On newly discovered or new circumstances, court rulings on the termination of proceedings may be subject to review.
Judgments of the court of first instance that have entered into legal force, including judgments rendered in absentia or under simplified (written) proceedings, as well as decisions of appellate and cassation instances that amended or annulled the decision or ruling of a lower instance by rendering a new procedural decision in the case, may be reviewed based on newly discovered or new circumstances.
Court rulings on the termination of proceedings, as well as rulings of the court of first instance following the consideration of a motion to annul an arbitral award and an application for enforcement of an arbitral award, may also be subject to review on the basis of newly discovered or new circumstances.
Other acts of the court of first instance which do not resolve the case on the merits (e.g., rulings on refusal to accept a statement of claim, return of a statement of claim, restoration or refusal to restore a procedural time limit, clarification of a court decision, or private rulings) are not subject to review on the basis of newly discovered or new circumstances.
Civil Case № 7199-24-00-2а/1072 dated March 1, 2024
Judge of the Civil Judicial Panel of the Court of Astana – E.R.M., with the participation of the representative of the Joint-Stock Company "ForteBank" – T.D.O., and M.S.A. represented by D.N.S., having considered in an open court session the application of M.S.A. for review of the decision of the Yesil District Court of the city of Astana dated September 26, 2022, on the basis of new circumstances, filed based on the private appeal of JSC "ForteBank" against the ruling of the Interdistrict Civil Court of Astana dated February 9, 2024, established the following:
A bank loan agreement No. 15402545-1417-КА/2007 dated July 11, 2007, was concluded between JSC "ForteBank" (hereinafter – the Bank) and the defendant M.S.A., under which the defendant was granted a loan of USD 12,000 for a term of three years, under conditions of targeted use, security, repayment, and interest payment.
By the decision of the Yesil District Court of Astana dated September 26, 2022, the court ordered the recovery from M.S.A. in favor of JSC "ForteBank" of 25% of the principal debt – KZT 1,434,780 (USD 3,000), legal costs in the amount of KZT 38,252, totaling KZT 1,473,032.
The decision of the Yesil District Court of Astana dated September 26, 2022, was upheld by the Civil Judicial Panel of the Court of Astana.
M.S.A. filed a lawsuit with the Taldykorgan City Court seeking to declare the bank loan agreement and the pledge agreement invalid.
By the decision of the Taldykorgan City Court of Zhetysu Region dated July 27, 2023, both the bank loan agreement and the pledge agreement were declared invalid.
By the ruling of the Civil Judicial Panel of the Zhetysu Regional Court dated January 3, 2024, the decision of the Taldykorgan City Court dated July 27, 2023, was upheld.
M.S.A. filed an application to review the decision of the Yesil District Court of Astana dated September 26, 2022, in the case brought by JSC "ForteBank" against M.S.A. for the recovery of debt, based on new circumstances.
By the ruling of the Interdistrict Civil Court of Astana dated February 9, 2024, the application was granted.
In the private appeal, the plaintiff’s representative requested that the ruling be overturned and the application denied, citing violations of procedural law.
Having heard the explanation of the plaintiff's representative, who supported the grounds of the appeal, and the defendant, who requested that the ruling be upheld, and having reviewed the materials of the civil case and arguments of the private appeal, the Judicial Panel concluded that the ruling must be annulled for the following reasons.
The grounds for reversing or amending a court decision on appeal are provided for by Article 427 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter – the CPC).
Such violations were committed by the court of first instance.
In accordance with part 1 of Article 455 of the CPC, judgments, rulings, and decisions that have entered into legal force may be reviewed on the basis of newly discovered or new circumstances.
According to paragraph 11 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 8, 2017, No. 12 "On the Application by Courts of the Provisions of the Civil Procedure Code of the Republic of Kazakhstan in Reviewing Judicial Acts Based on Newly Discovered or New Circumstances" (hereinafter – the Regulatory Resolution), an application for the review of a judicial act shall be submitted to the court in writing or in the form of an electronic document, signed by the applicant or their authorized representative, or certified by their digital signature, and must meet the requirements set out in parts 2, 3, and 4 of Article 458 of the CPC.
The application of M.S.A. for the review of the decision based on new circumstances was submitted in the form of an electronic document by his representative D.N.S., and certified by his electronic digital signature.
However, D.N.S. acted on the basis of a power of attorney dated July 18, 2022, which was attached to the application.
According to Article 60 of the CPC, a representative by power of attorney has the right to perform on behalf of the represented party all procedural actions provided by this Code, except for: signing a statement of claim, referring a case to arbitration or to the Astana International Financial Centre court, concluding a settlement agreement, mediation or participative settlement, full or partial withdrawal or acknowledgment of the claim, increasing or reducing the amount of claims, changing the subject or grounds of the claim, transferring powers to another person (substitution), appealing a judicial act in appellate or cassation procedure, and submitting an application for the review of a judicial act.
The right of the representative to perform each of the procedural actions specified in part one of this article must be explicitly provided in the power of attorney issued by the represented party.
The representative by power of attorney shall possess the procedural rights and bear the procedural obligations of the person whose interests he represents, within the scope of the authority granted.
However, the power of attorney issued by M.S.A. does not contain authority for the representative to file an application for review of a judicial act based on newly discovered or new circumstances.
According to part 3 of Article 458 of the CPC, the person submitting the application is obliged to send copies of the application and attached documents (if missing) to the other parties to the case.
According to subparagraph 2) of part 2 of Article 463 of the CPC, grounds for returning the application for review of a case based on newly discovered or new circumstances include:
Failure to meet the requirements concerning the form and content of the application;
Submission (signing) by a person who does not have authority or is legally incapable.
Under these circumstances, the ruling cannot be recognized as lawful, as procedural rules were violated.
Therefore, the ruling is subject to reversal and the issuance of a new decision returning the application, while the arguments of the private appeal are to be upheld.
The panel notes that, after the deficiency is remedied, the applicant has the right to reapply with a similar application in the general procedure.
Based on the above, guided by subparagraph 2) of part 6 of Article 429 of the Civil Procedure Code of the Republic of Kazakhstan, the panel has ruled:
To annul the ruling of the Interdistrict Civil Court of the city of Astana dated February 9, 2024.To return the application of M.S.A. for review of the decision of the Yesil District Court of the city of Astana dated September 26, 2022, based on new circumstances.To satisfy the private appeal of Joint-Stock Company "ForteBank."
The ruling is not subject to appeal or review by the prosecutor and enters into legal force upon pronouncement.
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