Promissory note as security. Register of creditors' claims in bankruptcy. Collection by bill of exchange. Debt collection on a bill.
A bill of exchange is not a way of securing obligations; in circulation it is used, as a rule, for payment. Securing obligations with a bill of exchange and the subsequent separation of claims for a liability and a bill of exchange may lead to an unjustified increase in the debt of a bankrupt organization, which inevitably leads to a violation of the interests of creditors. The courts of several instances were versed in a difficult case.
The plot of the case:
The Omega trading company filed a lawsuit against Mayak CJSC to recover bill amounts and interest. Satisfaction of the claims by the arbitration court resulted in the appeal of the respondent bankrupt creditor to the appellate court. The claims of the bankruptcy creditor are included in the third turn in the amount of 15 million rubles, based on the debt of the Respondent for payment of the assigned right under the assignment agreement.
The defendant acted as a buyer under a contract for the supply of goods with LLC Semprom, secured its obligations with a pledge of property and a bill of exchange. The claims of Semprom on the collection of the bill amount were assigned to Omega shopping mall, the debt on payment of goods was assigned to another organization. Thus, the requirements under one agreement were divided between two legal entities. The main debt was recovered by settlement. The plaintiff did not inform the trial court that the bill was issued in fulfillment of obligations under the contract.
The court of appeal, pointing out that the collection of the bill amount is a doubling of the debt of the defendant, refused to satisfy the plaintiff's claims.
Judicial act: Resolution of the 15th AAS dated January 9, 2019 No. 15AP-21599/2017 in case No. A32-8984 / 2015
Court findings:
1. Claims to recover the main debt and bill amount were filed during the consideration of the bankruptcy case of the defendant. The decision to recover bill debt was made after the initiation of proceedings, which the plaintiffs could not have known if they had shown due diligence.
2. A possible “doubled” debt due to the presence in the register of a requirement to pay for goods under a supply contract and to pay bill debt will harm the rights and legitimate interests of the debtor’s bankruptcy creditors, and will create an unjustified redistribution of bankruptcy estate on the same obligation.
3. The basis for the issuance of bills was a security transaction, according to which the defendant assumed obligations to answer to the plaintiff for the fulfillment by the buyer of the obligation to pay for the goods.
4. Collateral was provided by the defendant, who was not a party to the supply relationship. In the framework of the dispute, the defendant himself acts as the buyer, drawer, and he does not have any relations with the supplier, in addition to the supply contract.
5. In the amicable agreement between the supplier and the buyer, there are no other obligations other than the payment of the debt, the creditor does not have the right to present any other claims from these legal relations.
6. The actions of the plaintiff in bringing an action to recover debt on a bill issued as security for an obligation under the same supply agreement are aimed at collecting the same supply debt.
Comments:
1) Due to the fact that the bill is a “promise” to pay a certain amount of money, and is essentially unconditional, the trial court considered that the collection of debts and the collection of bills could take place in parallel. However, in this case, the key feature of the contract is that the bill was issued not against payment, but against collateral.
2) The enforcement of obligations, as a general rule, ceases due to the termination of the underlying obligation. Of course, such rules do not directly apply to a bill, since a bill is not a named method of securing obligations. But since he plays such a role, the appeal took the same approach: if the basic requirement is satisfied (or is recovered by amicable agreement), the collection of the bill amount is unacceptable.
3) If the court did not become aware that the bill was issued in pursuance of the supply contract, the bill amount would be recovered (as was done in the court of first instance). A bill of exchange claim would have entered the register, while the supplier received satisfaction from the debtor himself, the debtor's property decreased by the amount of payments made. In the process of distribution of funds, the bankruptcy estate would be reduced by the amount of payment on a bill. Given that all these payments would concern one contract and one obligation, the rights of other creditors applying for part of the debtor's property would be violated.
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