Disputes on the invalidity of transactions - the pledgor has the right to alienate the pledged object into the ownership of another person or otherwise dispose of it only with the consent of the pledgee
Joint Stock Company "N" Bank (hereinafter referred to as the bank) filed a lawsuit against V., E. to invalidate the apartment purchase agreement and restore the parties to their original position, arguing that under the bank loan agreement dated December 7, 2006, V. had borrowed funds in the amount of 70,337 US dollars. On the same day, the parties signed an agreement on the pledge of the right of claim under a construction equity agreement, according to which, in order to ensure timely fulfillment of obligations to repay the loan by the borrower, the bank was granted the right to claim a three-room apartment No. 45 located in a residential building under construction at the address: Almaty region, Kapshagai city, microdistrict 4, house No. 54, coming in the future upon completion of construction. After the construction was completed, V. registered ownership of the above-mentioned real estate and sold it to E. under the purchase and sale agreement dated October 22, 2009, which violated the rights and legitimate interests of the pledgee bank. The civil case has been repeatedly considered in various judicial instances. The claim was denied by the decision of the Kapshagai City Court of the Almaty region dated June 22, 2020. By the decision of the Judicial Board for Civil Cases of the Almaty Regional Court dated September 24, 2020, the decision of the court of first instance remained unchanged. The Judicial Board for Civil Cases of the Supreme Court annulled the judicial acts of local courts and issued a new decision on the satisfaction of the claim. The contract of sale of an apartment dated October 22, 2009, located at the address: Almaty region, Kapshagai city, 4 microdistrict, house 54, apartment 45, concluded between V. and E. on the following grounds, was declared invalid. It follows from the case file that under the bank loan agreement dated December 7, 2006, V. was provided with borrowed funds in the amount of 70,337 US dollars. On the same day, the pledge agreement No. 13007000540 (preliminary) dated December 7, 2006 was concluded, under the terms of which the obligation to within 3 working days from the moment the mortgagor has the right of ownership to the pledged object - an apartment located at the address: Almaty region, Kapshagai city, 4 microdistrict, house 54, apartment 45, to conclude with the mortgagee a basic agreement under which the mortgagee will have the right of pledge to the pledged object, on the terms defined by Article 3 of this treaty.
Disputes on the invalidity of transactions - the pledgor has the right to alienate the pledged object into the ownership of another person or otherwise dispose of it only with the consent of the pledgee
V.'s ownership of the apartment arose on September 29, 2009, and on October 22, 2009, according to the purchase agreement, he sold the apartment to E. for 10 500 000 tenge. The bank challenged the sale and purchase of the disputed apartment in court, arguing that the defendants entered into the contract in violation of the requirements of current legislation in the presence of outstanding loan debt and without the consent of the plaintiff – mortgagee. The local courts dismissed the claim, pointing out that the contract complies with the requirements and norms of civil legislation, is registered with the relevant authorities, and the plaintiff's side has not provided evidence to substantiate its arguments. The courts also concluded that the bank had missed the deadline for filing claims, referring to the fact that the minutes of the meeting of the CPC AOF dated September 29, 2009 No. 62 decided to transfer the debt to V. in the amount of 58,309 US dollars to E. with the latter's acquisition of ownership of the disputed apartment, and the implementation of a purchase and sale transaction without removing the encumbrance. The judicial board of the Supreme Court considers these conclusions to be based on the incorrect application of substantive law and the factual circumstances of the case on the following grounds. In accordance with Part 4 of Article 158 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), if one of the participants in a transaction committed it with the intention of evading obligations or liability to a third party or the state, and the other participant in the transaction knew or should have known about this intention, the interested person (state) has the right to demand recognition of the transaction as invalid. By virtue of paragraph 2 of Article 315 of the Civil Code, the pledgor has the right to alienate the pledged object into the ownership of another person or otherwise dispose of it only with the consent of the pledgee. According to paragraph 1 of Article 348 of the Civil Code, the debtor's transfer of his debt to another person is allowed only with the consent of the creditor. On the basis of paragraph 1 of Article 346 of the Civil Code, the assignment of a claim based on a transaction made in writing (simple or notarized) form must be carried out in an appropriate written form. The case materials established that the parties, the bank, V. and E., intended to transfer the debt of the borrower V. to the buyer of the apartment E., which is confirmed by an extract from the minutes of the meeting of the committee on problem loans dated October 17, 2008. However, the defendants did not provide the court with evidence of the conclusion of an agreement on the transfer of V.'s debt to E. with the consent of the bank.
Therefore, the borrower is V., who is obliged to fulfill all his obligations. Thus, clause 2.2.1. of the pledge agreement (preliminary) provides for the obligation of B. within 3 working days from the moment the pledgor has the right of ownership to the pledged object, to conclude with the pledgee a basic agreement under which the pledgee will have the right of pledge to the pledged object, on the terms defined in Article 3 of this agreement. It follows from clause 5.1 of the above-mentioned pledge agreement that it comes into force from the date of its conclusion by the parties and is valid until the date of registration of the main agreement with the body authorized to carry out state registration of the pledge of immovable property. The pledge agreement has not been challenged or cancelled by anyone, has not been recognized as illegal or invalid in accordance with the established procedure, and has legal force, and therefore the bank has not lost the right to claim it. Meanwhile, V., in violation of his obligations, after registering ownership of the apartment, did not conclude the main pledge agreement for immovable property, and alienated the disputed property into the ownership of E. without the consent and notification of the bank, if there is an outstanding loan debt. Buyer E. should have known about the above circumstances, since he intended to buy the disputed apartment and pay the debt to the bank. Moreover, the apartment was sold to him in a short time after its registration with the registration authorities. It follows from the terms of the purchase agreement that "the cost of the apartment has been transferred to the seller according to the parties." At the board meeting, seller V. claimed that Ye. allegedly, the money from the cost of the apartment was paid to the bank.
Thus, there is no reliable information about who received the money for the disputed apartment. By the decision of the Turksib District Court of Almaty dated January 24, 2019, the debt on the loan in the amount of KZT 18,990,920 and the state duty in the amount of KZT 569,727 were recovered from V. in favor of the bank. At the same time, it was established that the funds were used to repay the debt under the bank loan agreement by borrower B. and buyer E. not entered. The Bank became aware of the circumstances of the alienation of the disputed apartment and the violated right based on the results of an internal audit in accordance with the conclusion dated November 28, 2017, which confirmed the loss of title documents for real estate pledged (volume 1, l.d. 119-123), therefore, the court's conclusions about the bank's omission of the statute of limitations do not correspond to the actual circumstances of the case. The plaintiff's right to challenge the transaction is based on the provisions of Articles 265, 316 of the Civil Code, which provide for the protection of the property rights of a person who is not the owner, as well as the protection by the pledgee of his rights to the pledged object. Considering that the disputed property was withdrawn from the plaintiff's pledge as a result of the illegal actions of the pledgor, V., who, in violation of his obligations, abused the right and interests of the bank, alienated the disputed property to a third party, the arguments about the good faith of the acquisition of the property, E. They don't deserve any attention. The disputed transaction was made contrary to the requirements of civil legislation, violates the rights and interests of the bank, which fulfilled its obligations to V. by providing credit facilities secured by the disputed property. The courts rejected the claim unlawfully.
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