Response to an appeal against the decision to terminate the deposit agreement and recover the amount of the deposit in double amount
To the Judicial Board of Appeal for Civil Cases in Almaty
Almaty, 050000 Kazybek Bi street, 66.
0201@sud.kz
From the plaintiff: S.V.V.
IIN .the city of Almaty, md.-1, house 1, sq. 19.
+7 707 .
Representative by proxy:
Law and Law Law Firm
BIN 201240021767
79 Abylai Khan Ave., office 304, Almaty.
info@zakonpravo.kz / www.zakonpravo.kz
+7 727 971 78 55; +7 708 578 57 58.
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on the defendant's appeal against the decision of the Turksib District Court of Almaty on January 11, 2024, case No. 7519-23-00-2/3249 on the termination of the deposit agreement and the recovery of the deposit amount in double amount
On January 11, 2024, the Turksib District Court of Almaty, composed of the presiding judge, Judge Iemberdieva M.M., having considered in open court via mobile videoconference the civil case No. 7519-23-00-2/3249 on the Claim of the SVV (Hereinafter the Plaintiff) against the Defendant LAF (Hereinafter the Defendant) on the termination of the deposit agreement and the recovery of the amount of the deposit in double the court Guided by Articles 223-226 of the CPC Decided: The Plaintiff's claims against the Defendant for termination of the deposit agreement dated March 29, 2023, the agreement on the additional deposit and the extension of the deposit dated May 22, 2023, the agreement on the extension of the deposit dated August 01, 2023, on the recovery of the deposit in double amount, must be satisfied.
Terminate the deposit agreement dated March 29, 2023, the agreement on additional deposit and extension of the deposit period dated May 22, 2023, the agreement on extension of the deposit period dated August 01, 2023 concluded between SVV and LAF, certified by notary A.T. Akhmetov, to recover from L.A.F. in favor of S.V.V. the double amount of the deposit in the amount of 13,000 000 (thirteen million) tenge, state duty in the amount of 135,200 (one hundred thirty-five thousand two hundred) tenge, representative expenses in the amount of 550,000 (five hundred fifty thousand) tenge.
Subsequently, disagreeing with the court's decision, the Defendant filed an appeal. In his complaint, the defendant's representative indicates that the court of first instance did not take into account the defendant's arguments that:
The defendant was unable to conclude the Contract for a valid reason.
purchase and sale of a land plot with the plaintiff. Since the Defendant herself became a victim of fraudulent actions on the part of intruders, that is, by employees of the PSC-a and that she gave the intruders funds in the amount of 6,000,000 tenge, a criminal case was opened by investigator Mederbekova D SB UP Turksib district under art. 190, Part 1 of the Criminal Code of the Republic of Kazakhstan for No. 237519031001965.;
According to clause 6 of the agreement on the extension of the deposit period dated 08/01/2023
If the Defendant refuses to sell the land plot without valid reasons, I will pay the Plaintiff a deposit in the double amount of 13,000,000 tenge. According to the Defendant's argument, this point is the basis for the cancellation of the decision of the court of first instance.
Dear Board of Appeal of the Almaty City Court, we believe that the above-mentioned arguments of the Defendant are not objectively supported by anything, nor are they substantiated and sound.
According to Part 1 of Article 72 of the CPC, each party must prove the circumstances to which it refers as the grounds for its claims, which correspond to the fair conduct of the process and are aimed at facilitating production.
During the trial, the Defendant's arguments indicated in the Appeal were reviewed by the court and the court gave an appropriate assessment.
On March 29, 2023, a Notarial Agreement was concluded between the Plaintiff and the Defendant on a deposit, registered in the register under No. 3525., which corresponds to Article 337 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code of the Republic of Kazakhstan), which states that a deposit is an amount of money issued by one of the contracting parties on account of payments due from it under the contract. to the other party and to ensure the conclusion and execution of the contract.
The subject of the Deposit Agreement was to ensure the conclusion and execution of a contract for the purchase and sale of real estate, namely a land plot with an area of 0.10 hectares, located at the address, Almaty city. 182 Svobodnaya Street, Turksib district (Hereinafter referred to as the Land plot), within the framework of the agreement, the Defendant received a deposit (money) in the amount of 3,500,000 tenge due to the conclusion of a contract for the purchase and sale of a land plot in the amount of 23,500,000 tenge.
In addition, the Defendant committed to remove the encumbrance by 06/10/2023, repay the loan debt to Halyk Savings Bank of Kazakhstan JSC, divide the land plot and allocate a land plot of 0.10 ha from his land plot with a total area of 0.2948 ha and prepare all the title documents for the transaction.
Also, the Defendant was warned by the specified agreement that, having received a deposit in the amount of 3,500,000 tenge, in case of non-fulfillment of the obligation secured by the deposit, you pay the Plaintiff a deposit in double amount - 7,000,000 tenge.
Subsequently, the Defendant repaid the loan debt to Halyk Savings Bank of Kazakhstan JSC and then had to divide the land plot.
Subsequently, the Defendant, having failed to fulfill, under various pretexts, the Deposit Agreement dated March 29, 2023, we additionally signed an Agreement on an additional deposit and an extension of the deposit period dated 05/22/2023.
Where, by mutual agreement, we decided to extend the deadline for the preparation of all necessary documents for the notarization of the land purchase agreement and for the conclusion of the sale agreement at the notary's office until 07/31/2023.
The Defendant additionally received from the Plaintiff a deposit in the amount of 3,000,000 tenge, due from the Plaintiff 23 500,000 tenge, for the land acquired by the Plaintiff.
The Defendant was also warned, as in the first Deposit Agreement, that if the Defendant refuses to sell the specified land plot, then you pay the Plaintiff a deposit in double amount – 13,000,000 tenge.
After the conclusion of the additional agreement, as we learned during the trial, the Defendant submitted to the authorized body an application for the division of the above-mentioned land plot, however, the Defendant was denied the division of the land plot by a Letter from the State Department of Land Relations of Almaty dated 06/27/2023 for No. 37.4-37.06/ZHT-L-2264, which stated: "Regarding the divisibility a land plot with cadastral number No. 20-317-005-054, with an area of 0.2948 ha, with a purpose for the construction and operation of an individual residential building, we inform you that in accordance with art. 14-1 and 51 of the Land Code of the Republic of Kazakhstan, it is not possible to divide the land plot, due to the fact that according to the information provided by the Department of Urban Planning and Urbanism of Almaty, the land plot is located in a recreational area (P-1) in accordance with the detailed planning plan",
despite the fact that the Defendant was denied the division of the land plot, the Defendant intentionally continued to mislead the Plaintiff that the land plot was subject to division and they were working in this direction.
In accordance with paragraph 4, Article 3 of the Civil Code of the Republic of Kazakhstan, Civil relations may be regulated by customs, including business practices, if they do not contradict the civil legislation in force in the Republic of Kazakhstan.
As it became known from the first court session during the Defendant's interrogation in the court of first instance, the Defendant, knowing that the authorized body had given an exhaustive response with a refusal, the Defendant purposefully sought out persons who would resolve the issue of dividing the land plot for a certain monetary reward. As a result of an active search, he was found and today a criminal case has been opened against him by the UP of the Turksib district on fraud.
We believe that this fact was deliberately arranged so as not to return double the amount of money to the Plaintiff under the Deposit agreement.
After receiving a refusal to divide the land plot, the Defendant had to appeal against the actions of the authorized body in accordance with the procedure of the APPC rather than look for illegal workarounds to solve problems or return the funds voluntarily.
Paragraph 2 of Article 8 of the Civil Code stipulates that the non-exercise of rights belonging to citizens and legal entities does not entail the termination of these rights, except in cases provided for by legislative acts.
That is, as indicated in the arguments of the Appeal, the Defendant was unable to conclude the Contract for a valid reason – it has no legal basis.
On the basis of Part 1 of Article 68 of the CPC, each evidence is subject to assessment, taking into account its relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a civil case.
However, this time the Defendant did not fulfill his obligations under the above-mentioned Deposit Agreements. Violation of an obligation is understood as its non-fulfillment or improper fulfillment, which contradicts Article 349 of the Civil Code of the Republic of Kazakhstan, which is not permissible according to Article 272 of the Civil Code of the Republic of Kazakhstan.
On 08/01/2023, the parties concluded an Agreement for the third time to extend the deposit period, where the parties, by mutual agreement, decided to extend the time for the preparation of all necessary documents for notarization of the land purchase agreement and for the conclusion of the purchase agreement at the notary's office until 08/31/2023.
The defendant was warned for the third time that if she refused to sell the above-mentioned land plot, she would pay the Plaintiff a double deposit of 13,000,000 tenge.
To date, 12 months have passed since the conclusion of the Deposit agreement and the obligations assumed by the Defendant under three Agreements have not been fulfilled, in addition, the title documents for the purchase and sale of the above-mentioned land plot are not ready for a Notarial transaction.
According to clause 6 of Article 8 of the Civil Code of the Republic of Kazakhstan, no one has the right to take advantage of their unscrupulous behavior.
Due to the Defendant's failure to fulfill obligations under the Contract and the deposit agreement, we have the opinion that the Defendant's actions are aimed at seizing the amount by deceiving and abusing the Plaintiff's trust
According to paragraph 2, Article 338 of the Civil Code of the Republic of Kazakhstan, where it is stipulated that if the party that gave the deposit is responsible for non-fulfillment of the obligation, it remains with the other party, and if the party that received the deposit is responsible, it is obliged to pay the other party double the amount of the deposit. Moreover, the party responsible for non-fulfillment of the obligation is obliged to compensate the other party for losses, taking into account the amount of the deposit, since the contract does not provide otherwise.
In accordance with paragraph 1 of Article 337 of the Civil Code of the Republic of Kazakhstan, a deposit is an amount of money given by one of the contracting parties to account for payments due from it under the contract to the other party and to ensure the conclusion and execution of the contract or the fulfillment of another obligation.
On February 21, 2024, the Plaintiff applied to the Law and Law Law Firm to obtain legal advice and draw up a response to the Appeal and represent his interests in the court of Appeal, where a Contract for the provision of legal services No. 2102/24 dated 02/21/2024 was drawn up and funds in the amount of 300,000 tenge were paid to the settlement account of the office. the receipt and the contract attest.
According to paragraph 1 of Article 113 of the Civil Procedure Code of the Republic of Kazakhstan, at the request of the party in whose favor the decision was made, the court awards, on the other hand, the costs incurred by her to pay for the assistance of a representative (several representatives) who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party. For property claims, the total amount of these expenses should not exceed ten percent of the satisfied portion of the claim. According to non-property requirements, the amount of expenses is collected within reasonable limits, but should not exceed three hundred monthly calculation indices.
272 of the Civil Code of the Republic of Kazakhstan, where the obligation must be performed properly in accordance with the terms of the obligation and the requirements of the law, and in the absence of such conditions and requirements - in accordance with business practices or other commonly imposed requirements.
In addition, we had a roof in the site.It was discovered that the Defendant repeatedly put up for sale a land plot located at the address, Almaty city, until February 2024. The Turksib district, Svobodnaya Street, house 182, which was the subject of the Deposit Agreement, as evidenced by the screenshots in the application.
In accordance with Article 8 of the Civil Code of the Republic of Kazakhstan, the exercise of civil rights should not violate the rights and legally protected interests of other subjects of law.
Citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation, the moral principles of society, and entrepreneurs, as well as the rules of business ethics.
This obligation cannot be excluded or limited by the contract. Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed.
Actions of citizens and legal entities aimed at harming another person, abuse of the right in other forms, as well as the exercise of the right in contradiction with its purpose are not allowed.
By virtue of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to defend their violated or disputed rights, freedoms or legally protected interests.
In accordance with art. 408 of the CPC RK, the person participating in the case sends a response to the appeal, the prosecutor's petition to the court of appeal, to other persons participating in the case, accompanied by documents confirming objections to the appeal, the prosecutor's petition.
Based on the above and guided by the requirements of art. 408 of the CPC of the Republic of Kazakhstan,
I ask the Court:
The appeal of the Defendant L.A.F., against the decision of the Turksib District Court of Almaty dated January 11, 2024, should be dismissed.
The decision of the Turksib District Court of Almaty dated January 11, 2024 is to remain unchanged.
In case of refusal to satisfy the appeal, to recover from the Defendant L.A.F., in favor of the Plaintiff S.V.V., representative expenses in the amount of 300,000 tenge.
Sincerely, Proxy representative
Lawyer: ___________/Sarzhanov G.T.
"_____" __________ 2024 g
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