1. In accordance with commercial usages or other customary requirements the lack of a concluded contract is not a defence against the claim on payment of the completed works, including those done by a subcontractor.

The facts of the case

Based on the Resolution of the Cabinet of Ministers dd 19 May 2020 No 294 an additional 1.5 trillion soums were allocated for the construction of social facilities to eliminate the consequences of the emergency incident [of flood] at the Sardoba Reservoir. As per this resolution, the claimant was appointed as the general contractor for the construction of multi-apartment housing in the Haqiqat MFY, Mirzaabad District, Syrdarya Region.

25 May 2020 the company for the construction of housing [the employer] and the claimant [as the general contractor] concluded a general construction agreement. Based on this, 1 June 2020 the claimant entered into a subcontract agreement for the construction work at these facilities. The parties amended the subcontracting agreement to construct the Mahalla guzari building on the territory of the Haqiqat MFY.

The company paid the claimant for the construction of houses under the general construction agreement. The additional work under the amended subcontract agreement was not included in [the scope of work of] the general contractor agreement. Resolution No 294 did not provide for the construction of the Mahalla guzari building. The court of first instance refused to satisfy the claim based on these circumstances. The court of appellate instance concurred.

The Supreme court’s position

Although a contract should have been concluded for [additional] works to be performed, the work was performed without the contract. The payment was not made because the work was performed without the contract. [The Collegium has cited Arts 109 I, II, 363 CC, Nr 3 RPL dd 4 March 2002 No 103, Nr 2.2, 2.3, 5 RPL dd 23 December 2016 No 306].

3 November 2020 the company applied to the hokim, requesting allocation the land for the construction of the Mahalla guzari building in accordance with Resolution No 294. 12 November 2020 based on this letter and the minutes of the Standing Commission of the hokimyat, the hokim of Mirzaabad District adopted a resolution on allocating the land [unit] for the construction of the Mahalla guzari. Qishloqqurilishloyiha MChJ develeped the design. This approved design and the unified expert opinion of the Shaharsozlik Hujjatlari Ekspertizasi State Unitary Enterprise also indicate that the company is the employer for the construction of the Mahalla guzari. According to the invoice [ҳисобварақ-фактура] between the claimant and the subcontractor, it was confirmed that the construction works in Mahalla Guzari were completed.

According to the conclusion of Nazorat o‘lchovi departamenti MChJ, the amount indicated in the certificate of completion for the construction of Mahalla Guzari is 1.68 billion soums. The amount of funds determined in the control measurement is 1.59 billion soums. The difference is 0.09 billion soums. The balance between the claimant and the subcontractor is 1.59 billion soums.

25 January 2021, the Mirzaabad District governor adopted Resolution No 109 ‘On the organization of the “Yangi O‘zbekiston” mahalla citizens’ assembly in Mirzaabad District’. Based on the act of transfer and acceptance dd 15 April 2021, the Mahalla guzari building was transferred to the Chairman of the Yangi O‘zbekiston MFY for use. The Chairman of the Yangi O‘zbekiston MFY states that the employees of MFY were placed in the newly built Mahalla guzari building in July 2021. The Mahalla guzari building is currently being used. The equipment located in the building has been decommissioned and accepted from the company. The building is in a condition suitable for use.

In this case, although the contract was not concluded, according to the documents available in the case and the statements of the parties’ representatives at the court proceedings, the claimant has duly fulfilled its obligations in accordance with the company’s commercial usages or other customary requirements. Documents on the work performed by the claimant were submitted to the company and the work performed was approved in the presence of the claimant and the subcontractor, the work performed was accepted by the Chairman of the MFY, but the work performed was not accepted by the company and no payment was made on the debt for the work performed.