ARBITRATION COURT OF NOVOSIBIRSK REGION NAMED AFTER THE RUSSIAN FEDERATION
DECISION
Novosibirsk city
Case No. A45-9550 / 2017
May 14, 2017
The operative part of the decision was announced on July 12, 2017.
The decision in full was made on July 14, 2017
The Arbitration Court of the Novosibirsk Region, composed of Judge Aidarova A.I., in the process of maintaining the record of the trial, was assisted by Judge A. Lagunova, having examined the case in court in the lawsuit of Anna Gennadyevna Koltyugina, Novosibirsk,
to Magnushevsky Alexei Evgenievich, Novy Sharap, Novosibirsk Region, limited liability company “Aqua Networks” (OGRN 1145476065151), Novosibirsk,
with the participation of a third party who does not declare independent claims regarding the subject of the dispute - Magnushevskaya Irina Gennadevna,
on invalidation of supplementary agreement No. 6 of 02/21/2017 to loan agreement No. 2 of 06/03/2014; debt recognition agreement dated 02.21.2017; Supplementary Agreement No. 6/1 of 03/01/2017 to Loan Agreement No. 2 of 06/03/2014; debt recognition agreement dated 01.03.2017; Supplementary Agreement No. 7 of 04/05/2017 to Loan Agreement No. 2 of 06/03/2014; debt recognition agreement dated 04/05/2017, with the participation of representatives in the court session:
plaintiff - before the break - Koltyugina Anna Gennadievna, passport; Salapanov Victor Rafailievich, notarized power of attorney dated 05/18/2017, attorney certificate No. 1086; after the break - Koltyugina Anna Gennadyevna, defendant - Magnushevsky A.E. - before the break - Lastovsky Stanislav Vladimirovich, notarized power of attorney dated 08/01/2016, passport; Razina Elizaveta Viktorovna, notarized power of attorney dated 08/01/2016, passport; after the break - Vetrov Vitaly Sergeevich, notarized power of attorney dated 08/01/2016, passport; Razina Elizaveta Viktorovna, notarized power of attorney dated 08/01/2016, passport; LLC Trading House “Aqua Networks” - Alexandra Popova, power of attorney dated 02/06/2017, passport,
third person - He failed to appear,
installed:
Koltyugina Anna Gennadyevna, a participant in the Aqua Seti Trading House limited liability company, filed a lawsuit against Alexei Evgenievich Magnushevsky (hereinafter - the defendant), the Aqua Seti Trading House limited liability company (hereinafter - the company) to invalidate the additional agreement from 02.21.2017 No. 6 to the loan agreement No. 2 dated 06/03/2014; debt recognition agreement dated 02.21.2017; supplementary agreement dated 01.03.2017 No. 6/1 to the loan agreement No. 2 dated 06/03/2014; debt recognition agreement dated 01.03.2017; Supplementary Agreement dated 05/05/2017 No. 7 to Loan Agreement No. 2 dated 06/03/2014; debt recognition agreement dated 04/05/2017.
A third party who does not state independent claims regarding the subject of the dispute is involved in the case - a participant in the company, Irina G. Magnushevskaya, who asks to consider the case in the absence of her representative. The defendant in the response to the claim asks to refuse to satisfy the claims, on the grounds set forth in the response to the claim. The third party and the company are asked to satisfy the claims, referring to the presence of the company negative consequences as a result of transactions concluded by the defendant. As follows from the case materials, the plaintiff’s claim for declaring the transactions invalid is based on the provisions of Article 45 of the Federal Law “On Limited Liability Companies”, clause 2, article 174, article 183 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation).
According to article 65.2. Civil Code of the Russian Federation corporation participants (participants, members, shareholders, etc.) are entitled to participate in the management of the corporation, with the exception of the case provided for in paragraph 2 of Article 84 of this Code; to dispute, acting on behalf of a corporation (paragraph 1 of Article 182), its transactions on the grounds provided for in Article 174 of this Code or laws on corporations of certain organizational and legal forms, and to demand the application of the consequences of their invalidity, as well as the application of the consequences of the invalidity of void transactions of the corporation.
In accordance with the Decree of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N 25 "On the application by the courts of certain provisions of Section I of the first part of the Civil Code of the Russian Federation," a corporation member, who, in the established manner, appeals to the court on behalf of the corporation to challenge the transactions concluded by the corporation, about the application of the consequences of their invalidity and the application of the consequences of the invalidity of void transactions of the corporation, by virtue of the law, is its representative, including at the stage of execution of the judgment, and the plaintiff in the case is a corporation (clause 2 of article 53 of the Civil Code, clause 1 of article 65.2 of the Civil Code). The procedure for a corporation participant to appeal to the court with such requirements is determined, including taking into account the restrictions established by the legislation on legal entities.
The person authorized to act on behalf of the corporation is also a representative of the corporation when considering the above requirements, along with the participant of the corporation who presented them. If a participant disputes transactions concluded by the corporation, submits to them claims to apply the consequences of their invalidity or to apply the consequences of the invalidity of void transactions, the defendant is the corporation’s counterparty to the disputed transaction.
Thus, the proper defendant in this claim is A.M. Magnushevsky, therefore, the recognition of claims by the company cannot be accepted by the court in accordance with article 49 of the agro-industrial complex and can be the basis for satisfying claims. As follows from the case file, the limited liability company “Aqua Networks” was registered on 05.22.2014 with the main state registration number 1145476065151.
The authorized capital of the Company is 10,000 rubles. From the extract from the Unified State Register of Legal Entities dated 05/02/2017, it follows that the participants in the company are Aleksey Magnushevsky, Anna Gennadyevna Koltyugina, Irina Gennadyevna Magnushevskaya with a 25% share in each of the authorized capital of the company.
In accordance with Articles 807, 810 of the Civil Code of the Russian Federation under a loan agreement, one party (lender) transfers money or other things determined by generic characteristics to the other side (borrower), and the borrower undertakes to return the same amount of money (loan amount) or equal amount to the lender other things he received of the same kind and quality. A loan agreement is considered concluded from the moment of transfer of money or other things. The borrower is obliged to return to the lender the received loan amount on time and in the manner prescribed by the loan agreement.
Between the company (borrower) represented by the sole executive body Magnushevsky A.E. and the defendant (lender) entered into loan agreement dated June 3, 2014 No. 2, under the terms of which the lender transfers to the borrower for working capital replenishment in the amount of 7,390,000 rubles. cash and non-cash, and the borrower agrees to return the amount received in the time and manner specified in the contract. The interest rate is 14% per annum.
According to clause 2.1. The lender is obliged to transfer the indicated amount to the borrower within 1 year, possibly in installments, and the borrower is obliged to return it and the amount of interest no later than December 31, 2017. The fact that the borrower made cash in the amount of 1,540,000 rubles. 00 kopecks under loan agreement No. 2, the plaintiff and the company are not in dispute. When considering the claim Magnushevsky A.E. on collecting from the company debt under a loan agreement in the amount of 1,540,000 rubles. in the Central District Court of Novosibirsk, the plaintiff found out that there are eight additional agreements to the loan agreement, as well as debt recognition agreements concluded by the company in the person of the sole executive body Magnushevsky A.E. (by the borrower) and A. Magnushevsky (lender), which, in the plaintiff’s opinion, were committed without the approval of the general meeting of the company’s participants, caused losses to the company and adverse consequences, signed by A.E. Magnushevsky, who was not authorized at the time of the conclusion of additional agreements No. 6, No. 6/1, No. 7 and agreements on the recognition of debt dated 02.21.2017, 01.03.2017, 04.04.2017 for transactions, if there is a conspiracy in the actions of the body of the legal entity and another person of the transaction to the detriment of the interests of the representative or the interests of the legal entity. Article 166 of the Civil Code of the Russian Federation provides that a transaction is invalid on the grounds established by this Code, by virtue of its recognition by the court (contested transaction) or regardless of such recognition (void transaction).
A transaction that does not meet the requirements of the law or other legal acts is void if the law does not establish that such a transaction is disputable or does not provide for other consequences of the violation. In accordance with article 168 of the Civil Code of the Russian Federation, with the exception of cases provided for by clause 2 of this article or another law, a transaction that violates the requirements of the law or other legal act is disputable, unless it follows from the law that other consequences of the violation should be applied that are not related to invalidity deals.
By virtue of clause 1 of article 45 of 02/08/1998 N 14-ФЗ (as amended on 12/06/2011) "On limited liability companies" transactions, the conclusion of which is the interest of a person acting as the sole executive body of the company, or the interest of a member of the company, having together with its affiliates twenty or more percent of the votes of the total number of votes of the company’s participants, cannot be performed by the company without the consent of the general meeting of the company’s participants.
These persons are recognized as interested in the transaction by the company in cases where they and (or) their affiliates: are party to the transaction or act in the interests of third parties in their relations with the company; own (individually or collectively) twenty or more percent of the shares (stakes, units) of a legal entity that is a party to the transaction or acting in the interests of third parties in their relations with the company; occupy positions in the management bodies of a legal entity that is a party to a transaction or acts in the interests of third parties in their relations with the company; in other cases determined by the charter of the company.
In accordance with clause 3, clause 5 of article 45 of the Law, a decision to conclude an interested party transaction by a company is made by the general meeting of the company’s participants by a majority of votes of the total number of votes of the company’s participants who are not interested in making it.
An interested party transaction that is concluded in violation of the requirements for it provided for in this article may be invalidated at the suit of the company or its participant.
The court refuses to satisfy the requirements for recognition of an interested-party transaction committed in violation of the requirements of this article, invalid if one of the following circumstances exists: the vote of a company participant who is not interested in the transaction and filed a claim for recognition of the transaction, a decision on the approval of which is adopted by the general meeting of participants of the company, invalid, even if he participated in the vote on this issue, could not to cast on the results of voting; it is not proved that the conclusion of this transaction resulted or may entail losses to the company or to the participant of the company that filed a corresponding claim, or other adverse consequences for them; by the time the case is examined in court, evidence of subsequent approval of the transaction in accordance with the rules provided for in this article is presented, taking into account the interest of the persons specified in clause 1 of this article at the time of the transaction and at the time of its approval; when considering the case in court, it was proved that the other party to this transaction did not know and should not have known about its completion in violation of the requirements for it stipulated by this article.
There is no evidence that the company entered into additional agreements to other loan agreements for a long period of time in the case file, therefore, these agreements cannot be attributed to the ordinary business activities of the company.
According to paragraph 3. Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 05.16.2014 N 28 "On Certain Issues Relating to the Contestation of Major Transactions and Transactions with Interest", the person who filed a lawsuit to declare the transaction invalid on the basis that it was completed in violation of the procedure for approving large transactions or related party transactions must prove the following:
1) the presence of signs by which the transaction is recognized as a major transaction or a related party transaction, as well as a violation of the approval procedure for the relevant transaction (paragraph 1 of article 45 and paragraph 1 of article 46 of the Law on limited liability companies, articles 78 and 81 of the Law on joint-stock companies) ;
2) violation by the transaction of the rights or legally protected interests of the company or its participants (shareholders), i.e. the fact that the conclusion of this transaction entailed or may entail losses to the company or its participant who filed a corresponding claim, or other adverse consequences for them (paragraph 2 of Article 166 of the Civil Code, paragraph five of paragraph 5 of article 45 and paragraph five of paragraph 5 of Article 46 of the Law on Limited Liability Companies, paragraph five of paragraph 6 of Article 79 and paragraph five of paragraph 1 of Article 84 of the Law on Joint Stock Companies).
With respect to losses, it is sufficient for the plaintiff to justify the fact of their occurrence; proof of the exact amount of losses is not required. The fact that the loan agreement and the agreements thereto are related-party transactions is confirmed by the actual circumstances of the case and was not disputed by the persons participating in the case, as A. Magnushevsky concluded these transactions as the sole executive body and had a share in the company of over 20 percent. Thus, the conclusion of transactions must be approved by the decision of participants in the company not interested in making transactions. The decision to approve these transactions in the prescribed manner was not taken. The plaintiff refers to the existence of negative consequences for the company in concluding this transaction, which are as follows.
Clause 2.1. of the loan agreement provided for a period for repayment of the loan amount and interest thereon no later than December 31, 2017. Changing the terms of the loan agreement with regard to its conclusion for an indefinite period and repayment of the loan amount on demand by the lender, the loan is granted subject to the borrower repaying the funds within 7 days after the lender makes a demand for repayment, and the amendment by the agreements on recognition of debt dated 04/05/2017. loan repayment term from December 31, 2017 as of May 19, 2016, entails significant and not anticipated cash costs for the company and its participants.
In addition, the supplementary agreement No. 6, the agreement on recognition of debt dated 02.21.2017, the supplementary agreement No. 6/1, the agreement on recognition of debt dated 01.03.2017 change the measure of responsibility of the borrower in case of untimely repayment of borrowed funds and (or ) late payment of interest. A penalty is established in the amount of 0.15% of the total debt for each calendar day of delay. Based on the terms of the supplementary agreement and directed by A. Magnushevsky requirements dated 05/12/2016, the date of the obligation to return the borrowed funds by the company is 05/19/2016. This amount of interest that may be recovered by Magnushevsky A.E. due to the conclusion that he himself disputed ext. agreements to the loan agreement No. 2 of 06/03/2017. are losses incurred by the company from these agreements.
In case Magnushevsky A.E. I would fulfill this requirement and pay myself the loan amount in the amount of 1,540,000 rubles. then the company would also incur losses associated with the company's failure to fulfill obligations to pay for goods to its counterparties for existing obligations, which is confirmed, according to the plaintiff and the company, by supply agreements with ERA LLC and Digor LLC, a bank statement on cash flow in May - June 2016. In addition, the company, concluding a loan agreement No. 2 of 06/03/2014, planned to use borrowed funds until 12/31/2017, and due to the conclusion of these additional agreements and agreements on recognition of debt, it will be forced to return the funds to the lender at his request, which for society is a substantial amount, and will lead to difficulties in conducting its activities.
Having analyzed the market for providing loans to legal entities as of May 19, 2016, and at the moment, the plaintiff believes that the company will not be able to receive borrowed funds in the required amount (1,540,000 rubles) at 14% per annum, as provided for in the agreement loan number 2 from 06/03/2014, therefore, the company will incur additional costs in the form of interest payments of more than 14%, in confirmation of which the plaintiff submitted prints from the sites of leading banks under the terms of the provision of borrowed funds. Consequently, the plaintiff believes that the adverse effects on society will be the difference in the interest rate on borrowed borrowed funds under a loan agreement with A. Magnushevsky. and a loan agreement with another credit institution.
In addition, additional agreements to loan agreement No. 2 dated 06/03/2014. served as the basis for the appeal of A. Magnushevsky to the Central District Court of Novosibirsk with a statement of claim for the recovery of the loan amount in the amount of 1,540,000 rubles (case No. 2-437 / 2017). As part of the consideration of this case, according to the statement of A. Magnushevsky, the court took interim measures, seized the settlement account of LLC TD Aqua Seti. In total, on the claims of A.M. Magnushevsky more than 6 million rubles were seized on the company's current account.
As a result of the adoption of these interim measures, the company’s activities were virtually paralyzed, the company lost the opportunity to pay salaries to employees, make mandatory payments to the budget for taxes and duties, as well as payments according to the executive documents on the payment of alimony available in the company. Comparing the plaintiff's arguments with the defendant's objections and the norms of the current legislation, the arbitration court came to the following conclusions.
According to Article 809 of the Civil Code of the Russian Federation, unless otherwise provided by law or a loan agreement, the lender is entitled to receive interest from the borrower on the loan amount in the amounts and in the manner determined by the agreement. If there is no condition on the amount of interest in the agreement, their amount is determined by the lender existing in the place of residence, and if the lender is a legal entity, in the place where he is located, the bank interest rate (refinancing rate) on the day the borrower pays the amount of the debt or its corresponding part.
Unless otherwise agreed, interest is paid on a monthly basis until the day the loan is repaid. As follows from paragraph 2 and additional agreements No. 6, 6/1 and paragraph 3 of the agreement on the recognition of debt dated 01.03.2017, from 03.04.2014, the interest rate for using the loan is 14% per annum, from 01.29.2016 - 13 , five %; according to clause 7 of supplementary agreement No. 7 and clause 8 of the agreement on recognition of debt dated 04/05/2017, the interest rate for using the loan was reduced from January 1, 2016 and amounts to 12, 75% percent per annum.
According to the defendant’s calculation, as a result of changes in the terms of the loan agreement, the interest for 2016 at a rate of 12.75% per annum amounted to 196,350 rubles. Thus, the property benefit of the company in the form of a difference in the amount of interest for 2016 is 19,250 rubles. From paragraph 2 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 05.16.2014 N 28 "On Certain Issues Relating to the Contestation of Major Transactions and Transactions with Interest", it follows that there is a decision of the general meeting of participants (shareholders) to approve the relevant transaction in the manner established for approval major transactions and related party transactions, does not preclude the recognition of the relevant transaction of the company, made to the detriment of its interests, invalid on the basis of paragraph 2 of Article 174 of the Civil Code, if it is proved that the other party to the transaction knew or the woman was aware of the obvious damage to the company or there were circumstances that indicated collusion or other joint actions of the representative or body of this company and the other party to the transaction to the detriment of the interests of the representative or the interests of the company.
The presence of obvious damage to the company is evidenced by the transaction on knowingly and significantly unfavorable conditions, for example, if the provision received under the transaction by the company is two or more times lower than the cost of the provision made by the company in favor of the counterparty. In this case, the other party should be aware of the presence of obvious damage if it was obvious to any ordinary counterparty at the time of the transaction. The plaintiff, in accordance with Article 65 of the APC of the Russian Federation, does not provide any evidence that the impugned agreements contain significantly more unfavorable conditions for the company in comparison with other transactions concluded by the company with any ordinary counterparty.
The defendant also presented loan agreements concluded between the company and its other participants in the case materials, from which it follows that the interest rate for using the loan for other participants in the company was also 14% per annum. In this connection, the court considers legitimate the defendant's arguments that the specified conditions of the agreements aimed at reducing the financial obligations of the company cannot be regarded as adverse consequences for the company. The plaintiff’s reference to the fact that at present the company will not be able to receive borrowed funds in the required amount (1,540,000 rubles) at 14% per annum, since interest on the loan amount is higher on the market also indicates that the plaintiff entering into these transactions without the approval of the general meeting, did not act to the detriment of the interests of the legal entity. Proceeding from the institution of the provision of the claim, measures to ensure are allowed if the failure to take measures to secure the claim may make it difficult or impossible to enforce the court decision.
In accordance with article 146 of the Code of Civil Procedure of the Russian Federation, the defendant, after the court ruling has been denied, has the right to sue, has the right to sue the plaintiff for damages caused to him by measures to secure the claim, taken at the request of the plaintiff. Since the decision of the court of general jurisdiction to collect debts under the loan agreement was not made in favor of the company, it is premature to consider that the accumulated debt of the company to the budget and employees due to interim measures are losses for the company arising from the contested agreements.
The defendant, acting in good faith and reasonably, taking into account the financial difficulties of the company, refused the right to recover a penalty contractual penalty and excluded such a condition from the loan agreement (paragraph 8 of supplementary agreement No. 7 of 04/05/2017, paragraph 8 of the agreement on recognition of debt from 04/05/2017), which indicates that by concluding the disputed agreements, in the absence of approval of the general meeting of participants, the defendant acted not in his personal interests, but in the interests of society, in connection with which the position of the plaintiff with regard to adverse consequences for society associated with the presence of the penalty contractual penalty, the court found to be unsubstantiated. Therefore, the court concluded that the conclusion by the defendant of the disputed agreements, “duplication” of them, according to the plaintiff, does not indicate that the participant acted to the detriment of the interests of society.
The defendant in accordance with Article 65 of the APC of the Russian Federation also provided evidence that at the time of presentation A. Magnushevsky There were sufficient funds to return the debt from the company, sufficient to fulfill it in full or in part, which is confirmed by an extract from the settlement account of TD Aqua Seti LLC as of June 2016, of which A.E. Magnushevsky, as director of the company, and the rest of the company knew.
From the bank statement presented by the plaintiff, there also follows the availability of funds as of 05/19/2016 in the amount of 447 955 rubles. 92 kopecks., As of 05/31/2016 in the amount of 587 737 rubles. 55 kopecks. It also follows from this extract that prior to seizure by the court on the company's money, for the period from June 10, 2016 to September 05, 2016 from the bank account of the company it was transferred in favor of Koltyugina A.G., Magnushevskaya I.G., Magnushevsky G.I. ., and also through the settlement account of the legal entity affiliated with the participants of the company - Aqua Seti LLC - 20,615,000 rubles.
As follows from the extract, the basis for the transfer of funds are loan agreements concluded by the company with the rest of the company, presented by the defendant in the case file. At the same time, the court comes to the legality of the defendant's objections that the change by A. Magnushevsky the terms of the loan agreement in terms of its conclusion for an indefinite period and the conditions for repaying the loan within 7 days after the lender makes a demand for repayment, cannot be regarded as an adverse effect for the company provided that the loan amounts are paid to the rest of the company, therefore, this fact confirms the defendant’s arguments about the company's availability of funds to repay the loan, in connection with which it has changed the terms of the loan agreement.
The plaintiff's arguments as to the fact that Magnushevsky A.E. deliberately withheld from the company the fact of requesting the repayment of the loan amount for the purpose of subsequent enrichment, may indicate 15 A45-9550 / 2017 defendant’s bad faith regarding the execution of the contract, but has no relation to the grounds for invalidity of transactions. From the explanations of the defendant it follows that the conclusion of additional agreements defining the loan repayment period within seven days from the date of the demand for repayment and the presentation of such a request on May 12, 2016 was due to the fact that at that time the company had sufficient funds to satisfy it, what Magnushevsky A.E. as the Director of the Company and other members of the Company were aware.
In addition, a change in the terms of the loan repayment term took place on the basis of an additional agreement dated January 11, 2016 No. 1, when there were no corporate conflicts in the company. Thus, the plaintiff’s arguments that the establishment of a loan repayment term stipulated by the disputed agreements may lead to unforeseen expenses is untenable due to the fact that the company also paid money in favor of other lenders during 2016. The company also submitted payment orders to LLC Aqua-Networks for the period from April 10, 2015 to June 10, 2016 on transferring to A. Magnushevsky in the case materials. funds evidencing a partial return of funds under loan agreement No. 2, however, these circumstances indicate the performance of the loan agreement, and not its invalidity.
The fact that society at the time of presentation by A. Magnushevsky claims for debt collection to the court turned out to be in a difficult financial situation, as evidenced by information on instituted enforcement proceedings, information on non-payment of taxes submitted by the plaintiff in the case file, seizure of funds, is not a ground for invalidating the disputed agreements, since in accordance with paragraph 8 p. 3 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 05.16.2014 N 28 if the disadvantage of the transaction for the company was not obvious at the time of its completion, but was discovered or arose and subsequently, for example, due to violations of the counterparty, or by the company itself obligations arising from it, it can be invalidated only if the plaintiff is proved that the transaction was initially for the purpose of its non-performance or improper performance.
The plaintiff, in accordance with Article 65 of the Arbitration Procedure Code of the Russian Federation, did not provide evidence that by concluding the disputed agreements, the defendant acted intentionally to the detriment of the interests of the company with the aim of making it difficult or impossible to complete the transaction and bring the company to a difficult financial situation. On the contrary, the availability of funds in the current account of the company, as well as the fact that the company did not need to continue to use borrowed funds, is evidenced by an extract from the current account of the company, from which it follows that the company settled with other participants in the company under loan agreements, therefore , the company had sufficient property through which loans were returned to the participants of the company.
In addition, if the specified loan amount in the amount of 1,540,000 rubles. it is difficult for the company to pay, it is also entitled to apply to the creditor or the court for an installment plan or a deferral of performance. In such circumstances, the court concludes that there are no grounds for declaring transactions invalid in accordance with Article 45 of the Federal Law "On Limited Liability Companies" and clause 2 of Article 174 of the Civil Code of the Russian Federation. According to article 10 of the Civil Code of the Russian Federation, the exercise of civil rights solely with the intent to harm another person, actions to circumvent the law with an unlawful purpose, and also other knowingly unfair exercise of civil rights (abuse of law) is not allowed.
The defendant did not provide evidence of abuse of the right by the plaintiff. The circumstances associated with the dishonesty of the actions of Koltyugina A.G. as the sole executive body, the invalidity of transactions concluded by the company is not established in the manner prescribed by law, they are not the subject of this court case, the payment of funds under loan agreements to the other participants was made in accordance with the terms of the loan agreements not later than December 31, 2017 in parts.
In accordance with Clause 1, Clause 2 of Article 183 of the Civil Code of the Russian Federation, in the absence of authority to act on behalf of another person or if such authority is exceeded, a transaction is considered to be concluded on behalf of and in the interests of the person who committed it, unless another person (represented) subsequently approves this a deal. Subsequent approval of the transaction by the represented creates, changes and terminates for him the civil rights and obligations of this transaction from the moment of its conclusion.
The plaintiff refers to the fact that the contested agreements were signed by A. Magnushevsky. on behalf of the company, not authorized to sign these documents, since its powers were terminated on the basis of a decision of the general meeting of the company’s participants and its subsequent dismissal. In the indicated period of time in accordance with the decision of the extraordinary general meeting of participants of LLC Trading House “Aqua Networks” dated November 22, 2016. the sole executive body of the company (director) was G. Magnushevsky, his authority is confirmed by the minutes of the meeting, an extract from the register.
The legality of this decision was confirmed by a decision of the Arbitration Court of the Novosibirsk Region dated 05.05.2017 in case No. A45-6456 / 2017 that entered into force. Since Magnushevsky A.E. He was reinstated as director of the company only as a result of a decision by the Central District Court of Novosibirsk 04.04.2017., therefore, A. Magnushevsky did not have the authority to sign the disputed agreements on behalf of the director of LLC TD Aqua Networks. In accordance with article 69 of the APC of the Russian Federation, the circumstances established by a court of arbitration court decision that has entered into legal force in a previously considered case are not proved again when the arbitration court considers another case in which the same persons participate. The decision of a court of general jurisdiction in a previously considered civil case that has entered into legal force is obligatory for the arbitration court considering the case, on questions about the circumstances established by the decision of the court of general jurisdiction and relating to persons participating in the case.
As follows from the decision of the Arbitration Court of the Novosibirsk Region dated December 7, 2016 in case No. A45-15988 / 2016, the decision of the Central District Court of Novosibirsk dated 04.04.2017 in case No. 2-483 / 2017, which entered into legal force, on the basis of of the minutes of the general meeting of the company’s participants dated May 12, 2014 No. 1 and of the order dated May 22, 2014 No. 1, the defendant held the position of director in the company LLC Aqua Seti LLC. On May 30, 2016, a decision of the general meeting of participants took place in the company, based on the results of which a report on financial activities was found to be satisfactory, and the plaintiff's powers as director were terminated.
A. Koltyugin was elected the new Director of the Company. Since this decision of 05/30/2016 was made with non-compliance with the procedure established in Art. 67.1 of the Civil Code of the Russian Federation, the arbitration court invalidated the decision of the general meeting of participants of the limited liability company AQUA-NETWORK Trading House, drawn up by protocol No. 2 of the general meeting of the founders of May 30, 2016, on the grounds of its nullity.
When considering the claim Magnushevsky A.E. on the recognition of dismissal as illegal, reinstatement, recovery of wages for forced labor absenteeism for 19 A45-9550 / 2017, the district court declared dismissal illegal, recovered wages for the forced absence, and reinstated the defendant as director of LLC Aqua Seti TD from 05/31/2016. In order to implement the decision of the court of general jurisdiction, the participants in the company adopted a decision of 04/11/2017, in accordance with which the powers of A. Magnushevsky were terminated. as the sole executive body, the employment contract was terminated, a new director was elected.
Under such circumstances, the arbitral tribunal considers that the decision of the general meeting of participants dated November 22, 2016 to change the director of the company is not grounds for concluding that A.E. Magnushevsky is absent. of the authority of the sole executive body, since when considering a dispute on reinstating a director in a court of general jurisdiction, this decision was not the basis for refusing to restore the violated right (p. 5 of the decision of the Central District Court of Novosibirsk), and the defendant was reinstated as director from 31.05 .2016. Thus, in the period from 02/21/2017 to 04/05/2017, A.E. Magnushevsky there were powers to conclude disputed agreements. Consequently, the plaintiff's argument as regards the absence of A.M. Magnushevsky authority to conclude transactions on behalf of the company is unreasonable and subject to rejection.
There are no grounds for satisfying the claim. In connection with the deferment granted by the plaintiff on payment of the state fee and refusal to satisfy the claim, the state fee is subject to recovery from the plaintiff in the federal budget. Guided by Articles 110, 167-171, 176, 180-182, 318, 319 of the Arbitration Procedure Code of the Russian Federation, the arbitral tribunal 20 A45-9550 / 2017
I DECIDED:
refuse to satisfy the claim.
Collect from Koltyugina Anna Gennadievna, Novosibirsk, 36 000 rubles. 00 kopecks state duty to the federal budget. Issue a writ of execution after the entry into force of the decision of the arbitral tribunal.
The decision, which has not entered into legal force, may be appealed within a month after its adoption in the Seventh Arbitration Court of Appeal (Tomsk).
The decision can be appealed to the term, not exceeding two months from the date of entry into force, the Arbitration Court of the West Siberian District (Tyumen), provided that it was the subject of arbitration of the court of appeal or the court of appeal refused to restore the missing deadline for appeal.
Appeals and cassations are filed through the Arbitration Court of the Novosibirsk Region.
Referee A.I. Aydarova
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