Addendum to the withdrawal of the statement of claim for invalidation of the notarized loan agreement and recovery of court costs
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To the Bostandyk District Court of Almaty
the court of Ibragimov.M.With
from the defendant: Z.I.V.,
IIN ..
representative by proxy ..S.S. mobile phone: + 7 ..
M.M.T. mobile phone: +7 ....
the plaintiff: E.J.S.
IIN 9……
Addition to the review
to file a claim for invalidation of a notarized loan agreement and recovery of court costs
The Bostandyk District Court of Almaty is conducting a civil case on the claim of E.J.S. (hereinafter referred to as the Plaintiff) to the defendant Z.I.V. for invalidation of the Loan Agreement No. 3181 previously concluded between them dated 11/01/2022 and for recovery of court costs in the form of paid state fees and representative expenses.
E.Zh.S. disagree with the claims in full on the following grounds:
Loan agreement No. 3181 dated 11/01/2022 was concluded between the Plaintiff and the Defendant in full compliance with the requirements of the Civil Code of the Republic of Kazakhstan, art. 2, 7, 147, 151, 152, 154, 378-380, 382, 386, 715-717, 719, 722 and certified by the private notary of Almaty K.S.Alimkhanovna (license No. 0000926 dated 23 August 2022).
During the trial, at the preparatory stages, it was reliably established that the plaintiff's Daughter, F.A.Maratovna (hereinafter referred to as the daughter), worked at a car wash as an administrator (the car wash is a family business registered with the Defendant, IP Z.I.V., and all mandatory payments to the budget and mandatory pension payments were paid during the work period.
All bank transfers from a special account (car wash – family business, Defendant) of IP Z.I.V. were also presented to the court, to an account linked to the telephone numbers E.J.S.+7705 5691595 in the amount of 909,000 nine hundred nine thousand (hereinafter referred to as the Plaintiff), husband F.A.Maratovna (hereinafter referred to as daughter) D.F. +7747 9894716: in the amount of 2,677,975 tenge two million six hundred seventy seven thousand nine hundred seventy five thousand tenge,
A total of 3,586,975 (three million five hundred eighty-six thousand nine hundred seventy-five tenge) were transferred. Thus, the fact of receiving funds is confirmed, which corresponds to the requirement of Articles 63-65 of the CPC RK. (The circumstances of the case, which by law must be supported by certain evidence, cannot be supported by any other evidence.).
As such, IP Z.I.V. (car wash is a family business of the Defendant) operates under a special tax regime under a simplified system according to the Tax Code of the Republic of Kazakhstan. Individuals are indicated in the notification sent for registration as an individual entrepreneur (hereinafter referred to as an individual entrepreneur);
683. The Tax Code of the Republic of Kazakhstan - Conditions for the application of a special tax regime
For the purposes of this Code, small business entities are recognized as individual entrepreneurs and legal entities that are residents of the Republic of Kazakhstan and apply a special tax regime for small businesses. Taxpayers who meet the following conditions may apply a special tax regime for small businesses: 1) the average number of employees for the tax period does not exceed for the special tax regime: based on a simplified declaration – 30 people; using a fixed deduction – 50 people;
I also want to draw the court's attention to the fact that the bill IP Z.I.V. (car wash is a family business, the Defendant) has a special account and all incoming money transfers to this account will be considered income and taxed at 3% of the total turnover.
Since these transfers were made through the Kaspiy mobile application, which does not provide for the type of service and as such a priori IP Z.I.V. (car wash is a family business of the Defendant). The work and procedure for making transfers under the Caspian application are a well-known fact and are widely used by citizens of our country, and according to Article 76 of the Civil Procedure Code of the Republic of Kazakhstan, circumstances that are not included in the subject of evidence in a case due to their widespread popularity in a certain territory, including the court and the persons involved in the case, are generally known.
The plaintiff, having falsified the facts, is silent that the funds were provided at her request under the following circumstances:
- The plaintiff's daughter, F.A.Maratovna (hereinafter referred to as the daughter), worked at a car wash as an administrator (the car wash is a family business registered to the Defendant, IP Zimin I.V., where his wife, Z.E.Nikolaevna, an accountant, and his wife's mother, B.N.Ivanovna, an accountant's assistant, work. Given that this is a family business, in terms of receiving funds paid by customers, the card account of the mother of the wife of B.N.Ivanovna (hereinafter referred to as the car wash card account) was used, to which the Plaintiff's daughter accepted payments.
In December, 2021 The plaintiff came to work at her daughter's car wash and asked me for a loan due to her difficult financial situation and living in a rented apartment. Considering that there are no available funds, I allowed the Plaintiff to receive a loan, but in the following order: - the daughter of E.J.S. will transfer funds for family needs to family members as necessary, but with the reimbursement of each transferred amount. And as the repayment proceeds, with the possibility to transfer/borrow again under her personal responsibility, E.J.S. as the Borrower. The Plaintiff agreed to these terms of the loan.
However, when preparing a set of activities for the car wash in September 2022, we found that funds were withdrawn, but each amount was not refunded in violation of the agreements between the loan parties.
After negotiations, the Plaintiff's side itself offered to conclude a loan agreement for the funds already received and return them by the end of 2022. According to the cited norms of civil law, art. 382, the terms of the agreement are determined at the discretion of the parties, that in accordance with art. 719, the loan subject is provided on time, in the amount and on the terms determined by the parties and was provided before the conclusion the loan agreement itself. At the notary's office at the conclusion of the loan agreement, again. As when the parties agreed to grant the loan, the daughter, F.A. Maratovna, and the borrower herself, E.J.S., were present. and they confirmed the receipt of funds in full, which is reflected in the contract.
According to Article 715 of the Civil Code of the Republic of Kazakhstan, under a loan agreement, one party (the lender) transfers, and in cases provided for by this Code or the agreement, undertakes to transfer ownership (economic management, operational management) to the other party (the borrower) money or things defined by generic characteristics, and the borrower undertakes to return the same amount of money to the lender in a timely manner. or an equal number of items of the same kind and quality. In fact, a loan transaction is being made, where one party (the lender) transfers money to the other party (the borrower), and the borrower undertakes to return the same amount of money to the lender in a timely manner. Article 716 of the Civil Code of the Republic of Kazakhstan establishes that a loan agreement must be concluded in a form consistent with the rules of Articles 151, 152 of the Civil Code of the Republic of Kazakhstan.
We draw the attention of the parties to this civil case and the court to the fact that the norms of civil legislation define a loan as the transfer of funds from one to another, but do not define the ways and means of such transfer. Accordingly, this is regulated by the agreement of the parties and is reflected in the fact of receiving the loan funds in the contract itself.
The fact of the transfer of funds is confirmed by bank statements and witness statements of Alexey Vladimirovich Belyaev, a car wash employee, IIN 810516300173, born on 05/16/1981 (mobile phone +7 (700) 382 22 25 or +7 (708)382 22 25 as the contract was concluded and the funds were transferred to the Plaintiff.
In addition, Article 393 of the Civil Code of the Republic of Kazakhstan - A contract is considered concluded when an agreement has been reached between the parties, in the form required in the appropriate cases, on all its essential terms.
Essential are the terms of the subject of the contract, the terms that are recognized as essential by law or are necessary for contracts of this type, as well as all those conditions regarding which, at the request of one of the parties, an agreement must be reached and property transferred, in our case, funds through the person indicated by the Plaintiff - her daughter.
In this situation, there is a 124-page bank statement that the Plaintiff's daughter, F.A.Maratovna, transferred funds to her husband and mother, that is, to the Plaintiff, E.J.S. thus, at the time of signing the contract, the Plaintiff had already received funds in the form of a bank transfer. We also have a witness statement from car wash workers that she, F.A.Maratovna I was withdrawing money in cash.
It is unclear how and on what basis the Plaintiff requests to invalidate the loan agreement, basing his claims in accordance with paragraph 1, art. 158. Calling this transaction a loan agreement, the content of which does not comply with the requirements of the law, as well as a transaction made for a purpose knowingly contrary to the principles of law and order, is contested and may be declared invalid by a court if this Code and other legislative acts of the Republic of Kazakhstan, however, the authorized body, the investigative body of the police has not found any illegal actions/acts in this agreement. And thus confirmed the legality of the agreement, the absence of any coercion and not contrary to the fundamentals of law and order.
Since the loan agreement is considered concluded from the moment of the transfer of money, the confirmation of such transfer can be both a receipt from the borrower (when making cash payments) and bank documents confirming the receipt of funds to the account of the borrower or a certain person (when making non-cash payments).
The Plaintiff's substantiation of his claim for the invalidity of the Loan Agreement by the provisions of paragraph 1, art. 724 of the Civil Code of the Republic of Kazakhstan:-«1. The borrower has the right to challenge the loan agreement, proving that the loan object (money or things) was not actually received by him from the lender or received in a smaller amount or quantity than specified in the agreement.". not correctly and not thoroughly, as the mandatory norms of art. 157-159 defines the grounds, criteria and boundaries of invalidation of the contract, which are exhaustive, respectively, the Plaintiff's claims are not legitimate and contradict the norms of the current legislation of the Republic of Kazakhstan on the basis of which it is impossible to invalidate the contract.
Considering the stated circumstances of the civil case, in accordance with art. 2, 7, 147, 151, 152, 154, 378-380, 382, 386, 715-717, 719, 722 The Civil Code of the Republic of Kazakhstan, guided by 223-226 CPC of the Republic of Kazakhstan, we ask the court:
- To deny the claims of E.J.S. in full.
Applications:
Request for witness interview;
Application for the involvement of a third party – a private notary in Almaty
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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