Approval of the amounts of payment for the activities of a private bailiff
No. 6001-23-00-6ap/785 dated August 2, 2023
Plaintiff: LLP "S" Defendant: CHSI A.
Interested party: "K" LLP
The subject of the dispute: on the recognition as illegal and the cancellation of decisions on the initiation of enforcement proceedings and on the approval of the amounts of payment for the activities of a private bailiff.
Review of the defendant's cassation appeal.
PLOT: By the definition of the Council of Economic Cooperation of September 22, 2022, a mediation agreement was approved between LLP "K" and LLP "C", under the terms of which the Partnership confirms that it has a debt to the plaintiff in the amount of 22 million tenge, which it will pay in the manner described in the following schedule: no later than October 30, 2022 – 10 million tenge; no later than November 30, 2022 – 7 million tenge; no later than December 30, 2022 – 5.8 million tenge. November 2, 2022, CHSI A. enforcement proceedings were initiated and on the same day, the debtor was served with a notice demanding that the enforcement document be executed by transferring the amount owed in the amount of 22.8 million tenge and paying for the activities of the CSI in the amount of 1.9 million tenge to the bailiff's account.
On November 4, 2022, the Partnership made a payment in the amount of 1 million tenge to the account of the recoverer, LLP "K". On November 11, 2022, the bailiff issued a collection order to the debtor in the amount of 22 million tenge, which was executed in the amount of 14 million tenge.
On November 15, 2022, the debtor applied to the CSI with a request to terminate the enforcement proceedings, referring to the fact that 17 million tenge had been recovered by the specified time, which exceeds the amount of the first tranche of 10 million tenge, with a payment deadline of October 30, 2022, whereas the writ of execution indicates the debt payment table. However, the amount to be collected at one time was not specified.
A response was issued to the debtor's request to refuse to terminate the enforcement proceedings. On November 17, 2022, the bailiff transferred 6 million tenge to the claimant's account.
On November 17, 2022, the resolution of the CHSI approved the amount of payment for its activities in the amount of 1 million tenge, of which 1 million tenge was withheld, the balance amounted to 820 thousand tenge.
On the specified date, the enforcement proceedings were terminated in connection with the execution of the enforcement document in full.
Judicial acts:
1st instance: the claim is partially satisfied.
The decision of CHSI A. on the initiation of enforcement proceedings dated November 2, 2022 regarding the recovery of an amount in the amount of 12 million tenge was declared illegal and canceled.
The resolution of the CHSI A. on the approval of the amounts of payment for the activities of a private bailiff dated November 17, 2022 regarding the approval of the amount of the balance in the amount of 820 thousand tenge, with the obligation to eliminate the violations in full, was declared illegal and canceled.
Appeal: the court's decision is upheld.
Cassation: judicial acts are changed, the claim is denied.
Conclusions: Resolving the dispute and partially satisfying the claim, the courts of the first and appellate instances concluded that when initiating enforcement proceedings for a total amount of 22 million tenge, the bailiff did not take into account the fact that at the time of the contested decision, the deadlines for fulfilling the terms of the mediation agreement for the payment of the second and third tranches had not occurred.
One cannot agree with such conclusions of the courts.
In accordance with Article 178 of the CPC, the settlement agreement is executed by the persons who concluded it voluntarily in accordance with the procedure and terms stipulated by this agreement.
A settlement agreement that is not executed voluntarily is subject to compulsory execution on the basis of a writ of execution issued by the court at the request of the person who concluded the settlement agreement.
According to paragraphs 1, 2 and 4 of Article 37 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law), the bailiff initiates enforcement proceedings on the basis of an enforcement document at the request of the claimant. The application is signed by the claimant or his representative.
The representative shall attach to the application a power of attorney or other document certifying his authority. The judicial executive officer of the document, upon receipt of the relevant requirements established by the legislation of the Republic of Kazakhstan, initiates enforcement proceedings no later than three working days, and issues a resolution on this.
It was established that in connection with the non-fulfillment of the terms of the mediation agreement, the recoverer applied to the court for the issuance of a writ of execution, on the basis of which the bailiff lawfully, within his authority, initiated enforcement proceedings for the entire amount of the debt, since it follows from the mediation agreement approved by the court that the total amount owed by the defendant to the plaintiff is 22 million tenge.
Consequently, the conclusions of the local courts that the enforcement proceedings were subject to execution only in terms of non-fulfillment of the first tranche of the mediation agreement are erroneous, since the plaintiff had the opportunity to repay the debt on a voluntary basis.
In accordance with article 2 of the Law, the tasks of enforcement proceedings are the mandatory and timely adoption of measures aimed at the enforcement of enforcement documents issued on the basis of court decisions, rulings in civil and administrative cases, orders and decisions in cases of administrative offenses, sentences and decisions in criminal cases regarding property penalties, as well as other decisions. bodies in accordance with this Law.
It follows from the above rule that the bailiff did not commit any violations, improper observance of the rights and legitimate interests of the plaintiff as a party to the enforcement proceedings (debtor).
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
