Private complaint about the determination of the recovery of the indexation amount
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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: CON
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 January 26, 2023
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. At the first hearing, the court found that 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.
Subsequently, we sent a private complaint to the Nauryzbay District Court of Almaty dated November 25, 2022, where we attached to the complaint the response of the State Institution Treasury Committee of the Ministry of Finance of the Republic of Kazakhstan No.ZT-2022-02766516 dated 12/13/2022. In this response, the Treasury Committee of the Ministry of Finance of the Republic of Kazakhstan indicates that all accounts of government agencies, including the Akimat of Almaty and the KSU "Department of Land Relations of Almaty", are opened in the Treasury Committee, while account servicing is carried out by the territorial divisions of the Committee, at the location of government agencies. Accordingly, the bank details of the organizations serviced by the treasury authorities indicate the Beneficiary's Bank of the State Institution "Treasury Committee of the Ministry of Finance of the Republic of Kazakhstan", BIC KKMFKZ2A, IIC KZ92070101KSN0000000. In this regard, the Committee, in accordance with the competence defined by the legislation of the Republic of Kazakhstan, performed only money transfer operations from the sender's account to the recipient's account when making refunds.
On December 29, 2022, the Judicial Board for Civil Cases of the Almaty City Court, consisting of the presiding judge Akhmediev B.T., having considered the materials on the application of K.O.N. for indexing the awarded amounts, received on a private complaint by the defendant against the ruling of the Nauryzbay District Court of Almaty dated November 25, 2022, the Court determined the Ruling of the Nauryzbay District Court of Almaty from November 25, 2022 – cancel. The material should be sent to the court of first instance for a new review. To satisfy the defendant's private complaint. The Court of Appeal reliably established by the materials of the civil case that the assessment for December 27, 2019 was taken as the basis for determining the price of the property, and the court's decision regarding the payment of compensation was executed by the state body only on February 15, 2022. Thus, the board believes that after more than two years, the market value of similar properties has significantly exceeded the amount set in 2019. This circumstance is a direct violation of the legitimate rights and interests of the defendant's side due to the fault of the plaintiff, who did not comply with the court's decision within the one-month period established by the Law of the Republic of Kazakhstan "On State Property".
In such circumstances, the board comes to the conclusion that it is necessary to cancel the court's ruling and send the materials for a new review.
However, at a subsequent new hearing by the court of first instance, O.N. Kuznetsova's application was dismissed on the same grounds.
On January 26, 2023, the Nauryzbay District Court of Almaty B.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 in accordance with paragraph 31 of the normative resolution of the Supreme Court of the Republic of Kazakhstan No. 5 dated July 11, 2003 "On judicial decision in civil cases", the court has the right, in accordance with Article 239 of the CPC, to make a ruling on the indexation of the awarded sums of money. Indexation is calculated for the period from the date of entry into force of the decision until the date of actual fulfillment by the debtor of the monetary obligation, with the exception of the period of deferral or installment, based on the base rate of the National Bank of the Republic of Kazakhstan on the day of execution of the court decision.
It follows from the meaning of the above-mentioned norms that only the recoverer can apply for the indexation of the awarded amounts by court decision. Whereas, according to the court decision, K.O.N. is not a recoverer, the specified amount in the amount of 210,238,771 tenge is the determining price of the alienated property, not the amount of recovery.
However, Dear Board of Appeal, we consider the court's ruling to be unlawful, unjustified and subject to cancellation on the following grounds:
In accordance with art. 427 of the Civil Code of the Republic of Kazakhstan, the norms of substantive law are considered violated or improperly applied if the court:
1) has not applied the applicable law;
2) applied a law that is not applicable;
3) misinterpreted the law.
According to Article 268 of the Civil Code of the Republic of Kazakhstan, it is stated that, by virtue of an obligation, one person (the debtor) is obliged to perform a certain action in favor of another person (the creditor), such as: transfer property, perform work, pay money, and so on, or refrain from a certain action, and the creditor has the right to require the debtor to fulfill his duties. The creditor is obliged to accept execution from the debtor.
It is especially important to note that paragraph 3 of Article 269 of the Civil Code of the Republic of Kazakhstan states that if, by virtue of an obligation, each of the parties is obligated in favor of the other party, it is considered the debtor of the other party in what it is obligated to do in its favor, and at the same time its creditor in what it has the right to demand from it.
271 of the Civil Code of the Republic of Kazakhstan stipulates that obligations arise on the grounds specified in Article 7 of this Code. According to Article 7 of the Civil Code of the Republic of Kazakhstan, Civil rights and obligations arise, change and terminate from the grounds provided for by the legislation of the Republic of Kazakhstan, as well as from the actions of citizens and legal entities, which, although not provided for by it, but by virtue of the general principles and meaning of civil legislation give rise to civil rights and obligations.
In accordance with this, civil rights and obligations arise, change and terminate from a court decision that established civil rights and obligations.
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.
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 January 26, 2023 – 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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