Appeal to the Board of Appeal against the court decision
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To the Board of Appeal for Civil and Administrative Cases of the Almaty City Court
from the defendant: S.A.R. IIN ......... Representative by proxy: Sarzhanov Galymzhan Turlybekovich
IIN 850722301036 Almaty, 50 Zhibek Zholy ave., office 202,
Business center Quarter info@zakonpravo.kz / www.zakonpravo .kz + 7 (708) 578 57 58.
THE APPEAL
on the decision of the Medeu District Court of Almaty dated March 20, 2019
On March 20, 2019, the Medeu District Court of Almaty, composed of the presiding judge E.E. Chingisov, with the secretary of the court session, A.G. Zhetpisbayeva, with the participation of the plaintiff's representative, A. Zaritsky, and the defendant's representative, G.T. Sarzhanov, considered in open court the civil case against JSC QazaqBanki (hereinafter referred to as the Plaintiff, the Bank). to Smagulova A.R. (hereinafter referred to as the Defendant, the Borrower) and Wolong-Kazakhstan LLP (hereinafter referred to as the Guarantor, the Defendant) on the recovery in solidarity of the amount owed under the Loan Agreement No.01/K-328 dated June 14, 2016 in the amount of KZT 23,034,193.64, decided: The Statement of Claim of QazaqBanki JSC - partially satisfy; Recover from S.A.R. and Wolong-Kazakhstan LLP in solidarity in favor of QazaqBanki JSC the amount owed under the Bank Loan Agreement No.01/K-328 dated June 14, 2016 in the amount of 21,357,975 (twenty-one million three hundred fifty-seven thousand nine hundred seventy-five) tenge; To dismiss the rest of the claim; To collect from S.A.R. and Wolong–Kazakhstan LLP, in a shared manner, the amount of state duty in the amount of 320,370 (three hundred and twenty thousand three hundred and seventy) tenge from each state income. We consider the decision of the court of first instance to be illegal, unjustified and subject to change on the following grounds:
Appeal to the Board of Appeal against the court decision
A Bank Loan Agreement No.01/K-328 dated June 14, 2016 (hereinafter referred to as the Loan Agreement) was concluded between QazaqBanki JSC (hereinafter referred to as the Bank or the Plaintiff) and S.A.R. and Wolong-Kazakhstan LLP (hereinafter referred to as the Loan Agreement), according to which the Bank provided the Borrower with a bank loan in in the national currency of the Republic of Kazakhstan in the amount of 17,600,000 tenge, for a period of 120 months (until June 11, 2026), at 23% per annum, for the purchase of housing. The following property was provided as collateral to ensure repayment of the loan under the Loan Agreement: a guarantee of a legal entity of Wolong-Kazakhstan LLP in the amount of at least 17,600,000.00 tenge, according to the Guarantee Agreement No. 01/3-G-328/1 dated 06/14/2016 (hereinafter referred to as Collateral 1); - voluntary loan insurance by the Borrower in the amount of 6,333 420.00 tenge, according to the Voluntary Loan Insurance Agreement No. 600-16-162-00019 dated 06/08/2017 (hereinafter referred to as Collateral 2); –one-bedroom apartment with a total area of 57.1 sq.m., including residential 30.5 sq.m., located at the address: Republic of Kazakhstan, Almaty, Almaly district, 167 Shevchenko St., 24 sq.m., owned by S.A.R., pledged to the Bank in accordance with the Real Estate Pledge Agreement No. 01/3-328/2 dated 05.07.2016 (hereinafter referred to as the Pledge Agreement or Collateral 3). Due to financial difficulties, the Borrower was unable to fulfill his obligations under the Agreement, and therefore he repeatedly applied to the Bank with a request to provide any preferential conditions for fulfilling obligations.
However, despite the fact that the President of the Republic of Kazakhstan in his annual messages urges everyone to be loyal to the people in difficult times, the Bank refused all requests from the Borrower. And only two years later, deliberately delaying time in order to increase the Borrower's debt, the Bank filed a lawsuit in court. According to Article 36 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities in the Republic of Kazakhstan", upon the occurrence of a delay in fulfilling an obligation under a bank loan agreement, the bank is obliged to notify the borrower in the manner provided for in the bank loan agreement of the need to make payments under the bank loan agreement and of the consequences of the borrower's failure to fulfill its obligations. If the requirements are not satisfied, the bank has the right to apply debt collection measures provided for by Law to the borrower. However, the Bank did not take any debt collection measures and refused all Written requests for preferential conditions to continue fulfilling its obligations, thus preventing it from fulfilling its obligations. According to Article 224 of the CPC, the court's decision must be lawful and justified. A decision is lawful when it is made in compliance with the norms of procedural law and in full compliance with the norms of substantive law applicable to this legal relationship, or is based on the application, if necessary, of a law governing a similar relationship, or proceeds from the general principles and meaning of civil legislation and the requirements of good faith, reasonableness and fairness.
Appeal to the Board of Appeal against the court decision
A decision is considered justified if it reflects facts relevant to the case, confirmed by evidence examined by the court that meet the requirements of the law on their relevance, admissibility and reliability, or are well-known circumstances that do not need to be proven and are collectively sufficient to resolve the dispute. The court's decision was made in violation of the above requirements. The court based the decision on the plaintiff's arguments about the defendant's debt, which were not supported by evidence. The court did not require the plaintiff to calculate, decipher the amount of the claim, or investigate the validity of the claims. Thus, the actual amount of remuneration to be collected was not determined. According to Part 1 of Article 72 of the CPC RK, 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. 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 Chapter 55 of the CPC RK.,
ask:
To amend the decision of the Medeu District Court of Almaty dated March 20, 2019 on the claim of QazaqBanki JSC against S.A.R. and Wolong-Kazakhstan LLP on the recovery of the amount owed in solidarity.
In terms of accrued remuneration – to refuse satisfaction
Sincerely, Proxy Representative: ________________/Sarzhanov G.T. "___"___________2019 G.
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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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