The plaintiff filed a lawsuit to declare the agreement to terminate the contract partially invalid, compel the defendant to withdraw the legal claim and return the documents.
A contract for the sale and purchase of an apartment was concluded between the plaintiff and the defendant. Before signing the contract, the defendant made an advance payment, the latter was obliged to pay the remaining amount in installments over five years. The plaintiff fulfilled the obligations, the apartment was transferred to the defendant, but the defendant violated the terms of the contract, the funds towards the cost of the apartment were not paid on time. 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 was signed on his behalf by a representative under a power of attorney. On the other hand, a representative also acted during the termination of the contract. The agreement on termination of the contract unreasonably included a clause obliging the plaintiff to pay the defendant an amount more than 4 times greater than the amount received as an advance payment, without justifying the reasons for paying this amount. At the same time, the authority to terminate with the condition of payment of the amount was not granted to the representative. The defendant also placed claims on the apartment and withheld documents, in connection with which the plaintiff asked to invalidate the clause of the agreement on payment of the amount, to oblige the defendant to file an application to withdraw the claim on the apartment and return the documents.
The defendant did not admit the claim, they asked to refuse to satisfy it, explaining that the defendant had properly fulfilled the terms of the Agreement on payment of the cost of the apartment in installments in monthly payments, and the agreement was terminated by agreement of the parties. At the same time, a larger amount was paid than indicated in the agreement. He was obliged to withdraw the claim and return the documents for the apartment after the plaintiff returned the money paid.
The court established that after the conclusion of the contract, the apartment was transferred into the ownership of the defendant, who moved his relative into it; the plaintiff also transferred the following documents for the apartment to the defendant: a new technical passport; an old technical passport for the apartment; permission for redevelopment; an acceptance certificate; a redevelopment plan.
By virtue of the terms of the agreement on termination of the contract, after termination of the above-mentioned contract, the parties return to their original position. The obligations of the parties under the above-mentioned contract cease from the moment this agreement comes into force. According to the agreement of the parties, the plaintiff returns to the defendant the amount previously paid under the purchase and sale agreement, but the amount of this amount does not correspond to the amount paid by the defendant. Also, according to the terms of the agreement, the defendant returns the disputed apartment to the plaintiff within the time period specified in the agreement.
The court indicated that, according to Article 165 of the Civil Code, a transaction concluded on behalf of another person by a person not authorized to conclude the transaction, or in excess of authority, creates, changes and terminates civil rights and obligations for the principal only if he subsequently approves this transaction. Subsequent approval by the principal makes the transaction valid from the moment of its conclusion.
It follows from the contents of the powers of attorney issued to the representatives that these representatives were authorized by the seller and the buyer, respectively, to terminate the contract without including any conditions, and accordingly, the inclusion in the agreement of a clause on the return by the plaintiff to the defendant of the previously paid amount in an amount that is not confirmed by documents is an abuse of authority on the part of the attorneys. Moreover, there was no subsequent approval of this clause of the transaction by the plaintiff.
The court also considered the plaintiff's arguments to be justified that the existence of a legal claim to the disputed apartment, imposed by the defendant, and the retention of documents for the apartment, limits the plaintiff's right to own and dispose of the apartment belonging to him, and therefore the claims are justified.
As a result, the court of first instance decided:
to declare invalid the agreement to terminate the contract of sale of the apartment regarding the return of the amount by the plaintiff to the defendant.
compel the defendant to file an application to remove and cancel the registration of the legal claim to the apartment.
oblige the defendant to return to the plaintiff the documents for the above-mentioned apartment: two technical passports for the apartment; permission for redevelopment; acceptance certificate; redevelopment plan; receipts for payment of utility services.
The decision was appealed by the defendant to the appellate court, which rejected the appeal, stating that the amount specified in the agreement did not correspond to the amount previously paid by the defendant and significantly exceeded it. At present, the defendant does not claim rights to the apartment, nor does he challenge the plaintiff's rights.
The decision has entered into legal force.