Successful case Recovery of the amount of debt under contractual obligations
Between Karlyga (dale Landlord) and Amanzhol (hereinafter Tenant) A car rental Agreement was concluded with subsequent purchase (hereinafter referred to as the Agreement). According to paragraph 1 of the Agreement, the "Lessor" undertook to provide the "Lessee" with temporary possession and use for a fee, with subsequent redemption upon payment of the entire cost, the following property: A ZAZ Chance car, model year 2013, identification number (VTN) .............., body no.Y6DTA.........., the color is blue, registration number 722...02, owned by the "Lessor" on the right of private ownership, without the provision of services by the Lessor for its management and technical operation, which the Lessee accepted, as evidenced by the corresponding receipt from the Lessee. Under this Agreement, in accordance with paragraph 3, Article 331 of the Civil Code of the Republic of Kazakhstan.
The written form of the guarantee or surety agreements, a Guarantee was written by the Grant on April 25, 2018, which was certified by a Notary, as evidenced by the corresponding Guarantee dated 04/25/2018 in the appendices, where the Guarantor pledged that, you, Mr. Meruert, commit to Mr. Karlyga that in case of non-fulfillment of gr. Amanzhol, its obligations under the car rental agreement with subsequent purchase, a car of the ZAZ Chance brand, model year 2013, identification number (VTN) Y6DTA69W0D0319785, body no. Y6DTA69W0D0319785, color - blue, registration number 722....02, in the amount of 4,160,000 tenge to repay this debt. To date, the Tenant has not fulfilled its obligations, in addition, unilaterally refused to fulfill its obligations. The tenant, having driven the car in faulty technical condition to the Landlord's place of residence, without explaining the reasons, arbitrarily left the car and left after which he did not appear and does not want to somehow settle the Contractual relationship. After the Lessor repaired all the technical malfunctions of the above-mentioned car, he sold it in the amount of 1,000,000 tenge, whereas earlier it was purchased in the amount of 1,100,000 tenge. Based on the above arguments, we believe that the terms of the agreement dated April 25, 2018 for the rental of a car with subsequent purchase were violated, namely, the late payment of the rent of the car. As a result, the Tenant had a monthly payment debt of 161,000 tenge and the amount taken against the receipt for the repair of the car of 258,000 tenge, as well as the difference in the amount of purchase and sale in the amount of 100,000 tenge. Paragraph 31 of the Agreement stipulates that in case of refusal to fulfill the terms of the agreement, as well as in case of premature return of the car, the Lessee undertakes to pay a penalty in the amount of 40% of the value of the original amount of the car from 1,100,000 tenge, amounting to 440,000 tenge. The total amount owed by the Tenant to the Landlord was KZT 959,000.
Successful case Recovery of the amount of debt under contractual obligations
Article 330 of the Civil Code of the Republic of Kazakhstan, "Surety", By virtue of a surety, the surety undertakes to the creditor of another person (debtor) to be responsible for fulfilling the obligations of this person in whole or in part in a subsidiary manner. Article 332 of the Civil Code of the Republic of Kazakhstan. "Responsibility of the guarantor and the surety" clause 3. states that the surety is liable to the creditor within the amount specified in the surety, unless otherwise provided by the terms of the surety. Currently, you are not fulfilling your obligations (Violation of an obligation means non-fulfillment or improper fulfillment (untimely, with defects in goods and works, in violation of other conditions defined by the content of the obligation) - improper fulfillment of Part 1 of Article 349 of the Civil Code of the Republic of Kazakhstan), which is not permissible according to Article 272 of the Civil Code of the Republic of Kazakhstan.
Thus, the Tenant caused real material and moral harm to the Landlord and his family. In these circumstances, the Tenant and the Guarantor were required to return the funds in the amount of 959,000 tenge as soon as possible. Due to the non-fulfillment of obligations, we have the opinion that the actions of the Tenant and the Guarantor are aimed at seizing property by deceiving and abusing the trust of the Landlord. The Tenant and the Guarantor were asked to return funds in the amount of KZT 959,000 to the Landlord by August 25, 2018. If the Tenant and the Guarantor do not return the funds within the specified period, we reserve the right to apply to the court on this issue. As well as to recover the amount of material (losses and penalties, Article 351 of the Civil Code of the Republic of Kazakhstan) and moral damage and/or apply to other competent authorities. 152 and 279 of the CPC RK and art. 402 of the Civil Code of the Republic of Kazakhstan, providing that the judge returns the statement of claim, and the court leaves the statement of claim without consideration if the plaintiff has not complied with the pre-trial procedure established by law for this category of cases, the mandatory procedure for preliminary pre-trial dispute resolution and the possibility of this procedure has not been lost and preserved.
Since this procedure is not prohibited by any of the regulatory acts of the Republic of Kazakhstan, we hope that our further cooperation with you will continue on mutually beneficial and mutually acceptable terms. However, all attempts by the Tenant in the hope of resolving the situation peacefully were unsuccessful. To this day, there is no response and fulfillment of its obligations. Subsequently, the Karasayky District Court of the Almaty region applied for a claim for recovery of the amount owed under a car rental agreement with subsequent purchase, guided by Article 9, paragraph 4, of the Civil Code of the Republic of Kazakhstan. "Protection of civil rights" states that a person whose right has been violated may demand full compensation for the losses caused to him. Currently, the Defendants are not fulfilling their obligations (Violation of an obligation is understood as non-fulfillment or improper fulfillment (untimely, with defects in goods and works, in violation of other conditions defined by the content of the obligation) - improper fulfillment of part 1 of Article 349 of the Civil Code of the Republic of Kazakhstan), which is not permissible according to Article 272 of the Civil Code of the Republic of Kazakhstan. Thus, the Defendants caused real material and moral damage to the Plaintiff and his family. In accordance with Article 349 of the Civil Code of the Republic of Kazakhstan, "Violation of an obligation means 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. Article 359 of the Civil Code of the Republic of Kazakhstan. The "Grounds for liability for breach of an obligation" are specified. The debtor is responsible for non-fulfillment and (or) improper fulfillment of obligations in the presence of fault, unless otherwise provided by law or contract. Article 30. "Jurisdiction at the choice of the plaintiff", paragraph 6, provides that claims arising from contracts that specify the place of performance may also be filed at the place of performance of the contract.
Also, paragraph 12 of the above-mentioned article defines that Claims against several defendants may be filed at the place of residence or location of one of the defendants at the plaintiff's choice. and paragraph 13 of the Article gives the Plaintiff the right to choose between several courts that, according to this article, have jurisdiction over the case, belongs to the plaintiff, except for the jurisdiction established by Article 31 of this The Code. 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 independently and independently of the court, other bodies and persons during civil proceedings.
113, CPC RK. At the request of the party in whose favor the Decision was made, the court awards, on the other hand, the costs incurred to pay for the assistance of a representative (several representatives) who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party. For property claims, the total amount of these expenses should not exceed ten percent of the satisfied portion of the claim. According to non-property requirements, the amount of expenses is collected within reasonable limits, but should not exceed three hundred monthly calculation indices.
Successful case Recovery of the amount of debt under contractual obligations
When applying to the court with this claim, the Plaintiff, in accordance with 610 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (Tax Code), is forced to pay a state fee in the amount of 1% of the amount of the claim, with a bank commission in the amount of 9,640 tenge. And they asked the Court:
To collect jointly and severally from the defendants Amanzhol, Meruert in favor of Karlyg the amount of debt in the amount of 934,000 tenge;
To collect jointly and severally from the defendants Amanzhol Meruert in favor of Karlyg the amount of the paid state duty in the amount of 9,640 tenge;
To collect jointly and severally from the defendants Amanzhol Meruert in favor of Karlyga the amount of expenses incurred to pay for the assistance of a representative in the amount of 40,000 tenge;
In support of the claim, a petition was filed with the court to seize all movable and immovable property owned by private ownership, as well as all bank accounts held in second-tier banks of the defendants Amanzhol, Yerkin and Meruert. On August 29, 2018, the judge of the Karasai District Court of the Almaty region, having considered the materials on the Petition for securing the claim, DETERMINED: To satisfy the application. To seize the movable and immovable property of the defendants Amanzhol, Yerkin, Meruert, whatever it is and wherever it is located, within the limits of the plaintiff's property claims in the amount of 934,000 (nine hundred thirty-four thousand) tenge.
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