On termination of the loan agreement and collection of loan arrears in common
Plaintiff social and entrepreneurial Corporation " E "(hereinafter referred to as the Corporation) the defendants applied to" H-2020 " LLP (hereinafter referred to as the partnership), S., G., K., zh., D.:-with a claim for termination of the loan agreement No. 153/DKPK concluded on December 20, 2013 between the Corporation and the partnership (hereinafter referred to as the agreement) and collection of loan debt in the amount of 6,423,946 tenge in common. By the decision of the Zaisan District Court of the East Kazakhstan region dated October 1, 2018, the statement of claim was partially satisfied. The contract was terminated in favor of the Corporation from the partnership and the defendants: - 5,002,899 tenge in a joint joint form; - 150,087 state fees in a shared form in favor of the state. By the decision of the Judicial Board of the East Kazakhstan regional court for civil cases dated January 14, 2019, the decision of the court of first instance was amended. The part of the judicial act on the collection of debt in common with the defendants S., D., zh., D. has been canceled, and the claims for the collection of debt in common with respect to the defendants have been waived. 663,912 tenge was collected from the partnership and K. in favor of the corporation. The state duty of 19,917 tenge was collected from the partnership and K. in a share form in favor of the state in the amount of 9,958 tenge each. The amount of the part of the decision that refused to collect penalties was increased from 1,387,126 tenge to 1,587,126 tenge. The rest of the decision is left unchanged. The Defendant K. in his petition, he indicated that he did not agree with the decision of the Appellate Judicial Board adopted in this case and that the conclusions of the court do not correspond to the circumstances of the case, the norms of material and procedural law, changed the decision and asked to reduce the amount of debt in relation to him. In its counterclaim, the corporation stated that the appeal court's request for a review of the ruling was unfounded and asked for it to be dismissed. The judicial board heard the explanations of K., A. in support of the petition in the case, the opposing opinion of the representative of the Corporation, heard the conclusion of the prosecutor on the need to refer the case to the court of Appeal for reconsideration, discussed the motives of the petition, studied the case documents and came to the following conclusion.
On termination of the loan agreement and collection of loan arrears in common
As it was found out in court, by the decree of the Government of the Republic of Kazakhstan dated June 19, 2013 No. 636, the state program "Employment Roadmap 2020" was approved. This program is aimed at organizing stable and productive employment, promoting the welfare of the population by reducing unemployment. By the resolution of the Government of the Republic of Kazakhstan dated July 18, 2011 No. 819" on approval of the rules for granting loans to microfinance organizations and credit partnerships on a competitive basis", an authorized organization - Corporation was established in the regions. In its counterclaim, the corporation stated that the appeal court's request for a review of the ruling was unfounded and asked for it to be dismissed. In accordance with Part 1.1 of the agreement, the partnership was granted a loan with an annual interest rate of 5.64 percent for a period of 5 years, that is, until June 15, 2018 for a total amount of 9,800,000 tenge. In accordance with the Charter of the company, its founders are individuals A. S., G., K., zh. and D. By the decision of the founders, A. was appointed chairman of the partnership. In case of non – fulfillment or improper fulfillment of the terms of the contract, the defendants, as the founders of the company, jointly with all their property, have given their consent to the terms of the guarantee to be liable to the Corporation (hereinafter referred to as the guarantees). The court of first instance concluded that the contract is subject to termination, taking into account that the obligations established by the company under the loan agreement were partially fulfilled, the loan was not fully repaid in the amount and time provided, and the defendants who signed the pledge under the contract are liable in a common manner for non-fulfillment of obligations. The appellate court concluded that the defendants should be released from joint liability on the basis of the full refund of the loan amounts received from S., G., zh. and D. from the partnership. As well as K. it was said that the loan is not subject to exemption from joint responsibility, since the amount of the debt has not been paid in full. In accordance with the requirements of Article 412 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the APC), the court of Appeal at the request of the prosecutor checks the correctness of establishing the actual circumstances of the case, the application and interpretation of the norms of material law on the materials available in the case and submitted in accordance with the requirements of part two of Article 413 of the APC, as well as compliance with the norms of Civil Procedure Law during the consideration and resolution of the case.
The conclusions of the Appellate Judicial Board are made on the basis of a violation of the norms of material and procedural law of incorrect determination of circumstances significant for the case. The obligations received by the defendants under the surety agreements are recognized as shared. In turn, these obligations are aimed at ensuring the proper Fulfillment by the company of the requirements stipulated by the contract to the Corporation. In case of joint obligation of the debtors specified in paragraph 3 of Article 287 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the civil code), the creditor has the right to demand from all debtors, both individually and any of them, as well as the execution of the debt in whole or in parts. A creditor who is not fully satisfied with one of the common debtors has the right to demand from the rest of the non-acquired common debtors. Full Fulfillment by debtors of the first joint duty exempts the remaining debtors from execution for the creditor. In accordance with the content and meaning of the specified material law norm, joint debtors remain obligated until the obligation is fully fulfilled. That is, the release of defendants S., G., zh. and D. from joint liability, as well as the conclusions of K. that the loan is not subject to exemption from joint liability, since the amount of the debt has not been paid in full, are contrary to the law. However, the appellate court did not give an appropriate legal assessment of this circumstance, which is important for the correct consideration and resolution of the case. In addition, according to the case materials, by the verdict of the Zaisan District Court of the East Kazakhstan region dated October 23, 2018 (hereinafter referred to as the court verdict), the founder and director of the partnership A. was convicted under Paragraph 1) of Article 189, part three of the Criminal Code of the Republic of Kazakhstan for plundering the property of the Corporation entrusted under the contract. The third part of Article 1 of the APC provides that the legislation of the Republic of Kazakhstan on civil proceedings establishes the procedure for considering cases on disputes arising from civil, family, labor, housing, financial, economic, land and other legal relations, as well as cases of special proceedings. In accordance with Article 4 of the APK, the tasks of civil proceedings are to protect and restore violated or disputed rights, freedoms and legitimate interests of citizens, the state and legal entities, observe the rule of law in civil circulation and under Public Law, promote peaceful settlement of disputes, prevent offenses and form respect for the law and the court in society.
As specified in Paragraph 1 of Article 336 of the civil code, the guarantee and surety are terminated together with the termination of the obligation secured by them, if the contract does not provide for other cases of termination of the guarantee, as well as if this obligation changes in such a way that it does not lead to an increase in the liability of the pledge and guarantor without the consent of the latter or other negative consequences. The appellate court did not determine from the defendants the exact amount of the loan arrears to be collected in favor of the Corporation. In such a context of the case, the judicial board considers that the circumstances specified in the petition have found their evidence. The shortcomings made by the appellate court are significant, since these shortcomings led to the fact that the case was not resolved correctly. On the basis of the above, the judicial collegium for civil cases of the Supreme Court of the Republic of Kazakhstan canceled the decision of the court of Appeal and sent the civil case to the judicial collegium for civil cases of the East Kazakhstan regional court for new consideration in a different composition of judges. The petition of K. was partially satisfied.
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