Judicial practice in debt restructuring cases
1) By the decision of the Council of Economic and Social Council of Pavlodar region dated November 24, 2020, the application of KBI Energy LLP for debt restructuring was satisfied (entered into force on January 11, 2021).
On February 3, 2021, the court received an application from KBI Energy LLP for approval of debt restructuring agreements concluded between the debtor and creditors.
By the resolution of the Council of Economic and Social Council dated February 15, 2021, the agreement on the restructuring of tax arrears and debts owed to 6 creditors was approved.
By the ruling of the appeal dated March 29, 2021, the court's ruling was overturned and referred for a new hearing to the court of first instance.
Footing:
The court's conclusions do not correspond to the investigated circumstances of the case, and the court's ruling is premature.
It was established that by notifications dated November 5, 2020, the debtor notified 42 creditors of applying to the court for debt restructuring, while he concluded a restructuring agreement with only 6 of them.
Information about the absence or repayment of debts to other creditors is provided in incomplete form. At the same time, there is a statement from the creditor of Bulat Nurzhanov Ekibastuzskaya GRES-1 LLP about the debt owed by KBI Energy LLP in the amount of 313,258,792 tenge, confirmed by acts of completed works and reconciliation acts. The debtor did not provide any evidence to the court to the contrary.
2) Alliance LTD LLP applied to the court for debt restructuring, arguing that it owed taxes and other payments to the budget in the amount of 74,311,193 tenge, which was not paid within three months from the date of its due date.
The Ministry of Economic and Social Affairs of Mangystau region has established that the debtor has the opportunity to repay tax arrears due to the existence of concluded contracts totaling 1,525,111,123 tenge; real estate in the form of a complex of buildings and structures with a land plot with a total estimated value of 298,113,000 tenge; concluded lease agreements for premises with subsequent prolongation.
Based on the results of the consideration of the case, taking into account the opinion of the representative of the creditor (tax authority), the court decision of November 24, 2021 applied the debt restructuring procedure to Alliance LTD LLP.
3) TOBI LLP applied to the court for debt restructuring, arguing that there were tax arrears in the amount of 55,571,132 tenge, debts to Zapkazmontazhstroy Company AiK LLP in the amount of 49,870,000 tenge, which could not be repaid with a one-time payment due to temporary insolvency.
The application was granted by the decision of the Council of Ministers of the West Kazakhstan Region dated July 30, 2021. The creditor of Halyk Bank of Kazakhstan JSC appealed the court's decision due to the failure to notify the case.
By the decision of the appeal dated October 27, 2021, the court's decision remained unchanged.
Footing:
The debtor's temporary insolvency has been confirmed, but the company is operational, has work experience, a workforce, and there are no rehabilitation or bankruptcy cases.
Failure to notify the bank is not a reason to cancel the decision, while the debtor's obligations under loan agreements are fulfilled on time, there is no delay. In addition, the notification of creditors is entrusted to the debtor. Article 28-1 of the Law does not provide for the obligation of the court to notify creditors of the receipt of such an application.
Subsequently, on January 31, 2022, the debtor applied to the court for termination of the restructuring procedure due to the failure to conclude an agreement with the Bank.
By a court ruling dated February 14, 2022, the debt restructuring procedure has been completed.
Thus, the court's application of the restructuring procedure, in this case, did not lead to a positive result and after six months the procedure was terminated.
4) By the decision of the Council of Economic and Social Council of the East Kazakhstan region dated October 27, 2020, left unchanged by the appeals board, the application of Saikan LLP for debt restructuring was denied.
The applicant explained that he had accounts payable in the amount of 135,632,601 tenge, including taxes and other mandatory payments to the budget in the amount of 66,275,041 tenge, as well as to the participant of the partnership – ZDP Quartz LLP in the amount of 69,377,560 tenge.
The court's refusal is justified by the lack of evidence of the partnership's temporary insolvency.
It was established that as of December 26, 2019, the amount of accrued tax arrears is 17,484,657 tenge. The balance sheet for 2019 reflects information on the availability of funds in the amount of 20,454,177 tenge; accounts receivable - 94,561,496 tenge; inventories in the amount of 105,521,186 tenge; fixed assets in the amount of 47,021,105 tenge.
No evidence has been provided to the court confirming the existence of circumstances that prevented the payment of current taxes.
Summary of judicial practice in the application of legislation on rehabilitation and bankruptcy in cases considered by the courts for the period 2020-2021 and the 1st half of 2022.
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