, the court came to the conclusion that the failure to make payments by claimant should not be considered as a violation of specified term provided for by a contract. Accordingly, the claim of the initial claimant, the resolution of the contract and the levy of default penalties are grounded and should be approved and as for the cross-action claim, the court found that the latter is ill-founded and should be rejected. Therefore the court ruled to satisfy the claimants’ claim partially,
To rescind N 274 and N 276 preliminary purchase and sales agreement on immovable property signed between <Glendale Hills> CJSC and Karen Mkrtchyan.
Consequently, the court ruled that an amount of 7.929.000 AMD /seven million nine hundred twenty-nine thousand / has to be levied for the benefit of the claimant, of which an amount of 3,426,000 AMD / three million four hundred and twenty-six thousand / paid by the claimant under preliminary contract No. 274 and an amount of 4,503,000 / four million five hundred three thousand / AMD paid by the claimant under preliminary contract No. 276.