On forcing the bailiff to remove the imposed encumbrances from the settlement account of the LLP

On May 24, 2024, case No. 7594-24-00-4/1675 Specialized Interdistrict Administrative Court consisting of: the presiding judge Bayketaeva S.E. having considered the administrative case on the claim in written proceedings: PLAINTIFF: MBG Limited Liability Company DEFENDANT: Private bailiff of the executive district of Almaty Tauekelov Kairat Tanirbergenovich INTERESTED PARTY: Limited Liability Company "TC" Joint Stock Company "Halyk Bank of Kazakhstan" PLAINTIFF'S CLAIMS:

On the compulsion to remove the imposed encumbrances from the settlement account KZ286017131000025282 in the joint-stock company "People's Bank of Kazakhstan"

By the ruling of the specialized Interdistrict Economic Court of Astana dated March 11, 2024, the application of the joint-stock company "TC" LLP to secure a claim in a civil case against the defendant Limited liability company "TC" to the defendant limited Liability Company "MBG" for debt collection" on taking measures to secure the claim has been satisfied.

It was decided: on property belonging to the limited liability company MBGGROUP held by him or other persons, as well as in the bank (with the exception of seizure of money held in the bank's correspondent account and on property that is subject to repo transactions concluded in the trading systems of the organizers of open-ended trading, or contributions to guarantee or reserve funds of the clearing organization (central counterparty), margin contributions, which are collateral for transactions, concluded in the trading systems of the organizers of trading by the method of open bidding and (or) with the participation of a central counterparty, as well as for money held in bank accounts to which salary amounts are received), within the amount of the claim 2,200,000 tenge. (hereinafter referred to as the court Ruling).

On April 4, 2024, by a decision of the private bailiff of the executive district of Almaty, K.T. Tauekelov (hereinafter referred to as the defendant), enforcement proceedings were initiated on the basis of a court ruling and a statement from a representative of TC Kurts D.V. LLP on the adoption of an enforcement document, which was assigned No. 220/24-75-1727 .

On April 4, 2024, the defendant issued a resolution on requesting information from bank accounts and the availability of money on them, information on the nature and value of property held in banks, organizations engaged in certain types of banking operations, as well as in insurance organizations, and the seizure of them, authorized by the prosecutor on April 8, 2024. Information about the debtor's property was also requested. According to the response from the automated information system of enforcement authorities (hereinafter referred to as AISOIP) dated April 4, 2024, the debtor's property was not registered.

On April 19, 2024, the plaintiff appealed to the defendant for the removal of the imposed encumbrance on the only KZ settlement account in the Halyk Bank of Kazakhstan joint stock Company, through which employee salaries are paid and tax obligations of the MBG LLP legal entity are transferred.

On April 24, 2024, the defendant refused to remove the encumbrance from the KZ settlement account in the Halyk Bank of Kazakhstan Joint Stock Company, explaining that it was necessary to provide confirmation that there were sufficient funds in this account within the amount of the claim.

The plaintiff filed an administrative claim with the court, stating that the bailiff, taking interim measures, should not lead the defendant to bankruptcy, disruption of normal production activities, or violation of the legitimate rights and interests of others. MBG LLP is an operating organization that has contractual obligations with other legal entities and individuals, as well as obligations to pay salaries and transfer pension, social and other contributions. It is believed that the imposition of interim measures was hasty and unjustified, since the debtor in no way evades the obligation, as there is currently a lawsuit. He asked to force the defendant to remove the imposed encumbrances from the settlement account No. KZ in the joint-stock company Halyk Bank of Kazakhstan.

In his response to the claim, the bailiff asked to dismiss the claim, stating that on April 4, 2024, he received a court Ruling for execution, on the basis of which enforcement proceedings were initiated. Encumbrances on the plaintiff's accounts were imposed in securing the claim in the execution of the court ruling. The court's ruling has not been overturned.  The interim measures were imposed strictly within the amount of the claimed claim, that is, 2,200,000 tenge, which cannot completely paralyze the plaintiff's activities. According to the AISOIP request, the debtor does not have any movable or immovable property. The plaintiff was asked to provide confirmation that there was enough money in the seized account. However, the plaintiff did not provide information that they have funds covering the interim measures.

The interested party of TC LLP, disagreeing with the claim, asked to dismiss the claim, stating in its arguments that the court Ruling imposed security measures in the form of arrest within the amount of the plaintiff's claim in the amount of 2,200,000 tenge. In order to enforce the court's ruling, the enforcement documents were transferred to the bailiff for execution.  The bailiff duly complied with the requirements of the court's ruling, which is confirmed by the resolution of April 04, 2024, which was authorized by the prosecutor on April 08, 2024. Thus, there were no violations in the defendant's actions during the execution of the judicial act. He explicitly stated in the decree which funds should not be seized. The legality of the content of the private bailiff's decision is confirmed by the prosecutor's approval.

The arrest itself is imposed by a bank (other financial institution) for which the defendant is not responsible. The plaintiff's rights were not violated by the arrest, which was confirmed by the judicial board for Civil Cases of the Almaty City Court dated May 14, 2024, where the court ruling and interim measures were upheld.   The plaintiff did not provide any evidence or documents to confirm that it was necessary to remove the arrest from his bank account.

Given that the defendant indicated a prohibition on the seizure of wages, the plaintiff did not confirm that it was impossible to pay wages. If the plaintiff's funds in the account do not exceed the amount of 2,200,000 tenge seized, this means that the plaintiff does not have enough funds, because the plaintiff can use the amount exceeding the amount of the claim. The lack of funds in the plaintiff's account does not entail the illegality of the defendant's action. The plaintiff did not provide other accounts that can be seized, did not provide other property that can be burdened, did not make a security deposit to the court account. All his actions are aimed only at avoiding responsibility.

The interested party of Halyk Bank of Kazakhstan JSC in its response requested to resolve the dispute in accordance with the current legislation of the Republic of Kazakhstan, adding that on April 08, 2024, the defendant seized the accounts of MBG LLP in the amount of 2,200,000.00 tenge on the basis of a Resolution requesting information on bank account numbers and the availability of money on them and the seizure of them, according to enforcement proceedings no. 220/24-75-1727 dated April 4, 2024.            The arrest was imposed and lifted by a private bailiff independently through the AIS IPO.

The objectives of the administrative procedures provided for in Article 5 of the Administrative Procedural Code of the Republic of Kazakhstan (hereinafter referred to as the APPC) are the full realization of public rights, freedoms and interests of individuals and legal entities; strengthening the rule of law in the public legal sphere.

By virtue of paragraph 1 of Article 37 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law), the bailiff initiates enforcement proceedings on the basis of an enforcement document at the request of the recoverer, unless otherwise established by Law and other legislative acts of the Republic of Kazakhstan.

In accordance with Part 2 of Article 5 of the Administrative Procedural Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the APPC), the task of administrative proceedings is the fair, impartial and timely resolution of administrative cases in order to effectively protect and restore violated or disputed rights, freedoms and legitimate interests of individuals, rights and legitimate interests of legal entities in public law relationships.

One of the basic principles of enforcement proceedings specified in Article 3 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter - the Law)    These are legality, freedom of appeal in court of procedural actions and decisions of the bailiff.

Article 32 of the Law provides for measures to ensure the execution of enforcement documents.     The bailiff is obliged to take measures to ensure the execution of enforcement documents.

Among other measures to ensure the execution of enforcement documents are the seizure of the debtor's property, including money and securities held by him or other individuals or legal entities (with the exception of banks and organizations engaged in certain types of banking operations, as well as insurance organizations); seizure of money and property of the debtor located in banks, organizations engaged in certain types of banking operations, as well as in insurance organizations;  prohibiting the debtor from performing certain actions, including prohibiting the bodies of the legal entity from making decisions, as well as suspending the decisions taken on the alienation of movable and immovable property, property and non-property rights, securities and shares in the authorized capital and property of the legal entity;  prohibiting the debtor from using property belonging to him by right of ownership, including money, or instructing him to use it within the limits established by the bailiff; if necessary, several types of enforcement may be applied.

In accordance with article 62 of the Law, in order to ensure the execution of the enforcement document, the bailiff is obliged to seize the debtor's property, including in cases provided for by law, with the approval of the prosecutor. In this case, the bailiff, in order to ensure the execution of the enforcement document, has the right to simultaneously seize all property belonging to the debtor, commensurate with the amount to be recovered.

Article 159 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter CPC)  The procedure for replacing a measure of claim security is provided, so at the request of the person participating in the case, the parties to the arbitration proceedings may replace one measure of claim security with another.   The defendant has the right, instead of the measures taken by the court to secure the claim, to deposit an amount equal to the price of the claim to the deposit of the territorial subdivision of the authorized body for organizational and logistical support of the courts.

        The court's case materials established that the defendant's actions to enforce the Ruling on securing the claim were committed within the framework of current legislation.    The seizure of the current account was imposed on the basis of a judicial act, while the legislator did not establish a direct ban on the seizure of the current account. According to the above-mentioned norms of the CPC, foreclosure on enforcement documents is applied primarily to the debtor's money, therefore

securing a claim in the form of seizure of funds is reasonable and lawful.  In addition, the plaintiff has the right to use funds in excess of the amount of the arrest or to apply to the court to replace one measure of securing the claim with another.

According to part 2 of Article 133 of the CPC, in a claim for coercion, the plaintiff may require the adoption of a favorable administrative act, the adoption of which was refused or not accepted due to the inaction of an administrative body or official. In such cases, there is no separate requirement to challenge the refusal.

Based on the above, the court concludes that the court considers the defendant's refusal on April 24, 2024 to remove the imposed encumbrance from the settlement account KZ286017131000025282 in the Halyk Bank of Kazakhstan Joint Stock Company to be lawful and not violating the plaintiff's rights.

      By virtue of part 4 of Article 155 of the CPC, the court refuses to satisfy the claim if, upon its consideration, it finds that the contested action (inaction) has been committed, the decision has been made in accordance with the competence and legislation of the Republic of Kazakhstan.

       Thus, the court considers that the defendant has no grounds for lifting the seizure from the plaintiff's bank accounts, therefore, the plaintiff's claim should be refused.        

    Guided by articles 151-152, 154-155, and 156 of the CPC, the court DECIDED: To dismiss the claim of the MBG limited Liability Partnership against the private bailiff of the executive district of Almaty, Tauekelov Kairat Tanirbergenovich, for forcing him to remove the imposed encumbrances from the KZ settlement account in the Halyk Bank of Kazakhstan Joint Stock Company.

 

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