Was the judge entitled to wrongly award investors damages of 3.5 billion tenge?

While the President asked the government to inject new investment impetus into the economy and pointed out the importance of improving the quality of judicial personnel, strengthening judicial protection of citizens, ensuring the rule of law and enhancing confidence in the courts, on the other hand, the “local” category indicates the insecurity of Kazakh investors.

Representatives of Premium Services LLP contacted the editors with their puzzling trial history.

According to them, in fact, the investment company “Premium Services” was not even brought to court, but due to the obvious illegality of the judge of the Medeu District Court of Almaty, M. Kaliekova, it was deprived of judicial protection and actually lost 3.5 billion tenge of investment.

On to the essence of the matter. Two shareholders of the authorized capital of the private company Perfect Capital Group Ltd signed a preliminary share purchase and sale agreement with the potential buyer Nobel Resources Group LLP, which attracted Premium Services as an investor. The investor made the first investment, but the deal fell through.

“Sultan Mukshayev, one of the sellers of the shares, is suing Nobel Resources Group LLP for the termination of the preliminary agreement. In the Court of First Instance, the defendant Nobel Resources Group LLP stated in its defense and counterclaim that 100% of the funds that the plaintiff has received under the preliminary agreement are the investor’s money received by Nobel Resources Group LLP under the Investment Agreement. LLP “Premium Services”. However, the Court of First Instance ignored this and did not include the investor Premium Services LLP, which invested 3.5 billion tenge in the business project, in the trial of the case, thereby violating the constitutional right of its owners to judicial protection. The official representative of the investment company, Kairat Nurumbetov, stated that their rights and freedoms are regulated by Article 13, paragraph 2 of the Constitution. – The subject of the dispute itself is only a preliminary agreement, and if the main agreement is not signed, no obligations are imposed on the parties (Article 390, paragraph 6 of the Civil Code), and failure to sign the main agreement will lead to the termination of the obligations provided for by the preliminary agreement.

Here there is another important point that the judge overlooked – why was the Main Agreement not signed? It can be seen from the case materials that the seller (that is, the plaintiff in our story) did not fulfill the obligations stipulated in the Preliminary Agreement – he did not provide the bank with a consent to sell shares, otherwise the conclusion of the Main Agreement would have been impossible in principle. There is nothing to comment here; Mukshayev should have received the bank’s consent, but he did not get it. For this reason, that is, due to the plaintiff’s fault, the Main Agreement was not concluded. How to file a claim in this case? – The lawyer is furious. – The Court of First Instance did not even consider the testimony of the witness of M. Kozhevnikova of the Halyk Bank JSC of Kazakhstan, who explained that the shareholders of Perfect Capital Group Ltd., Sultan Mukshaev and Parsultan Shoibekov, did not even contact the bank to apply for the bank’s consent to sell the company’s shares. The decisions of the bank’s authorized bodies on these issues are not included in the case materials.

There is one more thing. The professional judge did not seem to notice that the Provisional Agreement was signed by notarization, and its modification in the form of Additional Agreement No. 1 violated the provisions of Articles 154 and 402 of the Civil Code and was not signed by notarization. However, according to Art. 402 of the Civil Code, the agreement on the modification and termination of a contract shall be in the same form as the contract.

Moreover, the court only received a copy of Supplementary Agreement No. 1, and the original copy did not have the signature of the defendant Nobel Resources Group LLC, which shouted, “Guard, we did not sign this supplementary agreement!” The judge did not comment on this.”

According to the lawyer, the defendant Nobel Resources Group LLP officially stated in court that the copy of the additional agreement was a fabricated forgery. If this is true, then we are talking about a financial crime worth more than 3.5 billion tenge, and the court is obliged to make a ruling and send the materials to the prosecutor’s office to find out the truth through investigative means. But this was not done in violation of the law.

The lawyer pointed out that there was a discrepancy between the conclusions of the first instance court’s judgment and the circumstances of the case: “The judge did not consider that the conclusion of the main agreement would lead to the termination of the obligations provided for in the provisional agreement, pursuant to Article 390, paragraph 6 of the Civil Code, i.e. the parties to the provisional agreement lost their legal connection. They no longer had the mutual subjective rights and obligations arising within the framework of the legal relationship of obligations.

Therefore, the preliminary agreement is essentially a contract of intent, which gives either party the right to refuse to sign the main agreement without any consequences, and everyone has the constitutional right to change their mind at the last minute and not sell or buy, no explanation!

However, the basis for dismissing the lawsuit was Article 390, Paragraph 6 of the Civil Code; the first instance court concealed and did not consider the circumstances that confirmed the defendant’s claims.

The court was told that the 100% owner of the money was a third party, Premium Services LLP, which had no part in the consideration, but he was not interested in the evidence in favour of Nobel Resources Group LLP and Premium Services LLP. Everything that was illegal became legal. How do you understand this?

This also shows that Judge Kalikova kept the case materials for 2.5 months and did not transfer them to the Almaty City Court for the hearing of the appeal, as required by law,” Kairat Nurumetov continued.

The question remains: why did the judge decide on the fate of 3.5 billion tenge based on a copy of the additional agreement that Nobel Resources Group categorically denied signing? It is illegal to make a decision based on a copy instead of the original, but who signed the document? What should be done?

And there is the “cherry on the cake”. “Mukshaev did not provide the bank with consent to sell his shares, only because they were pledged to Narodnaya Bank and he could not sell them. Shareholders of the private company “Perfect Capital Group Ltd.” also made statements about the replacement of collateral. Kairat Nurumbetov said that according to the bank’s representatives, Mukshaev Sultan Abdukhaimovich and Shoibekov Parsultan Satybaldievich did not contact the bank at all at that time. In summary, this trial is clearly an illegal act in the guise of law, and we demand that the court’s decision be overturned. Investors’ money, 3.5 billion tenge, fell into the pockets of imaginary sellers, who perhaps did not intend to sell anything, because the seller did not try to fulfill his obligations.

In summary, we draw the attention of all authorized institutions to the following facts:

1. The court had no power to deny Nobel Resources Group LLP the right to allow Premium Services LLP (the 100% owner of the subject matter of the dispute – money) to participate in the trial of the case;
2. The judge certainly saw and understood that in the absence of the main agreement, the status of the Addendum No. 1 to the Interim Agreement and the Interim Agreement itself were invalid, but recognized it as the basis for the court’s judgment;
3. The judgment made by the first instance court on the copy violated the provisions of Article 68, paragraph 5 of the Civil Procedure Law.

Article 427, paragraph 4, of the Civil Procedure Code of the Republic of Kazakhstan provides that the decision of the court of first instance may be annulled in any case if the court resolves the following issues: the rights and obligations of persons who did not participate in the process.

With such legal protection, who will invest in Kazakhstan? When the court with obvious violations deprives investors of 3.5 billion tenge. We believe that the indicators of investment attractiveness of Kazakhstan, and accordingly the indicators of economic growth of the country, directly depend on how openly and fairly such lawsuits are resolved.

Why were investors’ rights so blatantly violated in our case? Was it due to the judge’s incompetence or was there some other reason?

In the near future we would like to conduct a detailed interview, we will speak out in the media regarding all the above apparent violations, our goal is to get justice.

We have appealed this fact to the Administration of the President of the Republic of Kazakhstan, the Chairman of the Supreme Court and the Chairman of the Supreme Court’s Chamber for Civil Cases. We will not remain silent and agree with such lawless behavior, “the spokesperson concluded.

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