لخّصلي

Dear Sir, Hon'ble Tribunal, This is a commentary statement submitted by the Claimant in answer to the Respondent's statement of defense "SoD". It addresses the Respondent allegations made as counterclaim and provides reasons for rejecting them as well. First : Regarding comment on the Respondent's Reply to the Claim Statement: It is clear from documents submitted by the Claimant that the parties entered into a Design Contract dated 21/10/2020 ( Kindly see Exhibit No. 2 attached with statement of claim), whereby the Respondent was obligated to carry out - inter alia - full interior design, architecture works, Project Supervision and other services in the Claimant's Villa as stated in Schedule (A ) of the Contract (Scope of work). 1. In its "SoD" the Respondent doesn't denied that it received the claim amount from the Claimant, the Respondent clearly stated in page No. (3) of "SoD" that : (( the amount paid by the Claimant to Respondent AED 606,900 broken down into AED 578.000 plus AED 28.900 in value-added tax .Conclusion, In light of the explicit admission by the Respondent and the failure to perform their contractual obligations, the counterclaim lacks substance and must be dismissed, and the well-established proofs, documents submitted by the Claimant in this matter are sufficient from both legal and factual points for the Tribunal to issue an award in favor of Claimant and grant him all claims stated in the Statement of claim.B. The Claimant denies all the pictures showing drawings which the Respondent attached with his statement of defense (SoD) and requests that they be disregarded as none of them were executed within the time agreed upon under the contract as per Schedule "B" of the Contract (Time Schedule) which is stated that the Respondent is obliged to start Design stages on 25/10/2020 and finish the final stages on 22/12/2020. C. The publications attached by the Respondent which shows that he obtained some awards, have no relation to the subject of the dispute and don't serve his case in any way. D. By submitting all these photos the Respondent intends to flood the case file with a lot of irrelevant documents in an attempt to delay the decision, So the claimant solicits to ignore it. The established fact is that the Respondent doesn't submit any document among his documents indicating that he fulfilled its obligations under the contract within time period. Rather, in much of what he stated in its (SoD), it confirms the fact that does not start the work, nor did he obtain the initial approval from the Dubai Municipality as it neglected its duty to complete the work within agreed date required to obtain the initial approval. Note that the contract value was received by the Respondent in advance. Dubi's Court of Cassation ruled in the Cassation No. 2020/383 Civil Cassation - 2022 : ((The contract must be implemented in accordance with its contents and in a manner consistent with what good faith requires. Article No. 246 Civil Transactions.)) Whereas, the Claimant has fulfilled his contractual obligations as mentioned in the Design Contract and paid to the Respondent AED 606,900 (AED SIX HUNDRED SIX THOUSAND AND NINE HUNDRED ONLY) which represents 85% of the total contract value as proven by the cheques the Claimant delivered to Respondent together with receipts issued by the Respondent proves receiving the amount. And as stated in the contract the total value of the agreed-upon works is 680,000 AED, not including the VAT of (5% ) Accordingly, the total amount paid to the Respondent is amounting to 606,900.00 AED. Then the Respondent is obligated to return the full amount it received. The reply the Respondents have submitted to this claim are all incorrect, groundless, irrelevant and unaccepted. Third : Regarding reply to the respondent counterclaim: The Claimant denies all Respondent's allegations in its Counterclaim , and reply as follows :

1. The Respondent alleges that the Claimant contributed to the delay in the obtaining of the approval of Dubai Municipality due to his refusal to pay the fees is just a defence, since the documents proves that the Respondent is the one who failed to do what was required of him by the contract and was slow in obtaining the required approvals and starting work. 2. The proven fact is that the initial design was sent to the Claimant in its final form on 23/12/2021- after taking into account the Claimant comments - as the Respondent acknowledged this fact in his (SoD) - page no. (4) ), meaning that instead of completing all stages of the work on 12/22/2020, the Respondent started it after a year. The Schedule "B" of the Contract ( 2.0 - Time Schedule) : stipulates that the Respondent is committed to start Design stages on 25/10/2020 and finish the final stage on 22/12/2020.The article No. (14 / 1 -2) of Federal Decree by Law No. (35) of 2022 Promulgating the Law of Evidence in Civil and Commercial Transactions stipulates: ((1.Admission is a party's statement acknowledging an obligation owed by him to another party))....(( 2.The admission shall be a judicial admission if the litigant makes the admission directly before the court or via any means of remote communication of a certain fact for which he is sued, during the legal proceedings relating to such fact, whether before the court that hears such proceedings or the supervising judge, as the case may be. )) In cassation No. 2017/36 - issued in 2017 - dated 04-11-2017 the Dubai court of cassation ruled that: ((The Admission is evidence against the admitter if he has the capacity of commitment.)).Via the communications between the parties, the Respondent was fully informed that Claimant needs the completion of the design of his Villa as agreed in the contract so as to enable him to live therein with his family, therefore the Respondents' default caused direct damages and losses to the Claimant by compelling him to rent another Villa for his family from Wasl Properties, Jumeirah Third, Dubai as proved by the two authenticated Lease E- Agreements Nos.Order the Respondent to pay to the Claimant AED 320,000 (DIRHAM THREE HUNDRED TWENTY THOUSAND ONLY) as compensation for the damages he incurred through renting Villa for his family due to Respondent's default in fulfilling its contractual obligations as agreed in the Contract.Thus this admission undermines the Respondent's position and confirms the validity of the Claimant's original claim.51253/4 & 51253/5 holding Ijari Registration Certificates Nos.2.3.4.5......2.3.

Dear Sir, Hon’ble Tribunal,
This is a commentary statement submitted by the Claimant in answer to the Respondent's statement of defense "SoD". It addresses the Respondent allegations made as counterclaim and provides reasons for rejecting them as well.
First : Regarding comment on the Respondent’s Reply to the Claim Statement:
It is clear from documents submitted by the Claimant that the parties entered into a Design Contract dated 21/10/2020 ( Kindly see Exhibit No. 2 attached with statement of claim), whereby the Respondent was obligated to carry out - inter alia - full interior design, architecture works, Project Supervision and other services in the Claimant’s Villa as stated in Schedule (A ) of the Contract (Scope of work).

1. In its "SoD" the Respondent doesn’t denied that it received the claim amount from the Claimant, the Respondent clearly stated in page No. (3) of "SoD" that : (( the amount paid by the Claimant to Respondent AED 606,900 broken down into AED 578.000 plus AED 28.900 in value-added tax . Accordingly the amount paid by the Claimant is AED 578.000 not AED 606,900)).
   Therefore, the Respondent does not deny the fact that it received the claim amount, and as states in the contract the total value of the agreed-upon works is 680,000 AED, not including the VAT of (5% ) Accordingly, the total amounts paid to the Respondent is amount of 606,900.00 AED.
   The article No. (14 / 1 -2) of Federal Decree by Law No. (35) of 2022 Promulgating the Law of Evidence in Civil and Commercial Transactions stipulates: ((1.Admission is a party's statement acknowledging an obligation owed by him to another party))….(( 2.The admission shall be a judicial admission if the litigant makes the admission directly before the court or via any means of remote communication of a certain fact for which he is sued, during the legal proceedings relating to such fact, whether before the court that hears such proceedings or the supervising judge, as the case may be. ))
   In cassation No. 2017/36 - issued in 2017 – dated 04-11-2017 the Dubai court of cassation ruled that: ((The Admission is evidence against the admitter if he has the capacity of commitment.)).

Whereas the Respondent acknowledged in his defense Statement (SoD) that he received the full amount from the Claimant, and he does not dispute the fact that he failed to fulfill any of his obligations under the contract, which necessitates a ruling obliging him to return the amounts he received.
2. Via the communications between the parties, the Respondent was fully informed that Claimant needs the completion of the design of his Villa as agreed in the contract so as to enable him to live therein with his family, therefore the Respondents' default caused direct damages and losses to the Claimant by compelling him to rent another Villa for his family from Wasl Properties, Jumeirah Third, Dubai as proved by the two authenticated Lease E- Agreements Nos. 51253/4 & 51253/5 holding Ijari Registration Certificates Nos. 0120180201001143 (v. 4) & 0120180201001143 (v. 5) consecutively, the Villa rent costs the Claimant AED 320,000 per annum , and he paid until the date of filing this arbitration matter total amount of AED 476,000 as mentioned in the attached registered lease E- Agreements. (please see Exhibit- 10 Lease E Agreements & Ijari Registration Certificates that costs the Claimant AED AED476,000 until the date of filing this arbitration matter.)
The contractor shall be liable for any loss or damage resulting from his act or work whether arising through his wrongful act or default or not, but he shall not be liable if it arises out of an event which could not have been prevented. – Article No. (878) of the civil transactions Act.
Second: Regarding Comment on Documents submitted by The Respondent :
A. All documents submitted by the Respondent ( Exhibits No. 1 to No. 10 ) supports & proves the Claimant case (( Contract, Tax Invoices, Cheques, and Receipts prove that the Respondent received the Claim amount )).
B. The Claimant denies all the pictures showing drawings which the Respondent attached with his statement of defense (SoD) and requests that they be disregarded as none of them were executed within the time agreed upon under the contract as per Schedule "B" of the Contract (Time Schedule) which is stated that the Respondent is obliged to start Design stages on 25/10/2020 and finish the final stages on 22/12/2020.
C. The publications attached by the Respondent which shows that he obtained some awards, have no relation to the subject of the dispute and don’t serve his case in any way.
D. By submitting all these photos the Respondent intends to flood the case file with a lot of irrelevant documents in an attempt to delay the decision, So the claimant solicits to ignore it.
The established fact is that the Respondent doesn’t submit any document among his documents indicating that he fulfilled its obligations under the contract within time period. Rather, in much of what he stated in its (SoD), it confirms the fact that does not start the work, nor did he obtain the initial approval from the Dubai Municipality as it neglected its duty to complete the work within agreed date required to obtain the initial approval. Note that the contract value was received by the Respondent in advance.
Dubi’s Court of Cassation ruled in the Cassation No. 2020/383 Civil Cassation – 2022 : ((The contract must be implemented in accordance with its contents and in a manner consistent with what good faith requires. Article No. 246 Civil Transactions.))
Whereas, the Claimant has fulfilled his contractual obligations as mentioned in the Design Contract and paid to the Respondent AED 606,900 (AED SIX HUNDRED SIX THOUSAND AND NINE HUNDRED ONLY) which represents 85% of the total contract value as proven by the cheques the Claimant delivered to Respondent together with receipts issued by the Respondent proves receiving the amount. And as stated in the contract the total value of the agreed-upon works is 680,000 AED, not including the VAT of (5% ) Accordingly, the total amount paid to the Respondent is amounting to 606,900.00 AED. Then the Respondent is obligated to return the full amount it received.
The reply the Respondents have submitted to this claim are all incorrect, groundless, irrelevant and unaccepted.
Third : Regarding reply to the respondent counterclaim:
The Claimant denies all Respondent’s allegations in its Counterclaim , and reply as follows :

1. 
   

   The Respondent alleges that the Claimant contributed to the delay in the obtaining of the approval of Dubai Municipality due to his refusal to pay the fees is just a defence, since the documents proves that the Respondent is the one who failed to do what was required of him by the contract and was slow in obtaining the required approvals and starting work.

   
   


2. 
   

   The proven fact is that the initial design was sent to the Claimant in its final form on 23/12/2021- after taking into account the Claimant comments - as the Respondent acknowledged this fact in his (SoD) - page no. (4) ), meaning that instead of completing all stages of the work on 12/22/2020, the Respondent started it after a year.
   The Schedule "B" of the Contract ( 2.0 - Time Schedule) : stipulates that the Respondent is committed to start Design stages on 25/10/2020 and finish the final stage on 22/12/2020. but the Respondent had done nothing up to date, which pushed the Claimant to send On 23/6/2021an email to the Respondent requesting to resolve this issue within three days .
   And during this period the Respondent didn't notify the Claimant with any delay reasons as stipulated in article No. (2.4. Notification of Delay) which states : (( The Designer will notify the Employer as soon as the Designer is aware that a delay, which is not due to the Designer’s default, is likely during build and the reasons which contribute to the delay.)) .

   
   


3. 
   

   And since the Respondent failed to solve the dispute amicably and handover the designs with time-limit, the Claimant sent a Legal Notice on 09/12/2021 to the Respondent requesting repay the AED 606,900 Also, the Claimant filed before Dubai Court the civil case No 2267/2022 where an Engineering Expert appointed by Court concluded that the Respondent failed to execute its contractual obligations as mentioned in the Design Contract.

   
   


4. 
   

   The Respondent alleges that the Claimant contributed to delay as he rejected the designs many times and refused to pay the approval fee . All of Respondent allegations in this regard are null and meritless. Additionally , the subclause No. ( 1.2.1) provides that : All Finishing including material are subject to the approval of the client representative and design (LSD) consultant .

   
   


5. 
   

   The Respondent is trying to prove that it completed the work, but the essential point is whether the Respondent completed the work within the time agreed upon in the contract, which was set for 12/22/2020 ???? ….. the answer is NO, and what is proven from what the Respondent listed in its (SoD) regarding the dates of completion the works or applying for initial approval to the Dubai Municipality are dates that clearly prove his failure to comply with what the contract required to implement the works within the agreed time according to Schedule (B).
   The Article No. (70) of the Civil Transactions Act - Federal Law No. 5 - 1985 states that: ((He who challenges what has been done from his part his attempt shall turn against him)).
   The rule issued in 2023 - included in the judgment of the Court of Cassation - Dubai dated 07-10-2023 In cassation No. 2023/137, real estate cassation : ((Whoever seeks to challenges what was done on his part, his effort will be rejected, meaning that whoever works to undo what he did and was done on his part, his work will not be considered in accordance with the provisions of Article 70 of Civil Transactions.))
   The Claimant is not responsible for alleged damages the Respondents have mentioned in their statement of defense.
   Based on stated above, the counterclaim must be ignored and rejected for lack of evidence. As it is inherently flawed and invalid, as detailed below:

   
   


6. 
   

   Explicit Admission by the Respondent: The memorandum submitted by the Respondent contains a clear and unequivocal admission that the Respondent received the claimed amount as outlined in the statement of claim (SoC). Thus this admission undermines the Respondent’s position and confirms the validity of the Claimant's original claim.

   
   


7. 
   

   Failure to Perform Contractual Obligations: The Respondent has not executed any of the contractual works that were agreed upon under the terms of the contract - irrespective of the reasons cited in the Respondent's statement of defence (SoD) for their failure to execute these works - the fact remains that no deliverables or services were provided. This constitutes a fundamental breach of the agreement.

   
   


8. 
   

   Invalidity of the Counterclaim: The counterclaim lacks merit as it fails to address or refute the Respondent's non-performance of their contractual obligations. And the Respondent's acknowledgment of receiving the payment further discredits the basis of the counterclaim.
   Conclusion, In light of the explicit admission by the Respondent and the failure to perform their contractual obligations, the counterclaim lacks substance and must be dismissed, and the well-established proofs, documents submitted by the Claimant in this matter are sufficient from both legal and factual points for the Tribunal to issue an award in favor of Claimant and grant him all claims stated in the Statement of claim.
   (The termination of the contract shall result in the parties’ restoration of their status quo ante, and where this is impossible, the remedying compensation for the damage shall be awarded. The judge may rule the termination of the contract and compensation where necessary.)
   (( Cassation No. 965 of 2018 – Commercial - Issued on 26/3/2019 – Federal Supreme Court))
   Therefore: -

   
   

The Claimant petitions the Hon’ble Tribunal to:
First : Principle Claim : -

1. To declare Termination of the Design Contract dated 21/10/2020 as Respondent failed to fulfil any of its terms.


2. Order the Respondent to pay the Claimant the AED 606,900 (AED SIX HUNDRED SIX THOUSAND AND NINE HUNDRED ONLY) the amount the Claimant paid subject to the provisions of Design Contract without getting from the Respondent the Designs, the services they obliged to perform, in addition to 5% legal interest from the date of default in 22/12/2020 until the full payment.


3. Order the Respondent to pay to the Claimant AED 320,000 (DIRHAM THREE HUNDRED TWENTY THOUSAND ONLY) as compensation for the damages he incurred through renting Villa for his family due to Respondent’s default in fulfilling its contractual obligations as agreed in the Contract.


4. Order the Respondent to pay to the Claimant the legal expenses, all arbitration fees, costs, and attorney's fees.


5. Grant such other relief (s) as the Hon’ble Tribunal may deep appropriate.
   Second : Counter claim : - Reject the Counterclaim raised by the Respondent.

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