The Bank has not provided sufficient evidence confirming the legality and validity of the claims for early recovery of the entire loan amount from the defendant
By the decision of the district court no.2 Kazybekbi district of Karaganda city dated January 30, 2012, the claim was satisfied. It was decided to collect from T. in favor of the Bank the debt under the bank loan agreement in the amount of 3,367,289.68 tenge, the cost of paying the state duty in the amount of 101,018.69 tenge. By the decision of the Appellate judicial board of the Karaganda Regional Court dated April 05, 2012, the court's decision was changed. It was decided to reduce the amount of debt under the bank agreement collected from T. from 3,367,289.68 tenge to 1,564,542 tenge, including principal debt – 128,614 tenge, remuneration debt - 1,361,426 tenge, late payment of principal and remuneration – 74,502 tenge, the amount of state duty from 101,018.69 tenge to 40,843 tenge.
By the resolution of the Cassation Judicial Board of the Karaganda Regional Court dated May 28, 2012, the judicial acts of the courts of first instance and appeal were changed. The decision of the court of appeal was decided to cancel in terms of changing the decision of the court of first instance. The rest of the resolution remains unchanged. In terms of collecting the principal debt and remuneration, the decision of the court of first instance was upheld, and the principal debt in the amount of 2,069,573 tenge and remuneration in the amount of 1,223,214 tenge were recovered from T. in favor of the Bank. The decision of the court of first instance was overturned regarding the recovery of the penalty amount from T. in favor of the Bank, and in this part a new decision was made to dismiss the claim. The amount of the state fee to be collected from T. in favor of the Bank has been reduced to 98,784 tenge. The petition provides arguments for disagreement with the contested judicial acts, and states that the loan agreement expires on November 07, 2022, and the Bank has no right to demand early fulfillment of obligations under the secured bank loan agreement, which is currently being repaid. In this regard, he requests that the decision of the court of first instance and the decision of the court of cassation be annulled, while upholding the decision of the court of appeal. The Supervisory judicial board overturned the decision of the cassation judicial board of the Karaganda Regional Court and upheld the decision of the appellate judicial board of the Karaganda Regional Court. T. granted the request of the representative, stating the following.
It can be seen from the case file that under the bank loan agreement dated November 07, 2007, the Bank provided the defendant with a loan in the amount of KZT 2,100,000, for a period until November 07, 2022, with remuneration of 20% per annum. In order to ensure timely fulfillment of obligations by the defendant to the Bank, S., under a pledge agreement dated November 07, 2007, pledged her apartment in the city of Karaganda, on Abdirova Avenue. According to the Bank's calculations, as of November 14, 2011, the defendant had debts in the amount of 3,922,787.68 tenge, including 2,069,573 tenge for the principal debt, 1,223,214.68 tenge for remuneration, and 630,000 tenge for late payment of the principal debt and remuneration. The Bank requested to collect from the defendant debts in the amount of 3,367,289.68 tenge, of which: for the principal debt – 2,069,573 tenge, for remuneration – 1,223,214.68 tenge, penalties for late payment of the principal debt and remuneration – 74,502 tenge.
The Court of First instance, satisfying the Bank's claims to recover from the defendant the amount of debt in the amount of KZT 3,367,289.68, proceeded from the fact that since December 2008, the defendant has not fulfilled its obligations to repay the loan amount. The Court of Appeal, changing the judicial act of the first instance, concluded that the term of the bank loan agreement expires in 2022, the collateral has not been lost by the Bank, therefore, only the amount of current debt at the time of filing the claim in the amount of 1,564,542 tenge, including the principal debt – 128,614 tenge, is recoverable from the defendant. remuneration arrears in the amount of KZT 1,361,426, late payment of principal and remuneration – KZT 74,502.
The Bank has not provided sufficient evidence confirming the legality and validity of the claims for early recovery of the entire loan amount from the defendant
The Court of cassation, referring to paragraph 3 of Article 722 of the Civil Code, concluded that the conclusions of the court of first instance regarding the recovery of principal debt in the amount of 2,069,573 tenge and remuneration in the amount of 1,223,214.68 tenge were justified. At the same time, the court concluded that the plaintiff's claims for the recovery of the penalty amount were unjustified, referring to the fact that the above-mentioned provision of the law does not provide for such a creditor's right. Meanwhile, the court of cassation did not take into account that the bank loan agreement was secured by collateral, the collateral was not lost by the Bank, the defendant resumed repayment of the loan, and the term of the bank loan agreement expires only in 2022. Article 321 of the Civil Code provides grounds for early recovery of a bank loan, however, the court found that the pledgor had not violated the specified rule of law.
The Court of Appeal correctly concluded that the Bank had not provided sufficient evidence confirming the legality and validity of the claims for early recovery of the entire loan amount from the defendant, which expires in 2022. In this regard, the supervisory judicial board considered it necessary to agree with the arguments of the petition, overturned the decision of the cassation judicial board, and upheld the decision of the appellate judicial board.
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