Appeal to the Board of Appeal for Civil Cases against the decision of the district Court
To the Board of Appeal for Civil Cases
Almaty City Court
Almaty, 050000, Kazybek Bi street, 66.
0201@sud.kz
Applicant: IP "M.A" represented by M. P. A.
IIN .
Almaty, md. 8, d. ..., sq. 61.
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 58; +7 708 971 78 58.
Interested party: Halyk Bank of Kazakhstan JSC
BIN 960941000145
THE APPEAL
on the decision of the district court no.2 Auezovsky district of Almaty on December 19, 2024
On December 19, 2024, the District Court no.2 Auezovsky district of Almaty, as part of the presiding judge Baikenova A.B., having considered civil case No. 7540-24-00-2/6575 on the application of M. P.A. for establishing the fact, the court decided to satisfy the application of M. P. Abdrakhmanovna for establishing the fact of the acquisition of IP "M." non-residential premises at the address of Almaty, mkr. . 79 house, 61 non-residential premises by signing a bank loan agreement with Halyk Bank JSC for the acquisition of property in the amount of 74,440,851 tenge- refuse.
The court found that, in accordance with Article 306 of the CPC, the court establishes facts of legal significance only if it is impossible for the applicant to obtain proper documents certifying these facts in another manner, or if it is impossible to restore lost documents. At the same time, the applicant has a different procedure for resolving his issue and has the right to appeal against the actions of the authorized body. In this regard, the applicant must comply with the above requirements of the Law.
However, during the court session, we explained that it is necessary to establish a single amount of remuneration for all bank loan agreements.
The application stated that IP "M..A" (hereinafter referred to as the Applicant) is filing a lawsuit to establish a fact of legal significance, due to the fact that this fact is necessary to confirm the following fact before the UGD of the Auezovsky district of the city of Almaty.
On 2 October 2006, between the Applicant and gr. Yessirkenova Altynai Ondasynovna signed a purchase and sale agreement for non-residential premises at the address: Almaty, Auezovsky district, md., 79, n.p. 61. I purchased this property for 20,625,000 tenge. It is especially important to note that this property was acquired through a bank loan agreement (secured), i.e. the property was purchased on credit, as evidenced by the following agreements concluded with Halyk Bank of Kazakhstan JSC:
On September 14, 2006, the Applicant, IP M. P.A., and JSC Halyk Bank of Kazakhstan (hereinafter referred to as the Bank) entered into an Agreement on the provision of credit line No. 210– BL2/06 (hereinafter referred to as the Agreement), where the Bank will provide me, the Borrower of IP M. P.A., with bank loans for a total amount not exceeding 166,000 (One hundred and sixty-six thousand) US dollars. According to clause 2.2 of the Agreement, the intended purpose of using the funds and Instruments of the Credit Line is to refinance loan debt and purchase commercial real estate.
Clause 2.6 of the Agreement stipulates that, within the framework of this Agreement, the Borrower pays remuneration for the use of a bank loan in the amount of 12% (twelve) percent per annum of the amount of the bank loan provided.
After the opening of the party's credit line to the Applicant, a bank loan agreement No. 210/2-BL2/06 dated 06.10.2006 was concluded between the parties, where the Bank, in accordance with the Agreement, provides the Applicant with money in the amount of 117,000 (One Hundred and seventeen thousand) US dollars (hereinafter referred to as the "Loan") on the terms defined by this Agreement. Also in clause 2.2. of the bank loan agreement No. 210/2- BL2/06 dated 06.10.2006, the intended use of the Loan is the purchase of commercial real estate. This loan was issued for a period of 10 years, with an interest rate of 12% per annum.
Thus, collectively, taking into account the ready-made remuneration rate that the Applicant paid from 2006 to 2016 and also taking into account the appreciation of the dollar from 2006 to 2016, the property purchased on credit cost the Applicant 74,440,851 tenge, as confirmed by the repayment schedule of the loan according to Appendix No. 1 to bank loan agreement No.210/2- BL2/06 dated 09/14/2006, where 203,484.82 US dollars (loan amount) x 365.83 (according to official data of the National Bank of the Republic of Kazakhstan, the dollar exchange rate for January 2016) = 74,440,851.7006 tenge. Accordingly, I believe that the collection of income tax from my increment is unfair.
The fact of acquiring non-residential premises on credit is of great legal importance to the Applicant, since without establishing it, the Applicant cannot confirm to the tax authorities that the Applicant must pay tax for the sale of the above-mentioned non-residential premises for the income from the increase in value of the sale of property in accordance with art. 331 of the Tax Code of the Republic of Kazakhstan.
According to article 305 of the Civil Code of the Republic of Kazakhstan, the court establishes the facts on which the emergence, modification or termination of personal or property rights of citizens or legal entities depends.
In accordance with paragraph 3, the court establishes other facts of legal significance, unless the legislation of the Republic of Kazakhstan provides for a different procedure for their establishment.
According to the explanations contained in paragraph 12 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated June 28, 2002 No. 13 "On judicial practice in cases of establishing facts of legal significance", the list of facts on which the emergence, modification or termination of personal or property rights of citizens and organizations depends, given in Article 305 of the CPC, is not exhaustive.
Based on the above and in accordance with Articles 401 and 427 of the Civil Procedure Code of the Republic of Kazakhstan,
I ask the Court:
· To cancel the decision of the district court No.2 Auezovsky district of Almaty on December 19, 2024;
· To recognize the legal fact of the acquisition of IP "M.A." of non-residential premises at the address: Almaty, Auezovsky district, md. ..., d. ..., n.p. 61., (on credit) by executing a bank loan agreement with JSC Halyk Bank of Kazakhstan for the purchase of non-residential premises for the amount of 74,440,851,7006 tenge.
With respect,
Representative by proxy: Kenesbek I.M.
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