On the recognition as illegal of the resolution on the approval of the amounts of compensation for the activities of the CSI
No. 6001-23-00-6ap/625 dated July 19, 2023
Plaintiff: LLP "A"
Defendant: CHI Ye.
Interested party: "V" LLP
The subject of the dispute: on the recognition of illegal actions to issue a resolution dated September 15, 2022 approving the amounts of compensation for the activities of the CHSI in the amount of 403 thousand tenge and transferring the amount of 4.6 million tenge to the recoverer of LLP "B" and canceling the resolution.
Review of the plaintiff's cassation appeal.
PLOT: On June 17, 2022, enforcement proceedings were initiated on the writ of execution dated May 25, 2022 on the recovery of debt in the amount of KZT 16.3 million from LLP "A" in favor of LLP "B".
Within the framework of the specified enforcement proceedings, the bailiff took measures to identify the debtor's property status, issued resolutions on foreclosure on funds held in second-tier banks, prohibiting the debtor from performing certain actions, and also imposed a temporary restriction on the departure of the debtor's head from the Republic of Kazakhstan.
On June 23, 2022, the bailiff issued a collection order for the amount of 16.3 million tenge.
By a resolution dated September 15, 2022, out of the recovered amount of 5 million tenge, the payment for the activities of a private bailiff in the amount of 403 thousand tenge was reimbursed, the remaining amount in the amount of 4.6 million tenge was transferred to the benefit of the recoverer of LLP "B".
By the decree of September 30, 2022, the enforcement proceedings were terminated due to the cancellation of the enforcement inscription. Enforcement measures against the debtor have been lifted.
The claim is motivated by the fact that at the time of collection and transfer of funds, both in favor of the recoverer and to pay for the activities of the CSI, the plaintiff challenged in court the executive inscription, which was canceled by the decision of the district court of August 5, 2022, which entered into force on September 28, 2022, which was aware of the defendant, who accepted participation in the court session.
Judicial acts:
1st instance: the administrative claim of "A" LLP is satisfied.
Appeal: the court's decision was overturned, and a new decision was made to dismiss the claim.
Cassation: the decision of the appellate instance is upheld.
Conclusions: Resolving the dispute and satisfying the plaintiff's claims, the court of first instance concluded that the bailiff was aware of the court's decision of August 5, 2022, which cancelled the notary's executive order, and at the time of the distribution of the recovered funds was the subject of review on appeal.
The court of appeal, giving a legal assessment of the circumstances of the dispute, did not agree with the conclusions of the court of first instance, stating that they did not correspond to the actual circumstances of the case, since the fact of a court decision that had not entered into force could not affect the actions of the bailiff to comply with the requirements of the enforcement document, therefore, the disputed actions and decisions of the Court of Civil Protection comply with the requirements of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" (hereinafter referred to as the Law).
By virtue of article 2 of the Law, the tasks of enforcement proceedings are the mandatory and timely adoption of measures aimed at the enforcement of enforcement documents issued on the basis of court decisions, rulings, orders and resolutions in civil and administrative cases, sentences and resolutions in criminal cases regarding property recovery, as well as decisions of other bodies in accordance with this Law..
In accordance with paragraph 2 of Article 55 of the Law, foreclosure on enforcement documents applies primarily to the debtor's monetary amounts, including those held in banks and organizations engaged in certain types of banking operations, unless otherwise specified in the enforcement document. According to paragraphs 1, 2 of Article 58 of the Law, when foreclosing on sums of money, the bailiff imposes an arrest on them and takes measures to enforce them.
Recovery of the debtor's monetary amounts held in banks or organizations engaged in certain types of banking operations is carried out by a bailiff by issuing a collection order. It was established that the amount of 403,186 tenge recovered from the debtor was transferred to pay for the bailiff's activities, which is consistent with the provisions of Article 109 of the Law.
The remaining part in the amount of KZT 4.6 million is transferred to LLP "B", that is, in favor of the recoverer. It is also rightfully noted that when committing the contested actions, the bailiff had no other enforcement document other than the executive inscription, whereas the list of grounds for suspending enforcement proceedings established by article 42 of the Law is exhaustive.
The plaintiff has not provided any evidence that the court has taken measures to secure the claim in the form of suspension of enforcement proceedings.
These circumstances indicate that the court of appeal correctly concluded that the contested actions of the bailiff were committed within the above-mentioned norms of the Law and aimed at executing the enforcement document.
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