Postponement of execution of a court decision | Installment plan for execution of a judicial act | Changing the method or procedure for fulfilling an obligation

The judicial board for civil cases of the Almaty City Court, consisting of the presiding judge Eszhanova G.K., judges Zholdybaev S., Altaeva Zh.S., with the participation of a representative of the plaintiff – D.A., a representative of the defendant – S.A.S., representatives of third parties - Sarzhanova G.T., K. B.E., K.S.O., B.E.A. having considered in open court in the premises of the Almaty City Court the petition of the defendant and third parties for postponement of the execution of the judicial act in the civil case on the claim of the KSU "Department of State Architectural and Construction Control of Almaty city" to LLP "International Trade Center "Zhibek Zholy", to third parties, those who do not make independent claims on the subject of the dispute: KSU "Department of Architecture and Urban Planning of Almaty city"; KSU "Department for control over the use and protection of lands of Almaty", IP A.G.P., IP B.A.K., IP BB.B., IP V.A.K., IP E.M.E., IP J.E.A., IP K.K.A., IP "L.", IP M.B.B., IP M. represented by A.H.P., IP O.G.Zh., IP R.Y.Y., IP S.A.U., IP "STO UE" represented by B.E.A., IP T. M.K., IP U.A.K., on recognition of unauthorized construction and coercion to demolish illegally erected non-residential premises. KSU "Management of the State Architectural and Construction Control of Almaty City" filed the above claim with the court, arguing that the owner of the land plot with the intended purpose "for the maintenance of a shopping center facility" at the address: 517/6 Tashkent Street, Alatau district, Almaty, is the defendant, International Trade Center LLPZhibek Zholy". During the architectural and construction survey of this land plot of the KSU "Department of State Architectural and Construction Control of Almaty city" violations of the Law of the Republic of Kazakhstan "On Architectural, urban planning and construction activities in the Republic of Kazakhstan" were revealed. By the decision of the Judicial Board for Civil Cases of the Almaty City Court dated February 20, 2019, the claims of the KSU "Department of State Architectural and Construction Control of Almaty City" against the defendant, Zhibek Zholy International Trade Center LLP, regarding recognition of unauthorized construction and coercion to demolish illegally erected non-residential premises, were partially satisfied.

Postponement of execution of a court decision | Installment plan for execution of a judicial act | Changing the method or procedure for fulfilling an obligation

It was decided: to oblige the International Trade Center Zhibek Zholy LLP to demolish illegally erected non-residential premises №1, №2, №3, №4, №5, №6, №7, №8, №9, №12, №13, №14, №15, №16, №17, №18, №19, №20, №21, №22, №23, №26, №27, №28, №29, №30, №31, №32, №33, №34, №35, №36, №37, №38, No. 39, No. 40, located at: 517/6 Tashkent Street, Alatau district, Almaty, by actual area. To refuse to satisfy the rest of the claims. To collect court costs in the amount of 93,795 tenge from the International Trade Center "Zhibek Zholy" LLP to the state revenue. The defendant and third parties applied to the court for a postponement of the said judicial act, arguing that to date, a mutual agreement has been reached between the lessor, represented by the International Trade Center Zhibek Zholy LLP, and the tenants to resolve the situation, since the International Trade Center Zhibek Zholy LLP leases and self-employed segments of the population work. All the tenants of the market, as entrepreneurs, invested their savings and some of them received a loan from the bank to invest them in the construction of a building in the market. The court is asked to take into account that Zh1bek Zholy International Trade Center LLP and the tenants are ready to implement the court's decisions in stages and are currently taking measures to eliminate the mistakes made, coordinating with construction companies and government agencies. The Board, having heard the explanations of the parties and examined the case materials, comes to the following conclusion. According to paragraph 1 of Article 246 of the CPC, the court that issued the decision or court order in the case, as well as the court at the place of execution of the decision, may, at the request of the state bailiff in enforcement proceedings for which the state is the recoverer, and (or) at the request of the parties in the enforcement proceedings, change the method or procedure for its execution, at the request of the parties in enforcement proceedings, delay or delay the execution of a court decision if circumstances arise that make the execution of enforcement actions difficult or impossible.

In accordance with paragraphs 21-23 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On the application by courts of certain norms of legislation on enforcement proceedings", postponement of execution of a judicial act means a procedural court decision to postpone to a later date the date of the judicial act's application for enforcement or the date of the commencement of enforcement actions by the bailiff on the initiated enforcement proceedings. When granting deferred or installment execution, courts should proceed from a balance of the rights and legitimate interests of the recoverer and the debtor so that the established procedure for executing a court decision meets the requirements of reasonableness, fairness and does not affect the essence of the guaranteed rights of persons involved in enforcement proceedings, as well as the rights and legitimate interests of third parties. The debtor's property status as a basis for granting him a deferral or installment payment means that the debtor cannot voluntarily or forcibly fulfill the obligation in full at one time by selling his property provided for in Articles 20 and 44 of the Civil Code. The grounds for granting a deferral or an installment plan for the execution of an enforcement document may be circumstances that cannot be eliminated at the time of applying to the court, preventing the debtor from executing the enforcement document. Whether there are such grounds is up to the court to decide on a case-by-case basis, taking into account all relevant factual circumstances. These may include the debtor's difficult financial situation, as well as reasons that significantly complicate execution (for example, the debtor's serious illness, destruction or significant damage (through no fault of the debtor) to his immovable property, etc.).

Postponement of execution of a court decision | Installment plan for execution of a judicial act | Changing the method or procedure for fulfilling an obligation

The court must assess the possibility of executing the court's decision after the expiration of the deferral period or installment periods. Therefore, the court must be provided with evidence confirming that by the time of the end of the deferred execution or installment periods of execution, the debtor will have property and income sufficient for the execution of the judicial act. The plaintiff's claim for the demolition of illegally erected structures, according to a court decision, requires time and money, as well as the transfer of equipment to another location, which takes a considerable amount of time, which is the basis for filing this application. Third parties are tenants of the market, it is established that as entrepreneurs they invested their savings and some of them received borrowed funds for the construction of structures in the market. According to article 40 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings", if there are circumstances that make performing enforcement actions difficult or impossible, the recoverer or the debtor or the bailiff has the right to raise before the court that reviewed the case or before the court at the place of execution the issue of changing the method and procedure of execution. The issue of postponement or installment of execution, as well as the indexation of the amounts awarded, is decided by the court at the request of the parties to the enforcement proceedings.

Taking into account these circumstances, as well as based on the principle of reasonableness, the board considers it necessary to partially satisfy the application for postponement of the execution of the judicial act by granting a three-month delay in the execution of the judicial act. Guided by art . 246 CPC RK, the Board of Defense: Petition of the International Trade Center "Zhibek Zholy" LLP and third parties for postponement of execution of the judicial act in a civil case on the claim of the KSU "Department of State Architectural and Construction Control of Almaty city" to the International Trade Center "Zhibek Zholy" LLP, to third parties who do not declare independent claims on the subject of dispute: KSU "Department of Architecture and Urban Planning of Almaty city"; KGU "Department for control over the use and protection of lands of Almaty", IP AG.P., IP BA.K., IP BB.B., IP VA.K., etc. on recognition of unauthorized construction and coercion to demolish illegally erected non-residential premises, partially satisfy. To postpone the execution of the decision of the judicial board for Civil Cases of the Almaty City Court dated February 20, 2019, until July 15, 2019.

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