Debt collection, representation expenses and arbitration fee

January 08, 2025 Case No. 01-10-296/24g. Astana

The arbitrator of the permanent arbitration of Astana Omarov G.K., in a closed meeting at the premises of the arbitration of Astana (Astana, ul. G. Aliyev, 1, NP-5) with the participation of the representative of the plaintiff Sarzhanov G.T., power of attorney dated 11/18/2024, representative of the defendant Kulchikov A.M.,

having considered the civil case on the claim of the TST to the consumer cooperative of citizens "R.O.I." for debt collection, representation expenses and arbitration fee,

INSTALLED:

The jurisdiction of the Permanent Arbitration Court of Astana to consider this dispute between the parties follows from clause 37 of the Agreement No. 30462 dated 06/23/2021 on participation in a consumer cooperative and the acquisition of movable and immovable property, which submits the dispute to the permanent Arbitration Court of Astana, and is considered according to the rules of this Arbitration, the decision of which is final and binding for parties.

By the decision of the Chairman of the Permanent Arbitration Court of Astana dated December 31, 2024, the statement of claim of T.S.T. to the consumer cooperative of citizens "R.O.I." for the recovery of the amount of debt was accepted into proceedings and a civil case was initiated.

In accordance with the requirements of paragraph 3 of Article 7 of the Rules of Arbitration, notices were sent in advance to the parties in the case on the presentation of the time for the selection of an arbitrator from the register.

The parties did not select an arbitrator within the time limit set. By the ruling of the chairman of the arbitration dated 08.01.2025, the arbitrator Omarov G.K. was appointed in this case.

Prior to the start of the consideration of the case, no petitions for the withdrawal of the arbitral tribunal were filed by the parties.

According to Article 29 of the Law of the Republic of Kazakhstan "On Arbitration", failure to submit documents and other materials, including failure to attend an arbitration meeting by one of the parties or their representatives, duly notified of the time and place of the arbitration meeting, does not constitute an obstacle to arbitration proceedings based on the submitted materials and evidence and the adoption of an arbitration award, if the reasons for the failure to submit documents and other materials or the failure of the parties to attend the arbitration meeting was deemed disrespectful.

It follows from the statement of claim that betweenT and PKG "R.O.I." signed an agreement No. 30462 dated June 23, 2021 on participation in a consumer cooperative in order to obtain an interest-free targeted loan for the purchase of property.

In accordance with paragraph 7 of the agreement, the plaintiff made a share contribution in the amount of 901,410 tenge.

In connection with the defendant's failure to fulfill its obligations to issue a loan, the plaintiff applied for termination of the contract and repayment of the share contribution.

On July 24, 2023, the parties signed a statement of the established sample, which agreed on the procedure for termination of the contract and set a deadline for the repayment of the share contribution within 90 days.

However, to date, the share contribution in the amount of 901,410 tenge has not been returned to the plaintiff.

The plaintiff requests to recover 901,410 tenge, representative fees in the amount of 250,000 tenge and an arbitration fee in the amount of 73,840 tenge.

In the arbitration proceedings, the plaintiff's representative, G.T. Sarzhanov, supported the claims for the reasons set out in the claim and asked to satisfy the claim.

The defendant of PKG "R.O.I.", represented by the representative of Kulchikov A.M., partially acknowledged the claims, agreeing to refund, at the request of T.S.T., the amount of the share contribution in the amount of 901,410 tenge.

However, the defendant requested to refuse to satisfy the claims for the recovery of expenses for a representative in the amount of 250,000 tenge, referring to the fact that the amount of expenses should be commensurate with the amount being recovered and not exceed 10% of the amount of the recovery.

After examining the case materials and examining the arguments of the parties, the arbitrator comes to the following conclusion.

In accordance with paragraph 3 of Article 401 of the Civil Code of the Republic of Kazakhstan, the contract is considered amended or terminated in the event of a unilateral refusal to perform the contract (withdrawal from the contract), respectively, partially or completely (Article 404 of the Civil Code of the Republic of Kazakhstan).

The application for withdrawal from the cooperative is an official document that records the agreements reached by the parties and the terms of termination of the contract.

The statement reflects in detail the obligations of the parties, including the procedure and deadlines for the return of deposited funds, as well as other conditions stipulated by the agreement.

This document confirms the mutual agreement of the parties and plays a key role in resolving issues related to termination of participation in the cooperative, ensuring respect for the rights and interests of both parties.

The representative of the defendant acknowledges the debt owed to the plaintiff in the amount of 901,410 tenge, which confirms the validity of the claims for the return of these funds.

According to paragraph 1 of Article 349 of the Civil Code of the Republic of Kazakhstan, a violation of an obligation is its non-fulfillment or improper fulfillment.

The arbitration proceedings established a violation of obligations by the defendant.

For these reasons, as well as by virtue of the provisions of Articles 378, 380, 386 of the Civil Code of the Republic of Kazakhstan, the arbitrator finds the claims regarding the recovery of a share contribution in the amount of 901,410 tenge justified and subject to satisfaction.

Under the terms of clause 43 of the agreement, in case of non-fulfillment of the cooperative's obligations to issue a loan, a cooperative member has the right to withdraw from the cooperative and demand payment of the share contribution.

42 of the Law of the Republic of Kazakhstan "On Arbitration", the plaintiff's expenses for the payment of the arbitration fee in the amount of 73,840 tenge, as well as expenses for representative services, commensurate with the amount to be collected, in the amount of 91,000 tenge, are subject to recovery from the defendant.

Based on the above, guided by art. 47 of the Law of the Republic of Kazakhstan "On Arbitration",

THE ARBITRATION COURT DECIDED: To partially satisfy the claim of T S.T to the consumer cooperative of citizens "R.O.I." for the recovery of the amount.

To collect from the consumer cooperative of citizens "R.O.I." in favor of T.S.T. a share contribution in the amount of 901,410 (nine hundred one thousand four hundred ten) tenge, as well as expenses for representative services in the amount of 91,000 (ninety one thousand) tenge.

 

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