If the basis for the termination or amendment of the agreement was a significant violation by one of the parties, the other party has the right to demand compensation for damages caused by the termination or amendment of the agreement.
I. filed a lawsuit against M. for the termination of the preliminary agreement, eviction, and collection of rent. M. filed a counterclaim against I. for recovery of the amount. By the decision of the Aktobe City Court of December 23, 2011, I.'s claims were partially satisfied. The preliminary agreement dated July 02, 2009, concluded between I. and M. on the sale of an apartment located in the city of Aktobe on Krasnogorskaya St., has been terminated. M. was evicted from this apartment. The satisfaction of I.'s claims against M. for the recovery of rent was denied. Counterclaims of M. to I. the claim for recovery of the amount was left without satisfaction. By the decision of the Appellate judicial board of the Aktobe Regional Court dated February 27, 2012, the said court decision was changed. Regarding the refusal to satisfy M.'s claim for a counterclaim against I. for the recovery of the amount, a new decision was canceled and a new decision was made. M.'s counterclaim has been satisfied.
In favor of M. S. I. 1,082,430 tenge was recovered. By the decision of the cassation judicial board of the same regional court dated April 25, 2012, the decision of the appellate instance was changed. Regarding the recovery of 1,082,430 tenge from I. in favor of M., the said judicial act was canceled, and the decision of the court of first instance of December 23, 2011 on the refusal to satisfy M.'s counterclaims was upheld. In the petition, the applicant, disagreeing with the contested judicial acts due to significant violations by the courts of the norms of substantive and procedural law, as well as the groundlessness of the conclusions, raises the issue of reviewing the decision of the court of first instance regarding the satisfaction of I.'s claims to terminate the preliminary agreement and evict M. and to deny her a counterclaim. During the consideration of the present case by the court of cassation instance, such violations were committed.
The applicant indicated that the parties had concluded a preliminary agreement on the purchase and sale of the plaintiff's apartment. On March 12, 2010, an additional agreement was signed, according to which the amount of the contract was changed to 7,763,723 tenge, which M. undertook to pay no later than September 30, 2010 in order to repay I.'s debt to the Bank and re-register the apartment for herself. According to the first agreement, the amount paid in the amount of 165,000 tenge is intended for refinancing under the loan agreement. Refinancing must be carried out at the request of the borrower himself and he did not issue a power of attorney addressed to the applicant for any actions in Banks. Despite this, the borrower I. did not apply to the Bank for a reissue of the loan, thereby, by his inaction, prevented the further fulfillment of M.'s obligations under the preliminary agreement. According to the applicant, based on the terms of the preliminary agreement, she fulfilled her obligations properly, made payments on the loan and So, in the period from July 2009 to September 30, 2010, she contributed an amount of 917,430 tenge for 17 months, due to monthly loan payments. If the basis for the termination or amendment of the agreement was a significant violation by one of the parties, the other party has the right to demand compensation for damages caused by the termination or amendment of the agreement. The plaintiff did not provide any evidence that she violated the terms of this obligation, but the court of first instance did not take this into account and made an illegal and unjustified decision. These arguments were the subject of consideration in court and were taken into account by the court of appeal, which correctly indicated that under the terms of the preliminary agreement, I., without obtaining the consent of JSC "K" to transfer the debt, imposed the obligation on M. to pay all expenses related to refinancing under the loan agreement, debt repayment and loan renewal in his name.
In accordance with 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. According to paragraph 5 of Article 403 of the Civil Code, if the basis for termination or amendment of the contract was a material violation of the contract by one of the parties, the other party has the right to demand compensation for damages caused by termination or amendment of the contract. Since I. did not apply to the Bank (lender) with an application for renewal of the loan agreement, he actually prevented M. the amounts paid by her under the preliminary agreement in the amount of KZT 1,082,430, which consisted of KZT 165,000 before signing the preliminary agreement and KZT 917,430 for payments made on the plaintiff's loan during 17 months, were subject to recovery from I. The conclusions of the cassation board on M.'s refusal to purchase an apartment are erroneous, since They do not follow from the correspondence between the parties attached to the case before the plaintiff's appeal to the court. The Supervisory Judicial Board has changed the decision of the cassation judicial board of the Aktobe Regional Court. Regarding the retention of the decision of the court of first instance on the refusal to satisfy M.'s counterclaims unchanged, she canceled it. In this part, I left the decision of the appellate judicial board unchanged. The rest of the decision of the cassation judicial board remained unchanged.
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