Judicial act: Resolution of the Ninth Arbitration Court of Appeal dated December 1, 2021 in case A40-6764/2020.
Court's findings:
1. The disputed transactions were made by the debtor during a three-year period of suspicion (Part 2, Article 62.1 of the Bankruptcy Law). Accordingly, these transactions are subject to verification on special grounds of the Bankruptcy Law.
2. The bankruptcy commissioner did not provide any evidence that the defendant knew about the purpose of causing damage to the property rights of creditors and about the signs of the debtor's insolvency.
3. The bankruptcy commissioner did not provide evidence that the defendant belongs to the same group as the debtor, is a person who is affiliated with the debtor or is interested in the debtor (the head of the debtor, the board of directors, the chief accountant, etc.).
4. It has not been proven that payments were made under any schemes for the withdrawal of the debtor's assets.
5. The bankruptcy trustee's assertion that the payments were free of charge is not supported by evidence. The manager's reference to the absence of information about the presence or absence of counter performance does not relieve him of the obligation to prove the fact of unequal value in the transaction.
6. Non-disputing by the defendant of the arguments given by the bankruptcy trustee cannot lead to unconditional satisfaction of the requirements if circumstances significant for the case are not proved.
7. It does not follow from the evidence presented that the bankruptcy trustee made attempts to request information on the execution of the transaction from the counterparty. There is no request to the defendant in the case file. There was also no request for the relevant evidence. The failure of the bankruptcy trustee to use all the means and the resulting ignorance of the debtor's transactions cannot be considered as a circumstance that objectively and indisputably testifies to the absence of counter performance.
8. The defendant's side presented evidence to the court of appeal that the disputed payments were transferred on account of the delivery of goods to the debtor, about which the relevant consignment notes and specifications were signed. The debtor himself is a member of the SRO Union of Builders. Consequently, the supplier (defendant) had no grounds to assume that the debtor was in bad faith or had signs of bankruptcy. In this regard, it cannot be concluded that the disputed payments are free of charge.
9. The presence of special provisions in the bankruptcy law in itself does not prevent the court from qualifying a transaction in which the abuse of the right was allowed as void. However, in this case we are talking about transactions with defects that go beyond the defects of transactions with preference or suspicious transactions. The bankruptcy trustee is obliged to prove the existence of abuse on the part of both participants in the civil turnover, the existence of such behavior was not established by the court, and no relevant evidence was presented.
10. Circumstances confirming the contested transactions were not established in order to cover another or to the detriment of the debtor.
Comments:
1. The judicial act under consideration is characterized by the fact that the appellate board objectively distributed the burden of proof between the parties to the dispute and, canceling the ruling of the court of first instance, based its decision on the evidence available in the case, applying the presumption of good faith of the participants in civil circulation.
2. Indeed, not every transaction of the debtor made during the period of suspicion is aimed at causing damage to the property rights of creditors, taking into account the specifics of the economic activity of a particular entity. Transactions should be analyzed, including for their compliance with the debtor's ordinary business activities, which the court indirectly pointed out, referring to membership in the SRO and the supply of specific goods.
3. When submitting claims, the bankruptcy commissioner assessed the lack of prospects for contesting transactions on special grounds of the Bankruptcy Law and concluded that the operations performed by the debtor were feigned, while not proving the entire set of necessary circumstances regarding the feigned nature of the transaction, namely, the failure to fulfill the obligations stipulated by it. In this case, the passive role of the defendant played in favor of the manager, who did not provide the consignment note and specifications to the court of first instance, thereby not refuting the assertion that there was no information about the existence of a counter performance.
4. We will separately consider the issue of accepting by the appellate board the evidence presented by the defendant as grounds for receiving funds from the debtor. Taking this evidence, the court, referring to the need to evaluate the submitted documents, along with the available evidence, proceeded from the fact that their failure to attach them may lead to the adoption of an unreasonable judicial act, which in turn may lead to the cancellation of the judicial act in accordance with the explanations given in paragraph 29 Decree of the Plenum of the Armed Forces of the Russian Federation dated June 30, 2020 No. 12.
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