Objection Review of the statement of claim | Invalidation of the purchase agreement
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To the Alatau District Court of Almaty to Judge G.S. Bekbatyr.
Almaty, Alatau district md. Shanyrak-2, 050065, Zhankozha Batyr street, 26/11.
8 (727) 333-14-04 727-4660@sud.kz
From the defendant: AAHH IIN ……………
Proxy Representative: Law and Law Law Firm
BIN 201240021767
. 79 Abylai Khan Ave., office 304, Almaty. info@zakonpravo.kz / www.zakonpravo .kz
+ 7 727 978 5755; +7 708 578 5758. Plaintiff: K.S.S. IIN ..........
Review of the statement of claim
on the recognition of the contract of sale as invalid
In your proceedings, there is a civil case registered No. 7575-22-00-2/2173 dated 07/11/2022 on the claim of K.S.S. (Hereinafter the Plaintiff) to AAA, B.J.S. (Hereinafter the Defendant) and the private notary of Almaty, S.D.S. (Hereinafter the Notary) on the recognition of Apartment Purchase Contracts register No. 4567 dated 12/18/2021 invalid. According to which the Plaintiff justifies his claims that, According to the Apartment Purchase Agreement, register No. 4567 dated 12/18/2021, concluded between the seller and the buyer AAA, certified by a private notary of the city of Almaty, S.D.S. (hereinafter referred to as the Agreement), the second purchased an apartment consisting of 3 living rooms, located at the address: Almaty city, Alatau district, residential district D..., house 53, apartment 53. The Contract states that the Plaintiff, with the consent of the spouse, sold, and the Defendant, with the consent of the spouse, bought the above apartment for the amount of 20,416,000 tenge. However, no money from the purchase and sale in the amount of 20,416,000 tenge was transferred to the Plaintiff, due to the fact that there was never any intention to have legal consequences from the transaction, the purchase and sale of the apartment between the Plaintiffs and the Defendants. Dear Court, the Plaintiff does not agree with the above arguments for the following circumstances: on 12/18/2021, an agreement for the purchase and sale of an apartment located above the specified apartment was concluded between the Plaintiff and the Defendant. According to this agreement, the cost of the apartment was set at 20,416,000 tenge, the agreement was certified by a notary in Almaty and registered in the register of notarial acts. In the statement, the plaintiff argues that when signing the contract, no money from the purchase and sale in the amount of 20,416,000 tenge was transferred to the Plaintiff. However, we consider the Plaintiff's arguments on this issue to be unfounded, whereas in paragraph 3 of the Apartment Purchase Agreement dated 12/18/2021, it is literally stipulated that "By agreement of the parties, the apartment was sold for 20,416,000 tenge, paid by the Buyer to the Seller in full before signing and certifying this agreement, which is confirmed by both parties. The payment is made in full by the Buyer to the Seller, outside the notary's office. The parties have no material or other claims against each other. To which the Plaintiff fully agreed and confirmed his consent with his signature.
Objection Review of the statement of claim | Invalidation of the purchase agreement
In accordance with Article 6 of the Civil Code of the Republic of Kazakhstan, the norms of civil legislation should be interpreted in accordance with the literal meaning of their verbal expression. Accordingly, between the Plaintiff and the Defendant, in accordance with Articles 151, 152, 154, 155 of the Civil Code of the Republic of Kazakhstan by agreement of the parties, there was a completely written form of the transaction, which was notarized and registered. The Plaintiff's arguments are that in 2021, B., who is an acquaintance of the defendant Akhmedov Azamat, took a car from him, for which he had to make a payment. When the payment deadline for the car came, Bekzat had no money. Bekzat asked for help and asked, as a guarantee that Bekzat would return AA's money for the car, to put the property, K.S.S.'s apartment, as collateral. However, Akhmedov Azamat offered to issue a pledge for Bekzat's obligations in the form of a Purchase and sale Agreement instead of a Pledge Agreement. At the same time, they promised that, after the repayment of the debt by the Loan, they would immediately reissue the purchase and sale agreement. It was only under this condition that I signed an apartment purchase and sale agreement between the Plaintiff and the Defendant. – we believe that these arguments are unfounded and have nothing to do with the Apartment Purchase Agreement dated 12/18/2021. 68, 72 of the Civil Procedure Code of the Republic of Kazakhstan, Each party must prove the circumstances to which it refers as the grounds for its claims and objections, each evidence is subject to assessment taking into account relevance, admissibility, reliability. In addition, the Plaintiff's arguments that the Defendant and his wife had never seen the apartment mentioned above, had not come to inspect it before buying it. – is also in accordance with art . 68, 72 of the Civil Procedure Code of the Republic of Kazakhstan are unfounded and are not subject to application, taking into account relevance, admissibility and reliability as evidence.
According to Articles 188, 189 of the Civil Code of the Republic of Kazakhstan, the Owner has the right, at his discretion, to perform any actions with respect to his property, including alienating this property to other persons, transferring to them, while remaining the owner, his powers to own, use and dispose of property, pledge property and encumber it in other ways, dispose of it in a different way. The owner has the right to own, use and dispose of his property to determine the legal fate of the property. The defendant had no legal obligation to inspect the property before buying it. Moreover, in modern times, real estate is primarily checked for legal purity. Upon the fact of living in this apartment, the Defendant has no urgent need since he and his family permanently reside in the city of Shymkent. The apartment was purchased for the future for children. Thus, in the petitioning part of the Claim, the court is asked to invalidate the Apartment Purchase and Sale Agreement registered in the register for No. 4567 dated 12/18/2022, concluded between the parties. In art. 157, paragraph 2 of the Civil Code of the Republic of Kazakhstan provides that a transaction is declared invalid if the requirements for the form, content and participants of the transaction, as well as for their freedom of expression, are violated on the grounds established by this Code or other legislative acts. However, in accordance with this article, the Plaintiff does not provide any substantial arguments for violation of the form and content of the agreement, as well as the will to conclude a Contract.
Article 159 of the Civil Code stipulates the Grounds for the invalidity of transactions and cites 12 circumstances where a transaction may be declared invalid, namely: 1. A transaction made without obtaining the necessary permission is void; 2. A transaction pursuing the goals of unfair competition or violating the requirements of business ethics; 3. A transaction made by a person under the age of fourteen (a minor); 4. A transaction made by a minor over the age of fourteen without the consent of his legal representatives; 5. A transaction made by a person who has been declared legally incompetent due to mental illness or dementia is void. A transaction made by a citizen who was subsequently recognized as legally incompetent; 6. A transaction made by a person limited in legal capacity by a court; 7. A transaction made, although legally capable, but who was in a state at the time of its commission when he could not understand the meaning of his actions or direct them - in this circumstance, the Plaintiff did not provide the court with the appropriate supporting documents and/or evidence; 8. A transaction made as a result of a significant misconception may be declared invalid by a court at the request of a party acting under the influence of a misconception; 9. A transaction made under the influence of deception, violence, threat, as well as a transaction that a person was forced to make due to a combination of difficult circumstances on extremely unfavorable terms than the other party. took advantage of (bonded transaction) - The specified circumstance in paragraph 9 is also not suitable, since the Plaintiff provides the court with an Estimate of the average value of the real estate Analysis Report produced by the Appraisal Company, which determines the average estimated value of the property in the amount of 33 527 789 tenge as of 06/10/2022, which naturally cannot be a profitable (bonded transaction) for the Plaintiff, since the difference from the purchase price from the estimated value is it is natural because after the military aggression of the Russian Federation in Ukraine and the sanctions of the international community on the Russian Federation, many solvent citizens immigrated from the Russian Federation to the Republic of Kazakhstan, in most cases to the city of Almaty, and according to numerous publications and information in the media from real estate companies, it is possible to analyze the increase in real estate prices by up to 50%; 10. A transaction made as a result of a malicious agreement by a representative of one party, an unscrupulous representative - well, here the parties were directly present at the conclusion of the Contract; 11. A transaction made by a legal entity in contradiction with the objectives of the activity; 12. Transactions provided for in paragraphs 3, 5 of this Article, at the request of the legal representatives of minors or incapacitated persons.
Dear Court, Chapter 4 of the Civil Code of the Republic of Kazakhstan “Transactions” specifically defines the concept of a transaction, the form of conclusion, and the circumstances in which the Transaction is recognized as invalid. However, the Statement of Claim does not specify specific circumstances and or a reference to regulations on the recognition of the transaction as invalid. Apart from the unsubstantiated charges of the Defendant, nothing is given. Article 72 of the CPC RK. The "Duty of Proof" stipulates that each party must prove the circumstances to which it refers as the basis of its claims – which is not observed in the statements of claim. The Plaintiff had enough time to study the Contract. In addition, as practice shows, all Notaries prepare a preliminary version of the Contract in advance and, after studying the document by the parties, taking into account the changes and additions, prints it out on a letterhead and submits it for signature, which was done by a Notary, since the contract itself takes a lot of time. Article 17. The Law of the Republic of Kazakhstan “On Notary” A notary performs notarial acts provided for by this Law and other legislative acts of the Republic of Kazakhstan in the interests of individuals and legal entities who have applied to him; to draft transactions, applications and other documents; to demand from individuals and legal entities the documents and information necessary for the performance of notarial acts, in compliance with the legislative acts of the Republic of Kazakhstan. We consider the Plaintiff's arguments to be unsubstantiated and unjustified from the point of view of relevance and admissibility as evidence in accordance with art. 68 of the Civil Procedure Code of the Republic of Kazakhstan, each evidence is subject to assessment taking into account its relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a civil case. In this civil case, we observe the groundlessness of Claims and Defamation against the Defendant. According to paragraph 4 of Article 8 of the Civil Code of the Republic of Kazakhstan, citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation and the moral principles of society. This obligation cannot be excluded or limited by the contract.
Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed. Dear court, according to the norms of the Civil Code of the Republic of Kazakhstan, a transaction may be invalid on the grounds established by law, by virtue of its recognition as such by a court (disputed transaction) or independently of such recognition by virtue of a direct reference to its invalidity in the law (void transaction) - however, all the arguments given in the Statement of Claim do not indicate specific facts in order to to challenge and or the grounds established by law to challenge the transaction, we consider all arguments to be unfounded. In P. 13 of the Regulatory Resolution No. 6 of the Supreme Court of the Republic of Kazakhstan “On certain issues of the invalidity of transactions and the application by the courts of the consequences of their invalidity” stipulates that when the courts consider the consequences of the invalidity of the transaction, the defendant's counterclaims to recognize the person as a bona fide acquirer are not required, since resolving this issue is the responsibility of the court when evaluating evidence in the case. In accordance with art . 113 of the Civil Procedure Code of the Republic of Kazakhstan is stipulated at the request of the party in whose favor the Decision was made, the court awards, on the other hand, the costs incurred 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 (payment orders, fiscal receipt). For property claims, the total amount of these expenses should not exceed ten percent of the satisfied portion of the claim. According to non-property requirements, the amount of expenses is collected within reasonable limits, but should not exceed three hundred monthly calculation indices. By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests and on the basis of the above in accordance with Articles 68, 72, 166 of the CPC RK,
I ask the Court:
To refuse to satisfy the Statement of Claim of the KCC to AAA on the recognition of the contract of sale as invalid;
To collect from the KCC in favor of AAA the amount of expenses for paying for the assistance of a representative in the amount of 500,000 (five hundred thousand) tenge.
Sincerely, Proxy Representative ___________/ Sarzhanov G.T. "___" __________ 2022 the year
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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