Disputes about the bankruptcy procedure, one of the grounds for extending the term of the bankruptcy procedure is the presence of unrealized property
The bankrupt manager of the limited Liability Partnership "OFS" (hereinafter referred to as "S" LLP) N. applied to the court for an extension of the bankruptcy procedure. By a ruling of the specialized interdistrict Economic court of the Karaganda region dated September 8, 2017, the application of the bankrupt manager of S. N. LLP for an extension of the bankruptcy procedure was denied. By the ruling of the Judicial Board for Civil Cases of the Karaganda Regional Court dated October 24, 2017, the ruling of the court of first instance remained unchanged. The Judicial Board for Civil Cases of the Supreme Court overturned the judicial acts of local courts, and issued a new decision in the case to satisfy the petition of N., the bankrupt managing director of the OFS limited Liability Company. Extended the term of bankruptcy proceedings of LLP "S" for three months. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan was satisfied 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. Such violations were committed during the consideration of the case by the courts. It follows from the case file that by the decision of the specialized interdistrict economic court of the Karaganda region dated January 21, 2014, LLP "S" was declared bankrupt. Bankruptcy proceedings have been initiated for a period of 9 months. The term of the bankruptcy procedure has been extended several times.
By the protocol of August 7, 2017, the meeting of creditors of the debtor decided to give consent to the bankruptcy trustee to extend the term of the bankruptcy procedure due to the presence of unrealized property and for electronic bidding. The local courts, rejecting the application, argued that the bankruptcy trustee had been given sufficient time to take measures to satisfy creditors' claims and complete the bankruptcy procedure. The refusal to extend the term of the bankruptcy procedure is not a reason for the termination of the powers of the bankruptcy administrator. However, the conclusions of the courts do not correspond to the actual circumstances of the case. According to subparagraph 2) of part 2 of Article 84 of the Law "On Rehabilitation and Bankruptcy" (hereinafter referred to as the Law), one of the grounds for extending the bankruptcy procedure is the presence of unrealized property. It has been established that the bankrupt's estate includes immovable property: an apartment building with a plot of land in Almaty, an apartment in the city of Aktobe, the Saranskaya Processing Plant property complex with an adjacent plot of land in the city of Saran, Karaganda region. The total value of the specified property is 836,568,000 tenge. According to the provisions of the Law, the main purpose of bankruptcy is to satisfy creditors' claims. If there is an unrealized property, the bankruptcy procedure cannot be completed, since its main purpose has not been achieved. This circumstance is the basis for extending the term of bankruptcy proceedings. In addition, the courts did not take into account that the bankrupt's property was not offered for sale, the sale procedure was not appointed, therefore it cannot be transferred to creditors of the appropriate queue. Thus, the refusal to extend the terms of bankruptcy proceedings makes it impossible to satisfy creditors' claims due to unrealized property in the amount of 836,568,000 tenge. The presence of unrealized property is the basis for extending the term of bankruptcy proceedings.
Therefore, the bankrupt manager N. is obliged to take measures to complete the bankruptcy procedure, which is carried out in order to satisfy creditors' claims at the expense of the bankrupt's estate. According to article 84 of the Law, the duration of the bankruptcy procedure is determined by a court decision and may not exceed 9 months. This period may be extended by the court at the request of the bankruptcy administrator with the consent of the creditors' meeting for no more than three months. Currently, by notification dated November 6, 2017, the bankrupt manager intends to sell the collateral of JSC "N" – processing plant complex (650,505,000 tenge) for 22 million tenge to IP A. without the consent of the creditors' meeting, which infringes on their rights and contradicts the objectives of the bankruptcy procedure.
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