Disputes between the participants of the LLP on holding a general meeting, in the absence of a quorum, the general meeting of participants is reconvened no later than forty-five days from the date of the first convocation.
K. filed a lawsuit with the court against Sh., LLP "D" and LLP "Zh" for invalidation of the decisions of the general meeting, arguing that the general meeting of the partnership's participants dated March 20, 2018 was held in violation of the law. In this regard, it is invalid, as well as the decision of the general meeting of participants of LLP "Zh" dated April 2, 2018. By the decision of the specialized interdistrict Economic Court of the North Kazakhstan region dated August 27, 2018, left unchanged by the decision of the Judicial Board for Civil Cases of the North Kazakhstan Regional Court dated November 15, 2018, K.'s claim was satisfied. The decision of the general meeting of participants of LLP "D" dated March 20, 2018 and the decision of the general meeting of participants of LLP "Z" dated April 2, 2018 were declared invalid. The issue of the distribution of court costs has been resolved. The Judicial Board for Civil Cases of the Supreme Court has left judicial acts of local courts unchanged on the following grounds. It follows from the case file that LLP "D" consists of 276 participants with the right of land use of conditional land shares, one of the participants is K., whose share is 95% of the authorized capital. On March 20, 2018, a repeated extraordinary general meeting was held on the withdrawal of 39 participants from D LLP and the allocation of land plots located near the village of Ornek in the Almaty rural district of the Yesil district of the North Kazakhstan region. On April 2, 2018, LLP "Zh" held an extraordinary general meeting of participants, during which it was decided to accept participants who resigned from LLP "D" with land plots with a total area of 560.91 hectares, including 397.9 hectares of arable land, into LLP "Zh". K., believing that the decisions of the general meetings His rights were violated on March 20, 2018 and on April 2, 2018, and he challenged them in court.
Disputes between the participants of the LLP on holding a general meeting, in the absence of a quorum, the general meeting of participants is reconvened no later than forty-five days from the date of the first convocation.
Satisfying the plaintiff's claims, the local courts concluded that during the general meeting of March 20, 2018, the requirements of paragraphs 3, 4 of Article 101 of the Land Code of the Republic of Kazakhstan (hereinafter referred to as the CC) were not met, in particular, less than 50% of the partnership's participants were present. The reason for declaring illegal the decision of the general meeting of participants of LLP "Zh" dated April 2, 2018 was the recognition of illegal the decision of the general meeting of participants of LLP "D" dated March 20, 2018. The Judicial Board indicated that the conclusions of the local courts were based on the requirements of current legislation and the case file. In accordance with paragraph 7 of Article 23 of the Law "On Limited and Additional Liability Partnerships" (hereinafter referred to as the Law), the allocation of a land plot in kind, the right to which has been transferred as a contribution to the authorized capital of the partnership (including the right to a conditional land share), is carried out in accordance with the land legislation of the Republic of Kazakhstan. In accordance with paragraph 3 of Article 101 of the CC, citizens who have transferred their rights to conditional land shares as a contribution to the authorized capital of business partnerships, upon leaving the membership (members) for the organization of peasant or farming or commercial agricultural production, have the right, by decision of the general meeting of participants (members), to allot (section) in kind of the share or unit, including the land plot, or to pay the cost of the share or unit. Paragraph 4 of Article 101 of the CC stipulates that citizens who are participants in shared ownership (shared land use) and who are leaving the participants for farming or agricultural production, land plots are provided in accordance with the procedure for using the land plot in shared ownership (shared land use), approved by the general meeting of participants in shared ownership (shared land use), in accordance with Article 54 of this Code. Notification of participants in shared ownership (shared land use) of the upcoming meeting to approve the procedure for the use of land plots is made in writing against receipt at least one month before the date of its holding. Subject to proper notification, the meeting is considered competent with the participation of at least fifty percent of the participants in shared ownership (shared land use) or their representatives. The decision is made by a simple majority of the votes of the participants in shared ownership (shared land use) or their representatives present at the meeting and is formalized in the minutes. The protocol is signed by all the participants of shared ownership (shared land use) or their representatives present. At the same time, during the general meeting of March 20, 2018, these requirements of the current legislation were grossly violated. It follows from the case file that the total number of participants in LLP "D" – holders of land use rights and conditional land shares is 276, one of them, K., joined LLP "D" with monetary funds (95% share in the authorized capital). Due to the fact that the issue of withdrawal of participants in shared land use was put on the agenda of the general meeting, the local courts legitimately indicated that the outgoing participants were obliged to notify the other participants in writing of their intention to allocate the land plot to account for land shares, indicating its intended location. The courts have established, and this is not disputed by the parties, that less than 50% of the participants in the general land use attended the general meeting held on March 20, 2018. The requirement for the presence at the general meeting of at least 50% of the participants in the general land use, by virtue of Article 101 of the CC, applies to both the initial and repeated meetings. According to the requirements of paragraph 2 of Article 45 of the Law, an extraordinary general meeting of participants in a limited liability partnership is convened by the executive body of the partnership on its own initiative, and in cases of the creation of supervisory and supervisory bodies - also at the request of the supervisory board or the audit commission (auditor) of the partnership or on the initiative of the participants of the partnership, who collectively own ten percent or more of the total number of voices.
Disputes between the participants of the LLP on holding a general meeting, in the absence of a quorum, the general meeting of participants is reconvened no later than forty-five days from the date of the first convocation.
However, the general meeting of participants of D LLP dated March 20, 2018 was convened by participants who collectively hold less than one tenth of the total number of votes, that is, the said meeting was convened by persons who do not have the authority to commit these actions, which, in accordance with paragraph 11 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated July 10, 2008. No. 2 "On some issues of the Application of Legislation on limited and additional liability Partnerships" (hereinafter – A regulatory resolution) is the basis for declaring the decision taken on it invalid. By virtue of paragraphs 1 and 1-1 of Article 46 of the Law, the body or person(s) convening the general meeting of participants in a limited liability partnership are required to notify each participant of the meeting in writing at least thirty days before the opening day of the meeting at the address indicated in the register of participants maintained by the executive body of the partnership. The body or person(s) convening the general meeting of participants in a limited liability partnership transformed from a joint-stock company with one hundred or more participants are required to notify the participants of the partnership thirty days before the opening day of the meeting. The notice of holding a general meeting of the partnership's participants with one hundred or more participants must be published in the printed publication specified in the partnership's articles of association. According to paragraph 5 of Article 46 of the Law, in the absence of a quorum, the general meeting of participants in a limited liability company is reconvened no later than forty-five days from the date of the first convocation. When the general meeting is reconvened, the rules established by article 46 of the Law must be observed. The courts found that the announcement of the general meeting of D LLP participants on March 20, 2018 was posted in the Ishim newspaper on March 2, 2018, and in the North Kazakhstan newspaper on March 3, 2018, that is, published less than thirty days before the opening day of the meeting. In addition, by virtue of paragraph 1 of Article 46 of the Law, the body or person(s) convening the general meeting of LLP participants are required to notify each participant of the partnership of the meeting at the address indicated in the register of participants maintained by the executive body of the partnership. This requirement of the Law is also violated. According to paragraph 13 of the Regulatory Resolution, a decision of the general meeting of the partnership's participants is subject to unconditional invalidation if: a decision on issues requiring a qualified majority or unanimity in accordance with the Law or the constituent documents (paragraph 2 of Article 48 of the Law) was taken in violation of this rule; a decision was made on an issue not included in the law and constituent documents included in the agenda of the general meeting of the partnership's participants (paragraph 1 of Article 48 of the Law); The participant of the partnership, in accordance with the procedure established by law and the constituent documents, was not notified of the place and time of the general meeting of the participants of the partnership (paragraph 1 of Article 46 of the Law). In such circumstances, the conclusions of the local courts on the recognition of the decision of the general meeting of participants of Daniyar Agro LLP dated March 20, 2018 as invalid are legitimate and justified. In addition, the board took into account that the plaintiff K., the defendants Sh. and LLP "D" did not challenge the court's decision in this part. The Judicial Board found that the decision of the general meeting of participants of LLP "Z" dated April 2, 2018 on the acceptance of participants who resigned from LLP "D" with land plots was reasonably invalidated by local courts. The courts found that when deciding on the withdrawal of LLP "D", the participants grossly violated the requirements of the Law, therefore, the decision of the general meeting to admit these participants to LLP "Z" is also unlawful. The arguments of the petition that K., who is not a member of LLP "Zh", does not have the right to challenge the decision of the general meeting of participants of LLP "Zh", are unfounded, since with the withdrawal of 39 participants of LLP "D" and their admission to LLP "Zh" with land shares, the rights and interests of the plaintiff are violated. The Judicial Board pointed out that currently, due to the invalidation of the decisions of the general meetings of the participants of LLP "D" and LLP "Zh", the participants of the partnership are not deprived of the opportunity to re-initiate the issue of withdrawal from the partnership in accordance with the procedure established by Law.
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