Bankruptcy disputes The conclusion of the interim manager is one of the evidence in the case, this conclusion must be evaluated by the court in conjunction with other evidence.
LLP "L" (hereinafter referred to as the Partnership, the applicant) applied to the court for declaring him bankrupt. The decision of the specialized interdistrict Economic Court of the Almaty region dated July 10, 2019 denied the application. By the decision of the judicial Board for Civil Cases of the Almaty Regional Court dated September 26, 2019, the court's decision was overturned, and a new decision was made to satisfy the Partnership's application. The Judicial Board for Civil Cases of the Supreme Court overturned the decision of the appellate instance, upholding the decision of the court of first instance on the following grounds. It follows from the case file that the Partnership is registered as a taxpayer in the Department. The head and founder of the applicant is M. Legal address: 41, mkr.1, Baiterek Business Center, office 39, Kapshagai, Almaty region. The main activity of the Partnership is the development of gravel and sand quarries, cutting, processing and finishing of stone. As of June 12, 2019, the Partnership has overdue tax arrears to the budget totaling 73,421,489 tenge, including the principal payment in the amount of 47,448,311 tenge, a fine in the amount of 25,901,028 tenge, and a fine in the amount of 72,150 tenge. In addition, the applicant has debts to the Bank as of May 28, 2019 in the amount of KZT 2,475,498,993.
The partnership applied to the court for declaring it bankrupt, citing its insolvency. In rejecting the Partnership's application, the court of first instance concluded that the applicant had not properly carried out work on collecting accounts receivable, in addition, the creditor of JSC "B" was working within the framework of enforcement proceedings. Therefore, the insolvency of the Partnership has not been proven in court. By overturning the court's decision and granting the Partnership's application, the court of appeal concluded that the applicant was insolvent and insolvent, which is confirmed by the conclusion of the temporary managing Partnership. These conclusions of the court of appeal are unfounded, they are based on the incorrect application of substantive and procedural law. By virtue of paragraph 5 of Article 4 of the Law of the Republic of Kazakhstan "On Rehabilitation and Bankruptcy" (hereinafter referred to as the Law), the basis for declaring a debtor bankrupt in court is his insolvency. According to subparagraph 12) of article 1 of the Law, insolvency is defined as the debtor's inability, as established by the court, to fully satisfy creditors' claims for monetary obligations, to settle wages with persons working under an employment contract, to ensure the payment of taxes and other mandatory payments to the budget, social contributions to the State Social Insurance Fund, as well as mandatory pension payments. contributions and mandatory occupational pension contributions. It was established that according to the balance sheet provided by the applicant, the value of the debtor's assets is KZT 614,131,807, including: cash – KZT 168,650, short–term accounts receivable – KZT 421,150,664, reserves – KZT 32,107,916, other short-term assets - KZT 2,841,180, fixed assets – 157,863 397 tenge. At the same time, the applicant did not provide the court with evidence of his insolvency in terms of additional information about the financial situation. When making the decision by the court of first instance, it was taken into account that the applicant had not properly carried out work on collecting accounts receivable in the amount of 421,150,664 tenge and currently the creditor represented by the Bank is working as part of the enforcement proceedings.
In such circumstances, the court of first instance reasonably concluded that the applicant, by virtue of Articles 72, 73 of the CPC, had not proved his insolvency and insolvency. The court of appeal's reference to the conclusion of the interim management Partnership is untenable, since according to paragraph 13 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated October 2, 2015 No. 5 "On the practice of applying legislation on rehabilitation and bankruptcy", the conclusion of the interim manager is one of the evidence in the case, this conclusion must be evaluated by the court in conjunction with other evidence. in the case, taking into account their relevance, admissibility and reliability. Such a conclusion has no advantage over other evidence for the court. The court's decision to declare the debtor bankrupt, based on his recognition of his insolvency, must contain a detailed analysis of the debtor's financial and economic condition, as well as a reasoned assessment of the debtor's insolvency on the merits. However, the decision of the appeals board lacks a detailed analysis of the financial and economic condition of the Partnership and does not provide a reasonable assessment of its insolvency.
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