Response to an appeal against a court decision to recover a double deposit

 

 

To the Almaty City Court

from the plaintiff ARG

Almaty, ul. X, 90, sq. 36

phone: 8778

Defendant: BOOM

third party: IP "" AD.B.

response to the appeal

On November 15, 2023, the Bostandyk District Court of Almaty considered civil case No. 7514-23-00-2/7722 on the claim of A.R.G. to B.U.M. for the recovery of a double deposit and ruled on partial satisfaction of the claim. 500,000 tenge was recovered from the defendant in my favor, as well as court costs.

I consider the decision of the Bostandyk District Court of Almaty to be illegal and unjustified on the following grounds.

The court reliably established that an agreement on a deposit was concluded between me and B.U.M. on May 23, 2023, according to which B.U.M. received from me a deposit of 500,000 tenge for the purchase of an apartment at the address: Bostandyk district, K. street, 184, sq. 34. The deadline for concluding the purchase agreement and the full payment under the contract until May 25, 2023.

The terms of the agreement also provide that B.U.M. undertook to vacate the apartment by June 8, 2023, to pay off all existing debts on utility bills, electricity, gas, telephone with the provision of supporting documents by the time of the conclusion of the contract of sale or to provide all information on debts on the day of notarization, to deduct the debt from the cost of the apartment. B.U.M. also undertook to remove from registration (registration) all residents of B.U.M. He undertook to prepare all the necessary documents in accordance with the current legislation for notarization of the purchase and sale transaction at the appointed time.

The court also found that on May 25, 2023, B.U.M. did not appear at the notary for registration of the apartment purchase agreement, thereby violating the terms of the agreement. In addition, B.U.M. did not provide documents on the absence of arrears in utility bills, and did not provide documents on the legalization of the reconstruction of the room and the dismantling of the balcony to the authorized bodies. Also, until June 8, 2023, the defendant did not vacate the apartment, that is, he completely violated the terms of the agreement.

According to Article 427 of the Civil Procedure Code of the Republic of Kazakhstan "1. The grounds for revoking or changing a court decision on appeal are:

     1) incorrect definition and clarification of the range of circumstances relevant to the case;

     2) the lack of evidence of circumstances relevant to the case established by the court of first instance;

     3) inconsistency of the conclusions of the court of first instance set out in the decision with the circumstances of the case;

     4) violation or improper application of substantive or procedural law;

     5) there is no protocol of a separate procedural action in the case, when the obligation to conduct it is provided for by this Code.

The norms of substantive law are considered violated or improperly applied if the court:

     1) has not applied the applicable law;

     2) applied a law that is not applicable;

     3) misinterpreted the law.

An essentially correct court decision cannot be overturned for purely formal reasons. Violation or improper application of the norms of substantive or procedural law is the basis for changing or canceling the decision of the court of first instance, if this violation led or could have led to the adoption of an incorrect decision.

     If the court has made the correct decision, but these violations have been committed, the decision provides the reasons, norms of substantive and procedural law, according to which the decision must be left unchanged.

The decision of the court of first instance is subject to cancellation in any case if:

     1) the case was considered in an illegal composition of the court or in violation of the rules of jurisdiction;

     2) the case was considered by the court in the absence of any of the persons participating in the case who were not properly notified of the time and place of the court session, with the exception of cases considered in accordance with the rules of Article 133 of this Code.;

     3) during the consideration of the case, the rules on the language of the proceedings were violated;

     4) the court resolved the issue of the rights and obligations of persons not involved in the case;

     5) the decision is not signed by the judge or signed by the wrong judge who reviewed and resolved the case.

     6) there is no record of the court session in the case, when the obligation to keep it is provided for by this Code.

The violations specified in article 427 of the Civil Procedure Code of the Republic of Kazakhstan were committed by the court during the trial, as the court incorrectly established the circumstances relevant to the proper resolution of the case and misinterpreted the law. Thus, the decision of the Bostandyk District Court of Almaty is subject to change.

In particular, the court did not take into account that B.U.M., under various pretexts, evaded providing me with documents confirming ownership of the apartment. An essential condition of a real estate purchase and sale transaction, according to the Civil Code of the Republic of Kazakhstan, is the seller's personal ownership of immovable property and the absence of encumbrances on immovable property, which must be confirmed by a certificate from the state body registering real estate transactions. B.U.M. did not provide such a certificate to me or to the court. In this regard, I have reason to believe that he initially did not intend to conclude an apartment purchase and sale transaction, since he was not the sole owner of the apartment, and all his actions were aimed only at seizing my money. Thus, B.U.M. was obliged to return the deposit to me in double amount upon request, as specified in the Civil Code of the Republic of Kazakhstan, which he did not do. And the court had to satisfy my demands to recover the double amount of the deposit in full.

In the appeal, B.U.M. refers to some persons "realtor Atabek, lawyer S.K. S.", however, did not raise the issue of bringing these persons to participate in the case as witnesses during the trial, and therefore the reference to these persons is groundless.

B.U.M.'s demands to the court for me to pay the full cost of the apartment 38 500 000 tenge is illegal, since the transaction did not take place according to him, B.U.M. and his realtor did not appear to the notary on May 25, 2023 to finalize the purchase and sale of the apartment.

Buranchaev U.M. did not provide any new arguments in the appeal, and therefore the appeal must be dismissed.

I believe that the defendant B.U.M. violates the requirements of article 46 of the Civil Procedure Code of the Republic of Kazakhstan, according to which the participants in the process must conscientiously exercise all their procedural rights without abusing the rights of others, without violating their interests, and not to intentionally delay the consideration and resolution of the case.

Moreover, the defendant B.U.M. switched to the personality of the presiding judge in the case, which is unacceptable, since justice in the Republic of Kazakhstan is carried out only by the court and the personality of the judge cannot be the subject of criticism.

Based on the above, I ask:

- to change the decision of the Bostandyk district Court of Almaty, to recover in my favor from B.U.M. the amount of the deposit in double amount in the amount of 1,000 000 tenge, to recover from B.U.M. in my favor the penalty for using other people's money from 05/23/2023 to the day of consideration of the civil case in the Almaty City Court in the amount of 100,000 tenge, to recover with B.U.M. the amount of the state fee in the amount of 11,000 tenge, the appeal of the defendant B.U.M. should be dismissed.

Appendix: application for the appointment of a representative, a copy of the pension certificate on 4 sheets.

12.01.2024 _____________ A.R.G.

 

 

 

 

 

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