Application form to the district court for annulment of the arbitration award
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To the Bostandyk District Court of Almaty, Republic of Kazakhstan,
Almaty, 050043, Orbita 2- microdistrict, 20 A.
from the Defendant: ................. IIN: ............... Almaty region, Ilisky district, settlement ...., ul...., 9.
Proxy representative: Galymzhan Turlybekovich Sarzhanov
IIN: 850722301036. Almaty, Medeu district,050002, Zhibek Zholy ave.,
50, office 202, Business center Block. info@zakonpravo.kz / www.zakonpravo.kz
Statement
on the cancellation of the arbitral award
"01" July 201.. year Permanent LLP "................" ( hereinafter referred to as Arbitration) as part of the arbitrator .........., with the participation of the plaintiff's representative ............, having considered in at an open arbitration hearing, Arbitration proceedings on the claims of the LLP ".............." to gr. .........., on the recovery of the amount owed, the arbitration (court) Decided - The statements of claim of the LLP
"....................." to gr. .........., to partially satisfy the debt collection. Collect gr. .........., in favor of the LLP "..................." the amount of debt in the amount of KZT 232,000, expenses related to dispute resolution in Arbitration in the amount of KZT 30,000. Collect from gr. .........., state duty in the amount of 11,345 tenge.The arbitration award was made in favor of the LLP "..................." We do not agree with the Decision of the Arbitration Court due to the fact that the composition of the arbitration court and the arbitration proceedings did not comply with the requirements of the legislation of the Republic of Kazakhstan on Arbitration:Being a decent and responsible person,. .........., I have never refused to fulfill my debt obligations to the LLP "................" and I have always been open to constructive dialogues. However, the Plaintiff himself did not undertake any constructive dialogue to resolve the current situation.In accordance with Part 3 of Article 365 of the Civil Code of the Republic of Kazakhstan, "The debtor is not considered overdue until the obligation cannot be fulfilled due to the delay of the creditor."In accordance with Part 1 of Article 359 of the Civil Code of the Republic of Kazakhstan. "The debtor is responsible for non-fulfillment and (or) improper fulfillment of obligations in the presence of fault, 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."Also, in accordance with Part 1 of Article 364 of the Civil Code of the Republic of Kazakhstan, "If non-fulfillment or improper fulfillment of obligations occurred due to the fault of both parties, the court accordingly reduces the amount of liability of the debtor."
In the article of the "Legal Gazette" dated February 17, 2011, written by such prominent statesmen as M. Alimbekov, former Chairman of the Supreme Court of the Republic of Kazakhstan and D. Tumabekov. judge of the Supreme Court of the Republic of Kazakhstan, it says that - QUOTE: " ... banks, microfinance and lending organizations do not submit timely demands to the court to recover from the borrower the amount owed on the principal debt, remuneration (interest), as a result of which the amounts of penalties (penalties) to be collected are deliberately increased, which ultimately leads to an increase in the amount of total debt and foreclosure on collateral property, the value of which is disproportionate to the loan received."We believe that the Plaintiff's staff deliberately delayed going to COURT in order to plunge the Borrower into larger debts.Thus, the Plaintiff refers to art. 272 of the Civil Code of the Republic of Kazakhstan, 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, although he does not fulfill the obligations in full and on the terms of the contract, which raises doubts about the good faith performance of the obligation. In support of the words according to art. 728 p. 6. of the Civil Code of the Republic of Kazakhstan.
If the borrower violates the deadline set for repayment of the next part of the loan item and (or) payment of remuneration for more than forty calendar days. Based on the above, we observe the guilt of the creditor.According to art. 359 of the Civil Code of the Republic of Kazakhstan, the grounds for liability for breach of an obligation. The debtor is responsible for non-fulfillment and (or) improper fulfillment of the obligation in the presence of fault, 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.According to paragraph Z. art. 366 of the Civil Code of the Republic of Kazakhstan, according to a monetary obligation, the debtor is not obliged to pay remuneration (interest) for the time of the creditor's delay. However, we do not observe in the statement of claim the amount of the principal debt, remuneration and penalties, which, for unknown reasons, referring to the contract, the Plaintiff cancelled the penalty and remuneration into the principal debt and then into the cancelled principal debt, accruing the penalty and remuneration in accordance with Article 5. The application of civil legislation by analogy is stated in the following cases,
When the relations provided for in paragraphs 1 and 2 of Article 1 of this Code are not directly regulated by legislation or agreement of the parties and there are no customs applicable to them, the norms of civil legislation governing similar relations (analogy of the law) shall apply to such relations, insofar as this does not contradict their essence. If it is impossible to use the analogy of law in these cases, the rights and obligations of the parties are determined based on the general principles and meaning of civil legislation and the requirements of good faith, reasonableness and fairness (analogy of law). Thus, Article 36 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities in the Republic of Kazakhstan" must be taken into account when a delay in fulfilling an obligation under a bank loan agreement occurs, the bank must notify the borrower in the manner provided for in the bank loan agreement of the need to make payments under the bank loan agreement and the consequences of the borrower's failure to fulfill its obligations.
In terms of accrued fees and the remuneration rate, we disagree, since this amount is a speculative benefit for the Plaintiff.In terms of accrued penalties, we disagree because this amount of penalty is excessively large compared to the creditor's losses whereas according to art. 35 of the Law on Banks of Banking Activity, which states "The amount of the penalty (fine, penalty) for violating the obligation to repay the loan amount and (or) pay remuneration under a bank loan agreement concluded with an individual may not exceed 0.5 percent of the overdue payment amount for each day of delay, after ninety days of delay. ninety days of delay may not exceed 0.03 percent of the overdue payment amount for each day of delay, but not more than ten percent of the loan amount for each year of the bank loan agreement."Also, in the demand for early fulfillment of obligations, we do not agree with the above unreasonable amounts. In addition, after 40 days, the plaintiff already had the right to file a lawsuit to recover the amount of the debt. However, despite the fact that both oral and written correspondence was conducted between the Plaintiff and the defendant, the plaintiff intentionally delayed the deadline for filing a lawsuit, thereby artificially inflating the amount of remuneration and penalties due.According to art . 297 of the Civil Code of the Republic of Kazakhstan if the penalty payable is excessively large in comparison with the creditor's losses, the court has the right to reduce the penalty, taking into account the degree of fulfillment of obligations by the debtor and the debtor's interests that deserve attention, the court reduces the debtor's liability if the creditor intentionally or negligently contributed to an increase in the amount of losses caused by non-performance or improper performance, or did not take reasonable measures to reduction.Universal Declaration of Human Rights (articles 7, 8 and 10), The International Covenant on Civil and Political Rights (article 14) and the Convention for the Protection of Human Rights and Fundamental Freedoms (article 6) establish that everyone is equal before the law and the court, and that everyone has the right to a fair and public hearing within a reasonable time by a competent, independent and impartial tribunal in determining their civil rights and obligations., created on the basis of the law.
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.
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