Judicial act: Decision of the Arbitration Court of the Kurgan Region dated April 12, 2022 in case No. А34-3525/2021
Court position:
1. The Court refers to eg. 109 of the Decree of the Plenum of the Supreme Court of the Russian Federation of June 23, 2015 No. 25 “On the application by the courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation”, a set of conditions is indicated when the decision of the meeting cannot be invalidated: the vote of the person whose rights are affected by this decision could not influence its adoption, and the decision cannot have significant adverse consequences for that person.
2. The disputed decisions of the meetings were confirmed by the subsequent extraordinary meeting of December 25, 2021. One participant voted at this meeting - S.Yu. Tumanov. According to the court, the vote Khalilov C.Ya. could not affect the decision taken by the meeting on December 25, 2021. This is due to the fact that S.Yu. Tumanov owns a larger share (51%) in the authorized capital than S.Ya. Khalilov (41%) therefore has the majority of votes.
Member of the society S.Yu. Tumanov had the right to convene a general meeting on the basis of Article 8 of the Federal Law on LLC (the right to participate in managing the affairs of the company).
The court noted that the plaintiff did not disclose which of his rights were violated by the challenged and did not provide any evidence.
The court denied the claims.
Comment:
1. Thus, if there are violations of the procedure for convening a general meeting, the decision based on the results of such a meeting cannot be invalidated if the following conditions are met: 1) the vote of the person whose rights are affected by the decision could not affect its adoption, 2) the decision does not entail significant adverse consequences for that person; 3) the violations are not material.
Whether convening a meeting of participants in violation of the law is a significant violation is a debatable issue. In the considered act, despite the presence of violations, the court dismissed the claim, which allows us to conclude that the violation is insignificant.
In other acts, such a violation is recognized as significant and in the presence of 3 of the above three conditions, the decision of the meeting is declared invalid (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 30, 2007 No. 7769/07). listed above, the decision must be declared invalid due to the existence of a significant violation of the procedure for convening a meeting.
2. The court did not comment on another violation - the company's participants did not apply to the general director with a request to convene an extraordinary meeting. According to paragraph 2 of Art. 35 of the Law on LLC, an extraordinary meeting convenes the executive body of the company.
Thus, the analyzed case did not take into account another violation claimed by the plaintiff, which could potentially serve as a justification for the invalidity of the decision of the meeting.
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