Al Meezan - Qatary Legal Portal | Rulings | Court of Cassation - Civil & Trade Division

11 August 2022

14 Muharram 1444

Legislations of Qatar 5686 legislations - 58361 Articles
Legislations of Qatar - International Agreements
Legislations of Qatar- Rulings

Court of Cassation - Civil & Trade Division - Number: 121 /2008

Ruling Summary Record: The Court: Court of Cassation Circuit: Civil & Trade Division Number: 121Year: 2008Session Date: 1/20/2009

The Court Panel :Abd AlRaouf Ahmed Al-Bekeey - Ibraheem Mohamed Al-Taweela - Nabil Ahmed Sadek - عبدالله بن أحمد السعدي - يحي إبراهيم عارف -

View

PDF Download

Word Download

Twitte

إنشاء قائمة تشغيل جديدة

إدخال اسم لقائمة التشغيل...

Appeal "Effects of appeal: Transferring effect of appeal" "sub-appeal". Joint Cassation: "Grounds of appeal: Irrelevant Grounds." Judgment: "Reasoning of: "Proofing flaws: when considered not as such". Suit "Guaranty suit" "Defence in suit" Obligation "obligation types: Joint obligation". Joint obligation "scope of". Judgment: "Reasoning of: "Proofing flaws: when considered not as such Contract "Main Conditions of: Consent"

Session: January 20, 2009

Appeal No. 121, 2008 Civil Cassation

(1-3) Appeal "Effects of appeal: Transferring effect of appeal" "sub-appeal". Joint Cassation: "Grounds of appeal: Irrelevant Grounds." Judgment: "Reasoning of: Proofing flaws: when considered not as such Suit "Guaranty suit" "Defence in suit".

(1) Guaranty suit. Independent of original suit. Not considered defence in it.

(2) Appeal. Effect of. Transfer of suit to the second step court in its same status in respect of appealed points. Article (169) Procedures Court of Appeal may not deal on point not raised before it. Consequence of. Appealing judgment passed in the original suit. Appeal may not by itself raise the guaranty sub-suit. Appeal not granting guaranty petitioner all his claims. He may raise his suit before the Court of Appeal by intervening as an adversary if not already party to appeal.

(3) Appealed judgment conclusion that guaranty claimants may litigate against Appellant before the Court of Appeal to obtain judgment against him in the guaranty sub-suit is correct law.

Argument against judgment for error and deficiency for neglecting to consider Appellant's written motion not to accept sub-appeal. Irrelevant.

(4) Court of First Instance "its power to assess evidence" "matters of fact". Suit "Locus standi or standing therein'.

Assessing of evidence. Autonomy of First Instance Judge from reviewing by the Court of Cassation. Condition for. Such evidence must be inferred from the suit papers and such inference must be tolerable and conducive to the conclusion reached. (Example of tolerable inference of existence of locus standi in guaranty suit).

(5) Obligation, "Types of obligation: Joint obligation". Joint obligation "scope of". Judgment: "Reasoning of: "Proofing flaws: when considered not as such Contract "Main Conditions of: Consent".

Contract is the law of the contracting parties. Guarantor obligation for lump sum. determined by its limits. Terms of contract agreement concluded between Appellant - guarantor - and second Respondent and others including an obligation to arrange settlements and pay all suppliers their dues for executed works and contract related services. Extension of such obligation to cover all payables including damages for delayed performance. Appealed judgment complying with this view. Argument against it for misapplication of law is baseless

1- Held - in the judgment of this court -that the guaranty suit is independent of the original suit and that it is not used therein as a shield or sword .

2- Held - in the judgment of this court -that Appeal, according to the provision of Article (169) Procedures, transfers the suit, in its status before passing of the appealed judgment, to the second step court with respect to the points appealed, and the Court of Appeal may not deal with an issue not raised before it, which means that appealing the judgment passed in the original suit does not by itself raise the guaranty sub-suit, however, if the guaranty claimant cannot appeal the judgment passed in his suit for granting him all his claims, he can avail himself of an appeal by the injured party against the judgment passed in the original suit to assert his case to the court of appeal by joinder as adversary if he is not already a party.

3- As is established in the papers that second, third and fourth Respondents - claimants of guaranty - may not appeal the judgment passed in the guaranty suit for granting them all their claims in the original suit - by dismissing it - therefore, appeal by the injured party - first Respondent- against the judgment in the original suit enables the guaranty claimants to direct their claims against this guarantor by litigating him in the appeal suit brought by the injured party without need to comply with the conditions for sub-appeal, and as the intervention of the guaranty claimants to litigate Appellant before the Court of Appeal to seek judgment against him in the guaranty suit is correct according to proper law, therefore, argument against the appealed judgment's correct conclusion in this respect - neglecting to consider Appellant's written motion to dismiss the sub-appeal, is irrelevant, hence, inadmissible.

4- Held - in the judgment of this court - that assessment of evidence is within the autonomy of the First Instance Judge without review by the Court of Cassation, as long as such evidence is deduced from the suit papers by tolerable inference conducive to the conclusion reached by it. That being so, and as the appealed judgment, after stating the facts of suit , its documents, the parties' claims and the expert report filed in it, concluded by finding judgment creditor in the original suit entitled to the right claimed against defendant second Respondent vis a vis Appellant in the guaranty sub-suit , the judgment correctly deducing that Appellant - as stated in the contract agreement dated 22/6/2006 - obligated himself personally to second Respondent to guarantee the performance of its obligations towards first Respondent, which is an inference with respect to the extent of existence of locus standi in the suit related acquiring knowledge of the factual situation therein, which is an autonomous purview of the First Instance Judge who based his judgment on on tolerable reasons adequate to support it.

5- Held - in the judgment of this court - that as contract is the law of the contracting parties, and that the guarantor's obligation for a certain sum is determined by its limits, and as the contract agreement dated 22/6/2006 made between Appellant and other companies and between second Respondent and others included in second paragraph of Clause 14 an undertaking by Appellant to arrange settlement and payment for all suppliers and consultants.... for the executed works and rendered services related to the contracts within thirty days from the date of signing this agreement"; this obligation extends to cover all that is decreed in satisfaction thereof, including compensation for delayed performance, on the assumption that Appellant undertook payment of second Respondent's debts arising out of this agreement, and as the appealed judgment followed this view, therefore, argument against it on this side is baseless.

Court
After reviewing the papers and hearing the report, read by the reporting judge, and the pleading, and after deliberation.
Whereas the appeal has satisfied its formal conditions.
The facts - as stated in the appealed judgment and all the suit papers and as is sufficient for determining this appeal- are that first Respondent filed Suit No. 707 / 2004 Full Civil against the rest of Respondents asking for binding second and fifth Respondents to pay to it the sum of 595,350 riyals in addition to five hundred thousand riyals on the basis that the first amount accrued for consultancy services it rendered for the fifth Respondent pursuant a contract concluded between them on 3/7/2002, and as the latter defaulted in payment it incurred loss represented by the sum claimed for which it filed the suit. The court appointed an expert and then second, third and fourth Respondents applied for joinder of Appellant to bind him to pay judgment debt which may be decreed against them in satisfaction of his obligation under the contract dated 22/6/2006. The court passed judgment obligating the fifth Respondent to pay to the first Respondent the sum of 695,350 riyals and dismissed the sub-suit. First Respondent filed Appeal No. 586/2007 asking for modifying the judgment by obligating second - not the fifth - Respondent with the sum claimed; fifth Respondent filed Appeal No. 594/2007 and then it abandoned it for a sub-appeal. Second, third and fourth Respondents filed a sub-appeal asking for obligating Appellant in the guaranty sub-suit with the sum which may be decreed against them in the original suit. On 25/5/2008 the court passed judgment dismissing the sub-appeal raised by the fifth Respondent and accepting its abandonment of Appeal No. 594/2007, and in Appeal No. 586/2007 by cancelling the appealed judgment and obligating second Respondent to pay to first Respondent the sum of 695,350 riyals inclusive compensation for the material loss, and in the guaranty sub-suit by binding Appellant to pay to second Respondent the amount paid by it in execution of the judgment debt. Appellant made this appeal for cassation of this judgment, by the present appeal, which was put before this court – in the consultation room – which fixed a date for hearing.
Whereas the appeal is based on three grounds on the first and third of which Appellant argues against the appealed judgment for misapplication of law and deficient reasoning, saying that the judgment ignored his written motion made in court session on 23/3/ 2008 containing his defence against admission of the sub-appeal raised against him by the second, third and fourth (Respondents) though he was not their adversary in the original suit whose judgment they accepted; and though such defence was crucial, but the judgment without facing it obligated him with the sum decreed against second Respondent, and saying nothing about the admissibility of the sub-appeal, therefore, it is tainted and needs cassation.
Whereas this argument is inadmissible, for, although the guaranty suit is independent of the original suit and that it is not used therein as a shield or sword, and that the Appeal, according to the provision of Article (169) Procedures, transfers the suit, in its status before passing of the appealed judgment, to the second step court with respect to the points appealed, and the Court of Appeal may not deal with an issue not raised before it, which means that appealing the judgment passed in the original suit does not by itself raise the guaranty sub-suit, however, if the guaranty claimant cannot appeal the judgment passed in his suit for granting him all his claims, he can avail himself of an appeal by the injured party against the judgment passed in the original suit to assert his case in the Court of Appeal by joinder as an adversary party if he is not already a party to direct the claim against him; and as is established in the papers that second, third and fourth Respondents - claimants of guaranty - may not appeal the judgment passed in the guaranty suit for granting them all their claims in the original suit - by dismissing it - therefore, appeal by the injured party - first Respondent- against the judgment in the original suit enables the guaranty claimants to direct their claims against this guarantor by litigating him in the appeal suit brought by the injured party without need to comply with the conditions for sub-appeal, and as the intervention of the guaranty claimants to litigate Appellant before the Court of Appeal to seek judgment against him in the guaranty suit is correct according to proper law, therefore, argument against the appealed judgment's correct conclusion in this respect - neglecting to consider Appellant's written motion to dismiss the sub-appeal, is irrelevant, hence, inadmissible.
Whereas Appellant argues on the first side of the second grounds against the appealed judgment for misapplication of law and deficient reasoning, explaining it by that his signature on the agreement dated 22/6/2006 relied upon by the judgment in the guaranty suit was made in his capacity as representative of the fifth Respondent and did not obligate himself personally with compensating breaches of this agreement; and as the judgment obligated him with the judgment debt which may be decreed against the judgment debtor in the original suit, despite impeaching the basis of its obligation to pay it and without stating the reasons for rejecting this defence, therefore, it is tainted and calls for cassation.
Whereas this argument is inadmissible, for, the assessment of evidence is within the autonomy of the First Instance Judge without review by the Court of Cassation, as long as such evidence is deduced from the suit papers by tolerable inference conducive to the conclusion reached by it. That being so, and as the appealed judgment, after stating the facts of suit , its documents, the parties' claims and the expert report filed in it, concluded by finding judgment creditor in the original suit entitled to the right claimed against defendant second Respondent vis a vis Appellant in the guaranty sub-suit , the judgment correctly deducing that Appellant - as stated in the contract agreement dated 22/6/2006 - obligated himself personally to second Respondent to guarantee the performance of its obligations towards first Respondent, which is an inference with respect to the extent of existence of locus standi in the suit related acquiring knowledge of the factual situation therein, which is an autonomous purview of the First Instance Judge who based his judgment on on tolerable reasons adequate to support it. Therefore, argument on this side of the second grounds is baseless.
Whereas Appellant argues on the second side of the second grounds against the appealed judgment for misapplication of law, as it obligated him with the judgment debt which may be decreed against the judgment debtor in the original suit in material compensation for first Respondent for the loss resulting from failure of the judgment debtor to pay its obligation, which is not covered by his guaranty, therefore, it is tainted and calls for cassation.
Whereas this argument is not in place, for, as held - in the judgments of this court - that as contract is the law of the contracting parties, and that the guarantor's obligation for a certain sum is determined by its limits, and as the contract agreement dated 22/6/2006 made between Appellant and other companies and between second Respondent and others included in second paragraph of Clause 14 an undertaking by Appellant to arrange settlement and payment for all suppliers and consultants.... for the executed works and rendered services related to the contracts within thirty days from the date of signing this agreement"; this obligation extends to cover all that is decreed in satisfaction thereof, including compensation for delayed performance, on the assumption that Appellant undertook payment of second Respondent's debts arising out of this agreement, and as the appealed judgment followed this view, therefore, argument against it on this side is baseless.

Add Comments