The pledged property is not released until the obligations secured by the Pledge are fully fulfilled.

Plaintiff S. filed a lawsuit in court, the defendant asked to oblige BTA Bank Joint Stock Company (hereinafter referred to as the Bank) under the Pledge Agreement No. 114-05/z - 2 of March 31, 2005 to release housing from collateral, seizure and return collateral documents. By the decision of the Al-Farabi District Court of Shymkent dated September 13, 2012, the claim of the plaintiff S. was satisfied, and a residential building (hereinafter referred to as the disputed house) located on Gagarin Street, Kentau, was released from bail and seizure. By the decision of the board of appeal of the South Kazakhstan region, a new decision was made to cancel the decision of the District Court and leave the plaintiff's statement of claim without satisfaction. The Cassation Judicial Board of the Regional Court annulled the decision of the Appellate Judicial Board and left the decision of the District Court in force. The representative of the bank, in his application to the supervisory Judicial Board of the Supreme Court, indicated that the court of Cassation incorrectly applied the norms of material and procedural law, did not provide an adequate assessment of the evidence and documents in the case, asked to cancel the decision of the court of Cassation and make a new decision to leave the claim without full satisfaction. The supervisory judicial board heard the opinion of the trustee of S. on the dismissal of the appeal, the conclusion of the prosecutor on the need to cancel the decision of the court of Cassation and leave the decision of the court of Appeal in force, checked the documents of the civil case and the motives of the appeal, and concluded that the appeal is subject to satisfaction due to the following grounds. In accordance with Part 3 of Article 387 of the code of Civil Procedure of the Republic of Kazakhstan (hereinafter referred to as the code of civil procedure), a significant violation of material norms or procedural law is the basis for reviewing decisions, rulings, decisions of the court that have entered into legal force in the order of supervision. In the case, such shortcomings are allowed. On the basis of the General Loan Agreement No. 114-05 dated March 31, 2005, the bank opened a loan route to Otyrar Kurylys LLP (hereinafter referred to as OTYRAR Kurylys LLP) in the amount of 95,000,000 tenge.

The pledged property is not released until the obligations secured by the Pledge are fully fulfilled.

To ensure the fulfillment of obligations under the General Loan Agreement, the following properties are pledged: 1) the building and structures of the technical support warehouse owned by the LLP; 2) real estate owned by the LLP; 3) the administrative building owned by the LLP; 5) the disputed house; 6) Another real estate owned by the LLP. Under the agreement on the Pledge of real estate, S. pledged the disputed house to ensure the credit obligation of LLC to the Bank.  During the conclusion of Additional Agreement No. 5 between the Bank and LLP on December 25, 2006, the court of Cassation concluded that under the General Loan Agreement No. 114-05 of March 31, 2005, only the real estate specified in the Pledge Agreement No. 114-05/z-2 of March 31, 2005 was recognized as collateral, property not specified in this additional agreement was excluded from the guarantee by the consent of the lender and the borrower. However, the supervisory judicial board does not agree with this judicial statement in connection with the following circumstances.  An agreement on the procedure for amending and terminating an agreement under Paragraph 1 of Article 402 of the civil code is concluded in the form in which the contract is concluded, unless it arises differently from laws, contracts or customary rights in the field of business activity. According to the case documents, there is no agreement between the plaintiff and the bank on termination of the Pledge Agreement or release of property from pledge. There is no written document on termination of the Pledge Agreement No. 114-05/z-2 dated March 31, 2005 or removal of the pledged property from the pledge. Therefore, the conclusion of the court of Cassation that the property not specified in the additional conditions was excluded from the guarantee by the agreements of the lender and the recipient of the loan is unfounded. In accordance with subparagraph 1 of Paragraph 1 of Article 322 of the code of criminal procedure, the pledge is also terminated when the obligations secured by the Pledge are terminated. Currently, the LLP has not repaid the large loan debt received from the Bank. In this context, the conclusion of the court of Cassation that the pledge agreement has been terminated contradicts the norms of the code of criminal procedure. On these grounds, the Supervisory Board considers that the disputed house is not subject to bail release due to the failure of the LLP to fulfill its obligations to the bank by a court decision. Therefore, as a result of the conclusion of Additional Agreement No. 5 between the Bank and LLP on December 25, 2006, despite the fact that the disputed house was not listed as collateral when amendments were made to paragraph 6.1 "security of obligations" in Chapter 6 of the General Loan Agreement, the disputed House cannot be considered released from collateral until the LLP fully fulfills the obligations specified in the General Loan Agreement. In this case, the supervisory judicial board considers it legitimate to violate the decision of the Cassation judicial board and leave the decision of the Appellate Judicial Board in force. 

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