Termination of the deposit agreement and recovery of the deposit amount in double amount
Case No. 7519-23-00-2/3249 dated January 11, 2024
Turksib district Court of Almaty consisting of: the chairman, judge Iemberdieva M.M. with the secretary of the court session, Samizhankyzy Sh. considered a civil case in open court via mobile videoconference:
THE PLAINTIFF: SVB DEFENDANT: LAF
A THIRD PARTY WHO DOES NOT MAKE INDEPENDENT CLAIMS ON THE SUBJECT OF THE DISPUTE: Akhmetov Askhat Talgatovich, Private notary of Almaty, STA
PLAINTIFF'S CLAIMS: 1. on termination of the deposit agreement dated March 29, 2023, agreement on additional deposit and extension of the deposit period dated May 22, 2023, agreement on extension of the deposit period dated August 01, 2023; 2. on recovery of the deposit amount in double amount;
THE COURT WAS ATTENDED BY: Plaintiff S.V.V., his representative Sarzhanov G.
The defendant L.A.F.
The third person is S.T.A.
The immovable property, in the form of a land plot, located at the address: 182-2 S. Street, Turksib district, Almaty (hereinafter referred to as the land plot), belongs to L.A.F. on the basis of a purchase and sale agreement dated February 01, 2022, the ownership of it is registered in the real estate registration department of NAO State CorporationGovernment for Citizens" in Almaty on February 02, 2022. On March 29, 2023, a deposit agreement was signed between S.V.V. and L.A.F., certified by the notary of Almaty A.A.T., on the basis of which the defendant L.A.F. I received a deposit in the amount of 3,500,000 tenge. On May 22, 2023, an agreement was concluded between S.V.V. and L.A.F. on an additional deposit and an extension of the deposit period, on the basis of which the defendant L.A.F. received an additional 3,000,000 tenge. On August 01, 2023, an agreement was concluded between S.V.V. and L.A.F. to extend the deposit period, according to which the defendant L.A.F. undertook to divide the land plot and allocate a land plot with an area of 0.10 hectares by August 31, 2023, and prepare all the title documents for the transaction. The plaintiff, S.V.V., filed a lawsuit against L.A.F. on the recovery of the deposit in double amount, on the termination of 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 the extension of the deposit period dated August 01, 2023.
At the hearing, the plaintiff, S.V.V., explained that for more than a year the defendant had been deceiving him with paperwork and had not returned the deposit amount. At the time of the conciliation procedure, he was ready to negotiate and conclude the case peacefully, but the defendant ignored him.
Currently, he has purchased another plot of land, since more than a year has passed since the transaction and the market value of the land has increased in price. The defendant has not refunded the amount of the deposit, and she does not agree to reconciliation. At the hearing, the plaintiff's representative, G. Sarzhanov, supported the arguments of the claim and asked them to be satisfied. At the hearing, defendant L., A.F. explained that she partially recognizes the claim, is ready to pay the plaintiff the amount of the deposit not in double amount, but in the amount of 8,000,000 tenge, since she has no other financial opportunity. She asked the plaintiff to draw up a settlement agreement and blurt it out in parts. She was unable to process the documents in time because she was deceived, and a criminal case has now been opened into fraud. 3 At the court hearing, a third person, notary Akhmetov A.T., explained that when concluding the deposit agreement, the parties to the transaction agreed to its terms. The consideration of the case is left to the discretion of the court. At the court hearing, the third party S., T.A. supported the arguments of the claim and asked them to satisfy them.
In accordance with the provisions of Article 8 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), citizens or legal entities dispose of their civil rights at their discretion. Citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation and the moral principles of society. Actions of citizens and legal entities aimed at harming another person, abuse of the right in other forms, as well as the exercise of rights in contradiction with his appointment are not allowed.
According to the requirements of paragraph 2 of Article 338 of the Civil Code, 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 the present claim, the plaintiff is S.V.V. requests to collect the amount of the deposit in double the amount, since the seller's obligations to prepare the documents have not been fulfilled within the time limits stipulated in the deposit agreement, as well as in the agreements. The case materials established that an agreement was reached between the parties on the purchase and sale of a land plot, in turn, the plaintiff S.V.V. on the basis of a deposit agreement dated March 29, 2023, on account of the conclusion of a land purchase agreement, transfers to the defendant L.A.F. the amount of 3,500,000 tenge. According to paragraph 4 of this agreement, L.A.F. She undertook to remove encumbrances by June 10, 2023, repay the loan debt to Halyk Bank of Kazakhstan JSC, divide the land plot and allocate a land plot with a total area of 0.2948 hectares from her land plot with an area of 0.10 hectares and prepare all title documents for the transaction. Subsequently, on May 22, 2023, an agreement was concluded between the parties on an additional deposit and an extension of the deposit period.
According to the said agreement on an additional deposit, S.V.V. transfers to Lipskaya A.F. another amount in the amount of 3,000 000 tenge. According to paragraph 4 of the said agreement, L.A.F. undertook to divide the land plot by July 31, 2023, and allocate a land plot with a total area of 0.2948 hectares from its land plot with an area of 0.10 hectares and prepare all title documents for the transaction In accordance with paragraph 6 of this agreement, all other conditions specified in the deposit agreement from March 29, 2023, remains unchanged. Further, on August 01, 2023, an agreement was signed between the parties to extend the deposit period.
According to paragraph 4 of the said agreement, L.A.F. undertook to divide the land plot by August 31, 2023, and allocate a land plot with a total area of 0.2948 ha from its land plot with a total area of 0.10 ha and prepare all the title documents for the transaction. In accordance with paragraph 6 of this agreement, all other conditions specified in the deposit agreement dated March 29, 2023, in the agreement on additional deposit and extension of the deposit period remain unchanged.
The deposit agreement itself stipulates that the party who received the deposit is responsible for non-fulfillment of the main obligation, then it must return the amount of the deposit and pay the other party an additional amount of money in the amount of the deposit. In this case, the deposit agreement concluded between the parties, namely in paragraph 2, stipulates that in case of non-fulfillment of the obligation secured by the deposit (refusal to conclude a purchase agreement), S.V.V. pays the buyer a double deposit. According to the above agreements, the defendant L.A.F. She assumed obligations to perform certain actions on time, and prepare documents for the land plot for the conclusion of the main purchase and sale agreement, and undertook to pay double the amount of the deposit in case of default. The plaintiff S.V.V. transferred to the defendant L.A.F. as a deposit a total amount of 6,500,000 tenge. In this regard, the claims of the claim for the recovery of double the amount of the deposit in the amount of 13,000,000 tenge are legitimate. The court also takes into account that during the court session the defendant L.A.F. She confirmed that the documents for the land plot had not been issued, and therefore she partially admitted the claim, and she was obliged to pay the amount of 8,000,000 tenge in the event of a settlement agreement and a delay in the payment of the amount. The parties did not come to an agreement. According to part 2 of Article 224 of the Code of Civil Procedure (hereinafter referred to as the CPC), the court bases its decision only on the evidence presented by the parties and examined at the court session. In turn, the defendant L.A.F. did not provide evidence to the court.
Indicating the circumstances of the impossibility of fulfilling the terms of the contract, which occurred without her fault, which could be used as the basis for the court's decision to dismiss the claim. By virtue of the above-mentioned legal norms, the court, having examined the evidence presented by the parties in support of their arguments, assessed the evidence from the point of view of admissibility, reliability, and all the evidence collected in aggregate is sufficient to resolve the case, considers that the plaintiff's claims must be satisfied.
In accordance with the provisions of Article 109 of the CPC, the court awards the party in whose favor the decision was made, on the other hand, all court costs incurred in the case, and therefore the state fee is subject to collection from the defendant in proportion to the satisfied part of the claim. The plaintiff's representative expenses are confirmed by the contract for the provision of legal services No.2609/20 dated September 26, 2023, and a payment order in the amount of 500,000 tenge.
In this regard, a state duty in the amount of 135,200 tenge and representative expenses in the amount of 500,000 tenge are to be collected from the defendant L.A.F. in favor of the plaintiff. Guided by Articles 223-226 of the CPC, the court ruled: S.V.V.'s claims against L.A.F. for the termination of 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 the extension of the deposit period dated August 01, 2023, on the recovery of the deposit in double the size to satisfy.
Terminate the deposit agreement dated March 29, 2023, the agreement on additional deposit and extension of the deposit period dated May 22, 2023, 6 the agreement on extension of the deposit period dated August 01, 2023 concluded between S.V.V. and L.A.F. notarized by A.A.T. Recover from L.A.F. in favor of S.V.V. double the amount a deposit 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.
On April 10, 2024, the Judicial Board for Civil Cases of the Almaty City Court, consisting of: presiding judge Eszhanova G.K., judges: Absimetova K.D., Dikhanbaev B.S., with the participation of plaintiff S.V., his representative Sarzhanova G., defendant L.A., her representative S.R., having considered in open court in the premises courts via mobile videoconference civil case on the claim of S.V.V. to L.A.F. on the termination of the deposit agreement, the deposit agreement and the agreement on the extension of the deposit period, the recovery of the deposit amount in double amount, received on the defendant's appeal against the decision of the Turksib District Court of Almaty dated January 11, 2024,
By virtue of subparagraph 1) of paragraph 2 of Article 401 of the Civil Code, at the request of one of the parties, the contract may be amended or terminated by a court decision only if there is a material violation of the contract by the other party; a violation of the contract by one of the parties is recognized as significant, which entails such damage to the other party that it is largely deprived of what it was entitled to calculate at the conclusion of the contract.
As established by the court and this is not disputed by the parties, the defendant has not prepared the documents for the registration of the purchase and sale transaction.
The board regards these violations as a significant violation by the defendant's side of the Contract, then Agreement-1 and Agreement-2, which is the basis for their termination by court at the request of the plaintiff.
In this regard, the board considers the conclusions of the court of first instance on the need to terminate the said Agreement, Agreement-1 and Agreement to be justified.-2. By virtue of paragraph 2 of Article 338 of the Civil Code, 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.
The court of first instance reasoned the conclusions about the need to collect a double deposit by saying that the defendant had violated his obligations to prepare documents for the Land plot for the conclusion of the main purchase agreement. At the same time, the court did not take into account the provisions of paragraph 1 to 4 of Article 359 of the Civil Code, which provide that the debtor is responsible for non-fulfillment and (or) improper fulfillment of obligations in the presence of guilt, unless otherwise provided by law or contract.; The debtor is found innocent if he proves that he has taken all measures in his power to properly fulfill the obligation.
The court of first instance did not take into account the fact that the defendant's contractual obligations to repay debts to Halyk Bank of Kazakhstan JSC and remove encumbrances were fulfilled, as well as the obligations to divide the Land plot, allocate storage space from it, prepare all documents for the transaction, were not fulfilled by her due to circumstances beyond her control.
Taking into account the above, the board considers that the defendant's guilt in not preparing the documents for the transaction has not been proven in court, accordingly, she cannot be responsible for returning the double amount of the deposit.
In such circumstances, the board considers that the court of first instance incorrectly determined and clarified the range of circumstances relevant to the case, did not apply the law to be applied (paragraph 1 of Article 359 of the Civil Code), which is the basis for changing the decision regarding the recovery of double the amount of the deposit.
The board should pay attention to the arguments of the defendant's appeal that she was unable to conclude a contract for the purchase and sale of a Land plot for a good reason, since she herself became a victim of fraudulent actions on the part of a PSC employee, the latter, having received from her the amount of 6,000,000 tenge for expedited receipt of documents on the division of the Land plot, no work on the division He did not produce the land plot, did not return the money, the plaintiff was informed about these circumstances, and a criminal case was opened against the above-mentioned employee under Article 190, part 1 of the Criminal Code of the Republic of Kazakhstan., She is not to blame for not concluding a land purchase agreement, so she should not return the deposit in double amount.
In connection with the above, the board considers that the court's decision is subject to change, the double amount of the deposit of 13,000,000 tenge collected from the defendant in favor of the plaintiff should be reduced to 6,500,000 tenge, the cost of the state fee should be reduced to 70,175 tenge, the rest of the decision should be left unchanged.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
