Nurbank intends to take property from entrepreneurs because of the misconduct of the previous sellers

At the regular meeting of the Council on protection of the rights of entrepreneurs NCE RK "Atameken" was reviewed a legal battle, as a result of which were affected small businesses.

The administrative office of the Ombudsman for the Protection of the Rights of Entrepreneurs of Kazakhstan received a petition from the owners of non-residential premises located in the building of BC "The Seventh Continent". The appeal states that the entrepreneurs on the basis of sales contracts acquired non-residential premises in the business center as secondary objects. Currently, the property belonging to the applicants on the property right is subject to requisition and transfer for the use of "Nurbank".

"This story stretches from 2007. The cause of this situation was the fact that in 2011, between the original owners of LLP “Shyryn LTD” and LLP “Capital Petrol” were concluded contracts of bank collateral with Nurbank. Under the terms of agreements concluded by LLP “Shyryn LTD” and LLP “Capital Petrol” upon completion of the construction of the BC and RC "7 Continent", they had to pledge the share in the property to banks as collateral for the bank loan contract. In connection with the failure of LLP “Shyryn LTD” and LLP “Capital Petrol” to fulfill obligations, the court ruling issued an order to fulfill the contract conditions by providing collateral to the bank - the share of real estate in BC and RC "The Seventh Continent", - said director of the department of legal protection of entrepreneurs NCE RK Oleg Savelenko.

At the same time, he stressed that, having studied the materials of the case, court documents, "Atameken" concluded that entrepreneurs were simply not given the opportunity to prove in court that they are bona fide purchasers of property. "By decision of the court of appeal, all businessmen allegedly should have known about the unfairness of their acquisition. However, there is serious doubt", - added Savelenko.

According to the director of the department, in view of the situation, about 25 entrepreneurs were affected. At the same time the rooms are not taken away from the owners of apartments in "The Seventh Continent".

The meeting provided an opportunity to speak to the owners of non-residential premises. Aigerim Bizhigitova acquired the property in 2015. "When we purchased this room, there was no encumbrance, alienation - it was clean. We have these documents. I personally have only one office on the 19th floor. But then comes "Nurbank" and says that once someone owed them something. This was 5 years ago. How could we know what was happening with this location 5 years ago, the bank was asleep, everything was legal", - she said.

 Savelenko, in turn, confirmed the words of a businesswoman from a legal point of view. "During acquisition process all the documents were clean. In 2015 "Nurbank" launched a reverse process and recognized these transactions on purchase and sale of premises void due to the fact that buyers supposedly should have known about the relationship of LLP “Shyryn LTD” and Nurbank", - he said.

Director of the Department of Legal Protection NCE RK noted that in this case bona fide purchaser is not responsible for the illegal actions of the previous sellers. "The court's decision didn’t take into account this provision of the Civil Code. Moreover, we learned that the affected purchasers were not even invited to the appeal. Everything was decided in the appellate court. Moreover, in the first instance, many entrepreneurs won lawsuits", - he added.

It is worth noting that representatives of Nurbank were also invited to the meeting of the Council, NCE repeatedly called them, but for various reasons, the bank's representatives have shied away from dialogue. LLP “Shyryn LTD” also didn’t confirm its participation. Thus, we can’t hear the position of the opposite side.

Zhanat Nusipbek is also one of the owners of premises in the long-suffering business center. He believes that this situation is a raid. "Last year, we bought premises of 1000 square meters, we opened a fitness club there with friends. In addition, I have another 1,000 squares, which I lease. Behind me there are another 30 small business owners, who rent the premises. Studying these materials, I unwittingly came to the conclusion that there is a clear process of raiding. We believe that the Bank together with “Shyryn LTD” jointly created a scheme to take away business from the people. Why the bank issues a loan in 2008, and the collateral agreement was drawn up in 2011? 3 years there was no pledge! How does the bank issue a loan for more than 100 million USD then? ", - said the businessman.

Attorney Marat Bisharov, representing some of the affected businesses, said that LLP “Shyryn LTD” and LLP “Capital Petrol” throughout the courts denied the receipt of borrowed funds themselves. "If you noticed, there was a contract of pledge of the claim. Receivables – this is immediate right, it expires upon exercise of this right. That is, when in 2013 “Shyryn LTD” has received under the contract this property in ownership, a claim has expired, respectively, the contract of pledge was terminated. Court of appeal didn’t take this into account. The court of first instance missed it. They simply kept silent about it. Pledges can be different, lawyers understand these subtleties", - he said.

The Chairman of the Council for the Protection of the Rights of Entrepreneurs NCE RK "Atameken" Gani Kasymov summed up all the performances. "What do we have today? Inter-district Economic Court and the Court of Appeal came to the City Court. Bipolar decisions were made. Now, the National Bank has taken upon itself the obligation to check the actions of Nurbank. We invited all the parties, the question is very sharp. What should we do? The National Chamber needs to continue to provide legal assistance in the preparation of materials for further appeal against the decision of the court. We need to ensure that court decisions were invalidated. We will decisively support you. Second - we, on behalf of the Council we will send an appeal to the Prosecutor General with a request to consider the issue of bringing the perpetrators to liability established by the legislation for what people have done", - he concluded.

The words of Kasymov caused a storm of aplauses among entrepreneurs. We are tired of the prolonged litigation, so there is hope for a fair outcome.