Disputes about the appeal of the actions of the interim manager
The conclusions of the court of appeal do not correspond to the circumstances of the case, the court incorrectly applied the norms of substantive law, and therefore the decision of the court of appeal was overturned, while the decision of the court of first instance remained in force. Joint Stock Company (hereinafter referred to as JSC) "F" filed a lawsuit with the interim manager of MKO Organization LLP and J. to appeal his actions and include the claims filed by JSC in the register of claims of bankrupt creditors. By the decision of the specialized interdistrict Economic Court of Kostanay region dated August 4, 2017, the claims of JSC "F" were satisfied. The court decided to declare illegal the refusal of the interim manager of MKO and Zh LLP and oblige him to include in the register of creditors' claims of JSC F with the amount of debt of 46,957,920.61 tenge. By a decision of the judicial board for Civil Cases of the Kostanay Regional Court dated November 21, 2017, the decision of the court of first instance in this civil case was overturned, with a new decision rejecting the claim.
Disputes about the appeal of the actions of the interim manager
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. By virtue of paragraphs 4 and 5 of the normative resolution of the Supreme Court dated January 15, 2016 No. 1 "On the right of access to Justice and the Powers of the Supreme Court of the Republic of Kazakhstan to review judicial acts", uniformity of judicial practice is achieved not only through the adoption of normative decisions by the Supreme Court, but also as a result of the cassation review of judicial decisions that have entered into force. acts. At the same time, the activity of the Supreme Court in reviewing judicial acts aimed at ensuring their legality, validity and fairness is of crucial importance for the formation of judicial practice. The achievement of uniformity of judicial practice is conditioned by the tasks of ensuring legality and protecting the constitutional rights and freedoms of both individuals and legal entities. During the consideration of the case, such violations were committed by the court of appeal. It follows from the case file that MKO I LLP was established as part of the implementation of the state program provided for by Resolutions of the Government of the Republic of Kazakhstan "On the concept of developing a network of microcredit organizations for crediting agricultural producers of the Republic of Kazakhstan" dated April 28, 2006 No. 337 and "On certain issues of supporting the agro-industrial complex with the participation of specialized organizations" dated July 7, 2006, No. 645. JSC "F" is the founder (participant) of the specified LLP with a 49% share in the authorized capital in the amount of KZT 6,250,000. The other founders (participants) are the following citizens: Sh. with a 48% participation, Ch. with a 1% participation, N. with a 1% participation, and Ya. with a 1% participation. In accordance with the loan agreements dated July 15, 2008 and July 15, 2011, the LLP received funds from the JSC for a total amount of 50,000,000 tenge. Currently, the debt of MKO I LLP amounts to 46,957,920 tenge, which is confirmed by court decisions. By the decision of the specialized interdistrict Economic Court of Kostanay region dated May 22, 2017, MKO I LLP was declared bankrupt with the initiation of liquidation proceedings. During the bankruptcy proceedings, by a court ruling dated April 6, 2017, Zh. was appointed interim manager of the LLP. On May 15, 2017, JSC "F" applied to him with an application for inclusion in the register of creditors' claims of the debtor of debts under these agreements in the total amount of 46,957,920 tenge. By Notification No. 65 dated May 23, 2017, the interim manager of MKO AND LLP refused to satisfy the claim of JSC F. The court of appeal, overturning the decision of the court of first instance and refusing to satisfy the plaintiff's claims, reasoned that according to subparagraph 3) of paragraph 6 of Article 90 of the Law of the Republic of Kazakhstan "On Rehabilitation and Bankruptcy", the claims of the founders (participants) of the debtor are not included in the register of creditors' claims. However, these conclusions of the court do not correspond to the circumstances of the case and the court incorrectly applied the norms of substantive law. JSC "F" is indeed the founder of an LLP with the amount of a contribution to the authorized capital in the amount of 6.2 million tenge. However, the court of appeal did not take into account that the JSC's requirements for inclusion in the register were stated not as the founder of the LLP, but as the sole creditor under loan agreements due to improper fulfillment by the borrower of obligations and in order to repay borrowed funds.,
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
