A lawsuit to recover a double deposit
To the Turksib District Court of Almaty
Almaty, 050000, Spartak street, 11.
From the plaintiff: HOLY
IIN....Almaty city, mkr. ...., house 1, sq. 19.
+7 707 ….
Representative by proxy:
Law and Law Law Firm
BIN 201240021767
79 Abylai Khan Ave., office 304, Almaty.
info@zakonpravo.kz / www.zakonpravo.kz
+7 727 971 78 55; +7 708 971 78 58.
Defendant: LAF
IIN 7.
the city of Almaty, street ..., house 182
+7 701 …
The claim
on the recovery of a double deposit
On March 29, 2023, a Notarial Agreement was concluded between the SVB (hereinafter referred to as the Plaintiff) and the LAF (hereinafter referred to as the Defendant) on a deposit registered in the register under No. 3525., which corresponds to Article 337 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code of the Republic of Kazakhstan), which states that a deposit is a monetary amount issued by one of the contracting parties on account of payments due from her under the contract to the other party and to ensure the conclusion and execution of the contract.
The subject of the Deposit Agreement was to ensure the conclusion and execution of a contract for the purchase and sale of real estate, namely a land plot with an area of 0.10 hectares, located at the address, Almaty city. 182 S... Street, Turksib district (Hereinafter referred to as the Land plot), within the framework of the agreement, the Defendant received a deposit (money) in the amount of 3,500,000 tenge due to the conclusion of a contract for the purchase and sale of a land plot in the amount of 23,500,000 tenge.
In addition, the Defendant committed to remove the encumbrance by 06/10/2023, repay the loan debt to Halyk Savings Bank of Kazakhstan JSC, divide the land plot and allocate a land plot of 0.10 ha from his land plot with a total area of 0.2948 ha and prepare all the title documents for the transaction.
Also, the Defendant was warned by the specified agreement that, having received a deposit in the amount of 3,500,000 tenge, in case of non-fulfillment of the obligation secured by the deposit, you pay the Plaintiff a deposit in double amount - 7,000,000 tenge.
Subsequently, the Defendant, having failed to fulfill, under various pretexts, the Deposit Agreement dated March 29, 2023, we additionally signed an Agreement on an additional deposit and an extension of the deposit period dated 05/22/2023.
Where, by mutual agreement, we decided to extend the deadline for the preparation of all necessary documents for the notarization of the land purchase agreement and for the conclusion of the sale agreement at the notary's office until 07/31/2023.
The Defendant additionally received from the Plaintiff a deposit in the amount of 3,000,000 tenge, due from the Plaintiff 23 500,000 tenge, for the land acquired by the Plaintiff.
The Defendant was also warned, as in the first Deposit Agreement, that if the Defendant refuses to sell the specified land plot, then you pay the Plaintiff a deposit in double amount – 13,000,000 tenge.
However, this time the Defendant did not fulfill his obligations under the above-mentioned Deposit Agreements. Violation of an obligation is understood as its non-fulfillment or improper fulfillment, which contradicts Article 349 of the Civil Code of the Republic of Kazakhstan, which is not permissible according to Article 272 of the Civil Code of the Republic of Kazakhstan.
On 08/01/2023, the parties concluded an Agreement for the third time to extend the deposit period, where the parties, by mutual agreement, decided to extend the time for the preparation of all necessary documents for notarization of the land purchase agreement and for the conclusion of the purchase agreement at the notary's office until 08/31/2023.
The defendant was warned for the third time that if she refused to sell the above-mentioned land plot, she would pay the Plaintiff a double deposit of 13,000,000 tenge.
To date, the obligations assumed by the Defendant under three Contracts have not been fulfilled, in addition, the title documents for the purchase and sale of the above-mentioned land plot are not ready for a Notarial transaction.
Due to the Defendant's failure to fulfill obligations under the Contract and the deposit agreement, we have the opinion that the Defendant's actions are aimed at seizing the amount by deceiving and abusing the Plaintiff's trust
According to paragraph 2, Article 338 of the Civil Code of the Republic of Kazakhstan, where it is stipulated that if the party that gave the deposit is responsible for non-fulfillment of the obligation, it remains with the other party, and if the party that received the deposit is responsible, it is obliged to pay the other party double the amount of the deposit. Moreover, the party responsible for non-fulfillment of the obligation is obliged to compensate the other party for losses, taking into account the amount of the deposit, since the contract does not provide otherwise.
Accordingly, taking into account the above circumstances, the Plaintiff asked the Defendant to refund the amount under the deposit agreement, but the defendant refused to refund this amount.
In accordance with paragraph 1 of Article 337 of the Civil Code of the Republic of Kazakhstan, a deposit is an amount of money given by one of the contracting parties to account for payments due from it under the contract to the other party and to ensure the conclusion and execution of the contract or the fulfillment of another obligation.
On September 13, 2023, the Plaintiff applied to the Law and Law Law Firm for legal advice and preparation of a Pre-Trial Claim, for which the Plaintiff paid 50,000 tenge to the office's account. Subsequently, we sent a pre-trial claim to the Defendant, where we offered the defendant to resolve the situation peacefully. The Defendant received the electronic version of the Pre-Trial Claim dated September 13, 2023 via Whatsapp messenger on the same day, but did not respond, as evidenced by a screenshot of the correspondence between the Plaintiff and the Defendant.
272 of the Civil Code of the Republic of Kazakhstan, where the obligation must be performed properly in accordance with the terms of the obligation and the requirements of the law, and in the absence of such conditions and requirements - in accordance with business practices or other commonly imposed requirements.
On September 26, 2023, in order to receive legal advice and further provide services in the court of first instance, the Defendant applied to the Law and Law Law Firm, where a Contract for the provision of legal services No.2609/20 dated September 26, 2023 was drawn up and funds in the amount of 500,000 tenge were paid to the office's checking account, as evidenced by the receipt and contract.
According to paragraph 1 of Article 113 of the Civil Procedure Code of the Republic of Kazakhstan, at the request of the party in whose favor the decision was made, the court awards, on the other hand, the costs incurred by her 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. 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.
On October 04, 2023, the Judge of the Turksib District Court of Almaty, I.M. Abekova, Determined the Claim of S.V.V. to L.A.F. for the termination of the deposit agreement dated March 29, 2023, for the termination of the agreement on additional deposit and extension of the deposit period dated May 25, 2023, for the termination of the agreement on extension of the deposit period dated 01 on August 2023, on the recovery of the deposit amount, to return it with all the attached documents.
Since a state fee of 130,000 tenge was paid on behalf of the plaintiff, however, the plaintiff asks the court to terminate: the deposit agreement dated March 29, 2023, the agreement on additional deposit and extension of the deposit period dated May 25, 2023, the agreement on extension of the deposit period dated August 01, 2023, as well as to recover the amount of the deposit in the amount of 13,000,000 tenge. In this regard, the plaintiff must pay an additional non-property state fee for each claim for termination of contracts.
Agreeing with the court's Ruling by the Plaintiff, the State fee for three non-property claims in the amount of 5,200 tenge was paid.
Article 401 of the Civil Code of the Republic of Kazakhstan provides for the grounds for amendment and termination of the contract. According to paragraph 2 of this article, "in the event of a material breach of contract by the other party, at the request of one of the parties, the contract may be amended or terminated by a court decision. A violation of the contract by one of the parties is considered significant, which entails such damage to the other party that it is largely deprived of what it was entitled to expect when concluding the contract."
According to clause 5, Article 403, of the Civil Code of the Republic of Kazakhstan, "if the basis for termination or amendment of the Contract was a material violation of the contract by one of the parties, the other party has the right to demand compensation for damages caused by termination or amendment of the contract."
Based on the above and in accordance with art. 148 of the CPC RK,
I ASK THE COURT:
Terminate: Deposit Agreement dated 03/29/2023, Agreement on additional deposit and Extension of Deposit Period dated 05/22/2023, Agreement on Extension of Deposit Period dated 08/01/2023;
To collect from the Defendant in favor of the Plaintiff the double amount of the deposit in the amount of 13 000 000 tenge;
To collect court costs from the Defendant in favor of the Plaintiff in the form of a paid state fee in the amount of 130,000 tenge;
To collect from the Defendant in favor of the Plaintiff representative expenses in the amount of 500,000 tenge and the costs of making a Claim of 50,000 tenge.
With respect,
Lawyer: __________/ Sarzhanov G.T.
"_____"____________2023 G.
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
