Review on the submissions of the Chairman of the Supreme Court in cases of readjustment and bankruptcy
1) The tax authority applied to the court for termination of the rehabilitation procedure and recognition of VIP LLP-The "bankrupt" presentation.
By the decision of the Council of Ministers of the Mangystau region of January 16, 2020, left unchanged by the decision of the appeal of May 19, 2020, the application was satisfied.
It was established that earlier by a court decision dated December 20, 2017 at the request of the tax administration of VIP LLP-Present" was declared bankrupt. The term of the bankruptcy procedure was extended until February 2019.
Subsequently, by a decision of the same court dated January 11, 2019, the debtor's application for termination of bankruptcy proceedings and the application of a rehabilitation procedure for a period of five years was satisfied. A repayment schedule for accounts payable to the tax authority (the sole creditor) has been established.
The courts, once again declaring the LLP bankrupt, proceeded from the fact that the repayment schedule has not been fulfilled since July 2019, there are no funds and property, and there are no accounts receivable.
Meanwhile, the debtor's arguments about the possibility of restoring solvency and paying off tax arrears in the amount of 139,702,161 tenge have not been verified, namely: the existence of a contract for the extraction of sand-gravel mixture and clay rocks, contracts with construction companies for the supply of mixtures.
In addition, rehabilitation has been applied to the debtor until 2024, and a rehabilitation plan has been drawn up, but the courts have not clarified how well the rehabilitation plan is being implemented or the reasons for its non-fulfillment.
In this regard, on the proposal of the Chairman of the Supreme Court, judicial acts were annulled with the referral of the case for a new hearing to the court of appeal.
According to the results of the new review, the decision of the appeal dated February 8, 2022 refused to satisfy the application of the tax authority.
2) The bankrupt manager of Bayseri LLP filed a lawsuit against Akhmetov B.S. for subsidiary liability and recovery of the amount of 3,111,749 tenge.
By the decision of the Council of Ministers of the Akmola region of September 16, 2020, which was left unchanged by the appeal decision of February 23, 2021, the claims were satisfied.
It has been established that Akhmetov B.S. has been the founder and head of the Partnership since July 2014.
On July 3, 2019, the debtor was declared bankrupt.
The local courts, satisfying the claim, pointed out that the violation by an official of the Partnership of the requirements of the Law providing for filing a bankruptcy petition to the court entails his subsidiary liability for the debts of the bankrupt.
However, the courts have not taken into account the provisions of the Civil Code on the effect of civil legislation in time.
Thus, according to the provisions of Article 4 of the Civil Code on relations that arose before the enactment of the act of civil legislation, it applies to the rights and obligations that arose after its enactment.
On December 27, 2019, the Law was amended to exclude the obligation of the debtor's official to bear subsidiary responsibility if the official fails to comply with the requirements to apply to the court for declaring the partnership bankrupt within six months from the day when the official learned or should have learned about the occurrence of the partnership's insolvency.
On the recommendation of the Chairman of the Supreme Court, judicial acts are annulled with a new decision to dismiss the claim.
The Judicial Board concluded that the courts, when making a decision, should have been guided by article 11 of the new version of the Law, where subsidiary liability of the debtor's official is excluded.
Judicial acts in two more cases (3pp-11-21, 3pp-147-21) were canceled on similar grounds.
3) Former employees of JSC Karatau appealed to the court with demands to reverse the decision of the bankrupt manager of JSC to refuse to include increased capitalized amounts in the register of creditors' claims, taking into account indexation, and to impose the obligation to recognize the claims of creditors of the first priority.
By the decision of the Council of Ministers of the Zhambyl region dated June 9, 2021, which was left unchanged by the decision of the appeal dated September 14, 2021, the claim was dismissed.
It follows from the case file that on February 12, 2021, the bankruptcy proceedings of JSC Karatau were resumed by the ruling of the appellate instance.
The plaintiffs, being creditors of the first stage, filed demands for the indexation of capitalized amounts by increasing monthly payments, indicating that the minimum wage has increased, the prices of food, medicines and goods have increased. In addition, the Ministry of Labor has established payments for homogeneous creditors of Karatau OJSC who have reached the age of 70 for 2021.
The bankrupt manager refused to satisfy the claims with reference to a letter from the Ministry of Finance dated March 15, 2021 and the protocol of the working group on payments of amounts due in compensation for damage caused to life and health to former employees of Karatau OJSC dated February 25, 2021.
The courts, rejecting the claim, proceeded from the fact that the amount of capitalized payments (compensation) is not subject to indexation.
The Supreme Court did not agree with these conclusions, as they are not based on the Constitution of the Republic of Kazakhstan and contradict the general norms of Chapter 47 of the Civil Code.
It was established that when approving the bankruptcy trustee's report and the liquidation balance sheet in 2003, the court took into account the settlement agreement, under the terms of which the debts of creditors of the first stage were fully repaid. However, subsequently, the rulings on the approval of the settlement agreement and the bankruptcy trustee's report were canceled, that is, the issue of the amount of capitalized payments to creditors of the first stage was not resolved.
Meanwhile, the court should have established the amount of capitalized payments of each of the creditors of the first stage of Karatau OJSC, the amount paid to the plaintiffs over the past period, and the balance of the unpaid amount. It was also necessary to resolve the issue of the amount of capitalized payments, taking into account the inflation rate for the period from January 9, 1999 to the day of inclusion in the register of creditors' claims of the first stage.
In this regard, on the proposal of the Chairman of the Supreme Court, judicial acts were annulled with the referral of the case for a new hearing to the court of appeal.
According to the results of the new review, by the decision of the appeals board dated July 5, 2022, the claim was satisfied, the bankrupt manager was charged with recognizing the claims of the monthly payments of creditors of the first stage and making payments of the remaining capitalized amounts based on the projected annual inflation rate.
4) By the decision of the Council of Economic Cooperation of Atyrau region dated June 28, 2019, BekJan LLP was declared bankrupt.
The debtor indicated that he was unable to repay the debt owed to creditors in the total amount of 4,750,000 tenge. The property for the LLP is not registered, there are no accounts receivable.
The court, satisfying the application, referred to the conclusion of the interim manager and agreed with the arguments of the LLP about its insolvency.
By a decision of the cassation judicial Board dated November 12, 2020, on the recommendation of the Chairman of the Supreme Court, the decision was overturned and the application was refused, since the conclusion of the interim administrator was not motivated and did not contain a reasonable assessment of the debtor's insolvency.
Similarly, 3 more decisions have been canceled in this area.
Summary of judicial practice in the application of legislation on rehabilitation and bankruptcy in cases considered by the courts for the period 2020-2021 and the 1st half of 2022.
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