Cancellation of the court decision | recovery of the deposit amount | securing the conclusion of the purchase agreement

In the proceedings of the Alatau District Court of Almaty, there was a civil case for No. 7575-21-00-2/... dated 11/26/2021 on the claim of JACQUES to the School for the recovery of the deposit amount. On August 5, 2021, the Judge of the Alatau District Court of Almaty, Omen B., reviewed in a simplified procedure the civil case on the claim of JACQUES to the School for the recovery of the amount of debt, the Court decided: - To satisfy the claim of JACQUES against the SCT for the recovery of the amount of the deposit. To collect from the SCT in favor of the JAC the amount of 500,000 (five hundred thousand) tenge, the cost of paying the state fee in the amount of 5,000 (five thousand) tenge. Having disagreed with the court's decision, we filed an Application for the cancellation of the court's decision taken in a simplified manner and motivated our arguments below as follows: In the above-mentioned civil case, the defendant did not know, never received notifications about upcoming court sessions, thereby was deprived of the opportunity to provide her reasoned objections. The defendant learned about the court's decision from the CCI. Also, the Defendant did not have the opportunity to familiarize herself with the subject of the claim, the nature and size of the plaintiff's claims and collect the necessary materials to protect her interests, since the decision of the Alatau District Court of Almaty dated August 5, 2021 affects the interests of the defendant. On May 11, 2021, we received a pre-trial claim from a proxy representative, JACQUES WAB. On May 17, 2021, we sent a response to the pre-trial claim received by the plaintiff's side.

The pre-trial claim stated all our arguments about our disagreement with the claim. That is, all the contact details were known to the plaintiff's side (supporting documents are attached). In accordance with Part 3 of Article 146 of the Civil Procedure Code of the Republic of Kazakhstan, the Court notifies the parties and sets a deadline within fifteen working days for the defendant to submit a response (objection) to the statement of claim, accompanied by documents and evidence that substantiate it. According to Part 1 of Article 147 of the Civil Procedure Code of the Republic of Kazakhstan, copies of the court decision are sent to the parties using means of communication that record its receipt, or are issued no later than five working days from the date of the final decision. According to Article 147 of the Civil Procedure Code of the Republic of Kazakhstan, the defendant has the right to file with the court that issued the decision in a simplified (written) procedure, an application for cancellation of this decision within five working days from the date of receipt of a copy of the court decision. The application is filed if the defendant has not been properly notified of the receipt of the statement of claim and its consideration in a simplified (written) procedure and has not been able to provide feedback, as well as evidence that may affect the content of the decision. An application for revocation of a decision is considered in accordance with the rules established by Chapter 21 of this Code, taking into account the requirements provided for in part two of this Article. The decision may be appealed by the parties or appealed by the prosecutor on appeal after the deadline for filing an application for revocation of this decision has expired, and if the application has been filed, within one month after the court issued a ruling rejecting this application.

Cancellation of the court decision | recovery of the deposit amount | securing the conclusion of the purchase agreement

By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests. 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. For the purpose of a comprehensive, complete and objective consideration of the said civil case, the court will be provided with evidence that may affect the content of the decision. Based on the above and in accordance with art. 147 of the CPC RK, the Court was asked to: Cancel the decision of the Alatau District Court of Almaty dated August 5, 2021 on the claim of Zh.A.K. to SHK.T. to recover the amount of debt; Resume consideration of the case on the merits. December 09, 2021 Alatau District Court Almaty, as part of the presiding judge Omen B., having considered in open court the defendant's application for the cancellation of the decision. After examining the case materials and the defendant's statements, the court concluded that the decision was subject to cancellation, since the defendant was not properly notified of the receipt of the statement of claim and its consideration in simplified (written) proceedings and was unable to provide feedback, as well as evidence that may affect the content of the decision.

Guided by Articles 147,266, 268 of the CPC of the Republic of Kazakhstan, the court DETERMINED: To satisfy the defendant's statement of the SHKT, to cancel the decision of the Alatau District Court of Almaty dated August 05, 2021 in this case, to resume the proceedings and to consider the civil case in a general manner on the merits. After the resumption of the civil case, we sent an Objection to the Statement of Claim for the recovery of the deposit amount to the court, where we informed the court that we did not agree with the Claims, we consider the Claim to be unfounded, which has no supporting facts and does not comply with the requirements of the Civil Code of the Republic of Kazakhstan, namely: In December 2019, the Defendant posted ads on the website “Krisha.kz ” your own an apartment building. On December 23, 2019, the Plaintiff saw this announcement and called the phone number indicated in the announcement. During the conversation, the Defendant and the Plaintiff agreed to meet. During the meeting, the Plaintiff agreed to purchase the Defendant's house and the Plaintiff transferred funds in the amount of 500,000 tenge as an advance payment. About this, the Defendant wrote the plaintiff a receipt for receiving funds as a deposit. Thus, the Plaintiff assumed obligations to purchase this house and asked the defendant to remove the ad from the site. “Krisha.kz ”. To which the Defendant agreed and removed the ad from the site. And potential buyers have not received information about the sale of this property. However, the Plaintiff later refused to buy the house. That is, the Plaintiff himself grossly violated his obligations to the Defendant, thereby violating the requirements of Part 2 of Article 338 of the Civil Code of the Republic of Kazakhstan (Consequences of termination and non-fulfillment of an obligation secured by a deposit). We do not agree with the arguments indicated in the claim addressed to us. We inform you that we consider the claim to be unfounded, and the arguments presented are untenable and distorted. In the receipt, the Defendant did not oblige to return these funds, as these funds were transferred as a deposit for the purchase of a house.  In this regard, the Defendant does not intend to return the funds. The plaintiff filed a pre-trial complaint against the defendant. The defendant sent a response to the pre-trial claim.

According to the requirements of paragraph 1 of Article 6 of the Civil Code of the Republic of Kazakhstan, the norms of civil legislation must be interpreted in accordance with the literal meaning of their verbal expression. If there are possible different understandings of the words used in the text of legislative norms, preference is given to the understanding that corresponds to the provisions of the Constitution of the Republic of Kazakhstan and the basic principles of civil legislation set out in this chapter, primarily in its article 2. As follows from the requirements of paragraph 1 of Article 292 of the Civil Code of the Republic of Kazakhstan, the fulfillment of an obligation may be secured by a penalty, pledge, retention of the debtor's property, surety, guarantee, deposit, security contribution and other means provided for by law or contract. According to paragraph 1 of Article 337 of the Civil Code of the Republic of Kazakhstan, a deposit is an amount of money given by one of the contracting parties to account for payments due from it under the contract to the other party and to ensure the conclusion and execution of the contract or the fulfillment of another obligation. In accordance with paragraph 2. 338 of the Civil Code of the Republic of Kazakhstan in case of default, the party who gave the deposit is responsible, it remains with the other party, and if the party who received the deposit is responsible, it is obliged to pay the other party double the amount of the deposit. Moreover, the party responsible for non-fulfillment of the obligation is obliged to compensate the other party for losses, taking into account the amount of the deposit. Thus, based on the meaning of the above rules, the Defendant reasonably retained the amount of the deposit transferred to her, due to your refusal to conclude a purchase and sale agreement. Moreover, the defendant still has the right to claim lost profits and damages (including representation costs) from the plaintiff. By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests. 166 of the Civil Procedure Code of the Republic of Kazakhstan, where the defendant submits to the court a response to the Statement of Claim with attached documents that refute the arguments regarding the claim, as well as copies of the response and the documents attached to it. Based on the above, and guided by art. 166 of the CPC RK, THE COURT WAS ASKED:

 The Plaintiff's claim for recovery of the deposit amount must be refused. On February 18, 2022, the Alatau District Court of Almaty considered a civil case on the recovery of a deposit using WhatsApp video conferencing in open court. The court considered that, in accordance with paragraph 1 of Article 9 of the Civil Code, the protection of civil rights is carried out by the court by recognizing the rights; restoring the situation that existed before the violation of the right; suppressing actions that violate the right or threaten to violate it. As follows from the case file, on December 23, 2019, there was an oral agreement between SHK.T. and Zha.K., in connection with which SHK.T. wrote a receipt stating that she accepted money in the amount of 500,000 tenge to ensure the execution and conclusion of a contract for the sale of an apartment building with a land plot for to the above address. The total value of the real estate was verbally agreed by the parties to 25,000,000 tenge. The above circumstances are not disputed by the parties. The court considers the arguments of the plaintiff's side to recover the amount of the deposit on the following grounds to be untenable and unfounded. By virtue of paragraph 1 of Article 337 of the Civil Code, a deposit is an amount of money given by one of the contracting parties to account for payments due from it under the contract to the other party and to secure the conclusion and execution of the contract or the fulfillment of another obligation. In accordance with paragraph 2 of Article 338 of the Civil Code, if the party that gave the deposit is responsible for non-fulfillment of the obligation, it remains with the other party, and if the party that received the deposit is responsible, it is obliged to pay the other party double the amount of the deposit. Thus, the deposit performs two functions: it is a way of securing the obligation and proof of the conclusion of the contract. In accordance with Article 393 of the Civil Code, a contract is considered concluded when an agreement has been reached between the parties in the required form on all 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. By virtue of Article 406 of the Civil Code, under a contract of sale, one party (the seller) undertakes to transfer property (goods) to the ownership, economic management or operational management of the other party (the buyer), and the buyer undertakes to accept this property (goods) and pay for it a certain amount of money (price). At the same time, during the court session, the plaintiff's side did not provide reliable evidence that the defendant, when concluding an agreement on a deposit and intending to conclude a contract for the sale of a real estate object, did not fulfill its obligations. By virtue of paragraphs 3.4 of Article 8 of the Civil Code, the exercise of civil rights should not violate the rights and legally protected interests of other subjects of law. Citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation and the moral principles of society. Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed. The court sees unreasonable actions on the part of the plaintiff himself. Thus, the court found that the plaintiff, by giving a deposit, knew that he was assuming obligations to pay money for the purchase of the above-mentioned house, but subsequently did not conclude a purchase agreement.

In addition, the above-mentioned property was not pledged anywhere, it was not under encumbrance, the seller wanted to sell the house for a stipulated amount. Thus, from the explanations of the defendant's side, as well as from the submitted documents, it follows that the apartment building with the land plot was not burdened, there were no arrests, there was no pledge on it, the documents were ready for the execution of the purchase contract, but the conditions for the deposit were not properly complied with by the plaintiff's side. By virtue of paragraph 2 of Article 277 of the Civil Code, in cases where an obligation does not provide for a time limit for its fulfillment and does not contain conditions allowing it to determine this time limit, it must be fulfilled within a reasonable time after the obligation has arisen. An obligation not fulfilled within a reasonable period of time, as well as an obligation whose due date is determined by the time of demand, the debtor is obliged to fulfill within seven days from the date of the creditor's demand for its fulfillment, unless the obligation to fulfill within another period follows from legislation, the terms of the obligation, business practices or the nature of the obligation. It can be seen that the receipt does not specify the fact of concluding the purchase and sale agreement on time, but the obligations should have been fulfilled within a reasonable time.

Cancellation of the court decision | recovery of the deposit amount | securing the conclusion of the purchase agreement

The plaintiff's party has not provided evidence that he was ready to conclude a purchase and sale agreement within a reasonable time, while he was not in good faith with respect to both his own and the rights and obligations of the other party. The plaintiff's argument that the defendant refused to sell an apartment building with a land plot is untenable, since these facts do not reflect the fact of the plaintiff's actual intention to conclude a purchase agreement, moreover, from the submitted correspondence, it can be seen that the plaintiff was not provided with a loan for the purchase of real estate. As a result of improper performance, including non-fulfillment of the terms of the obligations assumed, taking into account the requirements of part five of Article 6 of the CPC, based on the criteria of fairness and reasonableness, it considers it impossible to satisfy the plaintiff's claim to recover the amount of the deposit transferred to secure the conclusion of the purchase agreement. By virtue of the requirements of Article 113 of the CPC, at the request of the party in whose favor the decision was made, the court awards, on the other hand, the costs incurred by her to pay for the assistance of a representative who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party. The plaintiff's representative submitted a receipt for payment for the representative's services in the amount of 100,000 tenge.

Cancellation of the court decision | recovery of the deposit amount | securing the conclusion of the purchase agreement

According to paragraph 14 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 15, 2014 "On the application by courts of the Republic of Kazakhstan of legislation on court costs in civil cases", in the case of an excessively high documented amount of expenses (payment order or receipt) for the payment of assistance from a representative involved in the process, the court must be guided by the criteria of good faith, fairness and reasonableness provided for by paragraph 4 of Article 8 of the Civil Code and part five of Article 6 of the CPC. Guided by the criteria of good faith, fairness and reasonableness, as well as taking into account the volume of services provided, the court considers it necessary to recover from the defendant in favor of the plaintiff the costs of paying for the services of a representative in the amount of 50,000 tenge.  By virtue of Article 109 of the CPC, the court awards the party in whose favor the decision was made, on the other hand, all court costs incurred in the case, and therefore the costs of paying for the services of a representative in the amount of 50,000 tenge are to be recovered from the plaintiff in favor of the defendant. Guided by Articles 223-226, 229 of the CPC, the court DECIDED: To refuse to satisfy the claim of JACQUES to the SCT for the recovery of the deposit amount. To collect from the JAC in favor of the School the costs of paying for the services of a representative of 50,000 (fifty thousand) tenge.

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