Appeal for recovery of the amount of material damage

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To the Board of Appeal for Civil Cases

Almaty City Court of Almaty,

050000, Kazybek Bi Street, 66. 0201@sud.kz

from the Defendant: .......... IIN .......... Almaty, md.. ............., house 17, sq. 16.

Proxy representative: Law and Law Law Company LLP

BIN 190240029071 Almaty, 79 Abylai Khan ave., office 304.

info@zakonpravo.kz / www.zakonpravo.kz + 7 727 971 57 58; +7 708 971 57 58.

 

THE APPEAL

on the decision of the District Court No.2 Auezovsky district of Almaty dated July 12, 2021

On July 12, 2021, the District Court no.2 of the Auezovsky district of Almaty, Judge Izmailova R.V., having considered the civil case No.7540-21-00-2/944 on the claim of Nurbank JSC (hereinafter referred to as the Plaintiff) to ................. (Hereinafter Referred To As The Defendant) to recover the amount of material damage, The Court Decided to satisfy the Claim of Nurbank JSC. To recover from the Defendant in favor of the Plaintiff the amount of material damage in the amount of 434,908 tenge, court costs for the payment of state duty in the amount of 13,047 tenge. Illegality and groundlessness of the court's decision. The court of first instance unreasonably justifies in its decision that in the court session the defendant ......... K.K. He did not dispute the fact that he had signed assignment agreement No. 98 dated August 26, 2013 with Nurbank JSC as a manager of commodity lending, as well as the signing of a bank loan agreement in 2013 on behalf of Nurbank JSC for No. 38986/13-01-TK, concluded with .............However, the Defendant in the court hearing, as well as in his response to the statement of claim, claimed that he had not concluded the contract of assignment No. 98 dated August 26, 2013 with the Plaintiff.

 

In the statement of claim and in court, the plaintiff argued for concluding an assignment agreement with the Defendant, but the assignment agreement signed by both sides was not attached to the claim. Accordingly, the Court requested a signed assignment agreement from the Plaintiff and requested that it be submitted to the next hearing. However, the Plaintiff did not provide the signed contract of assignment and, in addition to the claims, indicated that the original contract of assignment, as well as its copy, was missing from the Bank's (Plaintiff's) vault. Moreover, the Plaintiff unfoundedly claims that the Defendant allegedly could not carry out activities in the Bank without signing the relevant agreement. The Court of first instance took into account the fabricated contract of assignment by the Plaintiff in the form of evidence, which contradicts art. 66 CPC RK, which stipulates that information about facts is recognized by the court as inadmissible as evidence if it is obtained in violation of the requirements of this Code by depriving or restricting the legally guaranteed rights of persons involved in the case who influenced or could have influenced the reliability of information about the facts, including through the use of violence, threats, deception, as well as other illegal actions; 2) using the misconception of the person participating in the case regarding his rights and obligations that arose as a result of their lack of explanation, incomplete or incorrect explanation to this person. Evidence obtained in violation of the law is deemed to have no legal force and cannot be used as the basis for a court decision, as well as used to prove any circumstance relevant to the case. Such evidence can be used to prove the fact of violations and the guilt of those who committed them. In art . 67 of the Civil Procedure Code of the Republic of Kazakhstan stipulates that evidence is considered reliable if, as a result of verification, it turns out that it corresponds to reality. The attached contract of assignment has no legal force since the Defendant did not sign this contract. Moreover, the agreement on full individual financial responsibility, the form of the act of acceptance and transfer of material assets to the agreement on full individual financial responsibility were not signed by the defendant. According to paragraph 1, art. 68 CPC RK, where each evidence is subject to assessment taking into account its relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a civil case.

In what part should the legality of the appealed decision of the court of first instance be checked? When applying for a loan, the Defendant advises the Bank's clients, fills out a questionnaire and sends a loan application to the Lotus Notes banking program (hereinafter referred to as the program), and this program always accepts approval. It is important to note the fact that in the additional documents attached to the bank loan agreement No. 38986/13-01-TK dated 07.11.2013, .......... (hereinafter referred to as the bank's client) the identity card that was lost at the time of the loan is indicated. And the new identity card of the bank's client was restored back in 2011. Accordingly, we conclude that the program has approved a loan to a bank customer using an old identity card that was no longer valid at the time of the application. Thus, the Defendant, working as a Bank manager, was not a person authorized to make decisions and issue loans. The loan funds were issued by the program, as well as on the basis of a decision of the authorized body of the Bank. For information, we would like to provide comments from the Respondent on the program. The program was incomplete as of 2013. The defendant noticed from personal experience that the program had not been updated for about 2 years, whereas the program should have been updated every 24 hours. In accordance with Part 1 of Article 72 of the CPC, each party must prove the circumstances to which it refers as the grounds for its claims and objections, use remedies, assert, challenge facts, provide evidence and objections to evidence within the time limits set by the judge, which correspond to the fair conduct of the process and are aimed at facilitating the proceedings. In accordance with Part 1 of Article 73 of the CPC, evidence is presented by the parties and other persons involved in the case to the court of first instance at the stage of preparing the case for trial. Evidence may be presented at the trial stage if the impossibility of presenting it at the stage of preparing the case for trial is justified by the persons who presented it. In the case provided for in the second part of Article 404 of this Code, evidence may be submitted to the court of appeal. Failure to provide the evidence available to the parties to the court precludes the possibility of presenting this evidence to the court of appeal and cassation instances.

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. In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties choose their position, ways and means of defending it independently and independently of the court, other bodies and persons during civil proceedings. According to Article 427 of the CPC, the grounds for revoking or changing a court decision on appeal are: incorrect determination and clarification of the range of circumstances relevant to the case.; failure to prove the circumstances established by the court of first instance that are relevant to the case; inconsistency of the conclusions of the court of first instance set out in the decision with the circumstances of the case; violation or improper application of substantive or procedural law, as well as substantive law norms, are considered violated or incorrectly applied if the court: did not apply the law to be applied; applied the law, did not applicable; misinterpreted the law. In accordance with art . 401, 402, 403, 404 of the CPC RK provides that an appeal may be filed against court decisions that have not entered into force. The right of appeal against a court decision belongs to the parties and other persons involved in the case, and are considered by the appellate judicial board for civil cases of the regional and equivalent courts in a collegial composition of at least three judges of the board. Appeals are filed through the court that issued the decision. An appeal may be filed within one month from the date of the final decision, and by persons who did not participate in the trial, from the date of sending them a copy of the decision.

 

The Universal Declaration of Human Rights (articles 7, 8 and 10), the International Covenant on Civil and Political Rights (article 14) and the Convention for the Protection of Human Rights and Fundamental Freedoms (article 6) establish that everyone is equal before the law and the courts and that everyone has the right to a fair trial in determining their civil rights and duties. and the public hearing of the case within a reasonable time by a competent, independent and impartial court established by law. Based on the above and guided by Articles 401, 402, 403, 404 of the CPC RK, I ask the Court:

The Defendant's appeal ............... on the Decision of the District Court decision no.2 Auezovsky district of Almaty dated July 12, 2021 – to satisfy;

District Court decision No.2 Auezovsky district of Almaty dated July 12, 2021 – cancel;

The Plaintiff's claims of Nurbank JSC should be denied.

Yours sincerely,, ___________/............. "___"___________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. 

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