Recently, Shenyang Intermediate People's Court pronounced the judgment of the second instance of Zhengzhou Haotian Concrete Company and the Second Bureau of China Construction.
A purchase has signed two contractual documents, one is the Concrete Purchase Contract, the other is the Supplementary Agreement. In the subsequent situation of arrears, the contradiction between the two documents appeared.
Recently, the second instance of Shenyang Intermediate People's Court adjudicated the lawsuit between the two parties on discount interest in this case. The court held that the chapter of the project department could not change the agreement on the main contract. Lawsuit caused by
default of payment for goods and interest:
China Construction Second Engineering Bureau argued that there was an agreement in the contract between the two parties, and the agreement without our seal did not have the effect of changing the original contract. See Article 21 for details. Therefore, we did not recognize the supplementary agreement cited by the Appellee and should not bear the discount fee of 170,000 yuan.
Zhengzhou Haotian Concrete Co., Ltd. argued that, first, the content stipulated in Article 18.2 of the contract did not state that Haotian Company could not claim overdue interest from the Second Bureau of China Construction, but only that Haotian Company could not claim the expenses incurred. Secondly, as the defaulting party, it is a legal obligation for the Second Bureau of China Construction to bear the interest on overdue payment, and the interest standard of the first instance judgment is also the minimum standard stipulated by law. This legal obligation can not be exempted by contract agreement. The legal consequences of payment in accordance with the agreement are the same as those of non-payment in accordance with the agreement. The contract has no binding force on the Second Bureau of China Construction and is obviously unfair to Hao Tian Company. The court of
first instance found that in December 2019, Zhengzhou Haotian Concrete Co., Ltd. and China Construction Second Engineering Bureau Co., Ltd. signed the Concrete Procurement Contract, and then signed the Supplementary Agreement. After Zhengzhou Haotian Concrete Co., Ltd. supplied concrete to China Construction Second Engineering Bureau Co., Ltd., China Construction Second Engineering Bureau Co., Ltd. paid part of the payment for goods, and still owed 1140507.37 yuan for goods. Now Zhengzhou Haotian Concrete Co., Ltd. requests to cancel the Concrete Purchase Contract signed with China Construction Second Engineering Bureau Co., Ltd. and requests China Construction Second Engineering Bureau Co., Ltd. to pay for the goods, interest and discount and handling fees arising from the acceptance bill. The
court of first instance held that the concrete procurement contract signed by Zhengzhou Haotian Concrete Co., Ltd. and China Construction Second Engineering Bureau Co., Ltd. was the true intention of both parties, which did not violate the mandatory provisions of laws and regulations, was legal and effective, and both parties should comply with it. China Construction Second Engineering Bureau Co., Ltd. failed to pay for the goods as agreed in the contract, which constituted a delay in the performance of the main debt and met the legal conditions for the termination of the contract. Therefore, the court of first instance supported the claim of Zhengzhou Haotian Concrete Co., Ltd. for the termination of the procurement contract.
The court ruled in the first instance as follows: the Concrete Purchase Contract signed between the Plaintiff and the Defendant shall be rescinded on January 6, 2023; the Defendant, China Construction Second Engineering Bureau Co., Ltd., shall pay Zhengzhou Haotian Concrete Co., Ltd. RMB 1140507.37; China Construction Second Engineering Bureau Co., Ltd. shall pay the plaintiff Zhengzhou Haotian Concrete Co., Ltd. the interest on the loan, based on the 1140507.37 of RMB, from December 1, 2021 to the date of actual payment, according to the loan market quotation interest rate published by the National Interbank Funding Center.
Interest discounts and service charges became the focus of the second trial:
after the judgment of the first trial was pronounced, both the plaintiff and the defendant appealed.
The court held that the focus of the second instance was: whether China Construction Second Engineering Group Co., Ltd. should bear the 170120 of discount interest and service charge of RMB.28; and whether China Construction Second Engineering Group Co., Ltd. should pay the liquidated damages for overdue payment.
Zhengzhou Haotian Concrete Co., Ltd. appealed, requesting that China Construction Second Engineering Bureau be ordered to pay a discount and handling fee of 170120. 28 yuan. The reason is that during the performance of the Concrete Procurement Contract, China Construction Second Engineering Bureau could only pay by acceptance bill and other means on the grounds of shortage of funds, and required the appellant to pay the discount and handling fees incurred in this process in advance. At the same time, China Construction Second Engineering Bureau undertakes in the form of signing the Supplementary Agreement that China Construction Second Engineering Bureau shall pay for the goods by means of telegraphic transfer, transfer cheque, bill of exchange, factoring, etc., and the discount interest and related formalities arising from the use of bills, factoring, etc. Shall be borne by China Construction Second Engineering Bureau. The appeal of the Second Bureau of China
Construction requests to revoke the second interest part of the first instance civil judgment (the interest is temporarily calculated to February 7, 2023, and the disputed amount is 50096 yuan). The reason is that both parties agree not to pay any fees for overdue payment of goods. The contract in this case has agreed not to pay any fees. In this case, the two parties have not made a total settlement, and according to Article 6.2 of the contract, it should be paid within one year after capping, that is, November 10, 2023. At present, the payment node has not been reached, so the interest should not be paid. Both parties have agreed in the contract that the agreement without our seal does not have the effect of changing the original contract, so we do not recognize the supplementary agreement proposed by China Construction Second Engineering Bureau and should not bear the discount fee of 170000 yuan. The seal of the
project department cannot change the main contract
. The court of second instance held that in the process of payment for goods, the Second Bureau of China Construction paid part of the payment for goods in the form of bills, resulting in a discount and handling fee of 170,120.28 yuan. Hao Tian Company claimed that China Construction Second Engineering Bureau should bear the 170120 of the discount interest and handling fee, which was based on the agreement in Article 1 of the Supplementary Agreement signed by both parties. However, this agreement is contradictory to the agreement of the main contract "Concrete Purchase Contract", and the main contract "Concrete Purchase Contract" clearly stipulates that other written agreements not sealed by both parties do not have the effect of changing the contract. What is affixed on the Supplementary Agreement is not the special seal for contract or other official seal of China Construction Second Engineering Bureau Co., Ltd., but the seal of the project department of China Construction Second Engineering Bureau Co., Ltd., which cannot produce the effect of changing the agreement of the main contract. Based on this, it is not improper for the court of first instance to hold that the Second Bureau of China Construction should not bear the 170120 of discount interest and handling fee of. 28 yuan. The appeal request of Hao Tian Company lacks factual and legal basis, and the Court does not support it. In March
2023, the court ruled in the second instance as follows: The appeal was rejected and the original judgment was upheld.
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