A petition for a cassation review of a judicial act.

 

 

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To the Supreme Court of the Republic of Kazakhstan

 

from the plaintiff J.G.D.

………….. year of birth,

Atyrau, md.....,

A.K. D. street ...., sq.4

IIN.....

tel. 8701-..... (WhatApp)

 

Proxy representative: J.A.J.

IIN....

Register of the Chamber No.... dated 01.10.2020

tel.8701... (WhatApp)

 

Defendants: D.B.T.

IIN.......

Uralsk, P..

Zh.... d ..., sq. 16

 

S.R.E.

IIN ………

West Kazakhstan region, Zelenovsky district, village....,

Sh.... str., ..., sq. 5

 

Third parties: Investigator of the Zachagan police department in Uralsk, West Kazakhstan region

M.A.M.

West Kazakhstan region, Uralsk,

P. Z., st. ..., 1/1

22 sq.m., tel. 8707-……

 

Kaspi Bank JSC

154"A" Nauryzbai Batyr str., Almaty

tel. 8 (727) 250-95-96, 8 (727) 258-59-55

 

a petition for a cassation review of a judicial act.

 

On May 17, 2022, Court No. 2 of the city of Uralsk, West Kazakhstan region, considered civil case No. ..... on the claim of Zh.G.D. to D.B.Tlekesskyzy, Sh.R.Yerlanovich on the recognition of the transaction on the recognition of the transaction as invalid and on the application of the consequences of an invalid void transaction.

By the court's decision, the plaintiff's claims were partially satisfied, the transaction dated March 04, 2020 between S.R.E. and D.B.T. for the purchase and sale of a TOYOTA CAMRY 50 car, 2014, white, state number ........, VIN №4.......... declared invalid.

The court refused to satisfy the claims for the application of the consequences of an invalid void transaction.

Disagreeing with the decision of the court of first instance, a third party of Kaspi bank JSC filed an appeal against the court's decision.

By the decision of the Judicial Board for Civil Cases of the West Kazakhstan Regional Court dated August 23, 2022, the appeal of a third party of Kaspi Bank JSC was satisfied, and the decision of the Uralsk City Court No. 2 of the West Kazakhstan region was changed. The court of appeal decided to overturn the decision in the satisfied part of the claim, to make a decision to dismiss the claim in full.

I believe that the decision of the Judicial Board for Civil Cases of the West Kazakhstan Regional Court of August 23, 2022 is subject to review on the following grounds.

According to part 5 of Article 438 of the Civil Procedure Code of the Republic of Kazakhstan, the grounds for cassation review of judicial acts that have entered into force, specified in part one of Article 434 of this Code, are significant violations of substantive and procedural law provided for in Article 427 of this Code, which led to the issuance of an illegal judicial act.

I believe that violations of the norms of substantive and procedural law by the Judicial Board of the West Kazakhstan Regional Court took place.

In substantiation of its decision, the court of appeal refers to Article 250 of the Civil Code of the Republic of Kazakhstan, stating that the plaintiff Zh.G.D. issued a power of attorney to T.N. with the right to register, register and dispose of a TOYOTA CAMRY 50 car, 2014, white, state number....., VIN №4.......... At the same time, the plaintiff's arguments that the power of attorney was revoked prior to the conclusion of the transaction between S.R.E. and D.B.T. were not taken into account, therefore, subsequent transactions for the sale of a car without the plaintiff's consent are illegal. He was notified by the plaintiff that the power of attorney had been revoked, but the court of appeal did not take the plaintiff's arguments into account.

According to Article 250 of the Civil Code of the Republic of Kazakhstan, the renunciation of ownership must be lawful, voluntary and indicating that the owner refuses to own, use, dispose of property.

During the trial, it was established that, at the request of the plaintiff, J.G.D., a criminal case was opened against T.N. on fraud, which confirms the plaintiff's arguments that the power of attorney was issued to T.N. under the influence of deception and delusion, the plaintiff's will to alienate the car cannot be recognized as voluntary.

The Court of Appeal did not take into account that the 2014 TOYOTA CAMRY 50 car, white in color, state number ..., VIN No. 4....... it was imported into the Republic of Kazakhstan on September 8, 2019, however, according to the information of the authorized body – the Administrative Police Department of the West Kazakhstan region Police Department, the specified car was first registered in the Republic of Kazakhstan and registered with the defendant Sh.R.E. on December 2, 2015 with the assignment of the state license plate ......, previously owned by P.A.M. car "Volkswagen Golf". Thus, illegal actions are clearly seen in the actions of the defendant S.R.E., since it is impossible to register the car with the registration authority retroactively without violating the legislation of the Republic of Kazakhstan. However, the court of appeal did not give this fact a proper assessment, stating only that the criminal cases had been terminated, so the plaintiff's arguments in this part could not be taken into account.

The Court of Appeal refers to the testimony of Sh.R.E. that he does not remember who he bought the car from, however, for an objective consideration of the case, attention should be paid to the date of the initial registration of the car in the Republic of Kazakhstan in 2015 and the lack of information about the previous owner of the car. There is no information about the former owner of the TOYOTA CAMRY 50 car in the state database, so it logically follows that the defendant Sh.R.E. was directly involved in the illegal registration of the car and knew about the illegality of his actions.

This fact deserves special attention, since it was the defendant S.R.E. who subsequently sold a TOYOTA CAMRY 50 car to the defendant D.B.T.

The proof that Sh.R.E. committed illegal actions is the fact that he did not object to the claim in the court of first instance and objected to the complaint of a third party of Kaspi bank JSC.

Also, in substantiation of its arguments on changing the decision of the court of first instance, the court of appeal refers to paragraph 1 of Article 261 of the Civil Code of the Republic of Kazakhstan, recognizing as justified the arguments of a third party of Kaspi bank JSC that the defendant B.T. Dauylbayeva is a bona fide acquirer.

I believe that the court of appeal did not take into account the requirement of part 2 of Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, according to which the parties choose their position, ways and means of defending it independently and independently of the court and other persons involved in the case.

The defendant, D.B.T., admitted the claims, but did not declare the claim for recognition as a bona fide acquirer to the court. A mediation agreement was concluded between D.B.T. and S. R.E. on the return of funds received by S.R.E. from D.B.T. for a TOYOTA CAMRY 50 car.

When considering the appeal, the defendants Sh.R.E. and D.B.T. agreed with the decision of the court of first instance and objected to the satisfaction of the complaint of a third party from Kaspi Bank JSC.

Thus, the court of appeal, having no grounds for that, without a statement from the defendant, D.B.T., recognized her as a bona fide acquirer.

Also, the court of appeal, when considering the case, did not take into account the fact that the claim does not contain a claim for the return of property. The property is held by the plaintiff. The defendant, D.B.T., did not file a counterclaim for the recovery of property from someone else's illegal possession.

The claims of a third party of Kaspi Bank JSC to recognize the defendant D.B.T. as a bona fide acquirer were not the subject of consideration in the court of first instance, the representative of the third party referred to the fact that the TOYOTA CAMRY 50 car was the subject of collateral and Kaspi bank JSC may lose the right to apply for collateral.

I consider this argument to be untenable, since articles 313, 314 of the Civil Code of the Republic of Kazakhstan provide for the right of the pledgee to compensate for losses or replace the pledged object with other equivalent property.

By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests.

In accordance with Article 8 of the CPC, everyone has the right to apply to the court for protection of violated or disputed constitutional rights, freedoms or protected interests.

Based on the above, please:

- to submit the petition to the cassation instance of the Supreme Court;

- to review, in cassation, the decision of the Judicial Board of the West Kazakhstan Regional Court of August 23, 2022 in the civil case against J.G.D., D.B.T., S.R.E. on the recognition of the transaction as invalid and the application of the consequences of an invalid void transaction;

- to cancel the decision of the Judicial Board of the West Kazakhstan Regional Court of August 23, 2022 in the civil case on the claim of J.G.D. to D.B.T., S.R.E.;

- to claim from Court No. 2 of the city of Uralsk, West Kazakhstan region, civil case No. .......

Appendix: receipt of payment of the state fee, a copy of the decision of the Uralsk city Court No. 2 of the West Kazakhstan region, a copy of the decision of the judicial board for civil cases of the West Kazakhstan Regional Court.

 

18.01.2023 G.G.D.

 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

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