Collection of the amount of debt under the car rental agreement with subsequent purchase

On August 06, 2018, between K.K.K. (hereinafter the Plaintiff is the Landlord) and gr. K.T.S. (hereinafter the Defendant is the Tenant) A car rental Agreement was concluded with subsequent purchase (hereinafter referred to as the Agreement). According to paragraphs 1 and 2 of the Agreement, the "Lessor" undertakes to provide the "Lessee" with temporary possession and use for a fee, with subsequent redemption upon payment of the entire value, the following property: A 1997 Nissan Cefiro car, identification number (VIN) no. A32422619, registration no. 476...02, owned by To the "Landlord" on the right of private ownership, without the provision of services by the Landlord for its management and technical operation. The specified car belongs to the "Lessor" by right of ownership on the basis of the Certificate of registration of the VA series No. 00360690, issued on 08/06/2018, issued by the Administrative Division of the Department of Internal Affairs of the city of Almaty. According to clause 3 of the Agreement, the parties agreed that the rent is 6,500 tenge per day until October 09, 2020. The "Tenant" undertakes to pay the rent payment daily before 20:00, if there is a payment at a later time, it is considered late, which the Tenant must pay no later than the next day before 20:00. By agreement of the parties, the payment can be made every 10 days in advance. The payment is recorded in a statement, which is drawn up in two copies, one for each party. Provided for in clauses "A", clause 8 of the Agreement in case of non-payment of the daily payments stipulated in clause 3 of this Agreement within 3 (three) days. At the same time, all previously paid amounts remain with the "Landlord". I would like to note the 19th clause of the Agreement, which stipulates: If, as a result of a violation of the terms of this Agreement, namely non-payment of daily payments within 6 (six) days, the "Lessor" decides to terminate this Agreement and seize the Car from the "Lessee", the latter undertakes to reimburse the "Lessor" for the entire cost of restoring the previous condition taking into account the normal wear and repair of the Car, if required. As well as in the event of an accident, the tenant's spouse and the person who acts as the guarantor are required to comply with all the terms of this agreement.

Collection of the amount of debt under the car rental agreement with subsequent purchase

paragraph 22, the "Tenant" for late payment for using the Car pays a fine of 1,500 (one thousand five hundred) tenge for each day of delay. paragraph 23, Payment of fines for the Car is the main payment, and until it is made, incoming daily payments will be credited to the repayment of arrears on them, and only after the fine is paid, it will be accepted as payment under the contract.        Under this Agreement, in accordance with paragraph 3, Article 331 of the Civil Code of the Republic of Kazakhstan. The written form of the guarantee or surety agreements signed by the defendant gr. On August 06, 2018, a Guarantee Obligation was written, which was certified by a Notary, as evidenced by the corresponding Guarantee Obligation dated August 06, 2018 in the appendices, where gr. KO.Zh., (hereinafter referred to as the Defendant) pledged that he was "gr. KO., born on 02/20/1989, IIN...., residing at the address: South Kazakhstan region, Tyulkibasky district, Tyulkibas station, A. B. street.... house 54, I hereby commit myself to gr. K.K. Kurmangalikyzy, IIN ....., fulfill the obligations of K.T.S., born on 05.26.1974, IIN...., under a lease agreement with subsequent purchase of a car, in case of non-fulfillment by K.T.S., its obligations under a lease agreement with subsequent purchase of a Nissan Cefiro car, manufactured in 1997, identification number (VIN) no. A32422619, registration no. 476....02, in the amount of 4,394,000 tenge, I will not have any further claims. Article 329 of the Civil Code of the Republic of Kazakhstan, "Guarantee". By virtue of the guarantee, the guarantor is obligated to the creditor of another person (the debtor) to be responsible for fulfilling the obligations of this person in full or in part in solidarity with the debtor, except in cases provided for by legislative acts. The persons who jointly gave the guarantee are jointly and severally liable to the creditor, unless otherwise stipulated by the guarantee agreement. A guarantee agreement may also be concluded to secure an obligation that arises in the future. Article 332 of the Civil Code of the Republic of Kazakhstan. "Responsibility of the guarantor and the guarantor" item 2. It states that the guarantor is liable to the creditor to the same extent as the debtor, including the payment of penalties, remuneration (interest), legal fees for debt collection and other losses of the creditor caused by non-fulfillment or improper fulfillment of obligations by the debtor, unless otherwise provided by the guarantee agreement. Article 357 of the Civil Code of the Republic of Kazakhstan. "Subsidiary liability" - If the principal debtor has refused to satisfy or has not fully fulfilled the creditor's claim or the creditor has not received from him a response to the claim within a reasonable time, this claim in the unfulfilled part may be presented to the person bearing subsidiary liability.

The person bearing subsidiary liability must, before satisfying the claim brought against him by the creditor, warn the principal debtor about this, and if a claim is brought against such a person, involve the principal debtor in the case. To date, the Defendant has not fulfilled its obligations, in addition, unilaterally refused to fulfill its obligations. To this day, the Defendant has not handed over the above-mentioned car according to the Agreement on the Act of acceptance of the transfer to the Lessor. To all verbal requests for a refund, the Defendants are dissuaded by breakfast or financial difficulties and or simply ignoring all attempts by the Plaintiff to resolve the dispute, whereas according to clauses 12, 13, 16, 17, 18, 19 of the Agreement, the "Lessee" is obliged, at the first request of the representative of the "Lessor", to inform about the location and condition of the car. All risks, including the risk of accidental loss of Property, are borne by the "Tenant". In the cases specified in paragraph 13.16 The "Lessee" undertakes, at his own expense, or upon payment of the insured sum, to make the necessary repairs to the car as soon as possible at the expense of this amount. In this case, the daily payment amounts will not be paid, but the validity of this Agreement is extended for the duration of the repair, but not more than 10 days. At the same time, he pays for the costs of new insurance independently. If, as a result of a violation of the terms of this Agreement, namely non-payment of daily payments within 6 (six) days, the "Lessor" decides to terminate this Agreement and withdraw the Car from the "Lessee", the latter undertakes to reimburse the "Lessor" for the entire cost of restoring the previous condition, taking into account normal wear and repair of the Car, if required. As well as in case of an accident, the person who acts as the guarantor is obliged to fulfill all the terms of this agreement. On November 28, 2018, a Pre-trial claim was sent to the Defendants and the Defendants were asked to return funds in the amount of 853,000 tenge to the Plaintiff within the time period specified in the Claim. In case of non-return of funds within the specified period, we reserve the right to apply to the court on this issue. As well as to recover the amount of material (losses and penalties, Article 351 of the Civil Code of the Republic of Kazakhstan) and moral damage and/or apply to other competent authorities.

However, all the Plaintiff's attempts to resolve the situation peacefully were unsuccessful. To this day, there is no response and fulfillment of its obligations. Based on the above arguments, we believe that the terms of the agreement dated August 06, 2018 for the rental of a car with subsequent purchase were violated, namely, the late payment of the rent of the car. As a result, the Tenant has a debt in accordance with paragraph 3 Agreements, for daily payment for 17 days delay in the amount of 110,500 tenge, accrued penalty for 17 days delay, which amounted to 25,500 tenge for each day of delay according to clause 22.23 of the Agreement. The debt for car repairs is 55,000 tenge, as well as the amount for violation of traffic rules in the amount of 12,000 tenge. Paragraph 30 of the Agreement stipulates that in case of refusal to fulfill the terms of the agreement, as well as in case of premature return of the car, the "Lessee" undertakes to pay a penalty in the amount of 50% of the initial cost of the car 1,300,000 tenge, amounting to 650,000 tenge. The total amount owed by the Tenant to the Landlord was 853,000 tenge. Article 9, paragraph 4, of the Civil Code of the Republic of Kazakhstan. "Protection of civil rights" states that a person whose right has been violated may demand full compensation for damages caused to him, unless otherwise provided by legislative acts or a contract. Losses mean expenses that are incurred or should be incurred by a person whose right has been violated, loss or damage to his property (real damage), as well as lost income that this person would have received under normal conditions of turnover if his right had not been violated (lost profits). Currently, the Defendants are not fulfilling their obligations (Violation of an obligation is understood as non-fulfillment or improper fulfillment (untimely, with defects in goods and works, in violation of other conditions defined by the content of the obligation) - improper fulfillment of part 1 of Article 349 of the Civil Code of the Republic of Kazakhstan), which is not permissible according to Article 272 of the Civil Code of the Republic of Kazakhstan. Thus, the Defendants caused real material and moral damage to the Plaintiff and his family. In these circumstances, we require the Defendant to return the funds in the amount of 853,000 tenge. Due to the failure of the Defendants to fulfill their obligations, we have the opinion that the Defendants' actions are aimed at seizing property by deceiving and abusing the Plaintiff's trust. In accordance with Article 272 of the Civil Code of the Republic of Kazakhstan, "The obligation must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, and in the absence of such conditions and requirements – in accordance with business practices or other commonly imposed requirements."

In accordance with Article 349 of the Civil Code of the Republic of Kazakhstan, "Violation of an obligation means its non–fulfillment or improper fulfillment (untimely, with defects in goods and works, in violation of other conditions determined by the content of the obligation) - improper fulfillment. In case of impossibility of proper execution, the debtor is obliged to immediately notify the creditor about this. The debtor is held liable for breach of an obligation at the request of the creditor." Article 359 of the Civil Code of the Republic of Kazakhstan. "The grounds for liability for breach of an obligation" are specified 1. The debtor is responsible for non-fulfillment and (or) improper fulfillment of obligations in the presence of fault, unless otherwise provided by law or contract. The debtor is found innocent if he proves that he has taken all measures in his power to properly fulfill the obligation.  A person who has failed to fulfill or improperly fulfilled an obligation in carrying out business activities is liable for property liability unless he proves that proper fulfillment was impossible due to force majeure, that is, extraordinary and unavoidable circumstances under the given conditions (natural disasters, military operations, etc.). Such circumstances do not include, in particular, the absence of in the market of goods, works, or services needed for execution.

Collection of the amount of debt under the car rental agreement with subsequent purchase

Article 30. "Jurisdiction at the choice of the plaintiff", paragraph 6, provides that claims arising from contracts that specify the place of performance may also be filed at the place of performance of the contract. Also, paragraph 12 of the above-mentioned article defines that Claims against several defendants may be filed at the place of residence or location of one of the defendants at the plaintiff's choice. and paragraph 13 of the Article gives the Plaintiff the right to choose between several courts that, according to this article, have jurisdiction over the case, belongs to the plaintiff, with the exception of the jurisdiction established by Article 31 of this The Code. 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. In accordance with Article 8 of the CPC, everyone has the right to apply to the court for protection of violated or disputed constitutional rights, freedoms or protected interests. In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties choose their position, ways and means of defending it independently and independently of the court, other bodies and persons during civil proceedings. 113, CPC RK. 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. 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. According to the CPC RK, Article 144. Procedure for simplified (written) proceedings provides: Cases in simplified (written) proceedings are considered by the court according to the rules of Chapter 14 of this Code with the specifics established by this chapter. Cases in simplified (written) proceedings are considered by a judge within one month from the date of acceptance of the application. The time limit for consideration of the case in a simplified (written) procedure cannot be extended. The court issues a ruling on the consideration of the case according to the rules of the claim procedure in the general procedure if: a petition has been filed by the party.  When applying to the court with this claim, the Plaintiff, in accordance with paragraph 1, paragraph 1, Article 535 of the Code of the Republic of Kazakhstan "On Taxes and Other mandatory payments to the Budget" (Tax Code),"is forced to pay a state fee in the amount of 1% of the amount of the claim, with a bank commission in the amount of 8,830 tenge. Based on the above and the compliance of the Civil Code of the Republic of Kazakhstan, the CPC of the Republic of KAZAKHSTAN, THE COURT WAS ASKED:

To recover from the defendant gr. k.T.S. and gr. K.O.Zh. in favor of K.K.K. the amount of debt in the amount of 853,000 tenge; To recover from the defendant gr. K.T.S. and gr.K.O.Zh. in favor of K.K.K. the paid state fee in the amount of 8,830 tenge; To recover from the defendant gr. K.T.S. and gr. K.O.J. in favor of K.K.K. the amount of expenses incurred to pay for the representative's assistance in the amount of 20,000 tenge; To secure the claim, seize all movable and immovable property owned by private ownership, as well as all bank accounts held in second-tier banks defendant gr. CCC and gr. LEATHER. On January 04, 2019, the judge of the Zhambyl District Court of the Almaty region, having considered, in a simplified (written) procedure, a civil case on recovery of the amount owed under a car rental agreement with subsequent purchase and court costs, guided by Articles 16, 223-226, 229, 108, 109 of the CPC, the court DECIDED: The claim of K.K.K. to K.T.S., K.O. J. on the recovery of the amount owed under the car rental agreement with subsequent purchase and court costs – partially satisfied. To recover in solidarity with K.T.S., K.O.J. in favor of K.K.K. the amount of debt in the amount of 286,000 (two hundred eighty-six thousand) tenge. To collect from the CCC, LEATHER in favor of the CCC the costs of paying for the assistance of a representative in the amount of 20,000 (twenty thousand) tenge and a state fee in the amount of 2,860 (two thousand eight hundred and sixty) tenge in equal parts.

Collection of the amount of debt under the car rental agreement with subsequent purchase

In addition, on December 07, 2018, the Judge of the Zhambyl District Court of the Almaty region, BA., having considered the application of the plaintiff's representative, KK.K. – Sarzhanov G.T., to secure a claim in a civil case against KK for the claim of KTS, KOZH for the recovery of the amount owed under the car rental agreement with subsequent purchase, Guided by Articles 155-158, 161 of the CPC, the judge I DETERMINED: To satisfy the application of the plaintiff's representative KK.K. – Sarzhanova G.T.. In order to secure the claim, to seize movable and immovable property belonging to the CCC by right of private ownership, IIN: ..., residing at the address: Almaty region, Zhambyl district, Uzynagash village, Karasai Batyr Street, house No. 150 (registered building No.106), KOZH, IIN: 8, residing at the address: Turkestan Tyulkibassky district, Tyulkibas station, A.Bom street No. 54 - within the amount of the claim in the amount of 853,000 (eight hundred and fifty-three thousand) tenge, wherever it is located and in whatever form it is expressed, including to bank accounts located in second-tier banks within the stated requirements, within the stated requirements. The ruling is subject to immediate execution.

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