On challenging the minutes of the General Meeting

             Cases of challenging the minutes of the general meeting of shareholders and decisions of the general meetings of participants in a limited liability partnership (hereinafter referred to as LLP), as well as members of various cooperatives, are quite common in judicial practice.

Lawsuits for invalidation of minutes/decisions of general meetings often act as a way to protect the rights and legally protected interests of shareholders and participants in business partnerships, members of cooperatives.

Thus, according to paragraph 14 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of legislation on limited and additional liability partnerships", the minutes of the general meeting of participants of the partnership is a document containing, in particular, information on compliance with the procedure for holding the general meeting of participants, the presence of a quorum, voting results and the decision taken on the agenda.

Information reflected in the minutes that does not correspond to the actual circumstances (for example, information is provided about a participant who did not participate in the general meeting, indicating his vote for or against the decision), may result in invalidation of the decision of the general meeting.

The minutes of the general meeting of the LLP participants, separately from the decision adopted by the general meeting, cannot be appealed in court. However, the actions of those responsible for maintaining the protocol may be appealed by any participant in the LLP in accordance with the procedure provided for in Article 50 of the Law, if, in his opinion, it contains information that does not correspond to reality, which entails or may entail a violation of the rights of the participant.

JURISDICTION

             Disputes on challenging the minutes of the general meeting in Articles 24 and 30 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) relate to corporate disputes and are considered by specialized interdistrict economic courts (hereinafter referred to as the ICES) at the location of the relevant legal entity.

According to paragraph 11 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the application by courts of certain norms of civil procedural legislation" dated March 20, 2003 No. 2, specialized interdistrict economic courts, in accordance with Article 30 of the CPC, have jurisdiction over civil cases in property disputes, regardless of the price of the claim, and in non-property disputes in which legal entities are parties, citizens who carry out business activities without forming a legal entity (individual entrepreneurs), as well as corporate disputes, with the exception of the cases listed in this article.

Corporate disputes specified in Article 30 of the CPC include disputes to which a commercial organization, an association (union) of commercial organizations, an association (union) of commercial organizations and (or) individual entrepreneurs, a non-profit organization with the status of a self-regulatory organization in accordance with the laws of the Republic of Kazakhstan, and (or) their shareholders are parties (participants, members) (part 2 of Article 24 of the CPC).

Such disputes, in particular, include disputes related to transactions with shares, participation shares, disputes between members of partnerships, shareholders on the activities of such partnerships and joint-stock companies.

PLAINTIFFS and DEFENDANTS

             In cases of this category, plaintiffs may be persons who have the status of a shareholder in a joint-stock company or a member of a partnership or a member of a relevant cooperative. When challenging the minutes/resolutions of the general meeting of the joint-stock company, the plaintiff must submit to the court proof of his status as a shareholder of the company as of the date of the contested decision of the general meeting.

The status of a shareholder is confirmed by an extract from the personal account in the company's share register system, as specified in Part 2, paragraph 6 of the Regulatory Resolution "On the Application of Legislation on Joint Stock Companies".

The status of a partnership participant is usually confirmed by the presence of an entry in the constituent documents, that is, the partnership participants are indicated in the articles of association and the founding agreement of the LLP. So, by virtue of pp. 2) clause 2 of art.14 and clause 2 of art.17 of the Law "On Limited and Additional Liability Partnerships" the founding agreement and the charter of the LLP must contain a list of the founders/ participants of the partnership, indicating their name, location, bank details (if the founder is a legal entity) or name, place of residence and document data, an identity document (if the founder is an individual).

According to Part 1 of Article 50 of the Law "On Limited and Additional Liability Partnerships", a decision of the general meeting of participants in a limited liability partnership taken in violation of the procedure for holding a general meeting and making decisions established by this Law, the articles of association of the partnership or the rules and other documents regulating the internal activities of the partnership, as well as a decision of the general meeting contradicting the law or the articles of association of the partnership, including a decision that violates the rights of a participant in the partnership, It may be declared invalid by a court in whole or in part upon the application of a member of the partnership who did not participate in the voting or voted against the contested decision.

When challenging a decision of the general meeting of a company/partnership, only the company or partnership itself can act as a proper defendant in the case, but not its body that made the decision or the participants who participated in the meeting.

The proper defendant in the claim to challenge the decision of the general meeting of the LLP participants is the LLP, and not its participants who adopted the contested decision.

             According to clause 1 of Article 33 of the Law "On Joint Stock Companies", the supreme body of a joint stock company is the general meeting of shareholders. According to clause 1 of Article 41 of the Law "On Limited and Additional Liability Partnerships", the supreme body of an LLP is the general meeting of its participants.

Paragraph 1 of Article 37 of the Civil Code states that a legal entity acquires civil rights and assumes responsibilities only through its bodies acting in accordance with legislative acts and constituent documents.

By appealing against the decision of the governing body of JSC/LLP, the plaintiffs are thereby appealing against the actions of JSC/LLP itself, therefore, the defendants in cases of the generalized category should be JSC/LLP, and not its shareholders/participants.

In this regard, we believe that the claim against the shareholders/participants of JSC and LLP, respectively, to challenge the minutes/decisions of the general meeting of shareholders/ participants is subject to rejection, since it is brought against improper defendants.

When studying judicial acts, it was found that the courts mostly correctly determine the composition of the persons involved in the case, including plaintiffs and defendants.

For example, on September 04, 2015, the specialized interdistrict Economic court (hereinafter referred to as the SMEC) of the Akmola region considered a civil case against the claim of the participants of Trud LLP, P.V. Volkov, S.O. Samoylenko, and N.N. Gaizer against Trud LLP to invalidate the decision of the general meeting of the LLP participants. The claim was motivated by the fact that the plaintiffs, by a decision of the general meeting of LLP dated April 20, 2015, refused to satisfy the application for the allocation of a conditional land share in kind with a proposal to sell the land share, that in recent years the plaintiffs have unsuccessfully tried to withdraw from the LLP with the allocation of a conditional share in kind, because they want to organize a peasant farm, believe that The LLP specifically held a general meeting in April 2015, leading to agricultural field work, despite the fact that applications were submitted in December 2014.

The court found that according to the minutes of the extraordinary general meeting of participants of Trud LLP dated April 20, 2015, 4 issues were put on the agenda, including the issue of considering the plaintiffs' application to withdraw from the LLP, at the same time, on this issue at the extraordinary general meeting of LLP, the decision on which the plaintiffs based on Paragraph 3 of Article 101 of the Land Code of the Republic of Kazakhstan denied the application for the allocation of a conditional land share in kind and proposed to resolve the issue of selling their share to one of the participants of the LLP for the amount specified in the charter.

The court declared illegal the decision of the extraordinary general meeting of participants of Trud LLP dated April 20, 2015, invalid due to the fact that the executive body of the LLP, having organized the meeting and indicated on the agenda the issue of considering the application for the withdrawal of the plaintiffs from the membership of the LLP, obliged the participants of the LLP to resolve the issue of selling the land share of the plaintiffs to someone from the participants of the LLP, that is, a decision was essentially made on an issue not included in the agenda.

The court's decision is correctly based on the provisions of paragraph 1 of Article 48 of the Law "On Limited and Additional Liability Partnerships" stating that a decision of the general meeting of the partnership's participants is subject to unconditional invalidation if the decision is taken on an issue not included in the agenda of the general meeting of the partnership's participants in accordance with the procedure established by law and constituent documents.

TERMS OF APPEAL

             According to Parts 2 and 5 of Clause 7 of the Regulatory Resolution "On the Application of Legislation on Joint-Stock Companies", an application for challenging decisions of the bodies of joint-stock companies is filed with the court within three months from the day when the applicant became aware of the violation of his rights and legitimate interests.

In accordance with Article 178 of the Civil Code, the general statute of limitations applies when resolving disputes about shareholders' protection of their rights. For example, one of the grounds for refusing to satisfy the claim was the decision of the Council of Economic and Social Councils of the Akmola region dated March 12, 2015 in a civil case against A.B. Aidarkhanova against Kulttorg OJSC, T.N. Martynova to third parties. and others on invalidating the resolutions of the General Meeting of Shareholders dated December 08, 2012, and the resolutions of the Board of Directors of the joint-stock company dated August 21, 2014. The result was that the defendant filed an application for the application of a three-month period for applying to the court to challenge the decision of the meeting dated December 08, 2012, which stated that the plaintiff had been aware of the decisions taken at this meeting since February-March 2013, when the cases involving the plaintiff were being considered, A copy of the protocol was attached to civil case No. 2-2810/2013, considered on June 27, 2013, on the claim of T.N. Martynova against Kulttorg OJSC for invalidation of the protocol decision of the general meeting of shareholders dated July 17, 2000.

It has been established that the materials of case No. 2-1081/2013 contain the contested decision of the general meeting of shareholders dated December 08, 2012, which was attended by representatives of A.B. Aidarkhanova. Thus, the plaintiff reliably knew, could and should have known about the decision of the general meeting of shareholders dated December 08, 2012 and did not provide any valid reasons for missing the deadline for appeal.

And the time limit for appealing a decision of the general meeting of LLP participants taken in violation of the procedure for holding a general meeting and making decisions established by this Law, the articles of association of the partnership or the rules and other documents regulating the internal activities of the partnership, as well as a decision of the general meeting that contradicts the law or the articles of association of the partnership, including a decision that violates the rights of a partnership participant, may be declared invalid by the court in whole or in part at the request of a participant in the partnership., who did not participate in the voting or voted against the contested decision, is six months from the date when the participant of the partnership learned or should have learned about the decision, and if he participated in the general meeting that adopted the decision, then within six months from the date of the adoption of this decision by the general meeting, as specified in art.50 of the Law "On Limited and Additional Liability Partnerships". The decisions of other bodies of a limited liability company are challenged in accordance with the procedure and within the time limits provided for in part one of this article.

At the same time, the Law of the Republic of Kazakhstan "On the Production Cooperative" dated October 05, 1995 No. 2486 does not set a time limit for challenging decisions of the general meeting of members of the production cooperative.

In this regard, the following case is of interest, which was considered on August 27, 2015 by the Council of Ministers of the Akmola region. So, a member of the Elbor production cooperative (hereinafter – PC), S.Ya. Abdukhalikov, filed a lawsuit against V.P. Andreev, a third party who does not declare independent claims on the subject of the dispute, Kazelbor PC, as well as Bisultanov Kh.Kh., a member of Elbor PC. I have filed a lawsuit against Andreev V.P., third parties who do not make independent claims on the subject of the dispute, Abdukhalikov S.Ya., PC Kazelbor to invalidate the protocol decision of the General meeting of April 21, 2014 on the exclusion of Bisultanov.Kh. and Abdukhalikova S.Ya. from the membership of the Elbor PC.

The court found that the members of PC Elbor in connection with the redistribution of shares of the cooperative's members are: Andreev V.P. – 40%, Bisultanov Kh.K. – 55%, Abdukhalikov S.Ya. – 5%. On June 10, 2010, an extraordinary general meeting of members of PC Elbor was held, according to which the chairman of the PC "Elbor" Andreev V.P. was dismissed from the post of chairman of the PC "Elbor", Abdukhalikov S.Ya. was elected to the post of chairman of the PC "Elbor". This decision has not been invalidated and has not been canceled. It was also established that by the decision of the sole founder of PC Elbor, Andreev V.P. On April 05, 2012, it was decided to consider the decision of June 16, 2008 executed, Andreev V.P. was accepted as a member of the Elbor PC. Meanwhile, as mentioned above, Andreev VP is not the sole founder of the cooperative, admission to membership in the cooperative is not included in the powers of Andreev VP, since admission and exclusion from the cooperative belongs to the exclusive competence of the general meeting of cooperative members

In accordance with paragraph 7 of Article 15 of the Law "On the Production Cooperative" on March 03, 2014, a member of the Elbor PC, V.P. Andreev, requested the convening of an extraordinary general meeting of the Elbor PC members, which was received by the plaintiff on March 07, 2014. Upon this request, on March 20, 2014, the executive body of PC Elbor decided to convene an extraordinary general meeting of the cooperative's members on April 26, 2014.

The said decision was sent to the defendant on March 26, 2014. According to clauses 9, 11, and 12 of the Law "On Production Cooperatives," a general meeting is considered competent if more than half of the cooperative's members or their proxies are present. Each member of the cooperative has one vote when making decisions by the general meeting, regardless of the size of his share.The decision of the general meeting is considered adopted if more than half of the members of the cooperative or their representatives present at the meeting voted for it.

However, V.P. Andreev, a member of the Elbor PC, decided on March 28, 2014 to appoint an extraordinary general meeting of the cooperative's members due to non-fulfillment of its requirements for April 21, 2014. By the protocol decision of the extraordinary meeting of the Elbor PC members dated April 21, 2014, Bisultanov Kh.Kh. and Abdukhalikov S.Ya. were excluded from the membership of the Elbor PC.

In these circumstances, the court correctly concluded that the executive body of the cooperative had fulfilled the demands of its member properly, and the decision to expel the cooperative members was taken alone, which is a violation of the Law "On the Production Cooperative", and therefore the claim of Bisultanov Kh.K. and Abdukhalikov S.Ya. was satisfied.

The defendant, V.P. Andreev, asked the court to apply, by analogy with the law, the six-month time limit for challenging the decision provided for by the Law "On Limited and Additional Liability Partnerships". However, the court rejected the defendant's petition with reference to the provision of Article 178 of the Civil Code that the general limitation period is set at three years, indicating that legislative acts have not established other deadlines for appealing the decision of the general meeting of the production cooperative.

At the same time, it should be noted that within the meaning of Article 5 of the Civil Code, the use of analogy is allowed only as an extreme measure to fill in the gaps of the law, if such a gap cannot be filled either by interpretation of the law or by customs.

The grounds for declaring decisions/minutes of general meetings of shareholders and decisions/minutes of general meetings of participants in limited liability companies invalid.

             The Civil Code of the Republic of Kazakhstan does not contain grounds for recognizing decisions of general meetings of shareholders and decisions of general meetings of LLP participants as invalid.

The legislation does not contain an exhaustive list of violations that can serve as grounds for satisfying claims for invalidation of minutes/decisions of general meetings. Accordingly, the outcome of the dispute resolution depends on what assessment of the circumstances of the case will be given by the court.

At the same time, some rules providing for such grounds are contained in the Law "On Joint Stock Companies" and the Law "On Limited and Additional Liability Partnerships".

Thus, as noted above, according to Article 50 of the Law "On Limited and Additional Liability Partnerships", a decision of the general meeting of participants in a limited liability partnership taken in violation of the procedure for holding a general meeting and making decisions established by this Law, the charter of the partnership or the rules and other documents regulating the internal activities of the partnership, as well as the decision a general meeting that contradicts the law or the articles of association of the partnership, including a decision that violates the rights of a participant in the partnership, It may be declared invalid by a court in whole or in part upon the application of a member of the partnership who did not participate in the voting or voted against the contested decision.

Such an application may be submitted within six months from the date when a member of the partnership learned or should have learned about the decision, and if he participated in the general meeting that adopted the decision, then within six months from the date of the adoption of this decision by the general meeting.

The decisions of other bodies of a limited liability company are challenged in accordance with the procedure and within the time limits provided for in part one of this article.

Thus, the right of a shareholder (a participant in business partnerships, a member of cooperatives) to appeal depends on the availability of mandatory conditions, which include the violation by this decision of the rights and legally protected interests of a shareholder (a participant in business partnerships, a member of cooperatives).

The law does not provide for specific methods (types) of written notification and does not oblige the body (person) convening the general meeting to use only one type of communication when notifying.

             In this regard, the following case is of interest. Antal S LLP, Amanshaev M.A. filed a lawsuit against Aktobe Oil Refining LLP for invalidation of the decision of the general meeting of participants and compensation for moral damage, arguing that on February 12, 2014, Aktobe Oil Refining LLP located at the address: Aktobe, Sazdinsky Rural District, site 401, A repeated extraordinary general meeting was held, which was attended by 36.5% of the total number of votes.

It is believed that the defendant violated the requirements of the Law "On Limited and Additional Liability Partnerships", since Antal-S LLP was not notified of the upcoming general meeting of participants, the Supervisory Board of the LLP was illegally abolished, the net income of the LLP was unlawfully distributed, and B.D. Bizhanov, a member of the Supervisory Board, was not allowed to participate and vote.

The decisions taken at this general meeting of participants are illegal and are subject to cancellation. By the decision of the Council of Ministers of the Aktobe region dated May 15, 2014, the claim of Antal S LLP, Amanshayeva M.A. was denied.

By the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Aktobe Regional Court dated August 15, 2014, the decision of the court of first instance was changed, the refusal to satisfy the claim was canceled, and a new decision was made to satisfy the claim for invalidation of the decision of the general meeting of participants of Aktobe Oil Refining LLP. The rest of the court's decision remains unchanged.

By the decision of the Cassation judicial board of the Aktobe Regional Court dated October 7, 2014, the decision of the appeals board dated August 15, 2014 remained unchanged.

The Supervisory Judicial Board, having considered the case at the request of the plaintiff, Aktobe Oil Refining LLP, changed the decisions of the appellate and cassation judicial boards and upheld the decision of the court of first instance on the following grounds.

It follows from the case file that in accordance with the founding agreement of Aktobe Oil Refining LLP dated April 18, 2013, its participants are legal entities: Almaz International Trading Company JSC with a share in the authorized capital of 25%, Antal-S LLP with a share in the authorized capital of 25% and individuals: Amanshaev M.A. - 25%, Kuzhagaliev A.U. - 5%, Bizhanov B.D. - 5%, Yerekenova G.S. - 5%, Karazhigitov N.Z. - 4%, Karimova D.A. - 3%, Kuzhagaliev A.U. - 1.5%, Kuzhagaliev B.U. - 1.5%.

In accordance with paragraph 5 of Article 47 of the Law of the Republic of Kazakhstan "On Limited and Additional Liability Partnerships", in the absence of a quorum, the general meeting of participants in a limited liability partnership is reconvened no later than forty-five days from the date of the first convocation. When the general meeting is reconvened, the rules established by Article 46 of this Law must be observed.

According to clause 1 of Article 46 of the Law "On Limited and Additional Liability Partnerships", the body or person(s) convening the general meeting of participants in a limited liability partnership are required to notify each participant of the partnership in writing at the address indicated in the register of participants maintained no later than fifteen days before the opening day of the meeting. the executive body of the partnership.

The notice must specify the time and place of the meeting, as well as the proposed agenda. Meanwhile, the specified paragraph 1 of Article 46 of the Law does not provide for specific methods (types) of written notification and does not oblige the body (person) convening the general meeting to use only one type of communication when notifying. According to the protocol No. 1 of the extraordinary general meeting of the participants of Aktobe Oil Refining LLP dated January 24, 2014, due to the lack of a quorum, the participants of the partnership proposed to convene and hold a repeat meeting of the participants of the partnership at 15:00 on February 12, 2014 with the following agenda:

1) on the election of the members of the Management Board of the LLP;

2) on the abolition of the Supervisory Board of the LLP and on the early termination of the powers of the members of the Supervisory Board of the LLP;

3) changes in the size and timing of the distribution of net income among participants for 2012;

4) to increase the authorized capital of the LLP.

This meeting was attended by: representative of the participant of Antal-S LLP Amanturlin N.Zh. and representative of the participant Amanshayeva M.A.- Niyazmagambetov M.K.. On January 24, 2014, Protocol No. 1 of the extraordinary general meeting of participants was drawn up, which explicitly stipulates that the participants of the LLP – Antal S LLP and Amanshaev M.A. jointly proposed to convene and hold a repeat extraordinary general meeting of participants on February 12, 2014.

The specified protocol was signed by the representative of Antal S LLP, Amanturlin N.Zh., and the representative of Amanshayev M.A., Niyazmagambetov M.K., It was established that as of January 27, 2014, the e-mail addresses: "antalc@mail.ru " belongs to Antal S LLP, and "nur123zhan@mail.ru ; Nurzhan Amanturlin [AKTOBE REFINERY]

In accordance with Part 2, paragraph 3, Article 42 of the said Law, members of the executive body and members of the supervisory bodies may not act as representatives of the partnership's participants at the general meeting, except in cases where the principal himself is, respectively, a member of the executive body or a member of the supervisory body of the partnership (the audit commission).

It was established that according to the registration sheet dated February 12, 2014, Bizhanov B.D. was registered and admitted to the general meeting of participants as a direct participant of the LLP – as an individual whose share in the authorized capital is 5%, and as a representative of the participant of the LLP - Almaz International Trading Company JSC as the head of the JSC.

The courts ignored these circumstances of the case and did not take into account the fact that Almaz International Trading Company JSC, as a legal entity, cannot be a member of the executive body and a member of the Supervisory board of the LLP. Meanwhile, according to paragraph 4 of Article 51 of the above-mentioned Law, only an individual can act as a member of the executive body of a partnership.

He may not be a member of the partnership, and therefore the argument of the boards that Bizhanov B.D. was not entitled to preside over the general meeting is untenable. According to Article 48 of the said Law, the procedure for decision-making by the general meeting of LLP participants does not provide for any condition according to which the decision to abolish the Supervisory Board and early termination of powers of members of the Supervisory Board automatically necessarily entails a change in the LLP's charter.

The arguments of the appeal and cassation boards regarding the unjustified consideration by the general meeting of the issue of the abolition of the supervisory Board and the termination of the powers of its members are unfounded, since the consideration of this issue falls within the competence of the general meeting of the Partnership.

The absence of a power of attorney from an LLP participant for the participation of a representative in the general meeting was one of the grounds for satisfying the claim for invalidation of the decision of the general meeting of participants.

So, on April 28, 2015, Semigulin P.A. filed a lawsuit against Kulataev A.E. and Usyk T.P. on invalidation and cancellation of the decision of the general meeting of Klyuchevoye LLP dated February 07, 2014 on the withdrawal of 253 participants from Klyuchevoye LLP and on the allocation of land plots from the LLP to account for their shares in the authorized capital of the LLP, arguing that he was not properly notified of the meeting, in the meeting He did not participate, he did not write a statement on February 04, 2014 on his withdrawal from Klyuchevoe LLP and did not sign such a statement, he was not familiar with the agenda of the general meeting.

During the trial, it was reliably established that the plaintiff's mother, who participated in the general meeting of the LLP on behalf of her son without authority, signed for the plaintiff in the notice of the meeting and in the application for withdrawal from the partnership. By the decision of the Council of Ministers of the North Kazakhstan region of June 25, 2014, left unchanged by the court of appeal, the claim was satisfied.

In essence, the solution looks correct. At the same time, it should be noted that from the text of this court decision it is impossible to determine the defendants - individuals Kulataev A.E., Usyk T.P. and individuals – third parties Gordiyanova T.P., Gryaznikova T.A. what relations they have to the LLP and this dispute; it is not specified which third parties they declare or not declare independent claims on the subject of the dispute, on the side of the plaintiff or the defendant.

Meanwhile, the LLP itself also acts as a third party, and not as a defendant, which gives reason to believe that the claim was filed against an improper defendant, and that the court incorrectly determined the composition of the persons involved in the case.

42 of the Law "On Limited and Additional Liability Partnerships", which stipulates that all participants in a limited liability partnership have the right to attend the general meeting, participate in the discussion of issues on the agenda and vote when making decisions.

A participant in a limited liability partnership may participate in the general meeting in person or through a representative. Other persons may act as a representative of a participant in a partnership of a physical person on the basis of a power of attorney.

The power of attorney of an individual for the participation of a representative in the general meeting must be given in the form provided for in paragraph 4 or paragraph 5 of Article 167 of the Civil Code of the Republic of Kazakhstan (general part), or notarized.

A study of judicial acts has shown that failure to notify a shareholder or a member of a partnership of the holding of a general meeting is one of the most common violations.

             For example, the plaintiff participant, participant of ICAGR LLP (IPS AGRI) A. Adilbekov, went to court with a claim from ICAGR LLP (IPS AGRI) for invalidation of the minutes and decisions of the general meeting of participants of the LLP dated October 07, 2014, compensation for moral damage.

The claim is motivated by the fact that Adilbekov A.S. owns a share of 20% in the authorized capital of the LLP, the second participant of the LLP is a foreign company IPConsult (International) ltd, which owns a share of 80%. The meeting was convened and conducted with significant violations of the law and the charter of the LLP. The decisions taken at the meeting do not correspond to the issues on the agenda.

The agenda included the issues of the sale of real estate of the LLP with the transfer of specific property and the indication of a certain value of its sale. However, the minutes of the meeting indicate that, following the results of the vote, decisions were made on the sale of the same property, only without specifying the price.

The question was raised about the information of the general director about the sale of movable property, and a decision was made to sell transport. By holding a meeting abroad without his participation, the LLP restricted his participation in the meeting and decision-making.

He was refused to provide information about the purposes of the sale of the property, how the LLP intends to continue to carry out its business activities without property, and other information.

Believes that moral harm has been caused to the plaintiff by the gross and systematic violation of the law, rights and interests of LLP. It has been established that according to the charter of ICAGR LLP (IPS AGRI), the participants of the partnership are IPConsult (International) ltd, with an equity stake of 80%, and Adilbekov A.S. with an equity stake of 20%. The location of the LLP is the city of Kokshetau, 1 Gorvetka Street.

According to clause 1 of Article 46 of the Law "On Limited and Additional Liability Partnerships", the body or person(s) convening the general meeting of participants in a limited liability partnership are required to notify each participant of the partnership in writing at the address indicated in the register of participants, which is maintained, no later than fifteen days before the opening day of the meeting. the executive body of the partnership.

The notice must specify the time and place of the meeting, as well as the proposed agenda.

The body or person(s) convening the general meeting of participants of a limited liability partnership are obliged, at the request of a participant of the partnership sent to them no later than ten days before the opening of the meeting, to send him in writing and no later than seven days before the opening of the meeting, draft resolutions on all issues on the agenda, copies of documents, the discussion of which is included in the agenda, as well as other information provided for by the articles of association of the partnership or documents regulating the internal activities of the partnership.

             As required by article 46 of the Law "On Limited and Additional Liability Partnerships", it is not the right, but the duty of the person convening the general meeting of the partnership, to consider the proposals received, send draft decisions on all issues on the agenda, and copies of documents, the discussion of which is included in the agenda, as well as other information provided by the charter of the partnership. or documents regulating the internal activities of the partnership.

It was also established that on September 11, 2014, Semenova N.G., General Director of ICAGR LLP (IPS AGRI), sent notices by mail to the participants of the partnership, Adilbekov A.S. and IPConsult (International) ltd, about the convening of the next general meeting of the participants of the partnership, which will be held on October 7, 2014 at 11 a.m. in the office. at the address: Istanbul city, "IPConsult (International) ltd", and with an indication of the agenda:

Approval of the partnership's annual financial report for 2013. Decision-making based on auditors' comments;

Sale of the partnership's real estate: a land plot, an office building with a warehouse and repair area, a hangar warehouse, a checkpoint, as well as a building and fenced territory of a customs warehouse located in the city of Kokshetau, in tenge at a price equivalent to USD 1.1 million at the exchange rate of the National Bank on the day of payment; a land plot and the unfinished construction of an office building with a hangar in the city of Kostanay in tenge at a price equivalent to USD 1.14 million tenge at the exchange rate of the National Bank of the Republic of Kazakhstan on the day of payment; apartments in Almaty in tenge at a price equivalent to USD 157,993 at the exchange rate of the National Bank on the day of payment;

Information from the General Director about the sale of the partnership's movable property. 4. Repayment of debts owed to the partnership by Mr. A.S. Adilbekov. Having received the notice of the general meeting on September 12, 2014, Adilbekov A.S. in a reply dated September 18, 2014, which was received by the general director of the partnership on September 23, 2014, he expressed his disagreement with the venue of the meeting, indicated that the partnership is located in Kazakhstan, and all financial and other documentation is located at the office of the partnership, proposed to hold the meeting at the office at the place of official registration in the city of Kokshetau, he demanded to provide draft resolutions on all issues on the agenda of the meeting, documents, on the basis of which an assessment was made and the value of the sale of the partnership's immovable and movable property was determined, he asked for the purposes for which the partnership intends to sell the property, how the partnership intends to carry out its activities without property, where the proceeds from the sale will be directed.

He requested a business plan for LLP a and all documents confirming his accounts receivable to the partnership, and also asked for an answer to be provided no later than 7 days before the opening of the meeting.

In response to the appeal, which was received on September 24, 2014, the General Director of Semenova N.G. LLP indicated that neither the law nor the articles of association provide for the obligation to hold a general meeting at the partnership's legal address, sent draft resolutions of the next general meeting of the LLP's participants, scheduled for 11 a.m. on October 07, 2014, copies of documents confirming accounts receivable, a letter from the auditing company about questionable transactions.

The provision of information on the purpose of the sale of property, the implementation of economic activities without property, the use of proceeds from the sale of property, and the provision of a business plan for the partnership was refused, arguing that this does not apply to information that the person convening the general meeting is required to provide to the participant of the partnership. A.S. Adilbekov, as one of the founders of IQAGR LLP (IPS AGRI), has the right to participate in the management of the partnership's affairs, attend the general meeting, participate in the discussion of agenda issues, vote when making decisions, and request information from the executive body.

However, the executive body, without motivating the decision and, despite the objection of one of the LLP participants, determined and then held another meeting, not on neutral territory, but in the office of another participant, giving preference to the latter.

In accordance with paragraph 1 of Article 48 of the Law of the Republic of Kazakhstan "On Limited and Additional Liability Partnerships", the general meeting of participants in a limited liability partnership has the right to make decisions only on the agenda items communicated to the participants in accordance with paragraphs 1 and 2 of Article 46 of this Law.

According to the minutes of the next general meeting of participants of ICAGR LLP (IPS AGRI) dated October 07, 2014, held in Istanbul, the agenda in terms of the number of issues corresponds to the one proposed on September 11, 2014. At the same time, the following decisions were made at the next general meeting of the partnership:

1. To approve the partnership's annual financial statements for 2013. Mr. A.S. Adilbekov should answer the questions and provide the partnership with the originals of the documents specified in the auditors' letter dated April 14, 2014 to March 31, 2014.;

Sell the above-mentioned land plots, apartment and other real estate;

Consider the sale of vehicles to the company as an effective and necessary measure to obtain the working capital of the partnership.

Repayment of debts owed to the partnership by Mr. A.S. Adilbekov.

             According to clause 1 of Article 46 and clause 1 of Article 48 of the Law "On Limited and Additional Liability Partnerships", the notice must specify the time and place of the meeting, as well as the proposed agenda.

The General Meeting of participants of a limited liability partnership has the right to make decisions only on the agenda items notified to the participants in accordance with paragraphs 1 and 2 of Article 46 of this Law.

When comparing the draft agenda received by Adilbekov A.S. on September 12, 2014, and the decision adopted on October 07, 2014 at the general meeting of the LLP, significant differences were established; namely, the sale price was not indicated for the sale of land, apartments, and buildings located in the city of Kokshetau, in the city of Kostanay and in the city of Almaty. property.

Instead of the issue specified in paragraph 3 on hearing information from the general director of the partnership, on the sale of movable property, it was decided to consider the sale of vehicles to the company as an effective and necessary measure to obtain the working capital of the partnership, that is, on the correctness of the sale before the meeting of the company's transport in the amount of 15 units for a total amount of 135,000 US dollars.

The above indicates that, in fact, a decision was made on an issue not included in the agenda. In accordance with art . 50 of the Law on Partnerships is a decision of the general meeting of participants in a limited liability partnership taken in violation of the procedure for holding a general meeting and making decisions established by this Law, the articles of association of the partnership or the rules and other documents regulating the internal activities of the partnership, as well as a decision of the general meeting that contradicts the law or the articles of association of the partnership, including a decision that violates the rights of a participant in a partnership may be invalidated by a court in whole or in part at the request of a participant in the partnership., who did not participate in the voting or voted against the contested decision.

According to P. 12 and 13 of the Regulatory Decree of the Supreme Court "On certain issues of the application of legislation on limited and additional liability Partnerships" is a decision of the general meeting of participants taken in violation of the procedure for holding a general meeting and making decisions established by Law, the articles of association of the partnership or the rules and other documents regulating the internal activities of the partnership (for example, if before the discussion of the issues included in the agenda, the general meeting did not establish a quorum), as well as the decision of the general meeting, A decision that contradicts the law or the articles of association of a partnership, including a decision that violates the rights of a partnership participant, may be declared invalid by a court in whole or in part at the request of a partnership participant who did not participate in the voting or voted against the contested decision.

The decision of the general meeting of the partnership's participants is subject to unconditional invalidation if:

1) a decision on issues requiring a qualified majority or unanimity in accordance with the Law or constituent documents (paragraph 2 of Article 48 of the Law) has been taken in violation of this rule.;

2) a decision has been taken on an issue not included in the agenda of the general meeting of the partnership's participants in accordance with the procedure established by law and the constituent documents (paragraph 1 of Article 48 of the Law).

In the case, it was established that the executive body, by organizing a meeting of the partnership on the territory of another state with one of the participants, significantly violated the right of the other participant to participate in the management of the partnership's affairs.

By refusing to provide information to the founder of the partnership, the General Director grossly violated the right of a partnership participant to receive information about the partnership's activities and to review accounting documents. Having indicated one issue on the agenda, and having discussed another issue, it decided on an issue not included in the agenda.

Thus, the case established a violation of the rights of an LLP participant in managing the affairs of the partnership, in providing him with information and making a decision on an issue not included in the agenda.

By the decision of the Council of Economic and Social Council of Akmola region dated February 10, 2015, the protocol and decisions adopted at the general meeting of participants of ICAGR LLP (IPS AGRI) dated October 07, 2014 were declared invalid.

In this regard, we believe that claims for invalidation of a decision of the general meeting are always subject to satisfaction if violations of the requirements of the law or the charter significantly infringe on the rights and legitimate interests of a participant, shareholder or member of the cooperative who voted against this decision or did not participate in the general meeting.

Not all of the partnership's property was the subject of the pledge, and accordingly, the issue of pledging part of the property does not require a unanimous decision at the general meeting of the partnership's participants.

             The participants of Bogvi-Agro LLP, Moiseenko G.A., Shashkin E.L., Selenok G.G., filed a lawsuit against JSC Halyk Savings Bank of Kazakhstan (hereinafter referred to as the Bank), Bogvi-Agro LLP, Bogvi LLP, Akzharnan LLP to invalidate the decisions of the general meeting of the founders and the pledge agreement for the right of temporary paid land use

             The claim was partially satisfied by the decision of the Council of Ministers of the Akmola region dated May 06, 2014. The decision of the general meeting of the founders of Bogvi-Agro LLP dated September 10, 2012 regarding the transfer as collateral of the right of temporary paid land use to land plots with cadastral numbers 01-009-013-030 with a total area of 260.4 hectares, 01-009-013-125 with a total area of 3966.6 hectares, 01-009-013- 126 with a total area of 87.6 hectares, located in the Ergolsky rural district of the Bulandinsky district of Akmola Agreement on the pledge of land use rights No. 1161 dated October 08, 2012 between the Bank, Bogvi-Agro LLP, Bogvi LLP and Akzhar-Nan LLP. The rest of the claim was denied. The Bank, Bogvi-Agro LLP, Bogvi LLP and Akzhar-Nan LLP collected a state duty in the amount of 2,778 tenge in equal shares in favor of Moiseenko G.A., Shashkina E.L., Selenok G.G.

The decisions of the Appellate Judicial Board for Civil and administrative cases and the cassation judicial board of the Akmola Regional Court left the decision of the court of first instance unchanged.

By the resolution of the Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan on October 07, 2015, judicial acts of lower instances were canceled and a new decision was made to dismiss the claim on the following grounds.

It was established that the participants of Bogvi-Agro LLP became part of the participants of the LLP with land plots (conditional land shares) located on the territory of the Ergolsky rural district of the Bulandyn district of the Akmola region.

According to the founding documents, Moiseenko G.A. has a stake in this LLP (0.028%), Shashkina E.L. (0.014%), Selenok G.G. (0.007%). According to the Charter of Bogvi-Agro LLP, as amended on February 24, 2005, the total number is 603 participants. On September 10, 2012, at the general meeting of participants of BogviAgro LLP, the issue of providing collateral to the Bank to ensure the fulfillment of obligations of Akzhar-Nan LLP to the Bank of the property of Bogvi-Agro LLP, including the land plots disputed by the plaintiffs, was considered.

By the debt transfer Agreement dated October 02, 2012 No. 29-12-01, Akzhar-Nan LLP assumed an obligation to repay part of the debt owed by Bogvi LLP to the Bank in the amount of 1,140,000,000 tenge. In this regard, a bank loan agreement was concluded between the Bank and Akzhar-nan LLP dated October 02, 2012 No. KD 29-12-02, according to which the Bank provided Akzhar-Nan LLP with a loan in the amount of 1,140,000,000 tenge for the period from October 02, 2012 to October 01, 2015.

In order to ensure the fulfillment of obligations under the bank loan agreement between the Bank, Bogvi-Agro LLP, Bogvi LLP and Akzhar-Nan LLP, an agreement on the pledge of land use rights dated October 08, 2012 No. 1161 was concluded, the land plots of Bogvi-Agro LLP, including the land disputed by the plaintiffs The land plots were pledged to the Bank to ensure the fulfillment of the obligations of Bogvi LLP and Akzhar-Nan LLP.

Satisfying the plaintiffs' claims, the local courts concluded that the general meeting of Bogvi-Agro LLP was held in violation of the procedure for convening the general meeting, since it was held with only one participant of the Bogdanets V.G. partnership, who owns 90.725% of the participation, and the other participants of the LLP were not notified of the date and time of the meeting. and, referring to articles 46, 47, 50 of the Law "On Limited and Additional Liability Partnerships", they declared the decision of the general meeting invalid., since the general meeting of participants with the issue of property pledge was held in violation of the law.

At the same time, the pledge agreement was declared invalid based on the requirements of paragraph 1 of Article 158 of the Civil Code.

In accordance with clause 10) of Article 43 of the Law "On Limited and Additional Liability Partnerships", the decision on the pledge of all property of the partnership falls within the exclusive competence of the general meeting of participants in a limited liability partnership. According to clause 5.2.10 of the Charter of Bogvi-Agro LLP, the decision on the pledge of all property of the partnership, adopted unanimously, belongs to the exclusive competence of the general meeting of the partnership's participants. Also, decisions on other issues are made by a simple majority of votes of the members of the partnership present and represented at the meeting.

It was established that Bogvi-Agro LLP, of all its assets (movable and immovable property), pledged to the Bank only the right to land use 6,851.1 hectares, that is, part of the LLP's property, not all of the LLP's property was the subject of the pledge, respectively, the issue of pledging part of the property does not require a unanimous decision at the general meeting of the partnership participants.

Thus, the Bank's arguments that the plaintiffs collectively own 0.049% of the share in the authorized capital, therefore unreasonably challenging the pledge agreement and the decision of the general meeting, have been confirmed. It should be noted that in this case, the plaintiffs could not influence the outcome of the decision by their vote, however, the current legislation does not provide for the rule that the court has the right, taking into account all the circumstances of the case, to uphold the appealed decision of the general meeting if the plaintiff's vote could not affect the voting results.

Information reflected in the minutes that does not correspond to the actual circumstances may lead to the recognition of the decision of the general meeting as invalid.

             Thus, Abdrazakov G.N. filed a lawsuit with the court against M.K. Kharmysov, the state institution "Department of Justice of Talgar district for invalidation and cancellation of the protocol and decision of the general meeting dated January 25, 2014, notification on behalf of M.K. Kharmysov dated February 28, 2014 and registration.

The defendant, M.K. Kharmysov, filed a counterclaim with the court against G.N. Abdrazakov for the recovery of the cooperative's documents, for the cancellation of protocols No. 10 of April 30, 2013 and No. 2 of September 25, 2013 on the re-election of G.N. Abdrazakov as chairman of the consumer cooperative of the Talgar Dostyk Horticultural Association (hereinafter referred to as the Cooperative) and protocol registration.

By the decision of the Council of Ministers of the Almaty region of July 16, 2014, the claim of Abdrazakov G.N. was denied. The counterclaim of M.K. Kharmysov was partially satisfied. The protocol of April 30, 2013 on the election of Abdrazakov G.N. as chairman and registration with the Department of Justice of the Talgar district on the change of leadership according to the protocol were declared invalid, the rest was denied.

By the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Almaty Regional Court dated October 24, 2014, the court's decision was changed. In terms of satisfaction of the claim of M.K. Kharmysov, it was canceled with the issuance of a new decision to dismiss the claim. The claim of Abdrazakov G.N. is satisfied. The decision of the general meeting of the Cooperative dated January 25, 2014 on the re-election of Chairman Abdrazakov G.N., as well as registration with the Department of Justice, were declared invalid and canceled.

The rest of the court's decision remains unchanged. By the decision of the Cassation Judicial Board of the Almaty Regional Court dated December 24, 2014, the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Almaty Regional Court remained unchanged.

By the resolution of the Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan dated October 14, 2015, the decisions of the appellate and cassation judicial boards of the Almaty Regional Court were changed, canceled in terms of changing the decision of the Council of Economic and Social Council of the Almaty region, leaving in force the decision of the court of first instance, judicial acts in the rest unchanged on the following grounds.

In accordance with paragraph 4 of Article 18 of the Law of the Republic of Kazakhstan "On the Consumer Cooperative", the decision of the general meeting of the consumer cooperative, adopted in violation of the procedure for holding the general meeting, and the adoption of decisions established by this Law, the charter or rules and other documents regulating the internal activities of the consumer cooperative, as well as the decision of the general meeting, contrary to this Law or the charter, including a decision that violates the rights of members of the consumer cooperative, they may be declared invalid by the court in whole or in part at the request of the members of the consumer cooperative.

Such an application may be submitted within six months from the date of the general meeting. The case materials established that the protocol of June 4, 2010 established the Cooperative and approved its charter, elected chairman Sagynysheva Zh.M. and registered 11 members of the Cooperative. On June 10, 2011, by Order No. 3-01-356, the Department of Justice registered this legal entity.

In accordance with the protocol and the decision of the general meeting of the Cooperative on April 30, 2013, Abdrazakov G.N. was elected chairman. These changes were registered by the Department of Justice. According to the minutes and the decision of the general meeting of the Talgar Dostyk SC of January 25, 2014, Harmysov M.K. was re-elected chairman. The court of first instance, recognizing the minutes and the decision of the general meeting as invalid, pointed out the non-compliance with the procedure for holding the meeting, in particular, the lack of quorum and the fictitiousness of the decision.

According to an extract from the minutes dated April 30, 2013, 4 people attended the meeting, two of whom, Dosova S.D. and Abdukarimov S., are not members of the cooperative. According to clause 5 of Article 18 of the Law "On the Consumer Cooperative", the procedure for convening and holding a decision is determined by the charter of the consumer cooperative.

In accordance with paragraphs 7.3, 11), paragraph 7.4 of the cooperative's Charter, an extraordinary meeting of the cooperative is convened by the chairman of the cooperative at the request of at least 1/3 of its members. The decision on admission to membership, withdrawal, exclusion from membership of the cooperative or temporary suspension of the use of rights is made by a qualified majority of 2/3 of the total number of cooperative members.

According to clause 7.6 of the Charter, the general meeting is authorized to make a decision if at least half of the cooperative's members participated in it. The decision of the meeting is made by open voting and is considered adopted by a majority of the votes present at the meeting, voting may be by secret ballot. In violation of these provisions, the procedure for the election of G.N. Abdrazakov as chairman was not followed.

Witnesses Oskepbaev B.G. and others testified that they did not know about the meeting, did not sign the protocol, and did not know Abdrazakov G.N. There is no information in the case file that Abdrazakov G.N. informed any of the cooperative members about his election to the position of chairman.

It follows from the explanation of Sagynysheva Zh.M. that in fact no meeting was held, and the documents and seal were handed over to Abdrazakov G.N. without a meeting. In addition, in violation of clause 7.7 of the Charter, according to which the chairman is elected for a term of five years only from among the members of the cooperative, Abdrazakov G.N. was not a member of the cooperative.

The court of first instance reliably established that the minutes of the meeting dated January 25, 2014, were submitted to the Department of Justice of the Talgar district, which was attended by 25 active members of the cooperative, who unanimously elected M.K. Kharmysov as chairman. The meeting was held with the participation of all members of the cooperative and in compliance with the requirements of the Charter for the re-election of the chairman, while anyone's rights and legally protected interests are not violated.

The court also found that M. Harmysov had not missed the six-month deadline for challenging the protocol provided for in Article 18 of the Law "On Consumer Cooperatives". The court's conclusion in this part is motivated.

Given the above set of circumstances of the case, the court, rejecting the claim of Abdrazakov G.N. and satisfying the counterclaim of Harmysov M. for the cancellation of the protocol of April 30, 2013, reasonably assumed that no meetings on the election of Abdrazakov G.N. chairman had actually been held, and when Harmysov M.K. was elected, all requirements were met.

The circumstances established by a court decision that has entered into legal force in a previously considered civil case are of prejudicial importance and are not proven again when considering other civil cases, provided that the same persons participate in them.

             By the decision of the Council of Ministers of the South Kazakhstan region dated February 20, 2015, the claim of Loktenko O.N. to the defendant, private notary Sherimkulova G.D., to third parties, participant of Samal Transit LLP Balabiev N.K., BankKassaNova JSC, regarding the recognition as illegal of the protocol of the extraordinary general meeting of participants of Samal Transit LLP without the issue dated April 01, 2014 and the invalidation of the decision of this extraordinary general meeting of participants.

             The claim of the participant of Samal Transit LLP, O.N. Loktenko, was motivated by the fact that the private notary, G.D. Sherimkulova, when authenticating the signatures of the signatories in the protocol dated April 01, 2014, registered the notarial act on April 28, 2014 in register No. 3435, thereby she could not know whether there was a quorum of the meeting and when the meeting was held. April 01 or 28, 2014. She was not present at the meeting and at the notary's office, when signing the protocol.In addition, the signatories did not write their last names, first names and patronymics in the protocol.

The notary issued a mastic stamp without spelling out the words, moreover, the notary's certification inscription abbreviated the names and patronymics of the participants and spelled out only the initials of the names and patronymics of the participants, the protocol also does not specify the name, BIN and location of the legal entity.

She was not notified of the place and time of the general meeting, the minutes indicated that the meeting was opened by O.N. Loktenko, although she did not initiate an extraordinary general meeting of participants, in addition, the minutes did not establish a quorum either before the discussion of the issues on the agenda or before making decisions on them.

The court found that the participants of Samal Transit LLP held an extraordinary general meeting of participants with the preparation of the protocol dated April 01, 2014 and the authenticity of the signature of the participants of Samal Transit LLP who signed this protocol on April 28, 2014 was certified by a private notary Sherimkulova G.D. According to clause 8 of Article 47 of the Law "On Limited and Additional Liability Partnerships", the secretary of the general meeting is responsible for keeping the minutes of the general meeting and the minutes are signed by the chairman and the secretary of the general meeting, that is, notarization of the authenticity of the signatures of the participants who signed the minutes is not required according to this provision of the law.

In accordance with Articles 40 and 79 of the Law "On Notaries", notarial acts are performed on the day of presentation of all necessary documents. The notary attests the authenticity of the signature on the document, the content of which does not contradict legislative acts, and does not represent a statement of the transaction.

The notary, certifying the authenticity of the signature, does not certify the facts stated in the document, but only confirms that the signature was made by a certain person. In this regard, the court correctly considered that the notary, certifying the authenticity of the signature, does not certify the facts stated in the document, but only confirms that the signature was made by certain persons, that is, participants in Samal Transit LLP, and besides, authenticating the signatures of the signatories of the protocol is not a transaction.

             By virtue of paragraph 2 of Article 71 of the CPC, the circumstances established by a court decision that entered into force in a previously considered civil case are binding on the court and are not proven again in other civil cases involving the same persons.

Earlier, by the decision of the Al-Farabi District Court of Shymkent dated October 24, 2014, it was established that the participants of Samal Transit LLP were O.N. Loktenko and N.K. Balabiev with equal shares, O.N. Loktenko attended the meeting and personally signed the minutes of the meeting dated April 01, 2014 according to the conclusion of Loktenko's handwriting expertise O.N., there was a quorum, and the meeting participants duly made decisions on the issues on the agenda. The court has established the correctness of the procedure for performing notarial acts, and the court's conclusion in this part is motivated. Moreover, more than six months have passed since the decision was made by the general Meeting.

The circumstances established in the case, including the holding of an extraordinary meeting of the participants of the conference communication LLP, without prior approval, the absence of a proper decision on this issue by the participants, led to a violation of the rights and interests of the plaintiff, deprived him of the opportunity to participate in the general meeting.

             Thus, Ince Muharrem, a member of Caspian Trust Group LLP, filed a lawsuit against Caspian Trust Group LLP and MEB Company to invalidate the minutes and decision of the extraordinary meeting of participants dated April 30, 2015, Appendices No. 4 to the Charter of the extraordinary meeting of Participants of Caspian Trust Group LLP dated April 30. In 2015, by canceling registration with the judicial authorities. arguing that he was not properly notified of the day and place of the extraordinary meeting. On April 30, 2015, at 9:00 a.m., the plaintiff was in his office in Turkey, but no one contacted him via conference call.

In this regard, there are reasons to doubt that the convocation and holding of the meeting actually took place. In court, the director of Caspian Trust Group LLP, V.E. Medinamova, admitted the claim and explained that the executive body had also not been notified of the place and time of the extraordinary general meeting, and she had not organized the meeting.

The decision taken at the meeting also unreasonably limits its competence as an executive body. According to the defendant, MEB, the plaintiff and the executive body were duly and timely notified of the place and time of the extraordinary meeting. A notification about the upcoming meeting was sent to them by e-mail, with an agenda and a list of issues to be discussed.

The decision at the meeting was made by a majority vote, is lawful and does not contradict the current legislation. The court found that Caspian Trust Group LLP was established on May 23, 2012, and subsequently re-registered on December 15, 2014. The number of participants is 2: the company "MEB" with 90% of the participation and Inje Muharrem with 10% of the participation. In fact, the MEB company initially took care of the organizational issues of convening an extraordinary general meeting.

It was also established that the information indicated in the minutes of the extraordinary general meeting of participants dated April 30, 2015 about the convening of the meeting by the director of the LLP is incorrect, in fact, the company "MEB" initially dealt with the organizational issues of the convening of the extraordinary general meeting. The Court considers that MEB has not complied with the sequence of actions of the executive body and the participant regulated by law when convening an extraordinary general meeting. In the notice, MEB did not specify the location of the meeting.

The indication of the conference call telephone number in the notification does not confirm compliance with the requirements of paragraph 1 of Article 46 of the Law, since the respondent indicated only the method of holding the meeting, and not its location.

It should be noted that in court, the representatives of the company "MEB" needed additional time to clarify the issue of the location of the conference phone. In addition, the disputed protocol dated April 30, 2015 indicates the city of Atyrau as the place of its compilation, whereas this circumstance does not correspond to reality.

The arguments of the representatives of the MEB company about the typo in the protocol are untenable, since it had not been corrected at the time of the dispute in court. Representatives of the company could not name the venue of the extraordinary general meeting of participants in court. The holding of a conference call meeting did not exempt MEB from specifying the venue in the notice and in the minutes. The company "MEB" has not provided evidence of compliance with the registration procedure for participants of the Caspian Trust Group LLP.

In such circumstances, holding an extraordinary general meeting in an unconventional way, through conference calls, was subject to prior agreement with all participants of the LLP, or it was necessary to make a separate preliminary decision on this issue in accordance with the procedure established by Law. In court, the representatives of the parties explained that each was waiting for the other's call.

This circumstance confirms that the method of holding the meeting was not agreed upon between the participants and the executive body of the LLP. The emails provided by MEB with Inje Muharrem, according to which the latter waited for several hours waiting to contact him, indicate Inje Muharrem's desire to participate in the extraordinary general meeting.

The above indicates a violation of the provisions of clauses 1-3 of Articles 45, paragraph 1 of Article 46 of the Law "On Limited and Additional Liability Partnerships", which stipulates that an extraordinary (extraordinary) general meeting of participants in a limited liability partnership is convened in the cases provided for by this Law, the articles of association, as well as in any other cases. when the interests of the partnership require the convening of such a meeting.

An extraordinary general meeting of participants in a limited liability partnership is convened by the executive body of the partnership on its own initiative, and in cases of the creation of supervisory and supervisory bodies, also at the request of the supervisory board or the audit commission (auditor) of the partnership, or at the initiative of the participants of the partnership, who collectively hold more than one tenth of the total number of votes.

If, despite the requirements of the supervisory Board, the audit commission (auditor) or the members of the partnership, the executive body does not convene an extraordinary general meeting, it may be convened by the Supervisory Board, the Audit Commission (auditor) or the members of the partnership, who collectively hold more than one tenth of the total number of votes, independently.

The body or person(s) convening the general meeting of participants of a limited liability partnership are obliged to notify each participant of the partnership in writing about its holding at the address indicated in the register of participants maintained by the executive body of the partnership no later than fifteen days before the opening day of the meeting.

The notice must specify the time and place of the meeting, as well as the proposed agenda. By virtue of clause 11 of the Regulatory Resolution "On Certain Issues of the Application of Legislation on Limited and Additional Liability Partnerships", the decision of the general meeting may be declared invalid if the convocation procedure is violated.

Violations of the procedure for convening a general meeting should be understood as a violation of mandatory norms established by law (for example, non-compliance with the deadlines for notifying participants, the absence of information in the notices about the time and place of the general meeting (paragraph 1 of Article 46 of the Law).

Appendix No. 4 to the Charter of the LLP was adopted on the basis of a decision of the extraordinary meeting of participants dated April 30, 2015. In connection with the above, the court recognized the arguments of the plaintiff as justified. By the decision of the Council of Economic and Social Council of Atyrau region dated July 13, 2015, the decision of the extraordinary meeting of participants of Caspian Trust Group LLP, adopted under Protocol No. 1-2015 dated April 30, 2015, Appendix No. 4 to the Charter of the LLP dated April 30, 2015, was declared invalid.

Not all disputes arising between the participants of the partnership are subject to judicial resolution, and the resolution of disputes should also be carried out by the participants themselves in accordance with the requirements of the law and the provisions of the Charter.

             So, by the decision of the Council of Economic and Social Council of Almaty dated January 27, 2015, A.V. Zinchenko, a member of GlobalKazTrans LLP, filed a lawsuit against GlobalKazTrans LLP, M.K. Shamsuidinov, G.M. Musabayeva, participants of GlobalKazTrans LLP. on invalidation and illegality of the decision of the general meeting of participants of GlobalKazTrans LLP on issue No. 2 on the sale of vehicles, adopted at the meeting of participants of the partnership on June 04, 2014, the decision to remove from the agenda the issue No. 4, approved and already submitted for consideration by the general meeting of participants of GlobalKazTrans LLP, "the reasons and circumstances that prompted participants Musabaev G.M. and Shamsuidinov M.K. to make a decision on the sale of most of the vehicles under the purchase and sale agreement No. 06_TS dated August 08, 2011, concluded between GlobalKazTrans LLP and TurksibInvest LLP.

The claim is motivated by the fact that in June 2007, the plaintiff acquired a share in the authorized capital of GlobalKazTrans LLP, and since 2009, the plaintiff has become a member of this partnership. GlobalKazTrans LLP had construction equipment on its balance sheet.

Since 2009, the Director of GlobalKazTrans LLP has not held a single general meeting on the provision of financial statements on the business activities of GlobalKazTrans LLP. Since 2008, the director of GlobalKazTrans LLP, Shamsuidinov M.K., verbally assured the plaintiff that the affairs of GlobalKazTrans LLP were not going well, GlobalKazTrans LLP was not generating income. By a court decision that entered into force on 03/19/2012, the court ordered the executive body of GlobalKazTrans LLP to provide all financial and accounting documentation on the partnership's activities for the period from 2009 to 2011. However, this court decision has not been executed to date.

In 2014, the court issued a similar decision for the period from 2012 to 2013. On June 04, 2014, an extraordinary general meeting of the participants of GlobalKazTrans LLP was convened. The initiator of the convocation was participant Musabayeva G.M. with the only issue on the agenda: The sale of vehicles of the partnership.

The plaintiff put seven more issues on the agenda regarding the partnership's activities, which were approved and accepted for consideration at the general meeting of participants of GlobalKazTrans LLP. Based on the confirmation received from the executive body of TOO GlobalKazTrans dated 05/22/2014, all the proposals submitted by the plaintiff were included in the agenda.

A statement with proposals for making changes to the agenda was received by the executive body of GlobalKazTrans LLP on 05/21/2014. During the general meeting of the partnership's participants, participants Musabayeva G.M. and Shamsuidinova M.K. unexpectedly, without explaining the reasons, removed from the agenda an issue that had already been accepted for consideration.

Participants Musabayeva G.M. and Shamsuidinov M.K. did not have the right to withdraw the above question, it had to be withdrawn even before the meeting opened, providing a reasoned refusal response. In accordance with the court decision of December 25, 2012, which entered into force, the plaintiff declared invalid the transaction concluded between GlobalKazTrans LLP and TurksibInvest LLP.

The basis for the sale of most of the partnership's vehicles was the extraordinary general meeting of the participants of GlobalKazTrans LLP, G.M. Musabayeva and M.K. Shamsuidinov dated 08.08.2011. To date, the executive body of GlobalKazTrans LLP has not taken any action to return property from someone else's and illegal possession. The plaintiff's repeated appeals to the executive body, demanding to begin the process of returning property from illegal and alien possession, were not accepted and ignored.

The contested vehicles are not owned by GlobalKazTrans LLP. In addition, most of the illegally sold vehicles under the transaction invalidated by the court, based on the decision of the participants Musabayeva G.M. and Shamsuidinov M.K., according to the response from the Special Control Center of the branch of the RSE PSC in Almaty dated December 24, 2013, are not even registered in the city of Almaty. Participants Musabayeva G.M. and Shamsuidinov M.K. do not have any rights and powers to vote for the sale of vehicles that do not belong to GlobalKazTrans LLP.

The actions of the participants of GlobalKazTrans LLP who have made such a decision run counter to the current legislation, thereby contradicting the law and the Charter of GlobalKazTrans LLP and are absurd. When studying the case materials, the court found that A.V. Zinchenko is a member of GlobalKazTrans LLP with a 16% share in the authorized capital. According to the minutes of the extraordinary general meeting of GlobalKazTrans LLP, held on June 04, 2014 at 11:00 a.m., nine issues were approved for the agenda.Of these, the plaintiff challenged two decisions of the general meeting, namely on the sale of vehicles of GlobalKazTrans LLP by concluding a purchase and sale agreement with the executive body of the LLP to sign the agreement, and on the removal from the agenda of issue No. 4 "The reasons and circumstances that prompted the participants Musabayeva G.M. and Shamsuidinov M.K. to make a decision on the sale of most of the vehicles under the purchase and sale agreement No. 06_TS dated 08.08.2011 concluded between GlobalKazTrans LLP and TurksibInvest LLP. According to the voting results, Musabayeva G.M. – 68% and Shamsuidinov M.K. – 16% voted "for", Zinchenko A.V. -16% voted "against".

It was also established that the absentee decision of the Almaty City Council of Economic and Social Council of March 19, 2012, established the obligation to oblige the executive body of GLOBALKAZTRANS LLP, represented by Director Shamsuidinov M.K., to provide Zinchenko A.V. to the participant of LLP. all financial, business and accounting documents from January 01, 2009 to November 30, 2011, including tax reports, contracts concluded with counterparties, correspondence with third parties, all minutes of meetings of LLP participants for review, request from GLOBALKAZTRANS LLP all signed financial statements from 2009 to 2010.

The decision of the extraordinary general meeting of participants of GlobalKazTrans LLP dated June 27, 2011 was also invalidated by the absentee decision of the Council of Economic and Social Council of Almaty on July 02, 2012.

Also, by the decision of the Council of Economic and Social Council of Almaty, which entered into force on August 29, 2014, it was decided to oblige the executive body of GLOBALKAZTRANS LLP to provide both in electronic and paper form: to the participant of Zinchenko A.V. LLP. all financial, business and accounting documents from January 01, 2012 to December 31, 2013, including tax reports, contracts concluded with counterparties, correspondence with third parties, all minutes of meetings of LLP participants for review, request from GLOBALKAZTRANS LLP all signed financial statements from January 01, 2012 to December 31, 2013.

By the decision of the Council of Economic and Social Council of Almaty, which entered into force on December 25, 2012, Zinchenko A.V. to GlobalKazTrans LLP, Turksibinvest LLP on the invalidation of a major transaction under the purchase and sale agreement No. 06–TC dated August 08, 2011, on the recognition of the decision of the extraordinary general meeting of participants of GlobalKazTrans LLP dated August 08, 2011 on the sale of vehicles, the order for de-registration of vehicles dated 09 August 2011, the decision of the extraordinary general meeting of participants of GlobalKazTrans LLP dated August 08, 2011, the order for de-registration of vehicles (special equipment) dated August 09, 2011, invalid, fully satisfied.

             According to Part 2 of Article 71 of the CPC, the circumstances established by a court decision that entered into force in a previously considered civil case are binding on the court and are not proven again in other civil cases involving the same persons.

The court considered that since the above transaction was declared invalid by the court, the vehicles are the property of GlobalKazTrans LLP, even if they are actually owned by Turksibinvest LLP and some vehicles are not registered in Almaty, the owner, in the absence of the possibility of using the property, has the right to dispose of the legal fate of this property.

The court pointed out that not all disputes arising between the participants of the partnership are subject to judicial resolution, and the resolution of disputes should also be carried out by the participants themselves in accordance with the requirements of the law and the provisions of the Charter.

In connection with this decision of the Council of Economic and Social Council of Almaty dated January 27, 2015, the claim of Zinchenko A.V. was denied.

Regulatory legal acts:

The Civil Code of the Republic of Kazakhstan,

Laws of the Republic of Kazakhstan dated May 13, 2003 No. 415 "On Joint-Stock Companies",

dated May 02, 1995, No. 2255 "On Business Partnerships" and

dated April 22, 1998 No. 220 "On Limited and Additional Liability Partnerships",

The Law of the Republic of Kazakhstan "On the production Cooperative" dated October 05, 1995 No. 2486,

The Law of the Republic of Kazakhstan "On the Consumer Cooperative" dated May 08, 2001 No. 197, Regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan dated December 28, 2009 No. 8 "On the application of legislation on joint-stock companies", dated July 10, 2008 No. 2 "On certain issues of the application of legislation on limited and additional liability partnerships" and others regulatory legal acts, depending on the circumstances of the case.

 

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