Cancellation of the decision of the private bailiff on the distribution of the collected sums of money
No. 6001-23-00-6ap/1466, No.6001-23-00-6ap/1466 (2) dated October 23, 2023
Plaintiff: K LLP (hereinafter referred to as the Partnership)
Defendant: HSI
The subject of the dispute: on the recognition of the illegal and cancellation of the decision on the distribution of the collected sums of money Review of the cassation complaints of the defendant
PLOT: Based on the executive inscription (hereinafter referred to as the inscription) dated December 30, 2022, the amount of debt of 252,607,986.98 tenge and the costs of making the inscription 307,832 tenge were recovered from LLP "K" in favor of LLP "C". On January 27, 2023, the notary sent the inscription to the CSI for execution.
Enforcement proceedings were initiated by the decree of the CHSI dated January 30, 2023. On February 3, 2023, a collection order was issued to the settlement account of the debtor of LLP "S". Starting from February 3, 2023 to February 8, 2023, a total amount of 7,415,629.11 tenge was received by the collection order.
By court ruling No. 2 of February 6, 2023, security measures were taken in the form of suspension of enforcement proceedings. The ruling was issued for immediate execution and handed over to the CSI on February 9, 2023. By a payment document dated February 9, 2023, the amount of 7,199,190.11 tenge was transferred in favor of LLP "C".
By the decree of the CHSI dated February 9, 2023, the collected amount of money was distributed. The amount of 450 tenge and 215,989 tenge was withheld by the CSI as the amount of expenses for performing executive actions and paying for the activities of the CSI.
The remaining amount in the amount of 7,199,190.11 tenge was transferred in favor of the recoverer. By the decree of the notary dated February 21, 2023, the inscription was canceled. By the decree of the CHSI dated February 22, 2023, the enforcement proceedings were terminated due to the cancellation of the inscription. 12 The plaintiff, appealing to the court, indicates that the CSI, despite the court's rulings on securing the claim, did not suspend the enforcement proceedings, thereby illegally distributing the amount. In this regard, he asks the court to declare illegal and cancel the decision of the CHSI on the distribution of the collected sums of money.
Judicial acts:
1st instance: the claim is satisfied. The decision of the CHSI on the distribution of the collected sums of money was declared illegal and canceled.
Appeal: the court's decision is upheld. By a private ruling of the judicial board, the head of the regional Chamber of the CHSI was informed of the violations of the norms of the legislation of the CHSI, in order to take appropriate measures.
Cassation: judicial acts are upheld. Conclusions: paragraph 1 of Article 10 of the Law stipulates that decisions on enforcement proceedings taken by a bailiff from the date of presentation of the enforcement document for execution are formalized by resolutions.
According to paragraph 1 of Article 37 of the Law, the bailiff initiates enforcement proceedings on the basis of an enforcement document at the request of the recoverer, unless otherwise established by this Law and other legislative acts of the Republic of Kazakhstan.
Paragraph 5 of Article 10 of the Law states that the decision of the bailiff comes into force from the date of its issuance, is subject to mandatory execution and can be appealed to the court within 10 working days in accordance with the procedure established by the legislation of the Republic of Kazakhstan on administrative proceedings.
Enforcement proceedings are subject to suspension within one working day in the following cases: the issuance of a decision by a court or an official who is granted the right by the legislation of the Republic of Kazakhstan to suspend the execution of a judicial act on the basis of which an enforcement document was issued, as well as the granting by the court of a deferral, an installment plan for a certain period (subparagraph 6) of Article 42 of the Law).
In accordance with paragraph 1 of Article 92-7 of the Law of the Republic of Kazakhstan "On Notaries", upon receipt of a notification of the delivery of a copy of the executive inscription to the debtor and if no objection is received from the debtor to the notary within the prescribed period, the notary issues the executive inscription to the recoverer or, upon his request, sends it for execution to the appropriate judicial authority or to the regional chamber private bailiffs by territorial jurisdiction or a private bailiff chosen by the claimant.
The court of first instance, guided by the above-mentioned norms of the Law, reasonably satisfied the claim of LLP "K", recognizing as illegal, canceled the decision of the CHSI on the distribution of the collected sums of money, since it was reliably established that the writ of execution was submitted for execution in violation of the time limit for its appeal, while the CHSI distributed and transferred the recovered amount before the relevant decision on the distribution of the recovered monetary amounts, which is confirmed by the materials of the enforcement proceedings.
In addition, after receiving the court ruling No. 2 on securing the claim in the form of suspension of enforcement proceedings, the CSI did not suspend enforcement proceedings, but took further actions to distribute the sums of money, while not issuing an appropriate resolution on this. In view of the above circumstances, the court of first instance reasonably granted the claim of the Partnership.
The appellate judicial board reasonably agreed with the above-mentioned conclusions of the court of first instance, which left the court's decision unchanged, which led the court to issue a private ruling in relation to the ICI. At the same time, the board considers it necessary to point out that, in accordance with paragraph 3 of Article 37 of the Law, the CSI has the right to initiate enforcement proceedings without an application from the recoverer in cases where the enforcement document has been sent to him in accordance with the procedure provided for in subparagraph 2) paragraph 1 of Article 162 of this Law, that is, through the state automated information system of enforcement proceedings. However, the CSI is obliged to check the compliance of the executive document with the requirements of Article 37 of the Law, which the CSI did not do in this case.
Since the circumstances of the case were generally established correctly by the local courts, and the norms of substantive and procedural law were applied correctly, no grounds have been established for the cancellation or amendment of the contested judicial acts.
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