On the recognition of the apartment purchase and sale agreement as invalid and the application of the consequences of the invalidity of the transaction, the restoration of the record of registration of ownership

On October 28, 2020, the Bostandyk District Court of Almaty city considered in open court a civil case on the claim of BNT (Hereinafter referred to as the Plaintiff) to the Defendant D AB, third parties who do not make independent claims on the subject of the dispute: Almaty notary Sultanbekov Yerlan Tursynbekovich Non-profit Joint Stock Company "State Corporation "Government for Citizens" in the city of Almaty Svetlana Ramizovna. On the recognition of the apartment purchase and sale agreement as invalid and the application of the consequences of the invalidity of the transaction. About the restoration of the record of registration of ownership rights. Thus, on June 05, 2020, a purchase and sale agreement was concluded between BN.T. and YES.B. for an apartment located at the address: Almaty city, Bostandyk district, street ......, house 90/36, apartment 61 (hereinafter referred to as the apartment), under the terms of which the defendant purchased from the plaintiff the named an apartment for 18,100,000 tenge, paid by agreement of the parties by the buyer to the seller when signing the contract at the notary's premises. The contract was certified by the notary of Almaty Sultanbekov E.T. According to the receipt dated June 05, 2020, YES. She undertook to return 100,000 tenge for the above-mentioned transaction within two months from the date of sale. The plaintiff BN.T. appealed to the court, indicating that when signing the contract with a notary, the defendant transferred an amount of 18,000,000 tenge under the contract. For the remaining amount - 100,000 tenge, the defendant wrote a receipt in which she undertakes to pay the remaining amount under the contract within 2 months. Thus, the transaction was not fully completed, respectively, she remained the owner of the apartment until the defendant deposited the remaining amount, and the notary had to issue a deferred payment agreement. However, on June 10, 2020, the plaintiff became aware of the defendant illegally, before depositing the remaining amount, possibly having entered into a criminal conspiracy with notary Sultanbekov E., misleading the employees of the registration authorities by committing fraudulent acts, she re-registered the apartment in her own name. He believes that notary Sultanbekov E. and the defendant committed fraudulent acts against her. She and her representative contacted the notary, who stated that he did not know anything about the receipt for the amount of 100,000 tenge. In addition, the notary did not give her a fiscal receipt for the execution of the apartment purchase agreement, believes that this is due to the fact that the notary initially deliberately incorrectly executed the contract, which deceived her, misleading her, and gave the defendant the opportunity, before depositing 100,000 tenge, to reissue the apartment in his name.. The purchase and sale agreement was drawn up without her presence, she threw off copies of the documents, later her husband brought the original documents, when she arrived, the contract was ready, the notary and the defendant were in a hurry to sign the contract, without giving her a detailed look at it. The defendant YES.B. a message was sent to her stating that she agreed to sign an agreement on termination of the contract, but at the same time she demanded a refund of 25,000,000 tenge instead of 18,000,000 tenge. He believes that the defendant's actions can be qualified as extortion. Asks the court: 1. To recognize the apartment purchase and sale agreement as invalid, to apply the consequences of the invalidity of the transaction;

To restore the record of registration of her ownership of the disputed apartment in the NAO "Government for Citizens State Corporation".

The defendant provided a written response to the claim. At the hearing, the plaintiff's representative gave the court explanations similar in content to the arguments set out in the statement of claim. He asked to satisfy the claim in full. The defendant's representative at the hearing asked to dismiss the claim on the grounds set out in the written objection, including explaining to the court that before visiting the notary, there was an oral agreement that the contract would be in the amount of 18,000,000 tenge, but before signing the contract, the plaintiff added 100,000 tenge for furniture that the defendant did not want to purchase.

On the recognition of the apartment purchase and sale agreement as invalid and the application of the consequences of the invalidity of the transaction, the restoration of the record of registration of ownership

During the conclusion of the contract, the plaintiff BN.T. signed the contract for 18,100,000 tenge with her own hand, after concluding the contract outside the notary's office, the plaintiff asked the defendant to write a receipt for 100,000 tenge. The defendant paid 100,000 tenge on June 12, 2020. The arguments about the illegal reissue, about the defendant's possible criminal conspiracy with a notary, misleading employees of registration authorities, are slander, all arguments of the claim are untenable, since the defendant has fulfilled all the conditions. Notary Sultanbekov E.T. participated in the court session. He did not admit the claim, asked to be denied, and explained to the court that the transaction had been certified by him in full compliance with the requirements of the law. At the court hearing, MS.R. also disagreed with the claim, asked to dismiss the claim, recognizing her as a bona fide acquirer. The representative of the NGO "Government for Citizens State Corporation" in Almaty did not participate in the court session, submitting to the court a written review in which he asked to consider the case without their participation, and also asked to dismiss the claim against the registering authority, pointing out that the NGO State Corporation "Government for Citizens", which carries out state registration at the location of the real estate. State registration is by proxy. According to the legal cadastre, the ownership of the disputed apartment is registered for GS.R. based on the purchase and sale agreement No. 11.. dated 06/25/2020. At the time of registration, there were no encumbrances and prohibitions on transactions and registration of property, the state registration was carried out within the framework of current legislation without any violations. Upon request No. 1, in accordance with paragraphs 1, 2 of Article 157 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), the transaction is invalid on the grounds established by this Code or other legislative acts, by virtue of its recognition as such by a court (disputed transaction) or on grounds directly provided for by legislative acts, regardless of such recognition (void transaction). A transaction is recognized as invalid in case of violation of the requirements for the form, content and participants of the transaction, as well as for the freedom of their will on the grounds established by this Code or other legislative acts. By virtue of the requirements of part 1 of Article 72 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), each party must prove the circumstances to which it refers as the grounds for its claims and objections, use remedies, assert, challenge facts, provide evidence and objections to evidence within the time limits set by the judge, which correspond to fair conduct They are aimed at facilitating the production process. The plaintiff requests that the above-mentioned agreement be declared invalid, referring to the provisions of paragraphs 8, 9, and 10 of Article 159 of the Civil Code, according to which 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. It is essential to be mistaken about the nature of the transaction, the identity or such qualities of its subject matter that significantly reduce the possibility of its intended use. A transaction made under the influence of deception, violence, threats, as well as a transaction that a person was forced to make due to a combination of difficult circumstances on extremely unfavorable terms for himself, which the other party took advantage of (bonded transaction), may be declared invalid by the court at the claim of the victim. A transaction made as a result of a malicious agreement between a representative of one party and the other party may be declared invalid by the court at the request of the injured party.

 

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