According to the lawsuit petition dated July 20, 2010 and available evidence in the case file:
Joint Stock Commercial Bank for Foreign Trade of Vietnam - Thang Long Branch (hereinafter referred to as Vietcombank) and Kaoli Pharmaceutical Joint Stock Company (hereinafter referred to as Kaoli Company) concluded 4 credit agreements, including: Credit agreement No. 03/07/NHNT-TL dated December 25, 2007; No. 04/07/NHNT-TL dated December 28, 2007; No. 144/08/NHNT-TL dated March 28, 2008 and No. 234/08/NHNT-TL dated May 27, 2008. The above-mentioned credit agreements are secured by housing ownership right and land use right at:
- No. 122 Doi Can, Doi Can Ward, Ba Dinh District, Hanoi City (land plot No. 46B+39C+37C, map No. 19) under ownership and right to use of Mrs. Nguyen Thi Phuong (under the mortgage agreement No. 1678.2008/HDTC dated June 25, 2008; secured for the loan and guarantee of up to VND 4,605,000,000; terms and conditions for the lending of the said amount shall be specified in the banking documents signed by Vietcombank and the principal debtor (Kaoli Company) at the head office of Vietcombank (Clause 1.2 Article 1); value of the collateral is VND 4,605,000,000 based on the valuation report No. 105/08/NHNT.TL; mortgage term is 5 years from the date on which the principal debtor receives the disbursement of loan; the agreement takes effect from the date on which it is registered at the land use right registration office (Clause 10.1 Article 10). This agreement was notarized by Public Notary Office No. 3 of Hanoi City on June 25, 2008 and certified by the Office of Natural Resources and Environment of Ba Dinh District that the mortgage on land use right and property on land was registered on July 10, 2008. Earlier, on September 3, 2007, Mrs. Phuong and Vietcombank made a record of handover of mortgage and guarantee documentation, stating that: “The parties, at Thang Long Branch of Vietcombank, hand over original documentation of collateral to secure the obligations of Kaoli Pharmaceutical Joint-Stock Company; property: housing ownership right and land use right at 122 Doi Can, Doi Can Ward, Ba Dinh District, Hanoi” (case file p. 52).
- Group 13 Cluster 2 Nhat Tan Ward, Tay Ho District, Hanoi City under ownership and right to use of Mr. Nguyen Dang Duyen and his wife, Mrs. Do Thi Loan (under the mortgage agreement No. 1677.2008/HDTC dated June 25, 2008; secured for the loan and guarantee of up to VND 1,250,000,000; terms and conditions for the lending of the said amount shall be specified in the banking documents signed by Vietcombank and the principal debtor (Kaoli Company) at the head office of Vietcombank (Clause 1.3 Article 1); value of the collateral is VND 1,250,000,000 based on the valuation report No. 106/08/NHNT.TL dated September 3, 2007 (Clause 3.1 Article 3); mortgage term is 5 years from the date on which the principal debtor receives the disbursement of loan; the agreement takes effect from the date on which it is registered at the land use right registration office (Clause 10.1 Article 10). This agreement was notarized by Public Notary Office No. 3 of Hanoi City on June 25, 2008 and certified by the Office of Natural Resources and Environment of Ba Dinh District that the mortgage on land use right and property on land was registered on July 1, 2008. Earlier, on September 3, 2007, Mr. Nguyen Dang Duyen and Vietcombank made a record of handover of mortgage and guarantee documentation, stating that: “The parties, at Thang Long Branch of Vietcombank, hand over original documentation of collateral to secure the obligations of Kaoli Pharmaceutical Joint-Stock Company; property: housing ownership right and land use right at Group 13, Cluster 2, Nhat Tan Ward, Tay Ho District, Hanoi” (case file p. 58a).
In addition, the loans under the said credit agreements were also secured by house and land under right to use and right to own of Mr. Cao Ngoc Minh and his wife, Mrs. Doan Thi Thanh Thuy, house and land of Mr. Giang Cao Thang and his wife, Mrs. Duong Thi Sinh (the mortgage was released); land use right of Mr. Chu Quoc Khanh; house and land of Mrs. Chu Thi Hong and Mr. Nguyen Van Minh.
Following the said credit agreements, Vietcombank - Thang Long Branch disbursed the loan amounts to Kaoli Company. Kaoli Company has just repaid partial principal and interest. Vietcombank filed a lawsuit with the Court, claiming Kaoli Company to repay the debts of the said 4 credit agreements of VND 8,197,957,837 (including: VND 5,457,000,000 of the principal, VND 397,149,467 of the interest within the term of the loans, and VND 2,348,808,370 of overdue interest up to the first-instance trial date) and dealt with against the collateral of Mrs. Nguyen Thi Phuong; of Mr. Nguyen Dang Duyen and Mrs. Do Thi Loan for debt collection.
Representation of the defendant - Mr. Do Van Chinh, Director of Kaoli Company: He acknowledges that Kaoli Company still has principal and interest within the term of the agreements, overdue interests in debt under 4 credit agreements as stated by Vietcombank. He acknowledges Kaoli's liability to repay the debt according to the four credit agreements mentioned above and proposes a deferred repayment period of 5 years.
In case Kaoli Company fails to repay debts or fails to repay full debts and Vietcombank requires the sale of collateral assets of Mrs. Nguyen Thi Phuong, of Mr. Nguyen Dang Duyen and Mrs. Do Thi Loan, the Court is required to settle according to regulations of law. Mr. Chinh confirms that Vietcombank disbursed the loan amount before signing the mortgage agreement No. 1678.2008/HDTC on June 25, 2008 and the mortgage agreement No. 1677.2008 / HDTC on June 25, 2008. Since June 25, 2008, Kaoli Company has not borrowed another loan, has not signed any other credit agreement with Vietcombank.
Representation of persons with relevant rights and obligations:
- Statement of Mr. Nguyen Van Nghi (authorized representative of Mrs. Nguyen Thi Phuong): Vietcombank sued Kaoli Company and asked the Court for the sale of Mrs. Phuong's collateral in case Kaoli Company defaults on a loan obligation; he did not agree because Mrs. Phuong signed the mortgage agreement on June 25, 2008, so she was not responsible for guaranteeing the loan of Kaoli Company at Vietcombank under the 04 credit agreements that Vietcombank is taking legal proceedings. Propose the Court to force Vietcombank to complete the mortgage release procedure and return the certificate of land use right and house ownership to Mrs. Phuong.
- Statement of Mr. Nguyen Dang Duyen and Mrs. Do Thi Loan: They signed a mortgage agreement on June 25, 2008 but this agreement only secures Kaoli Company's loan at Vietcombank and will bear all responsibilities arising out from June 25, 2008 to April 25, 2009, and they will not take responsibility for any credit agreement signed before June 25, 2008 between Vietcombank and Kaoli Company. According to Vietcombank, Vietcombank has not signed any credit agreement with Kaoli Company since June 25, 2008. Thus, their legal responsibility has not yet arisen. Propose the Court to force Vietcombank to release the collateral under a mortgage agreement dated June 25, 2008 for them.
In the First Instance Commercial Judgment No. 32/2011/KDTM-ST dated March 24, 2011, the People’s Court of Hanoi City judged:
“1. Accept partial lawsuit petition of Vietnam Joint Stock Commercial Bank for Foreign Trade against Kaoli Company. Force Kaoli Company to pay to the Bank the total amount of principal and interest of VND 8,197,957,837.
2. Refuse Vietcombank’s request for the sale of assets which are ownership of houses and land use rights at the land plots No. 46B + 39C + 37C, map No. 19 , No. 122 Doi Can, Doi Can Ward, Ba Dinh District, Hanoi City according to the certificate of housing ownership and land use rights No. 10101132587 issued by the People's Committee of Ba Dinh District on April 27, 2004 to Mrs. Nguyen Thi Phuong and the value of house ownership and land use rights at Group 13, Cluster 2, Nhat Tan Ward, Tay Ho District, Hanoi City according to the certificate of housing ownership and land use right in the land plot No. 13 + 64A (1 part), map No. 04 at the address Group 13, Cluster 2, Nhat Tan Ward, Tay Ho District, Hanoi City according to the certificate of housing ownership and land use right No. 10103090899 by the People's Committee of Hanoi issued on March 23, 2004 to Nguyen Dang Duyen and his wife, Mrs. Do Thi Loan.
Joint Stock Commercial Bank for Foreign Trade of Vietnam is responsible for returning all documents of house ownership and land use rights and completing procedures to release collateral for Mrs. Nguyen Thi Phuong and the married couple Mr. Nguyen Dang Duyen and Mrs. Do Thi Loan”.
In addition, the Court of First Instance decided the court fee and announced the appeal right to litigants as per the law.
On April 4, 2011, Vietcombank filed an appeal.
In the Appellate Commercial Judgment No. 148/2011/KDTM-PT dated August 17, 2011, the Appellate Court of the Supreme People's Court in Hanoi, based on Clause 2 of Article 275 and Clause 1 of Article 276 of the Civil Procedure Code, decided:
"Correct the First Instance Commercial Judgment No. 32/2011/KDTM-ST dated March 23 and 24, 2011 of the People's Court of Hanoi on the guarantee obligation for Mrs. Nguyen Thi Phuong and the married couple Mr. Nguyen Dang Duyen and Mrs. Do Thi Loan, in specific:
Judges: Records of handover of collateral, mortgage and guarantee documents dated September 3, 2007 between Vietcombank - Thang Long Branch with Mrs. Nguyen Thi Phuong and the married couple Nguyen Dang Duyen and Mrs. Do Thi Loan are considered as guarantee agreements (case file p. 52, 58a).
Forcing Kaoli Pharmaceutical Joint Stock Company to repay Vietcombank the total amount of principal and interest in debt of VND 8,197,957,837...
In the event that Kaoli Pharmaceutical Joint Stock Company does not fulfill its obligations or fails to fulfill its debt repayment obligation to Vietcombank, Vietcombank may request the Department of Civil Judgment Enforcement of Hanoi City to deal with the collateral in accordance with the Law on Civil Judgment Enforcement to recover debts under the guarantor's responsibility.
...... From the date on which the Judgment takes legal effect and the judgment creditor files a request for judgment enforcement, the judgment debtor must also pay interest on the delayed judgment amount according to the base interest rate quoted by the State Bank corresponding to the judgment enforcement delay time”.
In addition, the Court of Appeal also decided the court fees and judgment enforcement.
After appellate trial, Mrs. Nguyen Thi Phuong; Mr. Nguyen Dang Duyen and Mrs. Do Thi Loan have applied many applications for reviewing the above Appellate Judgment under cassation procedures.
In the Appeal No. 34/2012/KDTM-KN dated October 15, 2012, the Chief Justice of the Supreme People’s Court requested the Council of Judges of the Supreme People’s Court to review the case under cassation procedure in order to quash the above Appellate Judgment No. 148/2011/KDTM-PT dated August 17, 2011 of the Court of Appeal of the Supreme People’s Court of Hanoi; and then refer the case to the Court of Appeal of the Supreme People’s Court of Hanoi city for re-conducting the appellate trial as per the law.
At the cassation trial court hearing, the representative of the Supreme People’s Procuracy consents to the Appeal made by the Chief Justice of the Supreme People’s Court.