A claim for declaring the loan agreement null and void and for forcing the fulfillment of contractual obligations under the agreement on mutual concessions
To a Specialized interdistrict
Economic Court of Almaty
The plaintiff:
"A" LLP
Republic of Kazakhstan, Almaty, md. no. No.
The defendant:
PC "Horticultural association "M"
Republic of Kazakhstan, ALMATY, ZHETYSU DISTRICT, STREET .....
The claim
on recognizing the loan agreement as null and void and on forcing the fulfillment of contractual obligations under the agreement on mutual concessions
On the basis of a Special-purpose Loan Agreement dated May 15, 2019, an Agreement on mutual concessions was concluded between LLP "A" (hereinafter referred to as Party 1 and the Plaintiff), IP "BA. G." (hereinafter referred to as Party 2) and PC "Horticultural Partnership "M" (hereinafter referred to as Party 3 and the Defendant). (hereinafter referred to as the Agreement) dated May 15, 2019.
According to the terms of the Agreement, the Plaintiff, Party-2 and the Defendant, in order to fulfill their contractual obligations for the gasification of the area of the PK ST "Place under the Sun", came to an agreement on assigning to the Defendant the responsibilities of collecting funds for connecting subscribers and their further distribution between the Parties.
In accordance with clause 1.2. of the Agreement, the parties have agreed on the distribution of funds for the subscriber's connection as follows:
b) Party-3 (the Defendant) transfers to Party-1 (the Plaintiff) the amount of 215,000 (two hundred and fifteen thousand) tenge from the funds received to the settlement account or to the cashier from each connection and to Party-2 the amount of 155,000 (one hundred and fifty-five thousand) tenge, of which 100,000 (one hundred thousand) tenge is credited under the Loan Agreement with a designated purpose dated May 15, 2019, and 55,000 (fifty-five thousand) tenge are donated.
Also, according to clause 1.3 of the Agreement, the parties, guided by Article 370 of the Civil Code of the Republic of Kazakhstan, came to an agreement on the distribution by this agreement of an amount not exceeding 14,779,651 (fourteen million seven hundred seventy-nine thousand six hundred fifty-one) tenge.
Considering that the Loan Agreement was concluded in the amount of KZT 12,316,376 (twelve million three hundred and sixteen thousand three hundred and seventy-six) tenge, and with remuneration in the amount of KZT 2,463,275 (two million four hundred and sixty-three thousand two hundred and seventy-five) tenge, the Defendant undertook, in accordance with paragraph 1.3. of the Agreement, to distribute the above amounts towards repayment loans.
According to payment order No. 56 dated May 28, 2020 and payment order No. 57 dated May 29, 2020, the Defendant transferred to IP "BA. G." (Party-1) an amount of 1,240,000 (one million two hundred and forty thousand) tenge to repay the debt in accordance with the terms of the Agreement on Mutual Concessions dated 15 May 2019.
However, the -1 Party filed a statement of claim to the court for recovery of the amount of debt and penalties under the Loan Agreement dated May 15, 2019 to the Plaintiff of LLP "A".
By the decision of the Specialized Interdistrict Economic Court of 02/16/2023, the claims of the individual entrepreneur BAG to the limited liability partnership "A" for the recovery of the amount of debt and penalties were partially satisfied. The court decided to recover from LLP "A" in favor of IP "B" the amount of the principal debt 17 943 167 (seventeen million nine hundred forty three thousand one hundred sixty seven) tenge, the amount of the penalty 807 443 (eight hundred seven thousand four hundred forty three) tenge, state duty in the amount of 187 506 (one hundred eighty seven thousand five hundred six) tenge.
The plaintiff filed an appeal against the court's decision of 02/16/2023. By the resolution of the judicial Board No. 2a-3691/2023 dated May 02, 2023, the decision of the Specialized Interdistrict Economic Court of Almaty dated 02/16/2023 was left unchanged, the complaint was not satisfied.
Please note that the court of the Almaty City Court, namely by the Decision of the judicial Board No. 2a-3691/2023 dated May 02, 2023, it was established that the Agreement on Mutual Concessions dated May 15, 2019 and the Loan Agreement with a designated purpose dated May 15, 2019 are legally binding and have not been challenged by the parties to date.
The terms of the agreement and the terms of Article 370 of the Civil Code of the Republic of Kazakhstan provide for an obligation to terminate, in whole or in part, the offset of a homogeneous counterclaim, the term of which has expired or the term of which is not specified or determined by the time of demand.
It should be noted that the defendant has partially fulfilled its obligations under the trilateral agreement dated May 15, 2019 and to date.
Please note that about 20% of 100% of subscribers were connected to gasification. And today, the defendant has all the necessary conditions to complete the work on connecting subscribers to gasification.
In accordance with paragraph 1 of Article 370 of the Civil Code of the Republic of Kazakhstan, "An obligation is terminated in whole or in part by offsetting a counterclaim, the term of which has come, or the term of which is not specified or determined by the time of demand. A statement from one side is enough to set it off."
Whereas, by virtue of paragraph 6 of the Civil Code of the Republic of Kazakhstan "The norms of civil legislation must be interpreted in accordance with the literal meaning of their verbal expression", to apply the offset in accordance with paragraph 1 of Article 370 of the Civil Code of the Republic of Kazakhstan, it is sufficient to ensure compliance with three conditions: first, the requirements must be counter; secondly, the requirements must be homogeneous; and, in- thirdly, the requirements must be fulfilled in connection with the due date, due to the absence of the due date, or if the execution is determined by the time of demand.
The above conditions were observed by the parties when concluding the agreement on mutual concessions.
Thus, the agreement on mutual concessions dated May 15, 2019 was concluded on the basis of an agreement between the parties on the mutual termination of obligations stipulated in the Loan Agreement dated May 15, 2019. Obligations to repay the loan amount to IP "B" and LLP "A" on a voluntary basis were defined in the Agreement on Mutual Concessions.
In this regard, the Defendant, in order to confirm the fulfillment of its obligations to Party – 1 and Party – 2 under the Agreement, Party – 3 refunded the amounts under the Loan Agreement to Party – 2 in the amount of 1,240,000 (one million two hundred and forty thousand) tenge, which is confirmed by payment orders.
According to paragraph 1 of Article 380 of the Civil Code of the Republic of Kazakhstan, "Citizens and legal entities are free to conclude a contract. Coercion to conclude a contract is not allowed, except in cases where the obligation to conclude a contract is provided for by this Code, legislative acts or a voluntarily accepted obligation.
We believe that the Defendant does not have the right to unilaterally change the loan repayment terms stipulated in the Agreement.
According to Article 273 of the Civil Code of the Republic of Kazakhstan, "Unilateral refusal to fulfill an obligation and unilateral modification of its terms are not allowed, except in cases stipulated by law or contract." Due to the fact that the Agreement is legally binding, all Parties to the Agreement must properly fulfill their obligations.
In order to resolve the dispute in a pre-trial manner, the plaintiff sent the following letters to the defendant:
On May 16, 2023, the plaintiff sent a letter to the defendant asking him to fulfill his obligations under the agreement.
On July 21, 2023, the plaintiff sent a second letter to the defendant for ex. No. 1-4 with a request to fulfill their obligations under the agreement.
To date, the defendant has not provided a response to the plaintiff's letters and ignores them in every possible way.
In accordance with paragraph 1 of Article 157 of the Civil Code of the Republic of Kazakhstan, "The transaction is invalid on the grounds established by this Code or other legislative acts, by virtue of its recognition as such by a court (disputed transaction) or on grounds directly provided for by legislative acts, regardless of such recognition (void transaction)." The targeted loan agreement dated May 15, 2019 is a void transaction.
Based on the above, guided by art. 157 of the Civil Code of the Republic of Kazakhstan, art. 273 of the Civil Code of the Republic of Kazakhstan, art. 380 of the Civil Code of the Republic of Kazakhstan, art. 370 of the Civil Code of the Republic of Kazakhstan:
ask:
To recognize the Loan Agreement with the intended purpose dated May 15, 2019 as an insignificant transaction.
To compel the Defendant, PC Horticultural Partnership M, to fulfill in full the contractual obligations under the Agreement on Mutual Concessions dated May 15, 2019.
To collect from the Defendant - PC "Horticultural Association "M the amount of expenses for the state duty in the amount of 3,450 (three thousand four hundred and fifty) tenge.
Date of submission: 12/16/2023
The plaintiff:
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
