Statement of claim for a double refund of the deposit amount
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To the Specialized Interdistrict Economic Court of the Almaty region
from the Plaintiff: Sole Proprietor ................ IIN:........... Almaty region,
Ili district, pic..............., street................ №25. +7 775 ……………
Proxy representative: Law Firm LLP
Law and Law" represented by the Director General
Sarzhanov Galymzhan Turlybekovich BIN 190240029071
79/71 Abylai Khan Ave., office 304, Almaty info@zakonpravo.kz / www.zakonpravo.kz
+ 7 727 978 5755; +7 700 978 5755
Respondent: Sole proprietor ........... IIN: .............. Almaty region,
Ili district, pic.........., street...............№1.
Statement of claim for partial recovery of the deposit amount
June 01, 2016 between an individual entrepreneur .............. (Hereinafter referred to as the Plaintiff) and an Individual Entrepreneur ............. (Hereinafter referred to as the Defendant), a lease agreement was concluded for a period of 5 years. According to the agreement dated June 01, 2016, the Lessor (Defendant) undertakes to provide the Tenant (Plaintiff), for a fee, with temporary possession and use of the supermarket "...." located at the address: Almaty region, Ili district, village ...., m-n....., house 29 "A" as a property complex for carrying out entrepreneurial activities.
Statement of claim for a double refund of the deposit amount
Further, on March 10, 2017, the Plaintiff and the Defendant came to an oral agreement in accordance with Article 151 of the Civil Code of the Republic of Kazakhstan "Form of transaction" (transactions are made orally or in writing), on the purchase and sale in installments of real estate in the form of a non-residential premises – Dostar store, located at Almaty region, Ili district, village. ............., house 29 "A" initially paying the amount of the deposit, and then paying monthly in partial amounts until the full repayment of the value of the above-mentioned real estate. In order to fulfill the obligations for the purchase and sale of real estate, the Defendant drew up a corresponding receipt, according to which the Defendant received a deposit of 45,000,000 (forty-five million) tenge from the Plaintiff to repay the purchase of real estate, the total value of which is $ 600,000 (six hundred thousand) US dollars.
In accordance with paragraph 1 of Article 337 of the Civil Code of the Republic of Kazakhstan, a deposit is an amount of money given by one of the contracting parties to account for payments due from it under the contract to the other party and to ensure the conclusion and execution of the contract or the fulfillment of another obligation. Subsequently, according to an oral agreement, the Plaintiff was paid to the Defendant to repay the value of the above-mentioned real estate monthly from March 10, 2017 to the present time in the total amount of 34,470,561 tenge. However, to date, the Defendant has evaded the conclusion of a contract for the purchase and sale of real estate located at the address: Almaty region, Ili district, village. Burundai, Mr. ................ A. In this connection, the Plaintiff sent a letter of Claim to the Defendant's actual residence and residence address for the refund of the deposit amount according to a Receipt written in the Defendant's own hand, but to this day there is no response and fulfillment of its obligations. Thus, the Defendant does not fulfill his obligations (in accordance with paragraph 1 of art. 349 of the Civil Code of the Republic of Kazakhstan, violation of an obligation is understood as its non–fulfillment or improper fulfillment (untimely, with defects in goods and works, in violation of other conditions determined by the content of the obligation) - improper fulfillment), which is unacceptable according to art. 272 of the Civil Code of the Republic of Kazakhstan.
In this regard, it is believed that the Defendant's actions are aimed at seizing funds through deception and abuse of trust. In accordance with art. 272 of the Civil Code of the Republic of Kazakhstan, the obligation must be performed properly in accordance with the terms of the obligation and the requirements of the law, and in the absence of such conditions and requirements – in accordance with business practices or other commonly imposed requirements. For its part, the Plaintiff is ready to conclude a purchase and sale agreement with the Defendant for the above-mentioned real estate. Moreover, on December 09, 2019, the Plaintiff received a unilateral termination notice from the Defendant. The Respondent also indicates in the notification that this object was put up for sale on October 31, 2019 and there are already buyers. According to clause 2 of Article 338 of the Civil Code of the Republic of Kazakhstan, if the party that gave the deposit is responsible for non-fulfillment of the obligation, it remains with the other party, and if the party that received the deposit is responsible, it is obliged to pay the other party double the amount of the deposit. Moreover, the party responsible for non-fulfillment of the obligation is obliged to compensate the other party for losses, taking into account the amount of the deposit, since the contract does not provide otherwise. By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests. In accordance with Article 8 of the CPC, everyone has the right to apply to the court for protection of violated or disputed constitutional rights, freedoms or protected interests. In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties choose their position, ways and means of defending it during civil proceedings.
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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