Shanghai Minhang District people's court

Civil judgment

(2009Min Minsan (min)) at the beginning of the word no.2807No.

The plaintiff a (counterclaim defendant), female,19?Years?Month?Day of birth, the Han nationality, domicile in Hubei ProvinceX xThe city, now living in Shanghai CityX xDistrictX x xThe village??No.???Room.

Attorney: Ding Shuguang, lawyer of Shanghai lehman.

The B (counterclaim plaintiff), female,19?Years?Month??Day of birth, the Han nationality, domicile in Shandong ProvinceX xThe city, now living in Shanghai CityX xDistrictX xRoad????Figure???No.???Room.

The C (counterclaim plaintiff), male,1955Years9Month23Day of birth, the people of Hongkong, now living in Shanghai CityX xDistrictX xRoad????Figure???No.???Room.

Agent B, female, live in the city of ShanghaiX xDistrictX xRoad????Figure???No.???Room.

A and B, C housing sale contract dispute case, the court in2009Years12Month18Hitachi case acceptance. In accordance with the law by the acting judge Gong Liqiong to apply summary procedure to conduct a public trial.2010Years1Month12Day, ethylene, propylene counterclaim to the Institute, the Institute joinder. A and B (i.e. attorney agent Ding Shuguang, authorized agent c) attended the court proceedings. Now the trial has been closed.

A claim:2009Years10Month24Day, a and B, C signed"Shanghai real estate sales contracts", the contract agreed: A to B, C the city to buy Minhang District x xRoad????Figure???No.401The house (hereinafter referred to as the housing department for a total price of RMB), (the same below)1,950,000Yuan, the first payment580,000Yuan, the plaintiff to apply for bank loans to pay1,360,000Yuan, the tail section10,000Element. After signing the contract, Jia Xiangyi, C payment of the first payment, bank loan application has been approved by the bank, now has a transfer condition. A repeated urging B, C for transfer procedures, but its all ignore, a only recourse to the court for any (a) B, C continue to perform with a signed the Shanghai real estate sales contracts, the housing department for transfer to a; (two) in the receiving bank loans for housing will be delivered to a; (three) sought after settlement of hydropower gas, cable TV, telephone repair fund transfer to a property.

A proof of the proposition, the following evidence materials submitted to the court:1, "Shanghai real estate sales contracts";2The receipt;3, the loan contract and mortgage information;4, the deed tax payment book;5, invoice;6Notice.

B, C defense and counterclaim said: a loan has exceeded the time stipulated in the contract, there are late payment default responsibility. B, C urged a payment as soon as possible and pay breach of contract damages, a very bad attitude towards. Ethylene, propylene is about to perform according to the sales contract, and has been actively cooperate with a bank loan. The sale of housing is to buy another house, the B, C has raised money to buy, to have no need for the sale of housing, the counterclaim for any (one) the two sides signed the contract for the sale of real estate; (two) a payment of overdue payment default payments, according to the principal137Dollars, since the2009Years11Month15Date to lift the trading center for the record registration date day 5/10000; (three) a B, C Fangjiekuan payment20%The calculation of liquidated damages39Million yuan.

B, C to prove it argued and counterclaim, submit the following evidence to the court:1Dunning notice, a group of;2, certificate of mailing and receipt;3The additional protocol.

In B, C a counterclaim, as both sides agreed in the contract of sale payment time is in the loan approval down by the bank after the payment to B, C, a payment does not exceed the time stipulated in the contract.

The trial process, the evidence authenticity B, C to a provided no objection. A to B, C provides proof of authenticity have no objection. Effectiveness of the hospital to the both parties had no objection to the authenticity of the evidence confirmation.

Based on the evidence and the statements of the parties concerned, the facts are as follows:

2009Years10Month24Day, ethylene, propylene (contract Party A) and (b a contract) signed the "Shanghai real estate sales contracts"1A, a and B both sides agreed by Shanghai x x x real estate brokerage firms, brokerage, Party A Party B to buy is located in Minhang District city x xRoad????Figure???No.401Room housing a construction area113.04Square meters; the transfer price1,950,000Yuan; Party A to2009Years12Month20Recently vacated the house and notify Party B acceptance handover; both sides recognised in the009Years11Month15Recently jointly to the real estate trading center to apply for transfer procedures; Party B fails to pay the agreed period of the contract, Party A has the right to delay to fulfil its contractual obligations, Party B late payment, late every day, day 5/10000 Party B shall be payable but unpaid amounts to late payment default payment; the late more than20Days, Party A has the right to terminate Party B in written form with the sales contract; if the two sides trade targeted housing not for property transfer procedures, Party A shall have the right to be sold to the housing third people without notice to Party B within seven days; in addition to the payment of arrears default payment to Party B in receipt of written notification of termination of the contract the date, also should be based on the total price20%Default payment; if the two sides trade mark of the housing has procedures for the transfer of property rights, the right to request Party B to restore the status quo, and from Party B has paid the housing price, after deducting the total price20%For transactions in compensation for the loss of its own, and Party B shall be liable for damages, the remaining Fangjiekuan in restitution after7Days refund to Party B; Party A has paid to the real estate developer or Property Management Company or other relevant departments of the repair funds (Ruo You), the management fee deposit (Ruo You), telephone installation fee (Ruo You), each fee (if any), cable TV fee (if any) have been included in house money, no longer separate settlement, but the above name costs borne by the party; after both parties signed contracts of sale on the same day, Party B shall pay the first payment Fangjiekuan directly580,000Yuan (including the deposit paid100,000Yuan); Party A Party B agreed to by the application to the bank1,360,000Yuan loans in the form of payment third forward delivery housing price, Party B should be in the sales contracts signed after the bank within seven days to apply for a loan, and the signing of the mortgage loan contract, for all the relevant procedures, apply for loans notarized collateral contract procedures (Ruo You), and pay all expenses related to Party B; loan application by the lending bank audit after5Working days, Party A and Party B personally went to Shanghai city to Minhang District real estate trading center to apply for property transfer and mortgage registration (a), and by the intermediary fee receipts, to Shanghai City, the Minhang District Real Estate Trading Center issued by Party B for the real estate property permits the holder of the right to use and the mortgagee to the bank loan him heading and sent to the bank after7Working days, Party B shall pay to Party A the third forward delivery housing price, the forward delivery housing price paid by the lending banks on behalf of Party B; party a received the bank agreed to limit2Days, both parties shall to the real estate inspection, inventory, confirmation, Party A shall housing will be handed over to Party B, and Party B paid the purchase10,000Yuan; if the Party B loan application is not approved by lending bank or approved amount is insufficient application amount, Party B shall be agreed on third 1629 delivery date will be cash supply and payment to Party A. The contract for the sale of other contents of the agreement and the Shanghai Oriental notary office.

2009Years10Month22Day, a to B to pay a deposit100,000Yuan; the same year10Month24Days to pay the first payment580,000Yuan (including the deposit paid100,000Yuan).2009Years11Month25A day, to the China Everbright Bank Shanghai Changde branch for Chinese1,360,000Yuan loan to obtain approval.

2009Years11Month22Day, ethylene, propylene by conduit company Shanghai x x x real estate brokerage firm referred to a specified: according to the two sides signed, for housing sales contracts agreed last time and the last payment term is now finally housing transfer within the period agreed in the contract agreed by the parties, the time period for the housing transfer2009Years11Month15Day, now over; in about two weeks ago, Party A and Party B have many times to communicate the matter, Party A Party B to form multiple telephone urged, Party B has not been able to give solutions, has not had a clear answer; if the contract has expired, and long after the failed, in addition to Party A has not received the B70%Limit, the formal notice to Party B, Party B to Party A fails to pay 1629, leading to the contract can not continue to perform in accordance with the contract on schedule, the sixth and ninth (three) in sub contract, from2009Years11Month16To start the day, all the consequences will require Party B to Party A in accordance with the provisions in the contract damages for the breach of contract terms is calculated to compensate Party A for economic losses and thus caused, Party B will bear all the responsibilities of a result, now through the intermediary of formal written notice to Party B.

Conduit company Shanghai x x x real estate brokerage firm to B, C issued a "notice" a, specify:2009Years10Month24The day you through I will be in Shanghai city Minhang District x xRoad????Figure???No.401Chamber of the properties for sale to buy a party A, the buyer a bank loan approval has passed, with the transfer conditions,2009Years11Month24The day my company staff Zhou X by phone,2009Years11Month25Day in the form of text messages to inform you in2009Years11Month25Two in the afternoon transfer, because you do not time for transfer procedures, we notify you to2009Years11Month26On the afternoon of2Point for the housing transfer procedures in the event period, if you didn't have time to come, please you in a written reply to our specific transfer time.

2009Years11Month30Day, B to x x x real estate conduit company Shanghai housing brokerage firm and a "notice" issued reminders1A, states: Housing sales contracts signed after the contract, Party B within the prescribed time limit, Party A fails to pay the full purchase, fails to perform the contract, the Party A to2009Years11Month22And the same year11Month27Subsequent related issues, twice written notice processing request Party B's breach caused by actively and properly. But the party has so far failed to see the Party B is actively deal with this matter sincerity action.2009Years11Month27The contents of the notice issued on a default (subsequent joint problems caused by the4Points) has not received the formal approval of the object with a solution of sincerity and bank loans. Party A in the unilateral intention friendly consultations, the last written notice to the intermediary Shanghai x x x real estate brokerage firm and buyers in a formal document, failed to authenticate to Party B the oral said bank loans down the case (I believe this batch of complex is true, but, my we must examine the approval document, because we believe only the true legal documents issued by the bank) We have fulfilled the contract annex three paragraph third of the bank approval5The agreement prescription to assist Party B to transfer working days. If Party B stipulated in breach of contract. (i.e.2009Years11Month16To the same year12Month5Day20Days), follow-up related matters still fail to handle the caused by the breach. Party A will from2009Years12Month6Unilateral termination of the contract date, all losses thus incurred will be the breaching Party B according to the contract payment terms a, executive claims. Party A will no longer notice....

Due to a loans overdue matters, ethylene, propylene demand a late payment default payment period, the breach of contract and others time many consultations fail, and receiver.

The court considered, a and B, C signed the "Shanghai real estate sales contracts" is the true meaning of the parties, not contrary to law and, to be effective, both parties shall fulfill the. According to the contract, both sides in the2009Years11Month15Before the transfer transaction processing procedures, at the appointed time, a loan application is not approved or by the amount is insufficient, a shall transfer the part of the loan in cash supply, but a delay to the loan2009Years11Month25Day is approved, leading to handle the transfer procedures in the transfer time is not agreed, the responsibility in armour, a shall bear the corresponding liability for breach of contract, annex three payment protocol third on to loan applications through the review loan bank5Working days, apply for transfer procedures according to the contract agreement, should be understood as meaning, such as a transfer of the contract between the time before the office of a bank loan, it should be through bank loans after the audit5For the housing transfer procedures working days, rather than whether the length of the delay, re apply for loans, as long as can do out bank loans, the sale must be fit for property transfer and the buyer need not assume liability for breach of contract means. The hospital on a payment time node is not to argue that, the court shall not accept. But a late payment time does not exceed the20Day, B, C not yet have unilaterally cancelling the contract conditions. And the two sides in a loan approved after the default payment and has been submitted to the time at the consultation stage, the consultations fail than contract20Day of payment time, can not unilaterally attributable to a, B, C not therefore have the right to unilaterally terminate the contract. To sum up, the hospital on a requested the two defendants continue to perform a contract for the sale of housing litigation request support, to B, C request to terminate the house sale contract counterclaim proceedings not support the request. B, C a counterclaim request a payment from2009Years11Month16To2009Years11Month25Day late payment penalty, the court shall support, require a paid Fangjiekuan20%The penalty counterclaim proceedings not support the request.

Continue to perform the contract, a shall pay the remaining 1629 Xiang Yi, C, B, C shall cooperate with the transfer of housing to a name and housing delivery to the nail, and hydropower coal in accordance with the contract, transfer to a name.

Accordingly, in accordance with the "contract law" article 107th China people's Republic of China, the decision as follows:

A, a and B, C signed for the Shanghai city Minhang District x xRoad????Figure???No.401Room of the "Shanghai real estate sales contracts" to continue to perform;

Two, B, C come into effect from the date of the judgment5Working days and a common to Shanghai, the Minhang District Real Estate Trading Center for property transfer procedures (a), will be located in theShanghai city Minhang District x xRoad????Figure???No.401Room housing property transfer to a name;

Three, nail on the housing and his right certificate7Working days to bank loans, and apply for the loan from a bank to pay 1629, a B C136Million yuan (specific loan to bank loans to quasi);

Four, B, C from the bank136Million yuan loan after2Days, the housing delivery, the same day a to B, C payment limit1Million yuan;

Five, B, C the housing delivery a day water, electricity, coal, telephone, cable TV, property repair fund transfer to a name, name of the costs by a bear;

Six, for the entry into force of this decision within thirty days from the date of payment B, C according to the principal136Dollars, since the2009Years11Month16To2009Years11Month25Date, according to 5/10000 calculation of the late payment penalty.

Seven, ethylene, propylene and other counterclaim rejected claims.

The case acceptance fee charged by half8,565Yuan, from a burden42.51Yuan, ethylene, propylene burden8,522.49Element. The counterclaim case acceptance fees charged by half3,575Yuan, B, C burden.

Any party who refuses to accept the decision, the verdict can be delivered within fifteen days from the date of, to the court (Lianting) submitted, and the copy number according to the other party, appeal to the Shanghai first intermediate people's court.

                                             Acting judge   Gong Liqiong

Two 0 0 years in February 23rd

A secretary    Yuan Baiwei

 

The Shanghai first intermediate people's court

Civil judgment

(2010The two (a) Shanghai Min) with the word no. 1481st

The appellant B (defendant in the original instance, counterclaim plaintiff), female, 19?? Years? Month?? Day of birth, the Han nationality, domicile in Shandong ProvinceX xWe live in Shanghai City, Minhang District CityX x???? Get??? Room 401 no..

The appellant C (defendant in the original instance, counterclaim plaintiff), male, 19?? Years? Month?? Number born, residents of Hongkong, now living in Shanghai City, Minhang DistrictX x???? Get??? Room 401 no..

Two the appellant's jointly entrusted agentX x xShanghai CityX x x xLawyer.

Appellee (the plaintiff, the defendant a counterclaim), female, 19?? Years? Month? Day of birth, the Han nationality, domicile in Hubei ProvinceX xWe live in Shanghai City, Minhang District CityX x xThe village?? No.??? Room.

Attorney: Ding Shuguang, lawyer of Shanghai lehman.

The appellant B, C with the appellee people buy a house contract dispute case, the Shanghai Minhang District people's Court (2009) Min Minsan (min) at the beginning of the word no. 2807th civil judgment, and appealed to the hospital. The hospital in March 26, 2010 after the acceptance of the application, a collegial panel to conduct the trial. This case has already ended.

The trial court found, in October 24, 2009, ethylene, propylene (contract Party A) and (b a contract) signed "a contract" Shanghai real estate sales, a and B both sides agreed by Shanghai x x x Real Estate Economic Office (hereinafter referred to as x x x intermediary firms), party a party B to buy is located in the city of Minhang DistrictX x???? Lane 131, Room 401, a building area of 113 houses.04 square meters; the transfer price of RMB 1950000 yuan (the same below) in 2009 December 20 days before the party make the house and inform Party B received the confirmation test; in 2009 before 15 November, common to the real estate trading center to apply for transfer procedures; Party B fails the time limit for payment according to the terms of this contract, Party A has the right to delay to perform its obligations under the contract accordingly, Party B late payment, late every day, day 5/10000 Party B shall be payable but unpaid amounts to late payment default payment; the more than 20 days overdue, Party A has the right to terminate Party B in written form of the sale contract; if the two sides trade targeted housing does not handle the transfer procedures, Party A has the the right to housing to be sold to third people without notice to Party B within seven days in the preceding paragraph; in addition to the payment of overdue payment to Party B in written notice of termination of the contract the date received, should according to the total housing price of 20% default payment; if the two sides trade mark of the housing has procedures for the transfer of property rights, Party A has the the right to request Party B to restore the status quo, and payment from Party B Fangjiekuan, deduct 20% of the total price for compensation In the trading of its own losses, and Party B shall be liable for damages, the remaining Fangjiakuan refund within 7 days to recover to Party B; Party A has paid to the real estate developer or Property Management Company or other relevant departments of the repair of gold (Ruo You), the management fee deposit (Ruo You), telephone installation fee (Ruo You), gas installation fees (Ruo You), finite TV application fee (if any) have been included in house money, no longer separate settlement, but the above name costs borne by the party; the party signed contracts of sale on the same day, Party B directly pay the first payment Fangjiekuan 580000 yuan (including the deposit paid 100000 yuan); Party A agrees to apply for 1360000 yuan loans to banks in the form of payment of third forward delivery housing price, Party B should be in the sales contracts signed after the bank within 7 days to apply for a loan, and the signing of the mortgage loan contract, through all the formalities, apply for loans low contract legalization (Ruo You), and pay all expenses; Party B loan application 5 working days by the lending bank audit after, both parties personally went to Shanghai City Real Estate Trading Center of Minhang District Application for property transfer and mortgage registration (a), and by the intermediary fee receipts, to Shanghai City, the Minhang District Real Estate Trading Center issued by Party B for the property of real estate and the mortgagee to the lending bank he of warrants and 7 working days after Party B to the lending bank, should pay to Party A the third forward delivery housing price, the forward delivery housing price paid by the lending banks on behalf of Party B; party a received the bank agreed to limit after 2 days, both parties shall to the real estate inspection, inventory, confirmation, Party A should the housing to B, and Party B shall pay the purchase 10000 yuan; if the Party B loan application is not approved by lending bank or the approved amount is insufficient application amount, Party B shall be agreed on third 1629 delivery date will be cash supply and paid to Party A. The contract for the sale of other contents of the agreement and the Shanghai Oriental notary office.

In October 22, 2009, a to B to pay a deposit of 100000 yuan, the same year in October 24th to pay the first payment of 580000 yuan (including the deposit paid 100000 yuan). In November 25, 2009, a to the China Everbright Bank Shanghai branch China often apply for 1360000 yuan loans obtained approval.

In November 22, 2009, B, C x x x firms through conduit company referred to a written notice, include: according to the two sides signed the housing department for sale contract agreed last payment time and finally the housing transfer deadline, now more than the contract last time, both sides agreed the housing transfer time period of November 15, 2009, now more than before; about two weeks ago, Party A and Party B have many times to communicate the matter, Party A Party B to form multiple telephone urged, Party B has not been able to give solutions, has not been a clear answer; if the contract has expired, and long after the failed, Party A has not received the other 70% Party B's house, now formally notify Party B, if Party B fails to pay 1629 to the party, leading to the contract can not continue to perform in accordance with the contract on schedule, the sixth and ninth (three) in sub contract, from the beginning of November 16, 2009, all the consequences will require Party B to Party A in accordance with the agreed formula in terms of breach of contract compensation for economic losses of Party A and the resulting, now through the intermediary formal written notice Known B.

Conduit company x x x B, C a firm to "notice" (not dated) a, stated: October 24, 2009 you through I will be in Shanghai city of Minhang DistrictX x???? Lane 131, Room 401 of the properties for sale to buy a party A, the buyer a bank loan approval has passed, with the transfer conditions, in November 24, 2009 our company employee weekXBy phone, in November 25, 2009 in the form of text messages to inform you on the afternoon of November 25, 2009 2 for the housing transfer, because you don't have time for transfer procedures for the housing transfer procedures, we advise you to 2 p.m. on November 26, 2009, if the time you don't have time to come, please let us have your reply in writing to the our company specific transfer time.

In November 30, 2009, B to x x x firms and a conduit company issued "notice" urging a, include: Housing sales contracts signed after the contract, Party B within the prescribed time limit, Party A fails to pay the full purchase, fails to perform the contract, the party a related problem in November 22, 2009 and in November 27th the same year twice written notice requirements Party B shall actively and properly caused by the breach, but the party has so far failed to see the Party B is actively deal with this matter sincerity action. The contents of the notice issued in November 27, 2009 (4 points for a breach of subsequent joint problems caused by the) has so far failed to receive formal approval object solution has the sincerity of armour and bank loans. Party A in the unilateral intention friendly consultations, the final call Shanghai x x x intermediary firms and buyers a in written form, in official documents could not be verified to Party B the oral said bank loans down the case (I believe this reply is true, but we must be reviewed the approval document, because we believe only the true legal documents issued by the bank), we perform the contract annex three paragraph third of the bank approval within 5 working days after the agreed transfer content assist Party B's failure. If Party B in the contract period (from November 16, 2009 to December 5th of the same year, 20 days), follow-up related matters still fail to handle the caused by the breach, the party from December 6, 2009 to unilaterally terminate the contract, all losses thus incurred will be the breaching Party B according to the contract claims a clause claims. Party A will no longer notice....

Due to a loans overdue matters, ethylene, propylene demand a late payment default payment period, the breach of contract and others time many consultations fail, and receiver.

The trial of a claimed: both parties after the contract is signed, Jia Xiangyi, C payment of the first payment, bank loan application has been approved, now with the transfer condition. A repeated urging B, C for transfer procedures, but its all ignore, the: A, B, C continue to perform with a signed the "Shanghai real estate sales contracts", the housing department for transfer to a; two, on receipt of a bank loan to the housing department for delivery to a; three, others after the water, electricity, gas, and telephone, TV, limited property repair fund transfer to a fee.

B, C argued and counterclaim said: a loan contract, has exceeded the agreed time, being late payment default behavior. It has urged a payment as soon as possible and to pay liquidated damages, but a bad attitude, it has to perform contractual obligations, and has been actively cooperate with a bank loan. The sale of housing is to buy another house, has further raise money purchase, no sale housing necessary. Therefore, the counterclaim, requirements: first, the two sides signed the contract for the sale of real estate; two, a payment of overdue payment default payments, according to the principal of 1370000 yuan, calculated from November 15, 2009 to lift the trading center for the record registration date, daily 5/10000 calculation; three, a payment is calculated by Fangjiekuan 20% of the liquidated damages 390000 yuan.

In B, C a counterclaim request, that both sides agreed in the contract of sale payment time is in the loan approval down payment by banker to ethylene, propylene, so a payment does not exceed the time stipulated in the contract.

The court thinks, a and B, C signed the "Shanghai real estate sales contracts" is the true meaning of the parties, not contrary to law, to be effective, both parties shall fulfill the. According to the contract, the two sides in 2009 November 15 days before the transfer transaction processing procedures, at the appointed time, a loan application is not approved or by the amount is insufficient, a shall transfer the part of the loan in cash supply, but a subordination to approved in November 25, 2009, leading to handle the transfer procedures in the transfer time is not agreed, responsibility in armour, a shall bear the corresponding liability for breach of contract. Annex three paragraph third of the payment protocol on the loan application by the lending bank audit within 5 working days after the application for transfer formalities according to the contract agreement, should be understood as meaning, such as a transfer of the contract between the time before the office of the bank loans, the housing transfer procedures should be handled within 5 working days of the loan bank audit, rather than whether the length of the delay, re apply for loans, as long as can do out bank loans, the sale must be fit for property transfer and the buyer need not assume liability for breach of contract means, so that for a time of payment is not more than 20 days, B, C not yet have to terminate the contract unilaterally conditions, and both parties in a loan approved after the default payment and has been submitted to the time at the consultation stage, because the two sides consultations fail rather than contractual payment 20 days time, this can't unilaterally attributable to a, B, C may therefore have the right to unilaterally terminate the contract. To sum up, the trial court to continue to fulfill the requirements of a housing sales contracts litigation request support, to B, C request to terminate the house sale contract counterclaim request not to support it. To request payment from November 16, 2009 to November 25, 2009 late payment penalty counterclaim request support to B, C, the requirements of a payment Fangjiekuan 20% default payment counterclaim request does not support. Continue to perform the contract, should pay the remaining 1629 a to B, C, B, C shall cooperate with the transfer of housing to a name and housing will be delivered to a, at the same time, hydropower coal in accordance with the contract, transfer to a name.

The court, in accordance with the regulations of the people "contract law" article 107th, in February 23, 2010 the decision are as follows: first, a and B, C signed for the Shanghai City, Minhang DistrictX x???? Lane 131, Room 401, "Shanghai city housing sales contracts" continue to perform; two, B, C from the effective date of the judgement5Working days and a common to Shanghai, the Minhang District Real Estate Trading Center for housing property transfer procedures (a), located in Shanghai City, Minhang DistrictX x???? Lane 131, Room 401 housing transfer to a name; three, a to get the house property right and his right certificate7Working days to bank loans, and apply for the loan from a bank to pay 1629, a B C136Million yuan (specific time according to the lending bank loans shall prevail); four, B, C from the bank136Million yuan loan after2Days, the housing delivery, the same day a to B, C payment limit1Million yuan; five, ethylene, propylene is delivered to the house a day will be water, electricity, coal, telephone, cable TV, property repair fund transfer to a name, name of the costs from a bear; six, on the date of entry into force of a sentence30Days to pay the B, C according to the principal136Dollars, since the2009Years11Month16To2009Years11Month25Date, according to 5/10000 calculation of the late payment penalty. Seven, ethylene, propylene and other barge to counterclaim request. The case acceptance fee charged by half8,565Yuan, from a burden42.51Yuan, ethylene, propylene burden8,522.49Element. The counterclaim case acceptance fees charged by half3,575Yuan, B, C burden.

The judgment of the first instance, ethylene, propylene dissatisfied, to this court appeal said:

The trial court cognizance, due to a fault of B, C whether has the right to terminate the contract exists significant error.

The trial court did not notice the contract for the sale of eleventh provisions, only in accordance with Article ninth provisions not more than a late payment time20B, C does not have the day the contract conditions, and the decision to continue to fulfil the contract. But crucially, appendix three "payment agreement" provisions of article fifth, "such as the second of the Party B loan application is not approved by lending bank or approved amount is insufficient quota application, Party B should be in third the delivery date will be cash supply and payment to Party a". This clearly agreed for delivery date must be completed before the transfer, loan procedures, insufficient amount by Party B in cash a day. The above contract Article ninth and annex three fifth contradictory to each other, the former agreed to Party B in the payment of liquidated damages under the premise can be expected20Day of payment, the application must be completed before the agreed loan delivery date in the transfer, otherwise Party B shall make up for cash, and the former is the text, which is a supplementary terms, according to the provisions of the contract Article eleventh, the latter shall prevail.

In addition, the contract clause sixth, "both parties confirm, in2009Years11Month15The day before, both parties to the real estate trading center to apply for transfer procedures, "date is rigid conventions, no additional provisions to change the agreement, it can be determined2009Years11Month15For the transfer of property rights to apply for delivery date.

To sum up,2009Years11Month15Is the property right transfer agreed for delivery date, payment time node, according to appendix three5Hereof, Party B must before the completed loan, otherwise must be sending the day to make up for cash, there can be no delay, and ninth late on the contract20Days of agreement is invalid. A in2009Years11Month25To apply for loans, overdue, ethylene, propylene demand it to bear the responsibility to pay cash, but refused to agree, so B, C has the right to unilaterally cancelling the contract. The judgment of the first instance judgment which identified errors, resulting in improper.

Two, the original judgment the omission of important facts.

Step back, even if the original judgment that a can be expected20Days, but it is also not in the20Days to pay liquidated damages, ethylene, propylene repeatedly urged its responsibility, but it has failed to pay liquidated damages, the point B, C is wrong, have the right to terminate the contract. Similarly, the contract agreed by the parties in the contract should be signed after a7To apply for a loan within a day, but until the2009Years11Month25Days before to the Everbright Bank loan, and the two sides signed the contract date2009Years10Month24Day, a application has been delayed for more than20Day. A reason for delays due to the huge amount of loans to loans, banks require it to provide proof of income, tax revenue, and it can provide leads to delays, according to the contract Supplementary Provisions Article4The provisions, it shall bear the corresponding responsibility.

Three, the original judgment of ethylene, propylene and the counterclaim of comprehension errors.

The judgement of the lower court thinks, "B, C a counterclaim request a payment from2009Years11Month16To2009Years11Month25Day late payment penalty, to support ", but in fact the B, C counterclaim request payment2009Years11Month15To real estate trading center release filing date default payment period, because B, C has always believed that a no overdue20Day of payment, so the original judgment in sixth the same is wrong. The second instance trial B, C said, the counterclaim request for a pay adjustment2009Years11Month16To2009Years11Month30The lifting of the notice period of the late payment penalty.

To sum up, the original judgment error, according to the "contract law" article 107th decision B, C, shall have the right to terminate the contract, a shall bear the corresponding responsibility. The appeal, request for revocation of the original judgment, the rejected a claim, support B, C the counterclaim.

A contract for appeal argued that: the ninth one is about the late payment default liability provisions, appendix three is an agreement on the mode of payment, there is no contradiction between the two. After the contractual payment date20Day grace period, a grace period has run out on loan and transfer, B, C has no right to unilaterally terminate the contract. Rejected an appeal, upheld the

The court examined, the finding of facts are correct, the court for confirmation.

The Institute also found, on both sides of the terms of the contract dispute:

Article second: A, B both parties by consensus, agreed to the transfer price of real estate195Million yuan. Party B's payment protection four and payment from a, B both parties in the payment protocol (Annex three) agreed clear. Party B to Fangjiekuan, Party A shall comply with tax regulations issued receipts.

Annex three payment agreement:1After both parties signed the "Shanghai real estate sales contracts" on the same day, Party B shall pay the first payment Fangjiekuan directly58Million yuan to Party A (including the deposit paid10Million yuan).2Party A agrees to Party B through the application to the bank136Million loan payment in the form of third forward delivery housing price, Party B should be in the sales contracts signed after the bank within the loan application, and the signing of the mortgage loan contract, for all the relevant procedures, apply for loans notarized collateral contract procedures (Ruo You), and pay all expenses related to.3Party B third Fangjiekuan payment: after the Party B Loan Application by the lending bank audit after5Working days, Party A and Party B personally went to Shanghai city to Minhang District real estate trading center to apply for property transfer and mortgage registration (a), and by the intermediary fee receipts, to Shanghai City, the Minhang District Real Estate Trading Center issued by Party B for the owners of real estate certificates and the mortgagee to loan the Bank of items of his and sent to the bank after7Working days, Party B shall pay to Party A the third forward delivery housing price, the forward delivery housing price by the lending banks on behalf of Party B to pay.4Both sides agreed to a receiving bank loans after2Days, the parties shall inspect the property transfer, inventory, confirmation, Party A shall be the property to B, and Party B shall pay the purchase1Million yuan.5Such as the2The Party B loan applications by or approved amount is insufficient quota application unaudited loan bank, Party B should be in the3The delivery date will be cash supply and payment to Party A.

Article sixth: both parties confirm, in2009Years11Month15The day before, both parties to the real estate trading center to apply for transfer procedures. The property rights transfer date to the Minhang District real estate registry grants the real estate transfer registration date.

Ninth: Party B does not pay the agreed period of this contract, Party A and Party B agree on the following article (three), content processing.......Three.1, Party A has the right to delay to fulfil its contractual obligations;2Delay in payment, Party B, each delayed day, Party B shall be payable without payment of 5/10000/Day late payment default payment;3, the overdue for more than20Day, Party A has the right to unilaterally terminate Party B in written form with the contract of sale. If the two sides trade targeted housing not for property transfer procedures, Party A shall have the right to be sold to the housing third people without notice to Party B, Party B after receiving the notice of cancelling the contract within seven days from the date of payment of the liquidated damages, should according to the total price20%Liquidated damages. If the two sides trade standard of housing has been for the property transfer procedures, the right to request Party B to restore the status quo, the total price is deducted from Party B has to pay the housing price20%For their own compensation in trading losses and Party B shall be liable for damages, the remaining Fangjiakuan refund within seven days to recover to Party B.

Article eleventh:Both parties agreed, in the premise of not in violation of the relevant laws, regulations, supplementary provisions of the agreement or contract supplemental agreement, as part of a sale contract indivisible. Inconsistent with the clauses of this contract is added, the supplementary clauses shall prevail.

The Institute also found,2009Years11Month30To12Month2Day, B, C and B had a late payment penalty and housing for negotiation delivery time, but eventually the two sides did not reach consensus.

The opinion of this court, ethylene, propylene and a signed the "Shanghai real estate sales contracts" is the true meaning of the parties, is a legitimate and effective, both sides should abide by the performance. Both sides in the case of the controversy is the terms of the contract interpretation. Ethylene, propylene, contract Article ninth and annex three payment agreement conflicts, which denies the contract ninth in default on the payment of the premise can be overdue20Day of payment agreed, and annex three supplementary provisions, shall be subject to. This house believes that, first of all, annex three payment agreement actually belongs to the second text terms and conditions of the contract the content, just as attachment to make detailed provisions, which with the clauses of the contract signed at the same time, is part of nature, does not belong to the supplementary provisions. Secondly, there is no contradiction between article ninth and annex three payment agreement. Annex three to the contract payment agreement article second content, which agreed to Party B's Bank loan application is not approved or approved amount is insufficient, Party B shall transfer transaction processing to send a day to cash supplement. And the ninth one is about the late payment default responsibility agreement, Party B delays the payment, Party A has the right to delay to fulfil its contractual obligations, Party B according to the daily 5/10000 bear the penalty, more than20Day, Party A has the right to unilaterally terminate the contract rights, but can be investigated for Party B delays in payment default responsibility, at the same time delay of performance for the transfer of registration and housing delivery obligations under the contract. Therefore, Party B in the case of delay in payment, the two sides to the real estate trading center for the transfer of the date may be postponed, but20Day grace period is clear, only the overdue payment of more than20Day, Party A can terminate the contract unilaterally, so B, C sixth agreed that the contract2009Years11Month15The final delivery date is before the date of date of transfer procedures for the mandatory is explained in terms of the contract mistake, cannot be established.

B, C the appeal, a until2009Years11Month25Days before to the Everbright Bank loan, and the two sides signed the contract date2009Years10Month24Day, a application has been delayed for more than20Days, so it has the right to terminate the contract. First of all, the above proposition B, C the recognized the existence20Day grace period, the negation and above20Which day grace period view. Secondly, this explanation is wrong. A day to send the contract for the transfer of property rights11Month15Day, so a finally do loans should be understood as the date of the day, more than is overdue, and B, C Department20Explain a loan application to delay the grace period and non overdue payment20Days grace period, this belongs to the concept, the court shall not be accepted.

B, C the expected payment proposed counterclaim request, because a in2009Years11Month25Did the loans through conduit company told B, C and require timely processing of transfer procedures, after due to both sides of the late payment penalty and others time to negotiate and lead to delay the payment, think that this can not unilaterally attributable to a decision, so a payment from2009Years11Month15To11Month25The period between late payment penalty, the treatment is not wrong. As for ethylene, propylene as a has not pay the penalty which has the right to terminate the contract perspective, the lack of contract and legal basis, and therefore not admissible.

To sum up, ethylene, propylene grounds of appeal can not be established, the trial court finds that the facts are clear, the use of legal right, the court shall be maintained. Accordingly, in accordance with the "PRC Civil Procedure Law" article 153rd(A)The provisions of item, the decision as follows:

Dismiss the appeal, upheld the.

The second case acceptance fee of RMB24,28Element, by the appellant ethylene, propylene burden.

This judgment is the final judgment.

Chief justice Hou Weiqing

Judge Zheng Weiqing

Acting judge Zhang Weijia

2010Years4Month28Day

The clerk Xu Jing