Disputes on appeal of the decision of the liquidation commission
JSC "Fund for the Development of Entrepreneurship "D" (hereinafter referred to as the Fund) applied to the court to the liquidation commission of JSC "K" (hereinafter referred to as the Liquidation Commission) for recognition of actions as illegal, the obligation to include in the register of creditors' claims arrears in fines, SWAP transactions and fees for early termination of the guarantee agreement. The decision of the specialized interdistrict Economic Court of Almaty dated September 7, 2018 denied the application. By the decision of the Judicial Board for Civil Cases of the Almaty City Court dated December 12, 2018, the court's decision remained unchanged. The Judicial Board for Civil Cases of the Supreme Court overturned the judicial acts of local courts, and a new decision was made in the case to satisfy the application of the D Entrepreneurship Development Fund JSC. The actions of the liquidation commission of JSC "K" on non-recognition and non-inclusion in the register of creditors' claims of the debt of JSC "K" to JSC "Entrepreneurship Development Fund "D" on fines and SWAP transactions in the amount of 607,179,034 tenge and 1,266 US dollars were recognized as illegal. Obliged the liquidation commission of JSC "K" to recognize and include in the register of creditors' claims the debt of JSC "K" to JSC "Entrepreneurship Development Fund "D": - for fines in the amount of 61,728,634 tenge; - for SWAP transactions in the amount of 545,450,400 tenge; - for the commission for the early termination of the guarantee agreement dated September 11, 2015 in the amount of 1,266 US dollars – by virtue of the following.
Disputes on appeal of the decision of the liquidation commission
It follows from the case file that Resolution No. 291 of December 26, 2016 of the Board of the State Institution "National Bank of the Republic of Kazakhstan" (hereinafter referred to as the National Bank) deprived JSC "K" (hereinafter referred to as the Bank) of its license to conduct banking and other operations and activities on the securities market for systematic improper fulfillment of contractual obligations on payment and transfer operations. Based on the decision of the specialized interdistrict Economic Court of Almaty dated August 18, 2017, the application of the National Bank of the Republic of Kazakhstan on the application of the compulsory liquidation procedure against the Bank was satisfied. The Court of First Instance decided to forcibly liquidate the Bank; initiate liquidation proceedings; assign to the National Bank the obligation to establish a liquidation commission of the Bank, taking into account its branches and representative offices. Pursuant to this court decision, by Order No. 56 of the Deputy Chairman of the National Bank dated January 24, 2018, the Chairman and members of the Bank's liquidation commission were appointed. In accordance with paragraph 1 of Article 74 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities in the Republic of Kazakhstan" (hereinafter referred to as the Law) dated August 31, 1995, after the decision to liquidate the bank, including on the grounds of bankruptcy, the court initiates liquidation proceedings and assigns the authorized body the responsibility to establish a liquidation commission of the bank. including its branches and representative offices. The bank's liquidation Commission takes measures to complete the bank's affairs and ensure settlements with its creditors. According to article 74-2 of the Law, the claims of creditors of a liquidated bank, including in connection with its bankruptcy, are satisfied in accordance with the procedure established by this article. As follows from the materials of the civil case, on February 6, 2018, the Fund sent to the Liquidation Commission a request for inclusion in the register of creditors' claims of JSC "K" debt under loan agreements totaling 10,003,117,729 tenge.; debt under the bank guarantee agreement in the amount of 1,266.41 US dollars; debt on SWAP applications in the amount of 545 450 400 tenge. The Liquidation Commission partially satisfied the requirements of the Fund by including in the register of creditors' claims of the Bank the debt under loan agreements totaling KZT 9,924,408,664. The rest of the claims were denied.
In rejecting the Fund's application, the courts of first instance and appeal concluded that the Bank's inability to fulfill its obligations was the result of the revocation of its license, which is a force majeure circumstance. It follows from the terms of the loan agreement that the Bank has no obligations to the Fund to conduct currency exchange. According to clause 1.2 of the agreement, the guarantee is terminated if the Fund fully fulfills its obligations to the Asian Development Bank under the Loan Agreement, which the Fund fulfilled on July 24, 2017. These conclusions of the courts of first instance and appeal are unfounded, they are based on the incorrect application of substantive law. In accordance with Article 128 - 4 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), a SWAP is a derivative financial instrument under which the parties agree to exchange payments on underlying assets or underlying assets in the future on agreed terms. According to paragraph 1.1 of the Loan Agreement on Financing Small and Medium-sized Businesses dated September 11, 2015 No. 45-ADB III (hereinafter referred to as the Agreement), concluded between the Fund and the bank, a currency SWAP is a combination of two opposite transactions to exchange the agreed amounts of a monetary unit of one country for the currency of another country at an agreed exchange rate with settlements on a certain date, concluded for a fixed period. The above indicates that a SWAP is the sale of one currency for another currency at a certain exchange rate with the obligation to buy back this volume of currency after a certain time at the rate of the initial sale. Due to the Bank's default, the Fund acquired foreign currency on market terms and repaid the bank's obligations to the Asian Development Bank ahead of schedule.
Disputes on appeal of the decision of the liquidation commission
In this case, the essence of the Bank's obligations to the Fund under SWAP transactions is the losses incurred by the Fund as a result of the Bank's failure to fulfill its obligations, as the difference between the market exchange rate of the US dollar and the SWAP transaction rate. According to paragraph 1 of Article 392 of the Civil Code, 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. The obligations to conduct a currency swap are explicitly stated in the Agreement, however, the courts have not taken these provisions of the Agreement into account, and the legal assessment of the terms of the agreements concluded by the parties has not been given. The fine in the amount of 61,728,634 tenge was accrued for improper use of funds from the National Fund of the Republic of Kazakhstan for the projects of LLP "Zh" and LLP "E", under loan agreements on the placement of funds in second-tier banks for subsequent lending to small and medium-sized enterprises in the manufacturing industry dated April 17, 2014 No. 20-13 - DOII and on the placement of funds in second-tier banks for subsequent lending to small and medium-sized businesses in the manufacturing and services sectors, dated December 10, 2014, No. 2 NF - 48-10. The Liquidation Commission unreasonably refused to include the Fund's claims for the specified fine amounts, citing force majeure circumstances. The Bank's default due to the norms of the current legislation and the provisions of the concluded agreements is not a reason for exemption from liability.
The amount of the Bank's debt in the amount of USD 1,266 arose under the bank guarantee agreement dated September 11, 2015, concluded between the Bank and the Fund (hereinafter referred to as the guarantee agreement) to secure the Fund's obligations to the Ministry of Finance of the Republic of Kazakhstan, in connection with the termination of the guaranteed obligation in the amount of USD 1,266.41. According to the terms of the guarantee agreement, the Bank provided a guarantee obligation to the Fund in the amount of USD 9,700,000. On September 11, 2016, the Bank debited from the Fund's account the annual commission for the use of the guarantee in the amount of USD 9,700, stipulated in clauses 2.1, 3.1 of the agreement. The due date for the next payment is September 11, 2017. However, on July 24, 2017, due to the Bank's default, the Fund was forced to fulfill its obligations to the Asian Development Bank ahead of schedule (for 47 days), transferring $9,803,300.08 to the latter. In accordance with clause 3.4. of the guarantee agreement, the commission is calculated from the release date specified in the guarantee. The cost of the 1st day of using the warranty is 26,944 USD. In this regard, the Bank's debt to the Fund under the guarantee agreement amounts to 1,266 US dollars (47 days * 26,944 US dollars).
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