Invalidity of the sale of shares in the absence of the buyer and defects in the transfer order

Invalidity of the sale of shares in the absence of the buyer and defects in the transfer order. Arbitrage practice.

A transfer order is the main document that formalizes the transfer of shares and contains a request to the registrar to make an entry in the relevant register.

However, can the perversity of the transfer order affect the legality of ownership of the shares transferred under the sale and purchase agreement?

This question is answered by the judgment below.

Case plot:

SPK "Okinsky" (general director - Voloshin V.T.) filed a claim against Rodionov D.V. (former CEO of the liquidated Continent-Classic LLC) to recognize the share purchase and sale agreements as void. The justification of the claims is that the parties entered into an agreement for the sale and purchase of ordinary non-documentary shares of OAO MK Sayansky (par value of 60 rubles per share in the amount of 5,570 units at a price of 3 rubles per share for a total of 16,710 rubles).

Then, shortly before its liquidation, Continent-Classic LLC sells shares to its general director, D.V. Rodionov. (in the amount of 5,570 pieces at a price of 1,000 rubles per share for a total amount of 5.5 million rubles).

At the same time, despite the presence in the first sale and purchase agreement of the signature of the general director of SPK Okinsky, the plaintiff nevertheless claims that he did not actually conclude an agreement with OOO Continent-classic, did not draw up a transfer order, and there is no information in the transfer order itself about the issuer and the state registration number of the shares.

The plaintiff believes that since Continent-Classic LLC did not acquire ownership of the shares (due to the invalidity of the first sale and purchase agreement), then, therefore, the relevant shares cannot be the property of the general director in the second transaction, the transaction is also void. Moreover, the plaintiff states that the liquidation of OOO Kontinent-Klassik, as a legal entity, did not lead to the loss of the rights of claim against Rodionov D.The. The first instance and the appeal satisfied the claims of the plaintiff, the defendant (DV Rodionov) filed a cassation appeal.

Judicial act: Resolution of the Arbitration Court of the East Siberian District of October 12, 2021 in case No. A19-14910/2019.

Court's findings:

1. A forensic handwriting examination established that, in fact, the signature on the contract and the transfer order to the seller of shares, General Director of SEC Okinsky Voloshin V.T. do not belong.

2. The transfer order does not specify the issuer of securities, nor does it indicate the state registration number of the securities issue. The requirements of the law for the transfer order recognize the presence of this information as mandatory in the content of the transfer order. Without this information, there is no reason to believe that the transaction took place.

3. The Court finds no reason to recognize Rodionov D.The. a bona fide purchaser of 5,570 ordinary book-entry shares, taking into account conflicting information regarding the ownership of shares by D.V. Rodionov, and regarding the personal account numbers of Continent Classic LLC and D.V.

4. Conclusion of an agreement by the seller and the buyer by one person D.V. Continent-Classic" serves as one of the grounds for recognizing the defendant in bad faith.

5. Continent-Classic LLC ceased operations and was excluded from the Unified State Register of Legal Entities on March 30, 2016 as an inactive entity; before the conclusion of the agreement dated 18.01.2016 - one of the grounds for declaring void the agreement for the sale of shares dated 10.29.2015 No. 29-10-15 by virtue of Part. in violation of Art. 10 of the Civil Code of the Russian Federation.

Comment:

1. Since the sale and purchase agreement, by its legal nature, is a binding transaction, and the transfer order, on the basis of which an entry is made in the register and the right to shares itself is transferred, is an administrative transaction, therefore, the depravity of the transfer order also affects the legality of possession transferred under the purchase agreement sale of shares.

2. The transfer order must comply with the requirements established by federal law (Order of the Federal Financial Markets Service dated July 30, 2013 No. 13-65/pz-n).

3. Since in the present case the transfer order did not contain information about the issuer of securities, the state registration number of the issue of securities, which are mandatory by law, is not indicated, therefore, the court recognizes that the transaction itself did not take place. It remains only to understand if something prevented the transfer order from being correct and how the court would resolve this dispute in this situation.

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