Recognition of illegal actions to terminate the sole proprietor and determine the amount of payment for activities, on recognition as illegal and cancellation of the resolution on termination of the sole proprietor, the resolution on reimbursement of expenses and on approval of the amounts of payment for the activities of the Private Insurance Company

 

Not all the circumstances were taken into account by the lower courts, they were not the subject of research and did not receive a legal assessment.

No. 6001-22-00-6ap/2214 dated 04/18/2023

Plaintiff: B.N. the guardian of the incapacitated Sh.A.

Defendant: CHSI "A.K."

Interested parties: JSC "F" (hereinafter - the Bank), RP CHSI, D.A.

The subject of the dispute: on the recognition of illegal actions to terminate the sole proprietor and determine the amount of payment for activities, on the recognition of illegal and cancellation of the resolution on termination of the sole proprietor, the resolution on reimbursement of expenses and on approval of the amounts of payment for activities.

Review of the defendant's cassation complaint

PLOT:

On 03/21/2018, by a court decision, Sh.A. was declared incompetent, and on 01/17/2022, B.N. was appointed Sh.A.'s guardian.

By the decision of the Council of Economic and Social Council of Almaty dated 10.07.2019, in favor of the Bank, the debt in the amount of 7,714,759 tenge and the cost of paying the state duty of 231,443 tenge was recovered from IP "Sh" Sh.A. in the amount of 7,714,759 tenge and the cost of paying the state duty of 231,443 tenge.

On 12.03.2021, the IP was initiated by the CHSI "A.K." in relation to Sh.A.

On 04/05/2022, referring to the Bank's letter on debt repayment, the CSI adopted resolutions on the termination of enforcement proceedings and on the approval of the amounts of payment for the performed enforcement actions in the amount of 794,620 tenge.

By a resolution dated 04/06/2022, the bailiff refused to satisfy the Bank's request for the return of the enforcement document.

The plaintiff did not agree with the actions of the CSI to issue orders on termination and approval of payment, considers them illegal, since the Bank received an application for the return of the writ of execution and the defendant had to return the document.

Judicial acts:

1st instance: the claim is satisfied with the decision.

Appeal: the decision of the court of first instance remains unchanged.

Cassation: the decision was overturned, the case was sent for a new hearing to a different court of appeal.

Conclusions: The local courts, satisfying the plaintiff's claims, concluded that the CSI did not return the enforcement document to the recoverer, thereby violating the requirements of subparagraph 1) of paragraph 1 of Article 48 of the Law, according to which the enforcement document, for which the recovery was not carried out or was not carried out in full, is returned by order of the bailiff at the request of the recoverer.

Attention was also drawn to the fact that Sh.A. was declared legally incompetent by the court and B.N.'s guardian was not properly notified by the bailiff. The Judicial Board considered these conclusions of the local courts to be premature, requiring additional verification and proper legal assessment, since they were made when incorrectly determining the range of circumstances relevant to the case.

It can be seen from the case file that D.A. fulfilled Sh.A.'s obligations to the Bank. According to the agreement dated 03.10.2014, she provided the Bank with an apartment owned by her as collateral for the fulfillment of Sh.A.'s obligations under the loan agreement.

Due to the fact that Sh.A. has not fulfilled its obligations to the Bank for a long time, the courts have not investigated the issue of possible foreclosure on D.A.'s collateral, and there is a corresponding writ of execution, which may be executed by territorial jurisdiction.

However, these circumstances were not taken into account by the lower courts, were not the subject of research and did not receive a legal assessment.

Without establishing and clarifying all the circumstances relevant to the proper resolution of the case, the conclusions of the courts on the validity of the claim cannot be considered correct.

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