Eviction from a home due to debts
In the Al-Farabiysky district court of Shymkent, G.N.V. appealed to the defendant M.I.G. with a claim for recovery of the deposit, and Musaldina I. Appealed to the court with a counterclaim to the defendant G.N.V. with a claim for eviction with family members without providing another home.
By the decision of the Al-Farabi District Court of Shymkent dated 06/03/2015, the claim of G.N.V. to the defendant M.I.G. for the recovery of the deposit was partially satisfied. The counterclaim of M.I. against the defendant G. N.V. for eviction with family members without providing another home was left without satisfaction.
By the decision of the Appellate Judicial Board of the South Kazakhstan Regional Court for Civil and Administrative Cases dated 09/01/2015, the decision of the Al-Farabi District Court dated 06/03/2015 was changed, and the counterclaim was satisfied.
As it turned out at the court hearing, I.G. M. does not deny the fact of a deposit of 1.440.000 tenge on 05.26.2014. In order to secure the deposit, a dwelling was provided, located at the address: Shymkent, Kaynarbulak country estate, Ovrazhnaya St., No. 176. The total loan amount was estimated at 2,700,000 tenge. The remaining 1,260.000 tenge was agreed to be received on November 30, 2014, when the documents for the house will be ready.
M.I.G. handed over to G.N.V. the response from the akimat of Shymkent, the decision of the commission on the legalization of real estate dated 27.03.2007, the book of the Gardener. The purchase and sale agreement between the parties was not concluded due to the fact that the documents for the house were not ready within the specified period.
According to Article 337 of the Civil Code of the Republic of Kazakhstan, a deposit is an amount of money given by one of the contracting parties to account for payments due from it under the contract to the other party and to ensure the conclusion and execution of the contract or the fulfillment of another obligation. The deposit agreement, regardless of the amount of the deposit, must be concluded in writing. This rule also applies when the main obligation must be notarized. Failure to comply with the written form will invalidate the deposit agreement.
The receipt dated 05/26/2014 does not specify which of the parties undertakes to prepare documents for the disputed house. In addition, the court was not provided with documents confirming which of the parties had to fulfill the obligation or confirming the non-fulfillment of the obligation.
Article 338 of this Code states that upon termination of an obligation prior to the commencement of its performance by agreement of the parties or due to the impossibility of performance that occurred without their fault, the deposit must be returned. If the party who gave the deposit is responsible for non-fulfillment of the obligation, it remains with the other party, and if the party who received the deposit is responsible, it is obliged to pay the other party double the amount of the deposit. Moreover, the party responsible for non-fulfillment of the obligation is obliged to compensate the other party for losses, taking into account the amount of the deposit, since the contract does not provide otherwise.
It has been established that, based on the decision of the Commission for the legalization of real estate No. 36606 dated 27.03.2007, the owner of the cottage belonging to the PC "Energetik" is M.I.G., in addition, she pays the membership fees of this cottage area.
According to art. 265 of the Civil Code of the Republic of Kazakhstan, the rights provided for in Articles 259-264 of this Code also belong to a person who, although not the owner, owns property on the right of economic management, operational management, permanent land use or on another basis provided for by legislative acts or an agreement. This person has the right to defend his possession also against the owner.
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