Invalidation of the apartment purchase and sale agreement
On January 19, 2022, the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan, consisting of: Chairman K., judges K., Zh., with the participation of a representative of the plaintiffs K.K., defendant S.K., representative of the defendant S.E. - Zh.M., having considered in open court via mobile videoconference the civil case on the claim of E.K., L.S. to S.U., S.E. on the invalidation of the apartment purchase and sale agreement,
received at the request of the plaintiffs' representative, K.K., for a review of the district court's decision of January 8, 2021 and the decision of the judicial board for civil cases of March 25, 2021,
E.K. and L.S. filed a lawsuit to invalidate the purchase and sale agreement for an apartment located at 2/2 M Street, apartment 51 (hereinafter referred to as the disputed apartment), concluded on December 8, 2016 between L.S. and S.E. The lawsuit is motivated by the fact that the purchase agreement-the sale with S.E. was concluded fictitiously, to cover up a loan agreement with S.K. in the amount of 10,000 US dollars and a pledge agreement for a disputed apartment to secure obligations to repay the loan. L.S. had no intention of selling the apartment in which she continues to live and bears all the responsibilities for its maintenance.
By the decision of the district court of January 8, 2021, the claim was dismissed.
By the decision of the Judicial Board for Civil Cases dated March 25, 2021, the court's decision remained unchanged.
In the petition, the representative of K.K., disagreeing with the judicial acts due to the incorrect application of substantive and procedural law, asks them to cancel and make a new decision on the satisfaction of the claim.
After hearing the explanations of the parties, examining the submitted materials and discussing the arguments presented, the judicial board comes to the following conclusion.
In accordance with part 5 of Article 438 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the grounds for cassation review of judicial acts that have entered into force are significant violations of substantive and procedural law that led to the issuance of an illegal judicial act.
Such violations were committed during the consideration of the case by the courts.
By virtue of paragraph 2 of Article 160 of the Civil Code (hereinafter referred to as the Civil Code), if a transaction is made in order to cover up another transaction (fake), then the rules relating to the transaction that the parties really had in mind apply.
According to paragraph 21 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated July 7, 2016 No. 6 "On certain issues of invalidity of transactions and the application by courts of the consequences of their invalidity", according to the rules of paragraph 2 of Article 160 of the Civil Code, the category of transactions in question consists of two types: covering (pretended) and covered (for example, a purchase contract is covered by issuing a power of attorney, a loan agreement, and the subsequent pledge agreement – by signing gift agreements, purchase and sale agreements, wills - by a gift agreement, and the like).
A fake transaction made to cover up another transaction is invalid (void).
It follows from the case file that the disputed apartment was owned by L.S. on the basis of a purchase and sale agreement dated March 28, 2011.
On December 8, 2016, L.S. and S.E. signed a purchase and sale agreement for a disputed apartment at a price of 5,000,000 tenge.
According to the arguments of the claim, the apartment purchase and sale agreement with S.E. is invalid, since it actually covered up the apartment pledge agreement to secure the obligations of E.K. and L.S. to repay the loan received from S.K., the loan agreement with the latter was concluded repeatedly and the repayment of the loan was initially secured by the conclusion of pledge agreements for the disputed apartment, and subsequently by the conclusion of contracts purchase and sale.
From the information of the NGO "Government for Citizens State Corporation" as of November 4, 2020, it follows that the disputed apartment was initially pledged to A.K. under contract No. 43 dated May 14, 2019, registered on May 15, 2013. By Agreement No. 86 dated October 8, 2013, the pledge agreement was terminated.
Then L.S. pledged the apartment to S.E. under the agreement dated December 10, 2019, registered on May 29, 2020 and terminated on December 25, 2020, to secure its monetary obligations in the amount of 3,680,000 tenge to S.E. under the loan agreement No. 73 dated December 10, 2013.
At the same time, the money in the amount of 3,000,000 tenge to repay the debt under the loan agreement between S.E. and L.S. was received by S.K., which is confirmed by his receipt dated September 5, 2014.
On October 29, 2015, L.S. signed a purchase and sale agreement with E.J., there is no information about the registration of this agreement in the NAO "Government for Citizens State Corporation".
According to the arguments of the claim, the specified agreement was concluded to secure E.K.'s obligations to S.K. to repay the loan.
This circumstance is confirmed by the fact that on September 8, 2016, S.K., acting on behalf of E.Zh., and E.K., acting on behalf of L.S., entered into an agreement to terminate the contract of sale of the disputed apartment, while E.K. returned 4,500,000 tenge to S.K.
Further, on December 8, 2016, a disputed apartment purchase and sale agreement was concluded between L.S. and S.E. for 5,000,000 tenge.
In substantiation of the reality of the concluded purchase and sale agreement, the defendants' side refers to the existence of a receipt and a lease agreement for the disputed apartment.
Indeed, at the conclusion of the contract, L.S. issued a receipt confirming the sale of the apartment and receipt of the specified amount in cash.
Meanwhile, after the conclusion of the contract, L.S. continued to act as the owner of the apartment, since she lived in it and paid for utilities.
The apartment lease agreement was concluded on January 1, 2018, and there is no evidence that L.S. Mukhamedyarova paid the rent in the case.
The energy and water supply contracts with S.E. were concluded on February 7, 2020, that is, three years after the conclusion of the contested contract.
It follows from the information of the NGO "Government for Citizens State Corporation" that the disputed purchase and sale agreement was registered two years after its conclusion.
The listed set of circumstances established in the case indicates that S.K. and S.E. had been acting together for a long time, providing loans to the plaintiffs and concluding collateral agreements for them, first, and then purchase and sale agreements for an apartment owned by borrowers.
The apartment lease agreement and the state registration of the disputed apartment purchase agreement were concluded in 2018, after, according to the arguments of the lawsuit, disagreements arose between the lender S.K. and the borrowers about the amounts of money to be paid, in this regard, the board concludes that the limitation period was not missed by the plaintiffs.
In addition, it follows from the case file that S.K. and S.E. entered into similar legal relations with other citizens, providing them with loans secured by real estate issued by a purchase and sale agreement, and the resulting conflicts were the subject of numerous court proceedings.
Under the circumstances described, the board concludes that the claims of E.K. and L.S. about the invalidity of the apartment purchase agreement dated December 8, 2016 between S.E. and S.E. are justified due to its pretense.
In this regard, the contested judicial acts of the first and appellate instances are subject to cancellation with the issuance of a new decision on the satisfaction of the claim.
In accordance with Article 109 of the CPC, the plaintiffs are reimbursed by the defendants for the costs of paying state fees in the court of first instance and cassation in the amount of 89,100 tenge, the costs of paying for notary services in the amount of 2,916 tenge and specialist services in the amount of 10,000 tenge, partial reimbursement for the costs of paying for representative services in the amount of 100 tenge. 000 tenge, for a total of 202,016 tenge.
Also, from S.K. and S.E., in equal shares, the state duty, unpaid when filing a petition for the review of judicial acts in cassation, in the amount of 72,900 tenge, is subject to collection to the state revenue.
Guided by subparagraph 8) of part 2 of Article 451 of the CPC, the judicial board DECIDED: The decision of the district court of January 8, 2021 and the decision of the judicial board for civil cases of March 25, 2021 on this civil case should be canceled and a new decision should be made on the case.
To satisfy the claim of E.K., L.S. to S.K., S.E. on invalidation of the apartment purchase agreement.
To invalidate the contract of sale of an apartment located at the address: city C, M street, house 2/2, apartment 51, concluded on December 8, 2016 between L.S. and S.E.
To collect from S.K. and S.E. in equal shares in favor of E.K. and L.S. the court costs of paying the state fee in the amount of 89,100 tenge, the costs of paying for the services of a representative in the amount of 100,000 tenge, notary services in the amount of 2,916 tenge and specialist services in the amount of 10,000 tenge, in total in the amount of 202 016 (two hundred two thousand sixteen) tenge.
To collect from S.K. and S.E. in equal shares to the state income a state duty in the amount of 72,900 (seventy-two thousand nine hundred) tenge. To satisfy the petition of K.K.'s representative.
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