The plaintiff filed a lawsuit to declare the agreement on termination of the contract partially invalid, compel the defendant to withdraw the legal claim and return the documents.
The plaintiff and the defendant entered into a contract for the sale of an apartment. Prior to signing the contract, the defendant paid an advance payment, the latter undertook to pay the remaining amount in installments within five years. On the part of the plaintiff, the obligations were fulfilled, the apartment was transferred to the disposal of the defendant, however, the terms of the contract were violated by the defendant, the funds on account of the cost of the apartment were not paid in a timely manner. In this regard, an oral agreement was reached between the parties to terminate the contract and an agreement was concluded to terminate the previously concluded contract. Due to the absence of the plaintiff in the Republic of Kazakhstan, the agreement on his behalf was signed by a representative by proxy. On the other hand, a representative also acted when terminating the contract. A clause was unreasonably included in the agreement on termination of the contract, obliging the plaintiff to pay the defendant an amount more than 4 times higher than received as an advance payment, without substantiating the reasons for paying this amount. At the same time, the authority to terminate with the condition of payment of the amount to the representative was not granted. The defendant also imposed claims on the apartment and withheld documents, in connection with which the plaintiff asked to invalidate the clause of the agreement on the payment of the amount, to oblige the defendant to file an application for withdrawal of the claim to the apartment and return the documents. At the same time, the authority to terminate with the condition of payment of the amount to the representative was not granted. The defendant also imposed claims on the apartment and withheld documents, in connection with which the plaintiff asked to invalidate the clause of the agreement on the payment of the amount, to oblige the defendant to file an application for withdrawal of the claim to the apartment and return the documents. At the same time, the authority to terminate with the condition of payment of the amount to the representative was not granted. The defendant also imposed claims on the apartment and withheld documents, in connection with which the plaintiff asked to invalidate the clause of the agreement on the payment of the amount, to oblige the defendant to file an application for withdrawal of the claim to the apartment and return the documents.
The defendant did not recognize the claim, they asked to refuse to satisfy it, explaining that the terms of the Agreement on paying the cost of the apartment in monthly installments the defendant performed properly, and the agreement was terminated by agreement of the parties. In this case, a larger amount was paid than indicated in the contract. He undertook to remove the claim and return the documents to the apartment, after the plaintiff returned the money paid.
The court found that after the conclusion of the contract, the apartment was transferred into the possession of the defendant, who settled his relative in it, and the following documents for the apartment were also transferred to the defendant by the plaintiff: a new technical passport; old technical passport for the apartment; planning permission; act of acceptance into operation; redevelopment plan.
By virtue of the terms of the agreement on termination of the contract, after the termination of the above contract, the parties return to their original position. The obligations of the parties under the above agreement shall terminate from the moment this agreement enters into force. According to the agreement of the parties, the plaintiff returns to the defendant the amount previously paid under the contract of sale, but the amount of this amount does not correspond to the amount paid by the defendant. Also, under the terms of the agreement, the defendant returns the disputed apartment to the plaintiff, within the period specified in the agreement.
The court pointed out that, according to Article 165 of the Civil Code, a transaction made on behalf of another person by a person not authorized to conclude a transaction, or in excess of the authority, creates, changes and terminates civil rights and obligations for the person represented only if he subsequently approves this transaction. Subsequent approval by the representee makes the transaction valid from the moment of its completion.
From the content of the powers of attorney issued to the representatives, it follows that these representatives were authorized by the seller and the buyer, respectively, to terminate the contract without including any conditions; powers of attorneys. Moreover, the subsequent approval of this clause of the transaction by the plaintiff did not follow.
The court also considered justified the plaintiff’s arguments that the presence of a legal claim to the disputed apartment imposed by the defendant, the retention of documents for the apartment, restricts the plaintiff’s right to own and dispose of the apartment belonging to him, in connection with which the requirements are justified.
In the end, the trial court ruled:
invalidate the agreement on termination of the contract for the sale of an apartment on the return of the amount by the plaintiff to the defendant.
oblige the defendant to apply for the removal and cancellation of the registration of the legal claim to the apartment.
oblige the defendant to return to the plaintiff the documents for the above apartment: two technical passports for the apartment; planning permission; act of acceptance into operation; redevelopment plan; utility bills.
The decision was appealed by the defendant to the court of appeal, which refused to satisfy the appeal, indicating that the amount specified in the agreement did not correspond to the amount previously paid by the defendant and far exceeded it. Currently, the defendant does not claim the right to the apartment, without challenging the rights of the plaintiff either.
The decision has entered into force.