Forcibly requesting a statement of cash flow from the bank
No.2A-10197/22 dated October 26, 2022
The judicial board for civil cases of the Almaty City Court, consisting of the presiding judge Eszhanova G.K., judges Baishev R.Zh., Tasybekova M.T., with the participation of the plaintiff's representative – Sarzhanov G.T., the defendant's representative – Akhmetzhan Zh.T., having considered in open court via videoconference using the Whatsapp electronic application) civil case No. 2A-10197/22 on October 26, 2022 on the claim of the CCC against the Halyk Bank of Kazakhstan Joint Stock Company for the compulsory recovery of a statement of cash flow on a deposit account belonging to the INS, indicating the date and by identifying the person who performed the withdrawal operation from the escrow account, received on the defendant's appeal against the decision of the Medeu District Court of Almaty on August 22, 2022, the Court found that the Plaintiff had filed these claims with the court.
By the decision of the Medeu District Court of Almaty dated August 22, 2022, the claim was partially satisfied. It was decided: to demand from the joint-stock company "People's Bank of Kazakhstan" in the person of the Almaty regional branch a statement of cash flow on accounts KZ5...5, KZ07.....9, belonging to the INS, indicating the date and the person who performed the withdrawal operation. To collect from Halyk Bank of Kazakhstan JSC in favor of the CCC the costs of paying for the assistance of a representative in the amount of 30,000 tenge, the costs of paying the state duty in the amount of 1,532 tenge.
To dismiss the rest of the claim. In the appeal, the plaintiff asks to change the decision of the court of first instance in view of violations of the norms of substantive and procedural law, incorrect definition and clarification of circumstances relevant to the case, to make a new decision on the satisfaction of the claim in full.
The defendant, having disagreed with the court's decision, requests in the appeal to change the court's decision and make a new decision to dismiss the claim. The complaint indicates violations by the court of the norms of substantive and procedural law. After hearing the explanations of the representatives of the parties, having studied the case materials, the arguments of the complaints, the judicial board comes to the following conclusion. Significant violations that allow judicial acts that have not entered into legal force to be reviewed on appeal include violations of procedural law listed in article 427 of the CPC.
Incorrect application of substantive law norms can be attributed to a material violation only if, as a result, the court incorrectly resolved the case.
In the present case, such violations were committed by the court. It is established that the plaintiff, S.S.S., is the son of SSV, who died on April 9, 2008. S.S.V.'s mother, SIN, died on November 16, 2007. From the certificate of inheritance right under the law dated May 17, 2021, issued by the notary of Almaty, A.Sh.O., it follows that the heir to the property of the INS was her son SSV in 1/2 of the share, but due to his death on April 9, 2008, the specified share of the inheritance passes to his son SSS, born on August 12, 2000. The hereditary property for which the certificate has been issued consists of: cash deposits with due remuneration and compensation, on accounts held by JSC Halyk Bank of Kazakhstan. According to the law, no certificate of inheritance rights has been issued for a half share of the inherited property.
The plaintiff indicates that the lawyer's requests to the Almaty regional branch of Halyk Bank of Kazakhstan JSC for information on deposit accounts belonging to S.I.N. were refused. Based on the results of the appeal hearing of the case, the judicial board considers the court's decision to be subject to change, with a partial cancellation and a new decision on the satisfaction of the plaintiff's claim in full.
This conclusion is based on the following circumstances, evidence, and legal provisions. The court of first instance based the decision to satisfy the claim on the following conclusions: - considering that the plaintiff was issued a certificate of inheritance under the law, for inherited property consisting of monetary deposits with remuneration and compensation due, in JSC Halyk Bank of Kazakhstan on accounts no.KZ566...5, no.KZ0...9, the court believes to satisfy the plaintiff's claim regarding the claim from JSC "People's Bank of Kazakhstan" represented by the Almaty regional branch of the statement of cash flow on the named accounts belonging to S.I.N. indicating the date and the person who performed the withdrawal operation.
It is impossible to agree with these arguments of the court, which are the basis of the above-mentioned conclusion, since they do not correspond to the actual circumstances of the case, contradict the norms of the procedural law governing issues of evidence and evaluation of evidence.
These violations committed by the court are grounds for the cancellation of the decision on appeal regarding the refusal to satisfy the claim. It follows from the case file that according to current accounts no. KZ5...5, no.KZ0...9, the plaintiff has information received from the defendant. In the statement of claim, the plaintiff requested to request information on deposit accounts, indicating in his speech and providing the data of such accounts for no.no.KZ66...0, KZ...4, KZ82...3 in the Bank.
The court of first instance, having failed to deal with the plaintiff's claims, partially satisfied the claim, while not resolving the dispute between the parties. By virtue of paragraph 8 of Article 50 of the Law of the Republic of Kazakhstan "On Banks and Banking activities in the Republic of Kazakhstan", certificates on the availability and numbers of bank accounts of an individual and on the remaining money on them, as well as available information on the availability, nature and value of his property stored in safe deposit boxes, cabinets and premises of the bank in case of death of the owner, they are issued to: persons indicated by the owner of the account (property) in the testamentary disposition; courts and notaries on inheritance cases pending in their proceedings on the basis of a ruling, court order or notary's request; heirs.
In accordance with the requirements of Article 1061 of the Civil Code of the Republic of Kazakhstan (hereinafter CC), the plaintiff is the heir of the first stage. Therefore, the right to possess information on the deposit accounts of the testator S.I.N. after her death.
At the same time, the defendant's arguments that this information is a bank secret cannot be taken into account by the board, since the plaintiff requested to claim the data after her death. According to the requirements of Article 15 of the CPC, civil proceedings are conducted on the basis of competition and equality of the parties.
The parties involved in the civil procedure are endowed by this Code with equal opportunities to defend their position. Paragraph 5 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan "On Judicial Decision" dated July 11, 2003 No. 5 clarified that, according to Article 224 of the CPC, the court's decision must be lawful and justified. A decision is lawful when it is made in compliance with the norms of procedural law and in full compliance with the norms of substantive law applicable to this legal relationship, or is based on the application, if necessary, of a law governing a similar relationship, or proceeds from the general principles and meaning of civil legislation and the requirements of good faith, reasonableness and fairness (article 5 The Civil Code of the Republic of Kazakhstan and Article 6 of the CPC).
A decision is considered justified if it reflects facts relevant to the case, confirmed by evidence examined by the court that meet the requirements of the law on their relevance, admissibility and reliability, or are well-known circumstances that do not need to be proven and are collectively sufficient to resolve the dispute. The cited norms of the civil procedure were not observed by the court of first instance.
The conclusions of the court in rejecting the claim in part are inconsistent, since they do not correspond to the circumstances established in the case, which are essential to the case, and are not based on the correct application of substantive and procedural law. In accordance with the requirements of paragraph 1 of Article 2 of the Civil Code, civil legislation is based on the recognition of the equality of participants in the relations regulated by it, the inviolability of property, freedom of contract, the inadmissibility of arbitrary interference by anyone in private affairs, the need for the unhindered exercise of civil rights, ensuring the restoration of violated rights, and their judicial protection.
According to Article 4 of the CPC, the objectives of civil proceedings are to protect and restore violated or disputed rights, freedoms and legitimate interests of citizens, the state and legal entities, respect for the rule of law in civil turnover and public law relations, ensure full and timely consideration of the case, promote the peaceful settlement of disputes, prevent offenses and create a respectful attitude in society towards the law and the court.
By virtue of paragraph 1 of Article 1072-1 of the Civil Code, acceptance of an inheritance is carried out by submitting, at the place of opening of the inheritance, to a notary or an official authorized in accordance with the law to issue a certificate of inheritance to an official, an application from the heir for acceptance of the inheritance or an application from the heir for the issuance of a certificate of inheritance.
After receiving information on the deposit accounts, the plaintiff has the right to apply for acceptance of the inheritance in the form of funds and deposit accounts. In these circumstances, all the conclusions of the court set out in the reasoning part of the decision cannot be considered justified, therefore, the court's conclusion on the need to satisfy the claim is partially legitimate. Considering that the case does not require the collection and additional verification of evidence, the circumstances of the case have been investigated and established in full, however, the court's conclusions were made when the scope was incorrectly determined and without taking into account the relevant circumstances, the data obtained was given an incorrect legal assessment and errors were made in the application of legal norms, the judicial board considers it necessary to amend the contested judicial act, to cancel the part of the refusal to satisfy the claim, with the issuance of a new decision on the satisfaction of the claim in full in the canceled part.
The plaintiff's appeal is subject to satisfaction. Guided by subparagraph 3) of the first part of Article 424, Articles 425, 426, 427, 431 of the CPC, the judicial board DECIDED: The decision of the Medeu District Court of Almaty dated August 22, 2022, to amend, cancel, and issue a new decision in this part regarding the refusal to satisfy the claim of the CCC against the Halyk Bank of Kazakhstan Joint Stock Company for the compulsory recovery of a statement of cash flow on a deposit account belonging to the INS. To demand from the Joint Stock Company "Halyk Bank of Kazakhstan" in the person of the Almaty regional branch a statement of cash flow on deposit accounts KZ6...0, KZ5...4, KZ8....3, belonging to the INS, indicating the date and the person who performed the withdrawal operation.
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