Objection to the executive order on debt collection in favor of heating networks
Notary Yesenalieva Gulnaz Ermankyzy
License No. 22000188, issued by
January 11th, 2022
Almaty, Almaly district, Gagarin ave.,
93A, office 307.
amandin26@mail.ru
+7 702 232 9657
from: D.O.F.
IIN ……
280, ul. ..., Almaty.
Representative by proxy:
Law and Law Law Firm
BIN 201240021767
79 Abylai Khan Ave., office 304, Almaty.
info@zakonpravo.kz / www.zakonpravo.kz
+ 7 727 578 57 58; +7 708 578 57 58.
Objection
on the executive inscription No. 2234 dated June 13, 2024
On June 18, 2024, we had Executive Order No. 2234 dated June 13, 2024.
When studying the executive inscription, I found out that you had established the amount owed by D.O.F.ch to Almaty Thermal Networks LLP (hereinafter referred to as the Recoverer), BIN 060640007336, debt in the amount of 2,429,241 tenge for the period 01.10.2–21 years to 05.01.2024 for obligations, as well as the costs incurred by the recoverer for the execution of the executive inscriptions in the amount of 27,266 tenge, where the total amount to be recovered is 2,456,507 tenge.
We do not agree with the executive order, for the following reasons:
In accordance with the Law of the Republic of Kazakhstan "On Notaries", we did not receive a pre-trial claim, we did not receive a notification from the notary because we lost the right to object to the amount owed before the issuance of the Executive Inscription. This violated the requirements of Articles 92-6 of the Law, since according to paragraph 1 of Article 92-6 of the Law, after making an executive inscription, the notary sends a copy of it to the debtor with a notification of delivery no later than the next business day. And in turn, the Debtor has the right, within ten working days from the date of receipt of a copy of the executive inscription, to send objections to the stated claim in writing with notification to the notary who executed the executive inscription.
In accordance with paragraph 2 of Article 92-1 of the Law of the Republic of Kazakhstan "On Notaries" (hereinafter referred to as the Law), on the basis of an executive inscription or a corresponding resolution, debt is collected for the following indisputable requirements for the performance of an obligation based on a written transaction, the due date of which has come and the default is recognized by the debtor, including in response to a claim sent by to the recoverer in the order of pre-trial settlement of the dispute.
In our case, the claimant's claim is not indisputable. Also, the debtor did not receive 152 and 279 of the Civil Procedure Code of the Republic of Kazakhstan and Article 402 of the Civil Code of the Republic of Kazakhstan, providing that the judge returns the statement of claim, and the court leaves the statement of claim without consideration if the plaintiff has not complied with the pre-trial procedure established by law for this category of cases, the mandatory procedure for preliminary pre-trial dispute resolution and the possibility of this procedure is not lost and saved.
By virtue of clause 1 of Article 382 of the Civil Code of the Republic of Kazakhstan, the terms of the contract are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law.
According to clause 1 of Article 383 of the Civil Code of the Republic of Kazakhstan, the contract must comply with the rules binding on the parties, established by law (mandatory norms) in force at the time of its conclusion.
By virtue of clause 1 of Article 159 of the Civil Code, a transaction made without obtaining the necessary permission is void. From clauses 2 and 3 of Article 157-1 of the Civil Code, it follows that an invalid transaction does not entail legal consequences, except for those related to its invalidity.
We have no contractual relationship with the Claimant, and we believe that the Claimant's actions are aimed at seizing property by deceiving and abusing the Applicant's trust.
In addition, according to the Acts of inspection of the thermal energy consumption facility, there is an office located at 280 T. B. Street, 13th technical floor, Almaty, with a hot water supply system. O.F., does not use a single heating system with a multi–storey residential building - we agree with the above arguments of the Claimant, since in reality the Defendant does not use a hot water supply system and only pipes pass through the Defendant's non-residential premises, where the Defendant has been asking the Plaintiff for several years to wrap or insulate the pipes or recalculate only for the heat that comes from passing pipes, not per square meter, as the Plaintiff expects. The defendant uses heat from electricity and, accordingly, does not need services to provide a hot water supply system. And we believe that this dispute is subject to judicial review.
In accordance with clauses 2 of Articles 92-6 of the Law, the debtor has the right, within ten working days from the date of receipt of a copy of the executive inscription or the relevant resolution, to send objections to the stated claim in writing with notification to the notary who executed the executive inscription or issued the relevant resolution.
According to paragraph 3 of Articles 92-6 of the Law, the debtor's objection must contain the reasons for disagreement with the stated claim.
In accordance with paragraph 1 of Articles 92-8 of the Law, the notary issues a resolution on the cancellation of the executive inscription no later than three working days from the date of receipt of the objection. Copies of the resolution on the cancellation of the executive inscription are sent to the recoverer and the debtor no later than the next business day after its issuance.
Based on the above, in accordance with paragraph 2 of Articles 92-6 of the Law of the Republic of Kazakhstan "On Notaries",
ask you:
· To cancel the executive inscription of Notary Yesenalieva Gulnaz Ermankyzy for No. 2234 dated June 13, 2024, on the recovery of the amount owed from D.O.F., in favor of Almaty Thermal Networks LLP in the amount of 2,456,507 tenge.
Yours sincerely,, ___________/ D.O.F.
"___" __________2024 G.
Representative by proxy
Lawyer: Sarzhanov G.T.
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