The recognition of the apartment purchase agreement as invalid and the application of the consequences of the invalidity of the transaction, the restoration of the record of registration of ownership

The Bostandyk District Court of Almaty had a civil case registered No. 7514-20-00-2/...... dated 08/07/2020........ Nurgul Tuleshevna (hereinafter referred to as the Plaintiff) to ……… Assel Bekaidarovna (hereinafter referred to as the Defendant) on the recognition of the contract of sale as invalid, the restoration of the record of registration of ownership rights. According to which the Plaintiff justifies his claims that on June 05, 2020, an agreement was concluded between the Plaintiff and the Defendant for the purchase and sale of an apartment located at the address: Almaty, Bostandyk district, ul. ........., 90/36 house, 61 sq. Under this agreement, the cost of the apartment was set at 18,000,000 tenge, however, before signing the agreement, the Plaintiff announced an additional payment of 100,000 tenge for furniture (which the Defendant refused to purchase), respectively, the final amount was set at 18,100,000 tenge. The contract was certified by Yerlan Tursynbekovich Sultanbekov, a notary in Almaty, and registered in the register as No. 5838. The Plaintiff also argues in the statement that when signing the contract, in the notary's office and at the notary himself, the Defendant transferred an amount of 18,000,000 tenge to the Plaintiff as payment under the contract. For the remaining amount of 100,000 tenge, the Defendant personally, without any pressure from anyone, wrote a receipt in which the latter undertakes to pay the remainder of the amount under the contract, in the amount of 100,000 tenge, within 2 months, to which the Plaintiff fully agreed and confirmed her consent. We do not agree with the above arguments of the Plaintiff, since before visiting the Notary, there was an oral agreement that the Contract would be in the amount of 18,000,000 tenge, however, before signing the Contract, the Plaintiff added 100,000 tenge for furniture that we did not want to purchase because the Plaintiff requested payment for 400,000 tenge for the furniture a little later than 200,000 tenge, but the Defendant categorically refused, as evidenced by Whatsapp and SMS correspondence. However, before the Notary issued the Purchase Agreement, at the request of the Plaintiff, the purchase amount of the apartment was changed by adding for furniture worth 100,000 tenge, the total amount was 18,100,000 tenge. During the conclusion of the Contract, the Plaintiff voluntarily signed a Contract for 18,100,000 tenge with her own hand, after concluding the Contract outside the Notary's office, the Plaintiff asked the Defendant to write a Receipt for 100,000 tenge, which was done. Accordingly, between the Plaintiff and the Defendant, in accordance with Articles 151, 152, 154 of the Civil Code of the Republic of Kazakhstan by agreement of the parties, there was a completely written form of the transaction, which was certified by a notary.

The recognition of the apartment purchase agreement as invalid and the application of the consequences of the invalidity of the transaction, the restoration of the record of registration of ownership

The Plaintiff's arguments that the purchase and sale of the apartment was not fully closed and completed, and accordingly the Plaintiff remained the owner of the apartment. As well as the Plaintiff's arguments that until the Defendant deposited the remaining amount under the contract, in the amount of 100,000 tenge, and the notary had to issue an apartment purchase agreement with deferred payment, we believe it is not viable because before signing the Purchase Agreement, the amount was changed by 100,000 tenge, at the initiative of the Plaintiff and the Plaintiff agreed to conclude a Purchase and sale Agreement with an additional payment of the remaining 100,000 tenge within two months. However, on June 12, 2020, the Defendant paid the remaining 100,000 tenge, as evidenced by the receipt of payment and the account statement. In art. 157, paragraph 2 of the Civil Code of the Republic of Kazakhstan provides that a transaction is declared invalid in violation of the requirements for the form, content and participants of the transaction, as well as for their freedom of expression on the grounds established by this Code or other legislative acts - However, in accordance with this article, the Plaintiff does not provide any substantial arguments about the violation of the form and content of the agreement and the will to conclude a Contract. The Plaintiff's arguments regarding the illegal reissue, until the moment of depositing the remaining amount under the contract, in the amount of 100,000 tenge and about the possible entry into a criminal conspiracy of the Defendant with the Notary G. Almaty Sultanbekov E.T., and misleading employees of registration authorities by committing fraudulent acts, as well as committing a criminally punishable act of fraud and misleading by deception against the Plaintiff - Is a Slander directed at the Defendant for which criminal liability is provided, moreover, the Notary in the presence of all parties and at the will of the parties was It was the Purchase and Sale Agreement that was concluded and, accordingly, the apartment was subsequently re-registered.

We're counting. all the arguments presented by the Plaintiff in his Statement of Claim are not valid, since all the conditions were fulfilled on the part of the Defendant. Article 159 of the Civil Code stipulates the Grounds for the invalidity of transactions and cites 12 circumstances where a transaction may be declared invalid, namely: 1. A transaction made without obtaining the necessary permission is void; 2. A transaction pursuing the goals of unfair competition or violating the requirements of business ethics; 3. A transaction made by a person under the age of fourteen (a minor); 4. A transaction made by a minor who has reached the age of fourteen without the consent of his legal representatives; 5. A transaction made by a person recognized as legally incompetent due to mental illness or dementia is void. A transaction made by a citizen who was subsequently recognized as legally incompetent; 6. A transaction made by a person limited in legal capacity by a court; 7. A transaction made by a legally capable person, but who was in a state at the time of its commission when he could not understand the meaning of his actions or direct them - due to this circumstance, the Plaintiff did not provide the court with the appropriate supporting documents and/or evidence; 8. A transaction made as a result of an error of significant importance may be recognized the court invalidated the claim of the party who acted under the influence of delusion;

9. A transaction made under the influence of deception, violence, threat, as well as a transaction that a person was forced to make due to a combination of difficult circumstances on extremely unfavorable terms for himself, which the other party took advantage of (bonded transaction) - The specified circumstance in paragraph 9 is also not suitable, since the Plaintiff provides the court with an Estimate of the average value of real estate in the Analysis Report No. 18-IS dated July 04, 2020, produced by the Appraisal Company Almaty Valuation Center LLP, which determines the average estimated value of property in the amount of 19,114,758 tenge, which naturally cannot be a profitable (bonded transaction) for the Plaintiff, since the difference between the purchase price and the estimated price is small, that is, acceptable; 10. A transaction made as a result of a malicious agreement by a representative of one party, an unscrupulous representative - well, here the parties were directly present at the conclusion of the Contract; 11. A transaction made by a legal entity in contradiction with the objectives of the activity; 12. Transactions provided for in paragraphs 3, 5 of this article, at the request of legal representatives of minors or incapacitated persons. Dear Court, Chapter 4. The Civil Code of the Republic of Kazakhstan “Transactions” specifically defines the concept of a transaction, the form of conclusion, as well as in what circumstances the Transaction is recognized as invalid - however, the Statement of Claim does not specify specific circumstances and or a reference to regulations on the recognition of the transaction as invalid - except for unsubstantiated charges of the Defendant in the commission of a criminal offense, nothing is given. Article 72 of the CPC RK. The "Duty of Proof" stipulates that each party must prove the circumstances to which it refers as the basis of its claims – which is not observed in the statements of claim. The Plaintiff's arguments that the apartment purchase agreement itself was drawn up without the Plaintiff's presence is that all the necessary documents were allegedly sent through a WhatsApp application and then the Plaintiff's spouse provided the originals of all necessary documents. And when the Plaintiff came to the Notary, the contract of sale of the apartment was already ready, and the Plaintiff, both the Notary and the Defendant, were in a hurry to sign it, without even giving the Plaintiff a chance to thoroughly familiarize themselves with it, are not viable, since the Plaintiff had enough time to study the Contract. In addition, as practice shows, all Notaries pre-prepare a preliminary version of the Contract and, after studying the document by the parties, taking into account the changes and additions, they print it out on a letterhead and submit it for signature, which was done by a Notary, since the contract itself takes a lot of time.

Article 17. The Law of the Republic of Kazakhstan “On Notary” A notary performs notarial acts provided for by this Law and other legislative acts of the Republic of Kazakhstan in the interests of individuals and legal entities who have applied to him; draft transactions, applications and other documents; request from individuals and legal entities documents and information necessary to perform notarial acts, in compliance with the established legislative acts of the Republic of Kazakhstan. The Plaintiff's arguments that when meeting with the Notary upon termination of the Contract, the Notary stated that the Notary did not know anything about any receipt issued by the Defendant to the Plaintiff in the amount of 100,000 tenge and had never seen this receipt. According to these arguments, the Defendant supports the Notary's arguments since the receipt was not Notarized and The notary did not commit any actions regarding the receipt in the amount of 100,000 tenge. And we consider the Plaintiff's arguments to be unsubstantiated and unjustified from the point of view of relevance and admissibility as evidence in accordance with art. 68 of the Civil Procedure Code of the Republic of Kazakhstan, each evidence is subject to assessment taking into account its relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a civil case. In this civil case, we observe the groundlessness of Claims and Defamation against the Defendant.

The recognition of the apartment purchase agreement as invalid and the application of the consequences of the invalidity of the transaction, the restoration of the record of registration of ownership

In his Statement of Claim, the plaintiff accuses the defendant of committing a criminal offense under Articles 190 Fraud, 194 Extortion of the Criminal Code of the Republic of Kazakhstan, which are subordinate to the criminal prosecution authorities of the Ministry of Internal Affairs of the Republic of Kazakhstan. To date, no Statements and/or appeals have been filed with the police regarding the commission of a criminal offense on the above-mentioned charges by the Plaintiff. Which, of course, once again confirms the unfounded claims. According to paragraph 4 of art. 8 of the Civil Code of the Republic of Kazakhstan, citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation and the moral principles of society. This obligation cannot be excluded or limited by the contract. Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed. Dear court, according to the norms of the Civil Code of the Republic of Kazakhstan, a transaction may be invalid on the grounds established by law, by virtue of its recognition as such by a court (disputed transaction) or independently of such recognition by virtue of a direct reference to its invalidity in the law (void transaction) - however, all the arguments given in the Statement of Claim do not indicate specific facts in order to to challenge and or the grounds established by law to challenge the transaction, we consider all arguments to be unfounded. In P. 13 of the Regulatory Resolution No. 6 of the Supreme Court of the Republic of Kazakhstan “On certain issues of the invalidity of transactions and the application by the courts of the consequences of their invalidity” stipulates that when the courts consider the consequences of the invalidity of the transaction, the defendant's counterclaims to recognize the person as a bona fide acquirer are not required, since resolving this issue is the responsibility of the court when evaluating evidence in the case.

113 of the Civil Procedure Code of the Republic of Kazakhstan, it is stipulated at the request of the party in whose favor the Decision was made, the court awards, on the other hand, the costs incurred to pay for the assistance of a representative (several representatives) who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party (payment orders, fiscal receipt). For property claims, the total amount of these expenses should not exceed ten percent of the satisfied portion of the claim. According to non-property requirements, the amount of expenses is collected within reasonable limits, but should not exceed three hundred monthly calculation indices. By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests, and on the basis of the above in accordance with Articles 68, 72, 166 of the CPC RK, the Court was asked to: In satisfaction of the Statement of Claim ..... Nurgul Tuleshevna k ....... Asel Bekaidarovna on the recognition of the contract of sale as invalid - to refuse; To recover from...... Nurgul Tuleshevna in favor of .......... Assel Bekaidarovna the amount of expenses for the representative's assistance in the amount of 200,000 (two hundred thousand) tenge. On October 28, 2020, the Bostandyk District Court of Almaty considered the civil case in open court.

On the recognition of the apartment purchase agreement as invalid and the application of the consequences of the invalidity of the transaction; On the restoration of the record of registration of ownership, the COURT DECIDED: In satisfaction of the claim ..... Nurgul Tuleshevna ....... Asel Bekaydarova on the recognition of the contract of sale as invalid, the restoration of the record of registration of ownership rights - to refuse. Disagreeing with the court's decision, the Plaintiff filed an appeal against the court's decision, and on January 26, 2021, the Almaty City Judicial Board for Civil Cases of the Almaty City Court considered the civil case in open court via video conferencing.. Nurgul Tuleshevna k ……… Asel Bekaydarova on the recognition of the apartment purchase and sale agreement as invalid, the restoration of the record of registration of ownership, received on the plaintiff's appeal against the decision of the Bostandyk District Court of Almaty dated October 28, 2020. Guided by Article 423, subparagraph 1) of Article 424 of the CPC, the judicial board DECIDED: The decision of the Bostandyk District Court of Almaty dated October 28, 2020 in this civil case to leave unchanged the appeal of the plaintiff ....... N.T. - without satisfaction. The resolution comes into legal force from the moment of its announcement.

#Lawyer #Lawyer #Legal service #Legal advice #Defense Company #Law Firm #Civil #Criminal #Administrative #Arbitration cases disputes #Almaty #Kazakhstan 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases