Invalidation of a notarized loan agreement and recovery of attorney's representative expenses

Case No.7514-23-00-2/2931

On June 15, 2023, the Bostandyk District Court of Almaty, consisting of: the presiding judge, M.S. Ibragimov, with the secretary of the court session, M. Orynbasar, considered the civil case in open court.: THE DEFENDANT CASE: ZIV THIRD PARTIES WHO DO NOT MAKE INDEPENDENT CLAIMS ON THE SUBJECT OF THE DISPUTE: Notary KSHA FAM ZEN BNI PLAINTIFF'S CLAIMS: THE FOLLOWING PERSONS PARTICIPATED IN THE COURT ON the recognition of the loan agreement as invalid: (via the WhatsApp messenger) Representative of the plaintiff Sarzhanov G. Representative of the defendant A.Sh. Third person K.Sh. Third person Fr.A.

On November 01, 2022, the parties signed a money loan agreement, certified by notary K.Sh., register No. 3181, from which it follows that E.Zh., earlier on October 01, 2022, borrowed money from Z.I.V. in the amount of 1,549,000 tenge, for a period until December 01, 2022.  The plaintiff appealed to the court, pointing out that under the above-mentioned agreement, there was no fact of money transfer from the defendant to her. She is the mother of F.A.M., who worked for the defendant. The defendant's company allegedly found a shortage of accounts and, due to the defendant's subjective and unreasonable decision, her daughter was under suspicion.

The defendant blackmailed her daughter into signing a loan agreement, and she, as a mother, decided to protect her daughter and signed a loan agreement in a state of shock. Requests that the above-mentioned agreement be declared invalid, and that the defendant be charged state duty and representation expenses in the amount of 300,000 tenge.

The defendant provided written feedback on the claim, motivated by the fact that he did not agree with the claim, the third party F.A., in court knowingly gave false testimony that all the amounts listed through the Kaspi Gold application: 909,000 tenge and 2,677,975 tenge, this is her salary during her work as an administrator at a car wash. Z.I.V. Believes that the fact of receiving the money has been confirmed. The loan agreement was concluded between the parties in full compliance with the requirements of the Civil Code. The notary who certified the loan agreement confirmed the freedom of expression and consent of both the plaintiff and her daughter to conclude the loan agreement and receive the funds in full.

The plaintiff's representative in court asked to satisfy the claim on the grounds set out in it. The defendant's representative in court asked to dismiss the claim on the grounds set out in the written response. The third person, K.Sh., explained in court that she had certified the disputed contract in accordance with the requirements of the law, she had no grounds for refusal, and the funds had not been transferred to her.

The third person, F.A., explained in court that she worked as an administrator of the car wash of IP Z.I.V. However, no employment contract was concluded between the defendant, by oral agreement, her daily salary was 15,000 tenge, and they also received bonuses and bonuses from their income. Due to the fact that no card account was opened in her name, she transferred her salary to her mother's account.

The third party, B.N.I., provided her feedback, and indicated that the plaintiff's daughter, F.A., worked at a car wash as an administrator, submitted all bank transfers from a special account of IP Z.I.V., to an account linked to the phone numbers of E.J.S., in the amount of 909,000 tenge and F.D., in the amount of 2,677,975 tenge, that is, the fact of receiving funds is confirmed. She is aware that the funds were provided to the plaintiff at her request under the following circumstances: F.A., worked at a car wash as an administrator.

The car wash is a family business registered with IP Z.I.V., where she and her daughter Z.E.N. work. Given that this is a family business, her card account was used to receive funds paid by customers. When preparing a set of activities for the car wash in September 2022, it was revealed that funds were withdrawn, but no refund was made for each amount. At the request of the plaintiff, a loan agreement was concluded, and the loan item was provided prior to its conclusion.

Also, a review was provided from Z.E., where she indicated that since the organization she has been working as an accountant for SP Z.I.V., a family business. The plaintiff's daughter, F.A., worked at a car wash as an administrator and during her work all mandatory payments to the budget and mandatory pension payments were paid. In December 2021, the plaintiff came to work at her daughter's car wash and asked Z. for a loan due to the difficult financial situation in the rented apartment. Given that there were no available funds, he allowed the plaintiff to receive a loan, but in the following order, that the plaintiff's daughter would transfer funds to family needs as needed by a family member, but with compensation for each transferred amount.

However, when preparing a set of activities for the car wash in September 2022, it was revealed that funds were withdrawn, but each amount was not refunded in violation of the agreements between the loan parties. After the turnaround, the plaintiff party itself offered to conclude a loan agreement for the funds already received and return them by the end of 2022.

In accordance with the requirements of paragraphs 1, 2 of Article 157 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), the transaction is invalid on the grounds established by this Code or other legislative acts, by virtue of its recognition as such by a court (disputed transaction) or on grounds directly provided for by legislative acts, regardless of such recognition (void transaction). A transaction is recognized as invalid in case of violation of the requirements for the form, content and participants of the transaction, as well as for the freedom of their will on the grounds established by this Code or other legislative acts.

According to Article 72 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), each party must prove the circumstances to which it refers as the grounds for its claims and objections, use remedies, assert, challenge facts, provide evidence and objections to evidence within the time limits set by the judge, which correspond to the fair conduct of the process and are aimed at to promote production.

By virtue of part 2 of Article 224 of the CPC, the court bases its decision only on the evidence presented by the parties and examined at the court session.

According to the rules of Articles 378,380,393 of the Civil Code, an agreement between two or more persons on the establishment, modification or termination of civil rights and obligations is recognized as a contract. Citizens and legal entities are free to conclude a contract. Coercion to conclude a contract is not allowed, except in cases where the obligation to conclude a contract is provided for by this Code, legislative acts or a voluntarily accepted obligation. A contract is considered concluded when an agreement has been reached between the parties in the form required in the appropriate cases on all its essential terms.

Essential are the terms of the subject of the contract, the terms that are recognized as essential by law or are necessary for contracts of this type, as well as all those conditions regarding which, at the request of one of the parties, an agreement must be reached. The plaintiff asks to declare the loan agreement invalid, referring to the fact that she did not receive any funds from the defendant, the loan agreement was concluded under duress, since her daughter was accused of a lack of money.

The third person, F.A., explained in court that she worked for the defendant, but the employment relationship was not properly formalized, the funds transferred to her mother's card are actually her salary. The fact that the plaintiff's daughter and the defendant had an employment relationship in court was confirmed, among other things, by explanations from the plaintiff's side and explanations from third parties, however, documents confirming that the employment relationship was formalized in accordance with the requirements of labor legislation were not provided.

During the consideration of this civil case, the defendant accrued pension payments in May 2023, but the employment contract between F.A. and the defendant was not provided with an employment contract, the court explained that she had withdrawn her contract. Thus, it is not possible to determine her salary. By virtue of Article 717 of the Civil Code, a loan agreement is considered concluded from the moment of transfer of money or things, unless otherwise provided by this Code or the agreement of the parties. Based on the literal meaning of this rule, the loan agreement is real and the moment of its conclusion is the moment when the loan object is transferred to the borrower.

The defendant refers to the fact that the loan object was transferred to the plaintiff before the conclusion of the contract, referring to the transfer of funds through the Kaspi Gold application in the amount of 909,000 tenge to the plaintiff's account and 2,677,975 tenge to the account of the spouse of a third party F.A.- F.D. Meanwhile, the amount of 909,000 tenge was transferred not from the defendant's account, but from the account of Belousova N., since the specified banking application is on the latter's phone, and who in her review indicated that her account is used for the activities of the sole proprietor.

Also, the amount of 909,000 tenge does not correspond to the amount of debt specified in the loan agreement. The defendant's side has not provided acceptable and reliable evidence that the funds under the loan agreement were indeed transferred to the plaintiff on October 01, 2022, moreover, it follows from the literal meaning of the agreement that the plaintiff borrowed the money, but the agreement itself does not contain a statement of the fact that the defendant transferred and the plaintiff received the above amount. There is also no written receipt from the plaintiff to receive the amount under the contract.

According to the requirements of paragraph 1 of Article 724 of the Civil Code, the borrower has the right to challenge the loan agreement, proving that the loan object (money or things) was not actually received by him from the lender or received in a smaller amount or quantity than specified in the agreement. According to paragraph 1 of Article 158 of the Civil Code, a transaction the content of which does not comply with the requirements of the law, as well as a transaction made for a purpose knowingly contrary to the principles of law and order, is contested and may be declared invalid by a court, unless otherwise provided by this Code and other legislative acts of the Republic of Kazakhstan.

In these circumstances, the court considers the claims of the claim for invalidation of the contract to be justified. 6 In accordance with part 1 of Article 109 of the CPC, the court awards to the party in whose favor the decision was made, on the other hand, all court costs incurred in the case.

According to part 1 of Article 113 of the CPC, which stipulates that, at the request of the party in whose favor the decision was made, the court awards, on the other hand, the costs incurred by her to pay for the assistance of a representative (several representatives) who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party.

The Court considers the claims for reimbursement of expenses for the representative's services to be justified. At the same time, based on the principles of good faith, fairness and reasonableness, guided by paragraph 14 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 9 "On the application by courts of the Republic of Kazakhstan of legislation on court costs in civil cases", the court considers it possible to recover in favor of the defendant from the plaintiff the costs of paying for the assistance of a representative in the amount of 200,000 tenge.

Guided by Articles 223-226 of the CPC, the court DECIDED: To satisfy the EHS claim. To invalidate the loan agreement No. 3181 dated November 01, 2022 concluded between ZIV and EHS. Collect from the ZIV in favor of the EHS the costs of paying the state fee in the amount of 1,725 (one thousand seven hundred and twenty-five) tenge and representative expenses in the amount of 200,000 (two hundred thousand) tenge.

 

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