On recognition as illegal and cancellation of the resolution approving the amounts of payment for the bailiff's activities
No. 6001-23-00-6ap/770 dated August 2, 2023
The plaintiff: IP A.T.
Defendant: HSI K.
Interested party: JSC "SEC" (hereinafter - SEC)
The subject of the dispute: on the recognition of the illegal and cancellation of the decision on the approval of the amounts of payment for the bailiff's activities, on the recognition of illegal inaction in not issuing decisions on the cancellation of decisions on enforcement measures and on the obligation to remove measures to ensure the enforcement of enforcement documents.
Review of the cassation complaints of the plaintiff and the defendant.
PLOT:
By the decision of the Council of Economic and Social Council of Pavlodar region dated December 13, 2019, debt in the amount of 2.3 million tenge was collected from KH "A" in favor of SEC. On April 6, 2020, bailiff B. initiated enforcement proceedings to recover the specified amount from the debtor, within the framework of which enforcement measures were taken in the form of a ban on taking actions to alienate the debtor's movable and immovable property.
On March 18, 2021, at the request of the claimant, the enforcement document was returned. On April 9, 2021, the writ of execution was presented by the recoverer for execution by C. On April 13, 2021, the bailiff initiated enforcement proceedings and took enforcement measures in the form of a ban on the alienation of the debtor's movable and immovable property and a temporary restriction on the debtor's departure, authorized by the court. On July 12, 2021, due to the claimant's application, the enforcement document was returned to the claimant without execution. 2
On August 4, 2021, the recoverer again submitted for execution a CSI K, which on the same day issued orders to initiate enforcement proceedings; to request information about bank account numbers and the availability of money on them and to seize them, authorized by the prosecutor; to prohibit the debtor from taking actions to dispose of property; to seize immovable property the debtor.
On August 24, 2021, the recoverer and the debtor, with the participation of a mediator, concluded a mediation agreement, after which the enforcement proceedings were terminated.
By the decision of the bailiff dated August 26, 2021, the amount of payment for activities in the amount of 3 million tenge was approved, which was decided to be collected from KH "A", on the basis of which enforcement proceedings were initiated on September 8, 2021.
The decision of the SMAS of the region of October 6, 2021, which entered into force, declared illegal and canceled the defendant's decision to initiate enforcement proceedings.
Judicial acts: 1st instance: the claim is satisfied. Appeal: the court's decision has been changed. Regarding the recognition of the unlawful inaction of the bailiff To the non-issuance of decisions on the cancellation of decisions:
1) dated August 24, 2021, prohibiting debtor A. from performing certain actions;
2) dated May 26, 2021 on the seizure of property, namely motor vehicles;
3) dated May 26, 2021 on the seizure of immovable property (including houses, land plots, production facilities, accounts, etc.);
4) dated May 26, 2021, prohibiting the debtor from performing certain actions;
5) dated May 26, 2021 on the detention of a vehicle and placement in a special parking lot;
6) dated July 7, 2021, on temporary travel restrictions; on assigning the duty to a private bailiff to cancel all measures to ensure the execution of enforcement documents in connection with the termination of enforcement proceedings - canceled, with a new decision in this part to dismiss the claim.
The rest of the court's decision remains unchanged.
Cassation: the appeal ruling is upheld.
Conclusions: When deciding to satisfy the claim, the court of first instance proceeded from the fact that in the event of termination of enforcement proceedings of a property nature in connection with the conclusion of a mediation agreement by the parties, payment for the bailiff's activities is made in proportion to the part in which the enforcement document was executed.
The court of appeal, changing the court's decision and making a new decision to partially dismiss the claim, reasonably assumed that the private bailiff in the enforcement proceedings for debt collection from IP A, terminated in connection with the conclusion of an agreement between the recoverer and the debtor on dispute settlement through mediation, after the execution of the enforcement document in full the volume, that is, the fulfillment of the terms of the mediation agreement by March 10, 2025, if necessary, the court has the right to raise the issue of collecting from the plaintiff both the executive sanction, the costs of execution, penalties, and the amount of payment for its activities, since in fact the execution of the court's decision on debt collection from the plaintiff will be enforced.
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