Court of Contestation – Civil and Commercial Circle
Case No. 1/2009 – Civil cassation
Session dated 17 February 2009
 

1-2 Appeal “Consequences of appeal: Transfer consequences of appeal. Judgment - Justifications - Claim “scope” – Defense
 
1.Appeal – Consequences – Transfer of claim to second grade court of the same status before the issuance of the appealed judgment. Article 169 of the law of pleading. Court of Appeals is not permitted to decide an issue not presented thereto, or to damage the attitude of the appellee in a filed case of appeal.
2.Non-appeal by the contestant against the ruling of the court of first instance to obligate the contestant to pay the amount to the respondent after having declined in his pleading the defense of non-acceptance of the claim, due to filing versus an entity that lacks capacity or that lacks full capacity.
3.Cassation “jurisdiction of the court of cassation”: “interpretation of contract “adaptation of contract “jurisdiction of court of subject is to interpret and adapt contracts.
4.Identification of the intent of the contracting parties is within the jurisdiction of the court of subject – Adaptation of this contract and application of law thereon is a legal issue that falls within the control of the court of cassation.
5.“Termination of the Power of attorney”: withdrawal from power of attorney at any time. Article 1/736/ civil.
 
1.It is established, in the practice of this court, that an appeal pursuant to Article 169 of the law of pleadings for the transfer of a claim to the court of second grade, in the same status as before the issuance of the ruling of appeal only. The court of appeals is not permitted to decide on any matter not presented thereto, nor damage the attitude of the appellee in his appeal.
2.Whereas the contestant has not appealed against the judgment of first instance, which obligated the contestant to pay the amount to the respondent, after having declined in his pleading the defense of non-acceptance of the claim due to lack of capacity or lack of full capacity. Since the contestant accepted the ruling and did not appeal it. As the scope of appeal filed by the respondent was restricted to requesting an increase of the amount, without reference to the judgment in his favor as to declining of the contestant’s defense not to accept the claim. This ruling, through non-appeal by the contestant, has won the force of order that goes beyond the consideration of public order.
3.Identification of the intention of contracting parties in the contract subject of claim is a matter that falls within the jurisdiction of the subject court. However, as soon as the court concludes the same, the legal adaption of their intention and application of the law of contract becomes a legal issue that falls under the control of the court of cassation.
4.As provided in Article 1/736 of the civil code, an attorney may initially withdraw from the power of attorney at any time.

The Court

 
Having been conversant with the papers and upon hearing the report recited by the presiding judge, and following pleading and deliberations, and since the contestation has met formal status.
 
The merits, as derived from the contested judgment and other papers, may be summarized as follows:
 
The respondent has filed civil case no. 60/2008/ against the contestant company, requesting a judgment to obligate the latter to pay an amount of QAR 851,900. In explanation of his claim he stated that both the respondent and the contestant, along with others, have agreed to dissolve a company they had jointly formed. They allocated a part of the sale price of the said company to offset their debts due to third parties payable from the company to be liquidated. They authorized the contestant to pay such amount, but the contestant failed to pay it, and therefore the respondent has filed the claim. The contestant opposed the claim, stating that it is filed against an entity that lacks capacity. The court delegated an expert and subsequently issued a judgment to obligate the contestant to pay the respondent an amount of QAR 243,341.80, explaining in records that the court has rejected the defense of the contestant for non-acceptance of the claim. The respondent appealed alone under appeal case no. 894/2008, and the court issued a judgment to increase the amount to QAR 851,900. Subsequently, the contestant contested for cassation. The respondent submitted a defense pleading requesting not to accept the contestation. Upon submittal of the contestation before the court at the counseling room, a hearing session was set. The request to hold execution was combined with the contestation for judgment in both.
 
The respondent’s pleading for non-acceptance of the contestation stated no reasons in his bill of indictment, which renders such defense improper. This is because it is evident from his contestation bill that, after summarizing the merits of the claim, the defense of the litigants and the ruling of the subject court, the contestant objected to the contested ruling for five reasons: misapplication, invalidity, deficiency of justifications, and violation of facts established in papers. These reasons are clearly indentified in such a way as to disclose its intent, and to remove ignorance and ambiguity. This clarity of identification indicates the defects discerned by the contestant in the contested ruling and the impact thereof on the judgment. Accordingly, the defense of non-acceptance is not proper.
 
The third reason claims that the contested ruling is deficient in its reasoning and justification. In explanation of this the contestant states that its defense before the court of subject was not to accept the claim as it was filed against an entity that lacks capacity, since litigation was addressed to its person and not to its capacity as the attorney for the remaining partners. It was also filed against an entity that lacks full capacity, as the claim was addressed only to the contestant, whereas it was not the sole debtor of the demanded amount. However, the ruling ignored such defense, despite the fact that it is decisive in determining the liability for the ruled amount. Therefore the contestant claims that the contested ruling is defective and requires cassation.
 
This objection, however, is not correct due to the fact that appeal, based on Article 169 of the law of pleading, transfers the claim to a second-grade court as it is before the issuance of the appealed ruling for the appellee only. The court of appeal is not permitted to decide any issue not presented thereto, or to damage the position of the appellee in his appeal. As the contestant has not appealed the first instance ruling which obligated the latter to pay the amount of the judgment to the respondent, after having declined in his pleading the defense of non-acceptance of the claim due to lack of capacity or lack of full capacity. The contestant was content with the judgment of such ruling and did not contest by appeal. The scope of appeal filed by the respondent was restricted to his request for an increase in the judgment amount, without reference to the judgment in his favor as to declining of the contestant’s defense not to accept the claim. This ruling, through non-appeal by the contestant, has won the force of order that goes beyond the considerations of public order. Therefore, adherence by the contestant to such defense is clearly invalid and the non -reply thereof by the ruling does not prejudice the contested judgment. Therefore this objection is baseless.
 
The contestant claims that the ruling was misapplied as it obligated the contestant to pay the full amount allocated by the partners to the respondent, while it is liable only for the balance of the amount it is authorized to pay to him upon agreement and assignment to divide the balance among them pro rata to the share of each. Therefore, it is acquitted against the full amount of the respondent’s debt. This renders the contested judgment defective and necessitates cassation thereof.
 
This objection is basically correct due to the fact that, although the intent of parties to a contract forming the subject of the claim is within the jurisdiction of the court of subject, but as long as the court can derive such intent, the legal adaptation of such intent is a legal process that falls within the control of the court of cassation. However, it is established from the papers of the case that the litigants and others agreed to dissolve a company they had jointly formed. They authorized the contestant to pay the debts of such dissolved company from amounts deposited therewith, as estimated fixed rights for each creditor. They assigned the contestant to pay such debts and return the balance. Taking guidance from the nature of dealing, the responsibility of the contestant company is confined to execution of this commitment, in its capacity as their attorney in such assignment. Whereas the attorney may initially withdraw from such power of attorney at any time, as provided in Article 1/736 of the civil law, a fact not disputed by litigants that the contestant, after declining the request of the respondent to pay an amount exceeding the agreed amount under the agreement dated 1.7.2007, namely QAR 851,900, presented the issue before the remaining partners and expressed its desire to withdraw from the assignment. The partners agreed as per agreement dated 29.11.2007, and assigned the contestant to divide the balance amount among them pro rata to the share of each, which was undertaken. Accordingly, following the end of the authorization of partners to the contestant, the latter is not obliged to pay the respondent more than his specified share of the balance, in addition to his entitlement in the initial debt. However, this shall not prejudice the respondent’s right to sue the other partners for any amounts he may be entitled to from them. In case the judgment of the contested ruling contradicts this view and obligates the contestant to pay the full debt entitled thereto from partners under the agreement dated 1.7.2007, such ruling becomes defective and necessitates cassation.
 
Whereas the subject is valid for settlement, as evidenced from papers as aforesaid, without any dispute among litigants, the total balance of amounts which the respondent is authorized to pay to debtors is QAR 1622878.7, out of which QAR 851900 is due to the appellee for his debt to the company before dissolution, as established in the agreement of the partners dated 1.7.2007. This discloses that the total due to others from the balance of the appellee with the respondent is QAR 770978.7, to the appellee, out of which QAR 115646.80, i.e. 15 percent% of his share in the capital of the company. Add to this QAR 127694.95, allocated thereto from his debt divided among all the partners, estimated by agreement to be QAR 851900. Accordingly, the total due to him from the other partners is QAR 851900 – 127,694.95 = QAR 724,205.05, out of which QAR 108,630.20 belongs to the respondent, i.e. 15 percent of its share. Therefore, the total due to appellee from the respondent is QAR 351,973.
 
The requirements for a decision on the request to hold execution have expired upon the issuance of judgment in the subject of the claim.