Residents have the right to make transactions with non-residents in national and (or) foreign currency by agreement of the parties in accordance with the currency legislation of the Republic of Kazakhstan.
LLC "K" (hereinafter referred to as the company) filed a lawsuit against LLP "M" (hereinafter referred to as the partnership), F. for debt collection, termination of the contract and withdrawal of the leased item. The case was filed on the recommendation of the Chairman of the Supreme Court of the Republic of Kazakhstan on the review of the decision of the specialized interdistrict Economic Court of Almaty dated November 5, 2015, and the decision of the Appellate Judicial Board for Civil Cases of the Almaty City Court dated August 31, 2016. By the decision of the specialized interdistrict Economic Court of Almaty dated November 5, 2015, the claim was satisfied and it was decided: - to terminate the financial leasing agreements dated November 15, 2012 BMK76L-12 and No. BMK77L-12 concluded between the company and the partnership; - to withdraw the leased object from the partnership under the financial leasing agreement dated November 15, 2012 BMK76L-12 – CAT 329DL hydraulic excavator, serial number MNB01508, and under the financial lease agreement dated November 15, 2012 No. BMK77L-12 – CAT 336DL hydraulic excavator, serial number PRF 01360; - collect jointly and severally from the partnership and F. in favor of the company the amount of 15 513 595 tenge, reimbursement of representative expenses in the amount of 509,000 tenge and the cost of paying the state fee in the amount of 108 921 tenge.
Residents have the right to make transactions with non-residents in national and (or) foreign currency by agreement of the parties in accordance with the currency legislation of the Republic of Kazakhstan.
By the decision of the Appellate Judicial Board for Civil Cases of the Almaty City Court dated August 31, 2016, the decision of the court of first instance remained unchanged. In the submission of the Chairman of the Supreme Court of the Republic of Kazakhstan, the issue of reviewing the contested judicial acts regarding the recovery of the amount in tenge was raised, pointing to violations of substantive law. The Judicial Board for Civil Cases of the Supreme Court changed the judicial acts of local courts, canceled judicial acts regarding the recovery in solidarity with LLP "M" and F. in favor of LLC "K" amounts in the amount of 15 513 595, 9 tenge, reimbursement of representative expenses in the amount of 509,000 tenge. A new decision was made in this part: To collect jointly and severally with LLP "M" and F. in favor of LLC "K" the debt under financial leasing agreements in the amount of 82,938.23 US dollars and the costs of paying for the assistance of representatives in the amount of 2,500 euros. The rest of the judicial acts remained in force. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan was satisfied on the following grounds. Judicial acts adopted by local courts violate the uniformity in the interpretation and application of legal norms by courts. The court found that on November 15, 2012, Financial Leasing Agreements No. BMK76L-12 and No. BMK77L-12 (hereinafter referred to as Leasing Agreements) were concluded between the company and the partnership. In accordance with the terms of the Lease Agreements, the company has assumed obligations to purchase hydraulic excavators selected by the partnership and transfer them to temporary possession and use for business purposes on the terms and for the period stipulated in the Lease Agreements. The Partnership, in turn, assumed the obligation to make timely payment of lease payments under Lease Agreements. According to the Purchase and Sale Agreements dated November 15, 2012 No. 2612S-BMK/C-12, No. 2611S-ZMK/C-12 (hereinafter referred to as the Purchase and Sale Agreements), the company, at the choice of the partnership, acquired leasing items from IP B LLP – CAT 329DL hydraulic excavators worth 277 089 US dollars and CAT 336DL worth 305,700 US dollars and transferred them to the partnership under acceptance and transfer certificates. Paragraph 20.6. Leasing agreements define that the obligations of the lessee are secured by a guarantee of F. (hereinafter referred to as the guarantor).
The lessor and the guarantor have entered into a Guarantee Agreement dated July 31, 2014, No. GA-BMK76-77L-12-R-2 (hereinafter referred to as the Guarantee Agreement). In accordance with clause 1.1. of the Guarantee Agreement, the guarantor assumed the obligation to the lessor to be fully responsible for the fulfillment by the lessee of obligations to pay lease and other payments in accordance with the Lease Agreements and applicable legislation. The Court of first instance, satisfying the claims regarding the termination of Lease Agreements and the recovery of leased items, proceeded from the fact that the partnership had not fulfilled its obligations to pay. At the same time, having indicated that the amount of debt in US dollars submitted for collection was correctly determined by the company, the court of first instance recovered the amount in tenge. The appellate instance agreed with the conclusions of the court of first instance, emphasizing that the amount of debt is calculated on the date of the claim in accordance with the official exchange rate set by the National Bank of the Republic of Kazakhstan. At the same time, it is impossible to agree with such conclusions of the local courts regarding the recovery of the amount in terms of tenge. In accordance with paragraph 4 of Article 127 of the Civil Code, the cases, procedure and conditions of settlements in foreign currency in the territory of the Republic of Kazakhstan are determined by the legislation of the Republic of Kazakhstan. According to paragraph 1 of Article 282 of the Civil Code, the use of foreign currency, as well as payment documents in foreign currency, when making settlements on obligations in the territory of the Republic of Kazakhstan is allowed in cases and under conditions determined by legislative acts of the Republic of Kazakhstan or in accordance with the procedure established by them.
Paragraph 1 of Article 383 of the Civil Code prescribes that the contract must comply with the rules binding on the parties, established by law (mandatory norms) in force at the time of its conclusion. It follows from the content of the above norms of civil law that the use of foreign currency in making payments on obligations is regulated by currency legislation. Article 14 of the Law of the Republic of Kazakhstan "On Currency Regulation and Currency Control" dated June 13, 2005 No. 57 stipulates that residents have the right to make transactions with non-residents in national and (or) foreign currency by agreement of the parties in accordance with the currency legislation of the Republic of Kazakhstan. In this regard, the board agrees with the arguments of the submission that the company, as a non-resident, had the right to conclude transactions with residents in foreign currency, since these actions do not contradict the currency legislation. It can be seen from the case file that the currency of the Leasing Agreements is the US dollar, the currency of the legal services agreement is the euro. The Board comes to the conclusion that the parties legitimately, through the conclusion of Lease Agreements, agreed on settlements in a certain foreign currency. The terms of the concluded contracts comply with the requirements of the legislation. Accordingly, the collection of arrears in the form of unpaid lease payments must be made in a foreign currency. Under the same conditions, additional claims of the company for the collection of penalties for late unpaid lease payments are subject to satisfaction. The court had no right to change the subject of the claim and recalculate the foreign currency in tenge, as these actions contradict part 1 of Article 48 of the CPC. Considering these circumstances, the board came to the conclusion that the arguments of the submission were justified. The case does not require the collection and additional verification of evidence. The circumstances relevant to the proper resolution of the case have been fully and correctly established by the court, but an error has been made in the application of substantive law. In this connection, the board, without transferring the case for a new hearing, changed the judicial acts and issued a new decision in the contested part.
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