Compulsory repayment of the debt amount | Collection of the amount owed on a receipt | Enforcement of an obligation
District Court no.2 Auezovsky district of Almaty on debt recovery, Plaintiff T. N.O. filed a lawsuit against defendant I.A.M., arguing that on April 13, 2016, the defendant borrowed funds from the plaintiff in the amount of KZT 6,100,000 and pledged to repay the debt amount by September 13, 2016, in confirmation by the defendant a handwritten receipt has been issued. At the same time, in violation of the terms of the assumed obligation, the defendant has not repaid the debt to date, despite repeated requests to return the loan object, the defendant points out various circumstances, promises to repay the amount of the debt, the issue of repayment is not resolved voluntarily, the defendant I.A.M. evades. The refund date expired on 13.09.2016, in this regard, the plaintiff calculated the penalty, taking into account the requirements of Article 535 of the Civil Code of the Republic of Kazakhstan and the official refinancing rate of the National Bank of the Republic of Kazakhstan. Based on art . 722, 272, 277, 268 of the Civil Code of the Republic of Kazakhstan (hereinafter, the Civil Code of the Republic of Kazakhstan) requests to recover from the defendant in favor of the plaintiff the amount of debt in the amount of KZT 6,100,000, a penalty of KZT 441,206, and a refund of state duty in the amount of KZT 65,413. The plaintiff's representative, A.D.B., supported the claim in full at the hearing, and asked the court to satisfy him, citing the arguments of the claim and the circumstances of the case. There is also an application in the case for consideration of a civil case in absentia. Defendant I.A.M. He was duly notified of the place and time of the court session (confirmed by the case materials, including court summonses), but did not appear in court, did not apply.
Compulsory repayment of the debt amount | Collection of the amount owed on a receipt | Enforcement of an obligation
By virtue of Article 196 of the CPC RK, the court considers it possible to consider a civil case in the absence of the defendant, in absentia, in view of the absence of objections from the plaintiff. 2 The court, having examined the case materials, heard the explanations of the parties and assessed the evidence presented in its entirety, considers that the plaintiff's claims are subject to satisfaction on the following grounds. In accordance with paragraph 1 of article 14 of the International Covenant on Civil and Political Rights (New York, December 16, 1966, ratified by the Law of the Republic of Kazakhstan dated November 28, 2005 No. 91), all persons are equal before courts and tribunals. Everyone has the right, when considering any criminal charge against him or when determining his rights and obligations in any civil proceeding, to a fair and public hearing by a competent, independent and impartial court established by law. In accordance with art . 72 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC RK), each party must prove the circumstances to which it refers as the grounds for its claims and objections. According to the norms of Article 15 of the CPC RK, civil proceedings are conducted on the basis of competition and equality of the parties. The parties enjoy equal procedural rights and bear equal procedural responsibilities. In the course of civil proceedings, the parties choose their position, ways and means of defending it independently and independently of the court, other bodies and persons.
The court is completely exempt from collecting evidence on its own initiative. By the provisions of Article 16 of the CPC RK, a judge evaluates evidence according to his inner conviction, based on an impartial, comprehensive and complete examination of the evidence available in the case in their entirety, guided by the law and conscience. No evidence has more than the established force. In accordance with art . 73 CPC RK 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, except in cases provided for by CPC RK. The court found that there was a contractual relationship between the plaintiff and the defendant for the provision of funds in debt, which were issued in a written receipt dated 04/13/2016. According to the provisions of Article 392 of the Civil Code of the Republic of Kazakhstan, when interpreting the terms of a contract, the court takes into account the literal meaning of the words and expressions contained therein. The literal meaning of a contract clause, in case of ambiguity, is established by comparing it with other terms and the meaning of the contract as a whole. So, based on the literal content of the receipt dated 04/13/2016, it follows that Ibragimov A.M., who lives at the address: Almaty, mkr. ..., house 32, sq. 36, borrowed money from T.N.O. in the amount of 6,100,000 tenge, for a period up to September 13, 2016. It is also indicated that the receipt was written in his own hand. At the time of the decision, there is no reliable evidence of debt repayment in court. There is no information about the invalidation of the named document 3, therefore the document has legal force. In accordance with Article 380 of the Civil Code of the Republic of Kazakhstan, citizens and legal entities are free to conclude a contract. Freedom of contract is expressed in the fact that everyone disposes of the granted right at his discretion, in his own interest and, accordingly, determines the conditions based on his desire and available capabilities.
They are free to establish their rights and obligations on the basis of a contract and to determine any terms of the contract that do not contradict the law. Also, according to Article 382 of the Civil Code of the Republic of Kazakhstan, the terms of the contract are determined at the discretion of the parties. According to clause 1 of Article 393 of the Civil Code of the Republic of Kazakhstan, a contract is considered concluded when an agreement has been reached between the parties on all essential terms and conditions in the required form. It follows from the above that the parties, when establishing these legal relations, were aware of the ensuing consequences. According to Article 716 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code of the Republic of Kazakhstan), a loan agreement must be concluded in a form that complies with the rules of Articles 151 to 152 of this Code. A loan agreement is recognized as concluded in proper written form also if there is a bond, a receipt from the borrower or other document certifying the transfer of a certain amount or a certain number of things to him by the lender. According to Article 715 of the Civil Code of the Republic of Kazakhstan, under a loan agreement, one party transfers money to the other party, and the borrower undertakes to return the same amount to the lender in a timely manner. According to paragraph 1 of art. 722 of the Civil Code of the Republic of Kazakhstan, the borrower is obliged to repay the loan item in accordance with the procedure and terms stipulated in the contract.
In accordance with Article 271 of the Civil Code of the Republic of Kazakhstan, obligations arise from a contract, injury or other grounds specified in Article 7 of the Civil Code of the Republic of Kazakhstan, in turn, the norms of Article 272 of the Civil Code of the Republic of Kazakhstan, the obligation must be performed properly in accordance with the terms of the obligation and the requirements of the law, and according to Article 273 of the Civil Code, unilateral refusal to perform an obligation and unilateral modification of its terms is not allowed. According to Article 349 of the Civil Code of the Republic of Kazakhstan, a violation of an obligation is defined as its non-fulfillment or improper fulfillment. By the provisions of Article 290 of the Civil Code of the Republic of Kazakhstan, the creditor, accepting the execution, is obliged, at the request of the debtor, to give him a receipt for the execution in whole or in part. If the debtor has issued a debt document to the creditor to certify the obligation, the creditor, accepting the execution, must return the document to the debtor. If it is impossible to return, he is obliged to indicate this in the receipt issued by him. The receipt may be replaced by an inscription on the debt document returned to the debtor. It was established that the relevant documents indicating the proper fulfillment of obligations by the defendant to repay the loan item were not submitted to the court within the time limit set by the parties, the original receipt was submitted to the court by the plaintiff. Thus, the defendant's debt to the plaintiff is confirmed by a set of established circumstances and documents submitted to the court. There is no evidence in the case file to refute the plaintiff's arguments, and the defendant, in violation of the norms of art. 72 of the CPC RK, has not been presented to the court.
Compulsory repayment of the debt amount | Collection of the amount owed on a receipt | Enforcement of an obligation
According to art. 225 of the CPC RK, the court resolves the case within the limits of the plaintiff's claims. Thus, the plaintiff's claims for debt collection from Ibragimov A.M. are justified and are subject to satisfaction, and therefore, the amount of debt in the amount of 6,100,000 tenge is subject to collection from the defendant in favor of the plaintiff. At the request of the plaintiff to recover from the defendant the amount of the penalty in the amount of 441,206 tenge, the court came to the following conclusion. According to paragraph 1 of art. 295 of the Civil Code of the Republic of Kazakhstan, the creditor has the right to demand payment of a penalty determined by law (legal penalty), regardless of whether the obligation to pay it is provided for by agreement of the parties. According to Article 298 of the Civil Code of the Republic of Kazakhstan, a penalty is levied for non-fulfillment or improper fulfillment of an obligation if there are conditions for holding the debtor accountable for violating the obligation (Article 359 of this Code). In accordance with paragraph 1 of art. 359 of the Civil Code of the Republic of Kazakhstan, the debtor is responsible for non-fulfillment and (or) improper fulfillment of obligations in the presence of fault, unless otherwise provided by law or contract. The debtor is found innocent if he proves that he has taken all measures in his power to properly fulfill the obligation. In accordance with paragraph 6 of Article 9 of the Civil Code of the Republic of Kazakhstan, if the occurrence of legal consequences of a violation depends on the guilt of the violator, his guilt is assumed, except in cases where legislative acts provide otherwise. According to paragraph 1 of art. 353 of the Civil Code of the Republic of Kazakhstan, a penalty is payable for the misuse of other people's money as a result of non-fulfillment of a monetary obligation or delay in their payment, or their unjustified receipt or saving at the expense of another person. The amount of the penalty is calculated based on the official refinancing rate of the National Bank of the Republic of Kazakhstan on the day of fulfillment of the monetary obligation or its corresponding part.
According to art. 225 of the CPC RK, the court resolves the case within the limits of the plaintiff's claims. Thus, the plaintiff's claims for debt collection from Ibragimov A.M. are justified and are subject to satisfaction, and therefore, the amount of debt in the amount of 6,100,000 tenge is subject to collection from the defendant in favor of the plaintiff. At the request of the plaintiff to recover from the defendant the amount of the penalty in the amount of 441,206 tenge, the court came to the following conclusion. According to paragraph 1 of art. 295 of the Civil Code of the Republic of Kazakhstan, the creditor has the right to demand payment of a penalty determined by law (legal penalty), regardless of whether the obligation to pay it is provided for by agreement of the parties. According to Article 298 of the Civil Code of the Republic of Kazakhstan, a penalty is levied for non-fulfillment or improper fulfillment of an obligation if there are conditions for holding the debtor accountable for violating the obligation (Article 359 of this Code). In accordance with paragraph 1 of art. 359 of the Civil Code of the Republic of Kazakhstan, the debtor is responsible for non-fulfillment and (or) improper fulfillment of obligations in the presence of guilt, unless otherwise provided by law or contract. The debtor is found innocent if he proves that he has taken all measures in his power to properly fulfill the obligation. In accordance with paragraph 6 of Article 9 of the Civil Code of the Republic of Kazakhstan, if the occurrence of legal consequences of a violation depends on the guilt of the violator, his guilt is assumed, except in cases where legislative acts provide otherwise. According to paragraph 1 of art. 353 of the Civil Code of the Republic of Kazakhstan, a penalty is payable for the misuse of other people's money as a result of non-fulfillment of a monetary obligation or delay in their payment, or their unjustified receipt or saving at the expense of another person. The amount of the penalty is calculated based on the official refinancing rate of the National Bank of the Republic of Kazakhstan on the day of fulfillment of the monetary obligation or its corresponding part.
When collecting a debt in court, the court may satisfy the creditor's claim based on the official refinancing rate of the National Bank of the Republic of Kazakhstan on the day of filing the claim or on the day of the decision, or on the day of the actual payment at the creditor's choice. These rules apply unless a different amount of the penalty is established by legislative acts or an agreement. Based on the materials of the civil case, it was established that the defendant does not fulfill the obligation to repay the loan amount within the prescribed period – 09/13/2016. The plaintiff calculated the penalty using the official refinancing rate of the National Bank of the Republic of Kazakhstan for the period from 13.09.2016 to 10.05.2017 (240 days), the amount was 441,206 tenge. According to paragraph 4 of Article 8 of the Civil Code of the Republic of Kazakhstan, citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation, the moral principles of society, and entrepreneurs - also the rules of business ethics. This obligation cannot be excluded or limited by the contract. In such circumstances, the plaintiff's claims to recover from the defendant the amount of the penalty for late performance of the obligation are subject to satisfaction. 109 of the CPC RK, the party in whose favor the decision was made, the court awards, on the other hand, all court costs incurred in the case.
Compulsory repayment of the debt amount | Collection of the amount owed on a receipt | Enforcement of an obligation
Based on the above and guided by Articles 223-226, 229 of the Civil Procedure Code of the Republic of Kazakhstan, the court DECIDED: To satisfy the claim of the TNO to the IAM for the recovery of the debt amount. Collect from IAM, born on 03/23/1969 (IIN ....) in favor of TNO, born on 02/04/1978 (IIN ,,,) the amount of debt in the amount of KZT 6,100,000 (six million one hundred thousand), a penalty in the amount of KZT 441,206 (four hundred forty one thousand two hundred six) tenge, refund of state duty in the amount of 65,413 (sixty-five thousand four hundred and thirteen) tenge.
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