The application of a rehabilitation procedure in the event that the debtor has not proved his insolvency or the impossibility of fulfilling monetary obligations during the court proceedings, the due date of which is in the next twelve months.
LLP "Zh" (hereinafter referred to as the Partnership) applied to the court for a rehabilitation procedure. The application was granted by the decision of the specialized interdistrict Economic Court of the West Kazakhstan region dated February 18, 2014. Rehabilitation procedures have been applied to the partnership. By the decision of the appeal and cassation judicial boards of the West Kazakhstan Regional Court, the decision of the court of first instance remained unchanged. The Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court overturned the judicial acts of local courts and issued a new decision in the case to dismiss the application of LLP "Zh" on the following grounds. The case materials established that as of January 1, 2014, the Partnership has accounts payable totaling 704,685,000 tenge. Monetary obligations, which will expire within twelve months from the date of filing the application, amount to 431,657,000 tenge. In satisfying the Partnership's application, the courts concluded that it was insolvent and that the Partnership could not fulfill its monetary obligations within the next twelve months, indicating that the accounts payable significantly exceeded the accounts receivable.
In applying the rehabilitation procedure, the courts proceeded from the contract of December 28, 2011, concluded between the Partnership and the Company "Kazakhstan Branch "S" (hereinafter – the Company), as well as the applicant's statements that the Partnership would be refunded the retained amount of the guarantee under the contract dated May 20, 2010 in the amount of 612 000 000 tenge. These conclusions of the courts of first instance, appeal and cassation instances do not correspond to the circumstances of the case and contradict the norms of substantive law. According to paragraph 3 of Article 4 of the Law of the Republic of Kazakhstan "On Bankruptcy" (hereinafter referred to as the Law), the basis for the debtor's application to the court for the application of a rehabilitation procedure is his insolvency or the threat of insolvency when the debtor will not be able to fulfill monetary obligations when they expire in the next twelve months, if there is a possibility of its restoration.. Bulletin of the Supreme Court of the Republic of Kazakhstan No. 11/201516 In accordance with paragraphs 4 of Article 37-1 of the Law, it follows that the court refuses to apply the rehabilitation procedure if the debtor has not proved his insolvency or the impossibility of fulfilling monetary obligations due in the next twelve months during the trial. In violation of subparagraph 2) of paragraph 5 of Article 19 of the Law, the court did not verify the accuracy of the information provided by the Partnership. According to the Bank, 14 days before the application for the rehabilitation procedure was filed with the court, the Partnership received another loan from the Bank in the amount of 31,000,000 tenge, providing information about its prosperous financial situation (net working capital in the amount of 326 million tenge, equity – 407 million tenge, assets exceeded 1.7 billion tenge). There is a cash balance in the amount of 3,820,266 tenge in the bank's settlement accounts, and the balance in the Deposit-Guarantee account is over 86 million tenge. In addition, obligations to the Bank are secured by collateral from third parties.
This condition was left without proper investigation, and the court, when considering the case, contrary to the requirements of articles 16, 65, and part 1 of Article 77 of the CPC, determined the circumstances relevant to the proper resolution of the case, relying only on the applicant's unconfirmed explanations. The contract concluded between the Partnership and the Company dated December 28, 2011 cannot indicate that it is possible to restore its solvency. The court, based on the explanations of the applicant's representative, indicated that the start of work under the contract dated December 28, 2011 is presumably scheduled for the first quarter of 2015.
The application of a rehabilitation procedure in the event that the debtor has not proved his insolvency or the impossibility of fulfilling monetary obligations during the court proceedings, the due date of which is in the next twelve months.
However, the terms of this agreement do not provide for such a period. The analysis of chapter 9 of the contract "Commencement and completion of work" does not contain a specific indication of its validity period. Thus, the court unreasonably based the decision on the above-mentioned agreement, although the Partnership is not provided with the volume of work, the real possibility of restoring solvency has not been confirmed by objective data. In addition, the court unreasonably took into account the claims of the Partnership that in the second quarter of 2016, the customer would pay the Partnership the retained amount of the guarantee for the performance and quality of work in the total amount of 612,000,000 tenge under the contract dated May 20, 2010, which would be used to repay accounts payable. This agreement does not contain conditions for the refund of this amount. The existence of such an amount of debt has also not been confirmed. At the same time, the validity period of the above-mentioned agreement dated May 20, 2010 at the time of consideration of this civil case has expired. By the ruling of the specialized interdistrict Economic Court of the Atyrau region court dated July 11, 2014, the claim of the Partnership against the Bank, K LLP, and the Company for forcing them to extend the term of work under this agreement on the basis of Article 249 of the CPC was left without consideration at the plaintiff's request to return the claim. Bulletin of the Supreme Court of the Republic of Kazakhstan No. 11/2015 17 The Court, referring to the Partnership's rehabilitation plan for a period of five years, approved by a court ruling dated August 11, 2014, indicated that the use of rehabilitation would make it possible to preserve production and jobs, as well as fulfill obligations to creditors and, as a result, restore the company's solvency. However, the list of main measures to restore solvency does not contain instructions on receiving 612,000,000 tenge.
The application of a rehabilitation procedure in the event that the debtor has not proved his insolvency or the impossibility of fulfilling monetary obligations during the court proceedings, the due date of which is in the next twelve months.
The Partnership does not have any additional sources of financing and crediting, which indicates that it does not have the opportunity to continue or resume its production activities. The above-mentioned significant violations of the law committed by the courts of the first, appellate and cassation instances led to an incorrect resolution of the dispute, which, in accordance with part 3 of Article 387 of the CPC and paragraph 30 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated March 20, 2003 No. 2 "On the application by courts of certain norms of civil procedure legislation" was the basis for a review in the order of supervision of judicial acts that have entered into legal force. Inheritance disputes According to paragraph 2 of Article 1070 of the Civil Code, by a court decision, a spouse may be removed from inheritance by law if it is proved that the marriage with the testator actually ended before the opening of the inheritance and the spouses lived separately for at least 5 years before the opening of the inheritance on September 09, 2015 No. 3gp-456-15 F. applied to the court filed a claim for the removal of unworthy heirs from inheritance, stating that she had been in a civil marriage for seven years with R., who died on November 12, 2013. During the life of R. he made a will dated April 24, 2012 in her name by order of the immovable property belonging to him in the form of an apartment at the address: Akmola region, the city of Yesil (hereinafter – the disputed apartment).
The application of a rehabilitation procedure in the event that the debtor has not proved his insolvency or the impossibility of fulfilling the monetary obligations during the court proceedings.
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