of November 19, 2004
About compliance of court resolutions of the Constitution and to the laws of the Azerbaijan Republic in connection with F.A.Guseynov and A. A. Gasymov's claims
Name of the Azerbaijan Republic
Plenum of the Constitutional Court of the Azerbaijan Republic as a part of F. Abdullaev (chairman), F. Babayeva, B. Garibova (judge-speaker), R. Gvaladze, E.Mamedova, I. Nadzhafova, S. Salmanova and A. Sultanov,
with participation of the court secretary I. Ismaylov, representatives of the applicant M. Guliyev and R. Zulfugarov according to part V of article 130 of the Constitution of the Azerbaijan Republic Farkhada Ashraf to Guseynov and Aslan Amiraslan's ogl to Gasymov's ogl about compliance of the resolution of the Judicial Board on Civil Cases (JBCC) of the Supreme Court of the Azerbaijan Republic of April 2, 2004 on civil case in connection with Pashayevy Nargiz Mamedtagi's claim gases against F.Guseynov and A. Gasymov about determination of instructions for use by the apartment, cancellation of the agreement, recognition of the property right, and also cost recovery on repair and the counter action of A. Gasymov to N. Pashayeva about eviction from the apartment of the Constitution and to the laws of the Azerbaijan Republic considered on proceeding in open court according to the procedure of the constitutional judicial proceedings the claim. On the basis of the letter of the chairman of the Supreme Court of the Azerbaijan Republic of October 20, 2004 No. 8m-308/04 the constitutional case was considered without participation of the representative of defendant.
Having heard the report of the judge B. Garibov, speech of the representative applicant M. Guliyev on case, having studied and having discussed case papers, the Plenum of the Constitutional Court of the Azerbaijan Republic ESTABLISHED:
Applicants F. A. Guseynov and A. A Gasymov in the claim specify that in N. Pashayeva's claim to F.Guseynov and A. Gasymov for establishment of instructions for use by the apartment, at the address: Baku, Prospekt Inshaatchylar, the house 6, the apartment 1, cancellation of the agreement, recognition of the property right, and also about cost recovery on repair and to the counter action of A. Gasymov to N. Pashayeva about eviction from the apartment the decision of Yasamalsky district court of the city of Baku was passed on July 1, 2003.
This decision partially satisfies N. Pashayeva's claim with recognition its right to use by living rooms No. 1 with an area of 50.0 sq.m and No. 4 of 15.8 m 2, being in the apartment of 1 house 6 with a total area of 225 sq.m on Prospekt Inshaatchylar of the city of Baku, they are transferred to its use (the auxiliary area of the apartment is left in general use), the sale and purchase agreement of this apartment of February 12, 2003 signed between A. Gasymov and SUN-SITY (further firm), it is nullified, N. Pashayeva's claim to F. Guseynov and A. Gasymov for recognition of the property right to this apartment is left without consideration. The claim to F.Guseynov and A. Gasymov regarding expense recovery, spent for repair of this apartment, and also the counter action of A. Gasymov to N. Pashayeva about eviction from the 4-roomed apartment number 1, located on the 2nd floor of the apartment house, at the address: Baku, Prospekt Inshaatchylar, 6, are rejected because of groundlessness.
The petition for appeal made by applicants was rejected by the decision of the Judicial Board on Civil Cases (JBCC) of Appeal Court of the Azerbaijan Republic of November 27, 2003, and the decision of Yasamalsky district court is left without change.
The writ of appeal on this case was rejected by the resolution SKPGD of the Supreme Court of the Azerbaijan Republic of April 2, 2004, and the solution of SKPGD of Appeal Court of the Azerbaijan Republic is left without change.
In the letter of the chairman of the Supreme Court of the Azerbaijan Republic of June 7, 2004 it is specified lack of the bases for removal at meeting of the Plenum of the Supreme Court of the Azerbaijan Republic of the claim according to the procedure of the additional cassation.
In claims further it is noted that under the agreement "about receipt of non-interest loan" signed on December 3, 1999 A. Gasymov gave to F.Guseynov the amount in the amount of 115.000 thousand (hundred fifteen thousand) of US dollars on condition of return till December 1, 2001, however F.Guseynov could not fulfill the obligations on reasonable excuses.
On June 10, 2002 by the conclusion between the parties of the new loan agreement completion date of the previous agreement was prolonged for 7 months from the moment of the conclusion of this agreement.
For the purpose of ensuring timely accomplishment of the obligation under this agreement on June 10, 2002 between F.Guseynov and A. Gasymov the agreement of pledge, and F.Guseynov based on the sale and purchase agreement signed with firm of May 1, 2002 of the apartment No. 1 with a cost of 66.000 (sixty six thousand) US dollars, in the house built by firm, at the address was signed: Baku, Prospekt Inshaatchylar, 6, undertook the obligation after construction of the apartment house, its delivery in operation by the State Construction Commission and registration of real estate in the state register to draw up the property right to this apartment addressed to A. Gasymov.
In this time the construction of the specified apartment house was complete, and F.Guseynov, in turn, transfered to account firms of 60.000 (sixty thousand) US dollars, for capital repair it spent 40.000 (forty thousand) US dollars.
In view of the fact that the actual cost of the apartment constitutes 100.000 (hundred thousand) US dollars and A. Gasymov's requirements were satisfied taking into account this cost of the apartment, on January 30, 2003 between F.Guseynov and A. Gasymov the agreement on concession of requirements of loan, and on the basis of this agreement of the right of the creditor under the agreement of May 1, 2002 signed between firm and F.Guseynov that is the right of registration of the property right to the apartment was signed, were yielded to A. Gasymov, and in this occasion between the specified firm and A. Gasymov the new agreement of February 12, 2003 was signed. However courts nullified this agreement, based on the fact that the sale and purchase agreement of obligations is not provided in the Civil Code of the Azerbaijan Republic (further the Civil Code) and other legal acts.
According to applicants, the concession of debt requirements corresponds to the legislation and is determined by Article 193 of the Civil Code of the Azerbaijan Republic. Applicants also specify that F.Guseynov's debt to firm in the amount of 6.000 (six thousand) US dollars passed to A. Gasymov, the last transferred 1.000 (one thousand) US dollars from the remained amount into the account of firm. For validity of such transaction only the opinion of the owner of the requirement, and firm is taken as basis as the owner of the requirement of it it agreed.
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