Successful deposit refund case
On November 13, 2021, an agreement on a deposit was concluded between Mrs. Karina and Mr. Almat in accordance with Article 337 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code of the Republic of Kazakhstan), which states that 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 conclusion and performance of a contract or performance of another obligation. According to receipt No. 651 dated 11/13/2021, a transfer was successfully made from Almaty to Karina's account at JSC "KaspiBank" at the number +7 (777) XXX XX XX. The subject of the deposit agreement was to ensure the conclusion and execution of a contract for the purchase and sale of real estate (apartments) located at the address: Almaty, Nauryzbay district, MD. ........, st......., d.. .., sq.... Previously the above-mentioned property of Karina It was announced on the official website krisha.kz , where the description indicated that the owner has no debts or encumbrances. Also, Karina, during an oral and written conversation with Almat, the information about the absence of arrears for utilities was confirmed and we agreed that we would conclude the sale of the specified property for an amount of 32,200,000 tenge. However, it later turned out that Karina had utility bills in the amount of 269,343 tenge for the above apartment, which confirms the data verified on her personal account 99545465. Due to Karina's failure to fulfill her obligations under the deposit agreement, we have formed the opinion that Karina's actions are aimed at seizing the amount by deceiving and abusing the trust of Almaty. According to paragraph 2, Article 338 of the Civil Code of the Republic of Kazakhstan, where it is stipulated that if the responsible party who gave the deposit remains with the other party for non-fulfillment of the obligation, and if the responsible party who received the deposit 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.
Thus, based on the above, we sent a pre-trial claim to Ms. Karina, where they offered to voluntarily pay Almaty double the amount of the deposit, namely the amount of 400,000 tenge by November 21, 2021. And we warned that if Karina does not repay the debt 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, as well as representative services in the amount of 200,000 tenge and /or apply to other competent authorities. Subsequently, Karina received a response to the pre-trial claim, where she referred to the fact that the deposit was not returned in accordance with the Civil Code of the Republic of Kazakhstan and argued that she had no debts. She also argued that she is ready to sell her house to this day in Almaty. Subsequently, we filed a lawsuit to refund the amount of the deposit for the purchase of real estate. The defendant filed a Response to the statement of claim. On March 18, 2022, the District Court no.2 Auezovsky district of Almaty, Judge T.K. Dalabayeva, having considered the civil case № ...................... According to Almat's claim to Karina for the recovery of the amount, the Court Decided to refuse to satisfy Almat's claim to Karina for the recovery of the amount. To collect from Almaty in favor of Karina the court costs of paying for the assistance of a representative in the amount of 100,000 tenge, payment for the services of a notary according to the protocol of inspection of evidence in the amount of 22,550 tenge. Disagreeing with the decision of the court of first instance, considering it illegal, unjustified and subject to cancellation, we filed an Appeal against the court's decision, and subsequently, on May 25, 2022, the Judge of the Judicial Board for Civil Cases of the Almaty City Court, Ramazanov A.E., studied the civil case on the claim of Almaty against Karina for the recovery of an amount of 400 000 tenge received on the plaintiff's appeal against the decision of the district court no.2 Auezovsky district of Almaty dated March 18, 2022, The Judge ruled - District Court decision No.2 of the Auezovsky district of Almaty dated March 18, 2022 in this case, to amend, partially satisfy the claim of Almaty. To collect from Karina in favor of Almaty an amount of 200,000 (two hundred thousand) tenge, court costs for the payment of a state fee in the amount of 2,000 (two thousand) tenge and payment for the assistance of a representative in the amount of 20,000 (twenty thousand) tenge. Leave the rest of the decision unchanged. The amount of court costs collected from Almaty in favor of A.K.K. to pay for the representative's assistance in the amount of 100,000 tenge should be reduced to 20,000 tenge; the collected amount of court costs for the payment of notary services according to the protocol of inspection of evidence in the amount of 22,550. As a result, we achieved a refund.
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