Leaving an application for cancellation of a purchase agreement without consideration
You have a civil case No. 5143-25-3-1/42 pending against M.A.M. and A.B.K. regarding the invalidation of the purchase agreement.
The plaintiff sent a Statement to the court about the cancellation of the purchase and sale agreement, in which he claims that in July 2024, his friend gr. A. S. T. owed the defendant gr. A.B.K. 5,000,000 tenge, therefore gr. A.S.V., asked the Plaintiff to pledge his real estate (house) located at: M. district, S. B., O. street, house. 4, in connection with which, the Plaintiff and the Defendant agreed to make an imaginary contract of sale notarized.
Thus, according to the register No. 2553 dated 07/31/2024, a transaction was made with the notary of the Turkestan Regional Notary Chamber S.B.Zh.
Dear Court, we categorically disagree with the Plaintiff's arguments, since in accordance with Article 148 of the Civil Procedure Code of the Republic of Kazakhstan, the form and content of the claim provide that the claim is filed with the court of first instance in writing or in the form of an electronic document (Whereas the Plaintiff filed an Application for cancellation of the purchase agreement).
In addition, in accordance with paragraphs 6, paragraph 2 of Article 148 of the CPC RK, the claim must contain information on compliance with the pre-trial procedure for contacting the defendant, if this is established by law or provided for by contract.
In this civil case, the Plaintiff has not settled the pre-trial procedure. 152 and 279 of the Civil Procedure Code of the Republic of Kazakhstan and Article 402 of the Civil Code of the Republic of Kazakhstan, stipulating that a judge returns or dismisses a claim without consideration if the plaintiff fails to comply with the pre-trial procedure established by law for this category of cases, the mandatory procedure for preliminary pre-trial dispute resolution and the possibility of this procedure has not been lost and preserved.
It should be noted that according to art. 149 of the Civil Procedure Code of the Republic of Kazakhstan, it is provided that the claim is accompanied by:
· documents confirming the circumstances on which the plaintiff bases his claims;
· documents confirming compliance with the pre-trial dispute settlement procedure, if this procedure is established by law or provided for by contract.
· a document confirming the payment of the state fee.
The plaintiff in the claim attached a receipt for payment of the state duty in the amount of 52,820 tenge from the amount of the estimated value according to the assessment conducted by the IP Zh. Appraisal Company, Real Estate Valuation Report No. 90/12-24 dated 12/31/2024.
Appraiser Zh. indicated in the purpose of the assessment that the assessment was carried out to pay a state fee to the court, and in the Date of Inspection tab he wrote Without inspection, which implies that the assessment was carried out without visual or actual inspection of the object of assessment.
Whereas according to the Purchase and Sale Agreement dated 07/31/2024, registered in the register No. 2553, the amount of the agreement was 20,000,000 tenge.
Accordingly, we believe that the valuation object could not have tripled in price by 15,000,000 tenge in six months. Accordingly, we observe an underestimation of the estimated value of real estate on the part of the Plaintiff in order to reduce the payment of the state fee. Also, according to the Plaintiff in the Statement, the Defendant actually sold the property to another person in the amount of 18,000,000 tenge, which quite logically confirms the value of the property.
In accordance with the State Standards of the Republic of Kazakhstan and other regulatory acts of the Republic of Kazakhstan in the field of valuation activities, as well as Order No. 51 dated 05/03/2018 "On approval of the requirements for the form and content of the assessment report", the Appraiser is required to analyze three main approaches to determine the value of real estate, namely: Cost, Income and Comparative.
However, the Appraiser, in violation of the above-mentioned norms, considered it sufficient to use only one approach, the method of comparative analysis, which led to an underestimation of the evaluation object.
Also, the appraiser, in contradiction to the above arguments that he evaluated the object without an actual inspection, claims that "The conclusions contained in this report are based on our calculations, conclusions and other information obtained as a result of market research and professional knowledge, as well as on the basis of the results of a direct inspection of the object of assessment."
According to Clause 13, Article 2 of the Law of the Republic of Kazakhstan "On Valuation Activities", the market value is the most likely price at which a given object can be disposed of on the basis of a transaction in a competitive environment.
As a result of the research The analysis of compliance with the requirements for the approaches and methods of assessment used in the Reports and the reliability of the data used by me has established that the Report on the assessment of real estate No. 0087/18/ALM, No. 90/12-24 dated 12/31/2024 was carried out by the IP Zh Assessment Companies.:
· according to the section "Requirements for the preparation of the report" does not meet the requirements;
· according to the section "Analysis of requirements for the content and reliability of calculations" is unreliable, therefore, the results obtained cannot be used as an evidence base on the value of the property indicated in the Report.
Based on the above, we consider the assessment report to be unreliable, compiled in violation of the requirements of the legislation of the Republic of Kazakhstan on valuation activities, using unreliable data leading to a distortion of the market or other value of the object of assessment.
Thus, the paid state duty does not recommend paragraph 1.,
Paragraph 1 of Article 610 of the Tax Code. We believe it is necessary to calculate the state duty of 1% of 20,000,000 tenge, which amounted to 200,000 tenge.
Based on the above and in accordance with Articles 152 and 279 of the Civil Procedure Code of the Republic of Kazakhstan and Article 402 of the Civil Code of the Republic of Kazakhstan,
I ask the Court:
· M.A.M.'s application to A.B.K. for invalidation of the purchase agreement should be left without consideration and/or returned.
On February 18, 2025, No. 5143-25-00-2/46, Judge of the Maktaaralsky District Court of the Turkestan region, E. Slambekov, under the secretary of the court session, M. Amangeldiev, considered in a preliminary open court hearing a civil case on the claim of M.A.M. to A.B.K. for the cancellation of the contract of sale,
This claim has been accepted for court proceedings, and a civil case has been initiated.
The representative of the defendant, G.T. Sarzhanov, filed an application for leaving the civil case without consideration, due to the possibility of applying a pre-trial settlement of the dispute and the possibility of applying this procedure has not been lost.
According to paragraph 1) of Article 279 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the court leaves the claim without consideration if the plaintiff fails to comply with the pre–trial dispute settlement procedure established by law for this category of cases or stipulated by the contract and the possibility of applying this procedure is not lost.
In such circumstances of the case, the court, having examined the case materials, concludes that the claim has been dismissed.
Based on the above, guided by Articles 279 (1), 280, 268, 269 of the CPC, the court DETERMINED:
The claim of M.A.M. to A.B.K. for the cancellation of the contract of sale should be left without consideration.
To refund the state registration fee paid by the plaintiff M.A.M., dated January 16, 2025 in the amount of 52,820 (fifty-two thousand eight hundred and twenty) tenge.
To clarify to the parties that leaving a claim without consideration does not prevent a second appeal to the court with a claim against the same defendant, on the same subject and on the same grounds.
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