The court mistakenly concluded that the company was insolvent and that there was no possibility of restoring the debtor's solvency.
LLP "K", D., S., S., LLP "E" appealed to the court with an application for declaring LLP "N-T" bankrupt. By the ruling of the specialized interdistrict Economic Court of the East Kazakhstan region dated September 02, 2010 regarding the requirements of K LLP to declare N-T LLP bankrupt, the proceedings were terminated in connection with the withdrawal of the application. By the decision of the specialized interdistrict Economic Court of the East Kazakhstan region dated September 02, 2010, the application was satisfied, N-T LLP was declared bankrupt and bankruptcy proceedings were initiated. By the decision of the Court of Appeal of the East Kazakhstan Regional Court dated November 10, 2010, the decision of the court of first instance remained unchanged. By the decision of the Cassation judicial board of the East Kazakhstan Regional Court dated January 05, 2011, the decision of the court of appeal was left unchanged. In the protest, the Prosecutor General raised the issue of extending the time limit for filing a protest in accordance with part 3 of Article 388 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), revoking the judicial acts contested in the case and issuing a new decision in the case to dismiss the application of D., Sh., S., LLP "E". In substantiation, he pointed out that the courts had committed significant violations of the norms of substantive and procedural law, and the conclusions set out in the judicial acts did not correspond to the actual circumstances of the case.
The court mistakenly concluded that the company was insolvent and that there was no possibility of restoring the debtor's solvency.
In the response to the protest, the Bank asks the Prosecutor General to satisfy the protest. It can be seen from the case file that the Prosecutor General's initial protest against the contested judicial acts was filed on June 06, 2011. By the resolution of the Supervisory Judicial Board of the Supreme Court of the Republic of Kazakhstan dated July 20, 2011, the specified protest of the Prosecutor General was returned in connection with the termination of the criminal case on the deliberate bankruptcy of N-T LLP. However, subsequently, by a decision of the Prosecutor's office of the East Kazakhstan region dated May 09, 2012, the decisions of the DBEKP of the region on the termination and refusal to initiate criminal proceedings were canceled. Thus, the protest in this case was filed within the prescribed time limit, and therefore the time limit for bringing the protest is subject to restoration. The supervisory judicial board overturned the decision of the specialized interdistrict economic court of the East Kazakhstan region, the decisions of the court of appeal and cassation judicial boards of the regional court, issued a new decision in the case to dismiss the application of LLP "E", D., Sh., S., stating the following. As can be seen from the case file, on June 28, 2005, as part of the government's investment project "Restoration and expansion of textile production at the Silk Fabric Plant in Ustkamenogorsk," N-T LLP received a loan from JSC B (hereinafter referred to as the Bank) in the amount of 13,114,601 euros, which is equivalent to 2,154,073,214.25 tenge, for a period of 8 years. The sole participant of N-T LLP is K, and the subject of its activity, according to clause 4.2 of the Charter, is textile and clothing production. As collateral for the loan under the pledge agreement dated June 28, 2005, N-T LLP provided the Bank with production buildings, structures, land plots, and equipment that are part of the silk Fabrics plant located on Tekstilshchikov Avenue in Ust-Kamenogorsk. The loan received by N-T LLP was used to finance a contract with T company for the purchase of technological equipment for textile production. Despite the allocated budgetary funds, N-T LLP had accounts payable due to the delay in the supply of equipment and the long installation period, which led to the disruption of the launch of the plant. According to the written review of N-T LLP, the company's accounts payable amount to 5,679,143,505 tenge, the size of the company's assets – 2 226 967 710 tenge. At the time of consideration of the case, the debt owed to LLP "E" amounted to 1,231,101.71; d. – 172,361; Sh. – 117,402 ; S. – 59,649 tenge. In accordance with clauses 10, 26 of art.1 of the Law, insolvency is the debtor's inability, established by the court, to fully satisfy creditors' claims for monetary obligations, to make wage settlements with persons working under an employment contract, to ensure the payment of taxes and other mandatory payments to the budget, social contributions to the State Social Insurance Fund, and mandatory pension contributions. At the same time, one of the sufficient evidence of the debtor's solvency is the property pledged by the Bank. Satisfying the applicants' claims for declaring N-T LLP bankrupt, the court mistakenly concluded that the company was insolvent and that there was no possibility of restoring the debtor's solvency. These conclusions of the courts are inconsistent with the case file and are not based on the law. It follows from the case file that the amount of accounts payable was established by the court on the basis of a written review submitted by N-T LLP and the conclusion of an economic research specialist No. 02/10 dated October 28, 2009. References to the above documents when making a decision on declaring N-T LLP bankrupt are unfounded, since these documents were previously the subject of another civil case on the application of N-T LLP for bankruptcy. By a court decision dated December 07, 2009, the application of N-T LLP for declaring him bankrupt was refused. Based on the results of the preliminary consideration of the application of N-T LLP for supervisory review of the court decision of December 07, 2009, the decision of the Supreme Court of May 06, 2010 refused to initiate supervisory proceedings. According to Article 71 of the CPC, the circumstances established by a court decision that entered into force in a previously considered civil case are binding on the court and are not proven again in other civil cases involving the same persons. In accordance with paragraph 9 of the regulatory resolution of the Supreme Court dated April 28, 2000 "On certain issues of application of bankruptcy legislation by courts of the Republic of Kazakhstan", the presence or absence of grounds for declaring a debtor insolvent (bankrupt) is established at the time of applying to the court. However, the courts, in violation of the requirements of Article 71 of the CPC, upon reconsideration of the civil case, despite the existence of judicial acts that have entered into force and have already evaluated the specified documents, including the expert opinion for the period from 2007 to September 01, 2009, decided to declare N-T LLP bankrupt.. In accordance with paragraph 5 of Article 29 of the Law "On Bankruptcy", the recognition of the debtor's insolvency expressed in the withdrawal is the basis for the court's decision to declare him bankrupt.
However, the court, according to paragraph 15 of the above-mentioned regulatory resolution, is obliged to clarify information about the debtor's financial condition, as well as to give a reasonable assessment of the debtor's solvency on the merits. Meanwhile, it was reliably established in court sessions that the main creditors of N-T LLP are the Bank in the amount of 2,022,629,146 tenge and K LLP in the amount of 2,644,801,675 tenge. Regarding the claims of K LLP, the case was terminated due to the withdrawal of the creditor's application.At the same time, according to the obligations of N-T LLP to K LLP, it was established that the debt was formed as a result of the conclusion on April 07, 2006, February 15, 2007 and August 07, 2008 between N-T LLP and foreign companies U, C that were obviously unfeasible for N LLP.-T" contracts under which foreign companies purchased yarn and fabrics from the partnership for a total amount of 18,000,000 US dollars. Whereas, N-T LLP was unable to produce products in the volumes stipulated by the contracts, since only a part of the equipment was received from the supplier. Subsequently, on April 01, 2009, N-T, U, C LLP and K LLP, which was declared bankrupt by the decision of the specialized interdistrict Economic Court of the South Kazakhstan region dated November 23, 2009, concluded trilateral assignment agreements, as a result of which K LLP bought from foreign companies the right to claim the debt of N-T LLP. These circumstances indicate the existence of collusion between N-T LLP, K LLP and the indicated foreign companies registered in offshore territories. Meanwhile, the courts have not given a proper legal assessment of the stated circumstances and the economic possibility of LLP "K" fulfilling the above-mentioned assignment agreement.
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