Recognition of an illegal order on registration of liquidation, recognition of illegal and cancellation of registration of amendments to the state database of legal entities and restoration of registration
No.6001-23-00-6ap/195 dated 05/02/2023
Plaintiff: JSC "F" (hereinafter - the Bank)
Defendant: NAO "GC "Government for Citizens"
Interested person: S.E.
The subject of the dispute: on the recognition of the illegal order on the registration of liquidation, recognition of illegal and cancellation of registration of amendments to the state database of legal entities and the restoration of registration
Review of the cassation appeal of the person concerned.
PLOT:
Individual agreements, including additional bank loan agreements, were concluded between JSC "A" (hereinafter referred to as the Bank) and LLP "O.98", that is, loan agreements.
In order to ensure the fulfillment of obligations by the borrower, secured property was provided.
On 05.04.2017, the sole participant of the S.E. Partnership decided to liquidate O.98 LLP. By this decision, S.E. himself was appointed liquidator of the company.
Based on the order of the Russian State Institution "Department of Justice of the District of the Department of Justice of the Ministry of Justice of the Republic of Kazakhstan" dated July 12, 2017, No. 24, the liquidation of O.98 LLP was registered.
By the decision of the general meeting of shareholders of JSC "F" and JSC "A" dated 09/03/2021, the banks were reorganized in the form of a merger with the transfer of all rights and obligations, assets and liabilities, claims in relation to debtors, borrowers, obligations towards creditors, depositors from JSC "A" to JSC "F" on the basis of a transfer act.
Judicial acts:
1st instance: the claim is partially satisfied. The order of the State Institution "Department of Justice of the District of the Department of Justice of the region" dated 12.07.2017 on the registration of the liquidation of O. 98 LLP was declared illegal. Regarding the claim of recognition as illegal and cancellation of registration of amendments to the state database of legal entities, restoration of registration of the NGO "O.98" is not listed in the National Register of Business Identification Numbers.
Appeal: the decision remains unchanged.
Cassation: judicial acts are upheld.
Conclusions:
In accordance with article 16 of the Law of the Republic of Kazakhstan on State Registration of Legal Entities and Registration of Branches and Representative Offices (hereinafter referred to as the Law), the registering authority, having received a resolution on the liquidation of a legal entity, verifies compliance with the liquidation procedure established by legislative acts of the Republic of Kazakhstan, and enters information on the liquidation of a legal entity into the National Registry of Business Identification Numbers.
The rules for the provision of public services "State registration of legal entities, registration of their branches and representative offices" were approved by Order No. 66 of the Minister of Justice of the Republic of Kazakhstan dated May 29, 2020, and in paragraph 14 of Appendix 4 to the said order "Rules for the provision of public services "State Registration of termination of a legal entity, de-registration of a branch and representative office" it is stated that upon receipt of documents for provision of public services in accordance with paragraph 5 of these Rules in a State Corporation, The employee accepts documents and, according to the register, transfers them to the appropriate subdivision of the state Corporation in the field of registration of legal entities.
The head of the department (department) of registration of legal entities determines the responsible executor within 15 minutes and submits the execution to him.
The responsible executor: verifies compliance with the liquidation procedure established by the legislative acts of the Republic of Kazakhstan, and in the absence of grounds for refusal, enters information on the liquidation of the legal entity into the National Registry; issues an order on registration and termination of the activities of the legal entity (branch and representative office), revocation of the certificate (certificate) of state registration (re-registration) and its exclusion from the National Register.
The procedure for the liquidation of a legal entity is regulated by Article 50GK.
At the same time, S.E. (the sole participant of the partnership and its liquidator), if the LLP has an unfulfilled obligation to the Bank, limited himself to publishing information in the Legal Gazette about
He did not liquidate O.98 LLP, while he did not carry out any other actions in violation of Article 16 of the Law.
At the same time, the NAO did not properly verify compliance with the liquidation procedure established by the legislative acts of the Republic of Kazakhstan, and registered the termination of the partnership only on the basis of the documents submitted by the defendant.
In the context of the above, the judicial board agrees with the conclusions of the local courts, since, by virtue of the requirements of article 16 of the Law, the registering authority had to verify the partnership's compliance with the liquidation procedure established by the legislative acts of the Republic of Kazakhstan.
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