Application to the district court for the annulment of the arbitral award
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, village ...., ul...., d..
Representative by proxy:
Sarzhanov Galymzhan Turlybekovich
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 arbitration award
"01" July 201 .. year Permanent LLP "................" ( hereinafter referred to as Arbitration) to the arbitrator .........., With the participation of the plaintiff's representative .......... .., having considered in open arbitration proceedings on the claim 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 . .........., the recovery of the amount of satisfaction is partially satisfied. Collect gr. .........., in favor of the LLP "..................." the amount of debt in the amount of KZT 232,000, expenses incurred in resolving the dispute 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 "..................." and the decision of the Arbitration Court did not agree to 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 by the creditor's delay."
In accordance with Part 1 of Article 359 of the Civil Code of the Republic of Kazakhstan. "The debtor is responsible for non-performance and (or) improper performance, if available, 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-performance or improper execution occurred due to the fault of the parties, the court accordingly reduces 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 institutions and loan providers do not promptly submit demands to the court for recovery from the borrower of the amount owed on the main interest (remuneration ()), additional penalties (penalties) are deliberately increased, given in accordance with the instructions, leading to the amount of total debt and foreclosure on collateral, the value of which is disproportionate the loan received." We believe that the Plaintiff's staff deliberately delayed going to COURT in order to plunge the Borrower into larger debts.
Application to the district court for the annulment of the arbitral award
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 and requirements of the law, in the absence of such conditions and requirements - in accordance with normal business practices or other commonly imposed requirements, although he does not fulfill obligations in full and on the terms of the contract, which raises doubts about good faith fulfillment of obligations. In support of the words according to art. 728 p. 6. of the Civil Code of the Republic of Kazakhstan. In case of violation by the borrower of the deadline set for repayment of the next part of the loan (or) the subject of remuneration payment, 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-performance and/or improper performance, if available, 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. 366 of the Civil Code of the Republic of Kazakhstan, under 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 of remuneration and penalties for unclear reasons indicated on the contract, the Plaintiff cancelled the penalty and remuneration for the principal debt and further charged the penalty and remuneration for the cancelled principal debt In Accordance with Article 5.The application of civil legislation is indicated by analogy in cases where the relations provided for in paragraphs 1 and 2 of Article 1 of this Code do not contradict legislation or an agreement and customs are applicable to them, to such relations, since this does not contradict their existing norms of civil legislation governing similar relations (analogy of the law).
If it is impossible to use the specified analogy of the law, rights and obligations are based on the general principles and meaning of 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 Kazakhstan" should take into account the occurrence of late fulfillment of obligations under the bank loan agreement, the bank is obliged to 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. We do not agree on the accrued and remuneration rates, since this amount is a speculative benefit for the Plaintiff.
Application to the district court for the annulment of the arbitral award
In terms of accrued penalties, not as 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 cannot be increased within ninety days of delay by 0.5 percent of the amount of the overdue payment for each day of delay, after the expiration of ninety days of delay, it may not exceed 0.03 percent of the 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 has 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 time of the lawsuit, thereby artificially overestimating the amount of remuneration and penalties due.
According to art . The level of fulfillment of obligations by the debtor and the debtor's interests have earned attention. The court has reduced the debtor's liability if the creditor intentionally or negligently increased the amount of the penalty, the degree of fulfillment of obligations by the debtor. improper execution, or did not take reasonable measures to reduce them. The 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 courts and that everyone has the right to a fair trial in determining their civil rights and duties. and the public hearing of the case within a reasonable time by a competent, independent and impartial court established by law. Based on the above, the calculation of the Defendant's amount must be carried out in accordance with the principles of good faith, reasonableness and fairness, therefore, all the above circumstances are necessary. According to the Law of the Republic of Kazakhstan On Arbitration (hereinafter referred to as the Law), art. 26. Commencement of arbitration proceedings, the Arbitrator is required to inform the parties in advance and properly about the time and place of the arbitration meeting, unless the parties have agreed otherwise. Unless otherwise agreed by the parties, copies of all documents, materials and information submitted to the arbitration by one of the parties must be submitted by the arbitration to the other party within seven calendar days from the date of their receipt by the arbitration.
Thus, the Party was not properly notified of the election (appointment) of an arbitration judge and of the time and place of the Arbitration Court session, or for other reasons could not submit his explanations to the Arbitration Court; The descriptive and motivational part of the Arbitration Court's decision states: "the defendant did not appear at the court session, although he was duly notified. These statements are not true, as the defendant did not receive them in court. In such circumstances, can it be argued that the defendant, as the defendant, was duly notified? The defendant did not participate in the trial, and he never received notifications about upcoming court sessions.
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