Private complaint about the decision to recover the amount of indexation from the Akimat of Almaty
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To the Appeal Board for Civil Cases of the Almaty City Court
Almaty, 050000, Kazybek Bi street, 66.
0201@sud.kz
from the applicant: K.O.N.
IIN ……
Representative by proxy:
Law and Law Law Firm
BIN 201240021767
79 Abylai Khan Ave., office 304, Almaty.
info@zakonpravo.kz / www.zakonpravo.kz
+ 7 727 578 57 58; +7 708 578 57 58.
Private complaint
on the ruling of the Nauryzbay District Court of Almaty dated November 25, 2022
On November 25, 2022, the Nauryzbay District Court of Almaty, Balykova D.Zh., having considered the application of K.O.N. for recovery of the indexation amount from the Akimat of Almaty, the Judge determined that K.O.N.'s application for recovery of the indexation amount from the Akimat of Almaty should be left without satisfaction.
The court found that the financing for this facility is carried out from the Republican budget, and not from the local budget. The amount to be paid to the applicant was determined by a court decision for the compulsory alienation of the land plot, and in this case, the Akimat of Almaty is not a debtor for the fulfillment of contractual obligations with the creditor.
However, Dear Board of Appeal, we consider the court's ruling to be unlawful, unjustified and subject to cancellation on the following grounds:
According to art. 47 of the CPC RK, the plaintiff and the defendant are the parties in the civil process. Paragraph 4 states that the State may be a party to civil proceedings.
According to the general rules, an application for indexation of the awarded amounts is considered in the framework of the case in which the court issued a judicial act on the compulsory alienation (purchase) of land and other immovable property for state needs. The plaintiff in the above case is the Akimat of the city of Almaty. We know that paragraph 2 of Article 68 of the Law of the Republic of Kazakhstan "On State Property" states that compensation for alienated property is paid from budgetary funds. However, it should be noted that the State Institution "Treasury Committee of the Ministry of Finance of the Republic of Kazakhstan" was not a party to the civil case.
The application for indexation of the awarded sums of money does not belong to the category of a statement of claim, since in this case there is no dispute arising from a material and legal relationship, and the recoverer's statutory powers arise to compensate for inflationary losses for the period of improper fulfillment by the debtor of a monetary obligation.
Also, during the court session, the court did not take into account that the applicant has the right to replace an improper defendant in accordance with art. 50 of the CPC RK.
In accordance with Article 11 of the Law of the Republic of Kazakhstan "On Public Services", Local executive bodies of cities of republican significance take measures aimed at restoring violated rights, freedoms and legitimate interests of service recipients.
In paragraph 3 of Article 239 of the CPC RK, where a private complaint may be filed against a court ruling on indexation or refusal to index the awarded sums of money, the prosecutor filed a petition with the court of appeal, whose decision is final.
Based on the above, and in accordance with paragraph 3 of art. 239 of the CPC RK,
I ask the Court:
The ruling of the Nauryzbay District Court of Almaty dated November 25, 2022 – to cancel;
K.O.N.'s application for indexing the awarded amounts must be satisfied.
With respect,
AGCA's Lawyer:
Sarzhanov G.T.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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