Appeal against the court's decision not to recognize the Guarantee Obligation as terminated
Attention!
The Law and Law Law Company draws your attention to the fact that this document is basic and does not always meet the requirements of a specific situation. Our lawyers are ready to assist you in drafting any legal document that suits your situation.
For more information, please contact a Lawyer/Lawyer by phone; +7 (708) 971-78-58; +7 (727) 971-78-58.
To the Board of Appeal for Civil and Administrative
Almatinsky District
City court
Almaty, 050000, Kazybek Bi street, 66.
0201@sud.kz
From the Plaintiff: xxxxxxxxxxxx
IIN xxxxxxxxxx
79 Abylai Khan Ave., office 304, Almaty.
+7 777 .......
Representative by proxy:
Law and Law Law Firm
BIN 201240021767
79/71 Abylai Khan Ave., office 304, Almaty.
info@zakonpravo.kz / www.zakonpravo.kz
+ 7 727 978 5755; +7 708 578 5758
The defendants:
JSC "Tengri Bank"
BIN 950740000130
42 Abaya Ave., Almaty, ug. Baitursynova St. (Baikonur Business Center), 1st floor
+7 (727) 244 34 34.
info@tengribank.kz
Liquidation Commission of JSC "Tengri Bank"
Almaty, Almaty, 42 Abaya ave., ug. Baitursynova St. (Baikonur Business Center), 1st floor
Tel.: +7 (727) 244 34 24.
Interim Administration of JSC "Tengri Bank"
42 Abaya Ave., Almaty, ug. Baitursynova St. (Baikonur Business Center), 1st floor
+7(727)244-34-24, +7(727)244-34-34
THE APPEAL
on the decision of the Bostandyk District Court of Almaty dated May 05, 2021
On May 05, 2021, the Bostandyk District Court of Almaty, composed of the presiding judge xxxxxxxx R.A., with the participation of a Representative of the plaintiff, lawyer Sarzhanov G.T., a representative of the defendant xxxxxx Sh.Zh., having considered in open court, in the courthouse, civil case No. 7514-21-00-2/627, on the claim xxxxxxxxxxxx to the Defendants For recognition of the guarantee obligation terminated The Court decided: To reject the Plaintiff's claims against the Defendants for recognition of the guarantee obligation as terminated. Arguing that the evidence of the occurrence of the grounds provided for in Article 336 of the Civil Code of the Republic of Kazakhstan has not been presented to the court.
The arguments indicated in the court's decision of May 05, 2021, which was rendered in final form on 05/23/2021, do not agree. We consider the decision of the court of first instance in accordance with art. 224 of the CPC to be illegal, unjustified and subject to cancellation on the following grounds:
The Court of the First instance did not take into account the Plaintiff's arguments that on 05.27.2016, Tengri Bank JSC (hereinafter referred to as the Bank) and Tengri Leasing LLP (hereinafter referred to as the Borrower), represented by Director K-aev S. A., concluded a General Loan Agreement No. 0100-2016-98-0026-L (hereinafter referred to as the Agreement), in which in accordance with the terms of which the Bank has opened a revolving credit facility for the Borrower on the following basic terms:
The credit line limit is set at 3,000,000,000.00 (three billion) tenge, including: the available credit line limit is set at 2,000,000,000.00 (two billion) tenge;
The increase in the available limit of the credit line to KZT 3,000,000,000.00 (three billion) will be made subject to the provision by the Borrower of collateral meeting the Bank's requirements in the amount of at least KZT 1,000,000,000.00 (one billion), in addition to (over) the collateral specified in clause 5.1. of the Agreement.
Term of the credit line: from 05/27/2016 to 05/26/2023 (extended until 11/27/2023 on the basis of Supplementary agreement No. 1 dated 10/19/2016 to the Agreement).
In accordance with clause 4.1. of Article 4 of the Agreement, the credit line is developed by the Borrower on the basis of Accessory Agreements within the established limit.
In accordance with Article 2 of the Law "On Limited and Additional Liability Partnerships", a limited liability Company is a legal entity and a Limited Liability Company is liable for its obligations with all property belonging to it. In addition, according to Articles 51,52,53 of the Law, the Defendant was elected by the general meeting of the partnership's participants, and subsequently served as the head of the executive body of Tengri Leasing LLP, where he was responsible for all matters related to ensuring the partnership's activities.
On June 01, 2016, on behalf of xxxxxx S.A., in accordance with clauses 1,2,3 of Article 331 of the Civil Code of the Republic of Kazakhstan, a Guarantee was written and sent to the Bank, where allegedly xxxxxx S.A. guaranteed the Bank the fulfillment of obligations under the Agreement in full by the Debtor.
Accordingly, after signing the Guarantee Obligation, the Guarantor was assigned an obligation in accordance with art. 329 "Guarantee", where, by virtue of the guarantee, the guarantor is obligated to the creditor of another person (debtor) to be responsible for fulfilling the obligation of this person in full or in part in solidarity with the debtor.
However, S.A. K-aev did not sign the Guarantee dated 06/01/2016 and could not physically sign it since S.A. xxxxxx was outside the Republic of Kazakhstan from May 26, 2016 to June 04, 2016, as evidenced by the stamps of the Border Service of the Republic of Kazakhstan and the Republic of Latvia in the Passport.
According to Article 79. of the Civil Code of the Republic of Kazakhstan, based on the Decision of the general meeting of the partnership participants on December 01, 2016, xxxxxxxx S.A., the Director of Tengri Leasing LLP was dismissed from his post. Subsequently, another Director was appointed Head of Tengri Leasing LLP. To all subsequent additions and amendments to the Agreement xxxxxxxx S.A., had no relation and did not receive any notification, notification, in accordance with paragraph 1, art. 336 where provided, the guarantee is terminated in the event of a change in this obligation, entailing increased liability or other adverse consequences for the guarantor, without the consent of the latter. Thus, after his dismissal on December 01, 2016, the following additions and amendments to the agreement were additionally concluded with Tengri Leasing LLP:
Preliminary pledge Agreement No.0100-2016-Z-0126 dated August 19, 2016, concluded between the Bank and the Borrower and represented by Director xxxxxxxx IIN xxxxxxxxxxxx
Supplementary Agreement No. 1 dated December 30, 2016 to the Preliminary Agreement No. 0100-2016-Z-0083 for the pledge of movable property dated May 27, 2016 concluded between the Bank and the Borrower and represented by the Director of xxxxxxxx IIN xxxxxxxxxxxx;
Supplementary Agreement No. 2 dated December 30, 2016 to the Agreement on the provision of Credit line No. 0100-2016-98-0026-L concluded between the Bank and the Borrower and represented by the Director of xxxxxxxxxx IIN xxxxxxxxxxxx
Supplementary Agreement No. 1 dated January 30, 2017 to the Agreement No. 0100-2016-98-149-G on the provision of a bank guarantee dated October 20, 2016 concluded between the Bank and the Borrower and represented by the Director xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Movable Property Pledge Agreement No. 871242-GLV dated January 30, 2017, concluded between the Bank and the Borrower and represented by Director xxxxxxxxxxxx and IIN xxxxxxxxxx
Movable Property Pledge Agreement No. 878679-GLV dated March 06, 2017, concluded between the Bank and the Borrower and represented by the Director of xxxxxxxxxx IIN xxxxxxxxxx
Movable Property Pledge Agreement No.881549-GLV dated March 29, 2017, concluded between the Bank and the Borrower and represented by Director xxxxxxxxxxxx and IIN xxxxxxxxxx
Movable Property Pledge Agreement No.881551-GLV dated March 29, 2017, concluded between the Bank and the Borrower and represented by Director xxxxxxxx and IIN xxxxxx
Movable Property Pledge Agreement No.001-2017-Z-0027 dated July 19, 2017, concluded between the Bank and the Borrower and represented by the Director of xxxxxxxx IIN xxxxxxxx
Movable Property Pledge Agreement No.001-2017-Z-0028 dated August 01, 2017, concluded between the Bank and the Borrower and represented by the Director of xxxxxxxx IIN xxxxxxxx
Supplementary Agreement No. 2 dated January 10, 2018 to the Agreement No. 0100-2016-98-149-G dated October 20, 2016 on the provision of a bank guarantee concluded between the Bank and the Borrower and represented by the Director of xxxxxxxx IIN xxxxxxxx
Supplementary Agreement No. 3 dated January 30, 2019 to the Agreement on the provision of a Credit line No. 0100-2016-98-0026-L concluded between the Bank and the Borrower and represented by the Director of xxxxxxxxxxxx IIN xxxxxx
Movable Property Pledge Agreement No.001-2018-Z-0207 dated October 30, 2018, concluded between the Bank and the Borrower and represented by the Director of xxxxxxxx IIN xxxxxxxx
Supplementary Agreement No. 3 dated January 23, 2019 to Agreement No. 0100-2016-98-149-G on the provision of a bank guarantee dated October 20, 2016, concluded between the Bank and the Borrower and represented by Director xxxxxxxxxx IIN xxxx 2016-98-149-G on the provision of a bank guarantee dated October 20, 2016, concluded between the Bank and the Borrower and represented by Director xxxxxxxx IIN xxxxxxxxxx
All of the above Additional Agreements, Preliminary Pledge Agreements,
The pledge agreement for movable property in accordance with clause 1, Article 336 of the Civil Code of the Republic of Kazakhstan changed the essential terms of the Agreement, entailing increased liability and entailing adverse consequences for the guarantor, without his consent.
In addition, as part of the Agreement, the following Accessory Agreements were concluded between the parties, signed by xxxxxxxxxx S.A.:
- Accessory Agreement No. 0100-2016-98-0026-L/1 dated 05/27/2016, under the terms of which the Bank provided the Borrower with a loan in the amount of 2,000,000,000.00 (two billion) tenge for the purchase of fixed assets. The remuneration rate is 19.0% per annum, the GEC is 16.8% per annum. The loan term is until 05/26/2023;
-Accessory Agreement No. 0100-2016-98-0026-L/2 dated 06/10/2016, under the terms of which the Bank provided the Borrower with a loan in the amount of KZT 634,000,000.00 (six hundred and thirty-four million) to replenish working capital. The remuneration rate is 19.0% per annum, the GEC is 20.9% per annum. The loan term is until 08/10/2016;
-Accessory Agreement No. 0100-2016-98-0026-L/3 dated 08.08.2016, under the terms of which the Bank provided the Borrower with a loan in the amount of 44,000,000.00 (forty-four million) tenge to replenish working capital. The remuneration rate is 19.0% per annum, the GEC is 21.2% per annum. Loan term until 08.11.2016;
-Accessory Agreement No. 0100-2016-98-0026-L/4 dated 27.07.2017, under the terms of which the Bank provided the Borrower with a loan in the amount of 8,015,000.00 (eight million fifteen thousand) tenge to replenish working capital. The remuneration rate is 19.0% per annum, the GEC is 21.5% per annum. The loan term is 27.07.2021;
-Accessory Agreement No. 0100-2016-98-0026-L/5 dated 24.09.2018, under the terms of which the Bank provided the Borrower with a loan in the amount of 65 500 000,00 (sixty five million five hundred thousand) tenge for replenishment of working capital. The remuneration rate is 19.0% per annum, the GEC is 21.1% per annum. The loan term is until 05/24/2023. – were not signed by the Plaintiff, in addition, the Plaintiff was not notified of the receipt of additional loan amounts.
Thus, according to clause 1, Article 336 of the Civil Code of the Republic of Kazakhstan "Termination of guarantees and sureties" of the Guarantee Obligation on June 01, 2016, drawn up and sent on behalf of xxxxxx S.A., to the Bank, it is subject to termination, since the Guarantee and surety are terminated in the event of a change in this obligation, entailing increased liability or other adverse consequences for the guarantor and the guarantor, without the consent of the latter.
In this case, Article 4 of the Civil Procedure Code of the Republic of Kazakhstan states that the objectives of civil proceedings are to protect and restore violated or disputed rights, freedoms and legitimate interests of citizens, the state and legal entities, respect for the rule of law in civil turnover and public relations, promote peaceful settlement of disputes, prevent offenses and form a respectful attitude in society. relations to the law and the court have lost their relevance and legal force.
According to Article 401, court decisions that have not entered into legal force may be challenged.
an appeal, The right of appeal against a court decision belongs to the parties and other persons involved in the case. Article 403 An appeal or a prosecutor's petition may be filed within one month from the date of the final decision, with the exception of the cases established by this Code, and by persons who did not participate in the court proceedings from the date of sending them a copy of the decision.
Based on the above and in accordance with 401,404, 412, 413 of the Civil Procedure Code of the Republic of Kazakhstan,
I ASK THE COURT:
The decision of the Bostandyk District Court of Almaty dated May 05, 2021 on the recognition of the guarantee obligation terminated – to cancel and make a new decision on the satisfaction of the Plaintiff's claim, recognizing the Plaintiff's Guarantee Obligation xxxxxxxxxx dated June 01, 2016 – terminated.
With respect,
proxy representative lawyer:
________________/ Sarzhanov G.T.
"____" ___________2021 the year
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.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
