Withdrawal of an OBJECTION to the Defendant's Appeal
To the Judicial Board of Appeal
for the civil affairs of the city of Almaty
Almaty, Kazybek Bi str. 85.
from the Plaintiff: O.Z.
IIN …
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 58; +7 708 971 78 58.
OBJECTION
on the appeal of the Defendant A.K.R. on
the decision of the Alatau District Court of Almaty dated December 14, 2023
On December 14, 2023, the Alatau District Court of Almaty, the presiding court, Sarybaev G.A., having considered civil case No. 7575-23-00-2/3388 on the claim of O.Z. (Hereinafter referred to as the Plaintiff) against A.K.E. for eviction, the Court decided to evict A.K.E. (Hereinafter referred to as the Defendant), with all the residents from the residential premises located at the address: Almaty, mkr. A., house 48, apartment 9, without provision of other housing.
The court of first instance found that since the defendant does not have any rights to this apartment, the court of first instance concludes that the defendant and the persons living with her are subject to eviction from the apartment, without providing other living quarters.
Subsequently, disagreeing with the court's decision, the Defendant filed an appeal. In his complaint, the defendant's representative argues that the defendant and her representative were not provided with a translation of the claim and allegedly the translator was not present at the court sessions. However, these arguments do not correspond to reality, since in reality the court provided the defendant and her representative with an interpreter who translated the claim into Russian and participated in all major trials. Thus, all the defendant's procedural rights were secured by the court.
Dear judges of the Appeals Board, initially it should be noted that on August 3, 2023, an apartment purchase agreement was signed between SHEKERBANK TURK ANONYMOUS SHIRKETI JSC (hereinafter referred to as the Bank) and Plaintiff O.Z., located at the address: Almaty, Alatau district, md., house 48, sq. 9. This agreement The purchase and sale was certified by the notary of the city of Almaty, S.E.Tursynbekovich, who registered it in the register for No. 10399.
The specified agreement is the basis for registration of the transfer of ownership of the property received by him in the state authorities. On the basis of the apartment purchase and sale agreement, ownership of the property passed to the Plaintiff.
Since the moment of registration of this agreement, the person illegally residing in the above-mentioned apartment has not given the opportunity to move into the apartment.
260 of the Civil Code of the Republic of Kazakhstan, the owner has the right to claim his property from someone else's illegal possession. Accordingly, O.Z. filed a vindication lawsuit against A.K.E., and today, on December 14, 2023, the Alatau District Court decided to satisfy O.Z.'s stated claims and the court decided to evict A.E., with all the residents, from the residential premises located at the address: Almaty, mkr. Resident, house , apartment 9, without providing other housing.
Thus, it turns out that initially, on May 22, 2015, the Defendant entered into an agreement with the trustee of the Bank, Sekerbank Turk Anonim Sirketi JSC, Ayt Housing Complex LLP, for the purchase and sale of an apartment located at 48, Apartment 9, Alatau district, Almaty, with an installment payment.
In 2018, the defendant stopped paying payments on schedule based on the fact that Sekerbank T.A.S. JSC allegedly contacted her through employees of Ayt Housing Complex LLP and instructed her to transfer the remaining payments to the account of an individual who is an illegal representative of the bank.
However, the Defendant's arguments stated in the complaint are unfounded and are not supported by concrete evidence. According to clause 5.3.1. of Contract No. 1005534632/28/2015, the Buyer undertakes to pay the Purchase Price of the Apartment in full to the Owner in accordance with the procedure, amount and terms stipulated by the Contract and its Annexes. Also in this Agreement, clause 7.1. states that unilateral refusal to perform the Contract or unilateral termination of the Contract is not allowed.
According to Article 72 of the CPC, each party must prove the circumstances to which it refers as the grounds for its claims and objections, use remedies, assert, challenge facts, provide evidence and objections to evidence within the time limits set by the judge, which correspond to the fair conduct of the process and are aimed at facilitating the proceedings.
Accordingly, in 2021, the Bank sent a notice of termination of the agreement unilaterally due to non-fulfillment of contractual obligations on the part of the Buyer A.K.E.. It should be especially noted that the Bank has repeatedly offered the defendant to buy the apartment for 4 years.
According to Article 349 of the Civil Code of the Republic of Kazakhstan, a violation of an obligation is defined as its non-fulfillment or improper fulfillment (untimely, with defects in goods and works, in violation of other conditions determined by the content of the obligation) - improper fulfillment. In case of impossibility of proper execution, the debtor is obliged to immediately notify the creditor about this.
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.
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. 424 CPC of the Republic of Kazakhstan,
I ask the Court:
The appeal of the defendant A.K.R. against the decision of the Alatau District Court of Almaty dated December 14, 2023, should be dismissed.
The decision of the Alatau District Court of Almaty dated December 14, 2023 is to remain unchanged.
With respect,
Representative by proxy: ___________/Kenesbek I.M.
"_____" __________ 2024 G.
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