Creditors Fail to be Added to the List of Creditors

In dispute А03-3214/2016, Bezrukov & Partners lawyers represented the interests of OOO Production and Construction Enterprise Kurs, a creditor on the List of Creditors of the Debtor OOO Kontsern-AKKhS. The task put before us was to prevent other creditors from being added to the List of Creditors of this Debtor should their payables prove to be artificial. In our opinion, the claim submitted by OOO San-Vita fell into this category.

A potential creditor claimed that they were owed RUB 16,042,394.89. To justify their claim, they referred to the supply agreement signed six months before a bankruptcy procedure was implemented; waybills signed by both parties without reservations; payment orders proving partial repayment of debt owed by OOO Kontsern-AKKhS to OOO San-Vita under the supply agreement. The Debtor acknowledged the claim in full.

On its face, the transaction between the Debtor and the plaintiff seemed to be a genuine one. What allowed us to prove that the transaction was a colourable one?

1. The extract from the Uniform State Register of Legal Entities proved that the goods which OOO San-Vita allegedly supplied to the Debtor had nothing to do with both primary and secondary business activities of the former.

2. OOO San-Vita’s financial statements for 2015 contained no record of receivables equal to the amount of money claimed. Besides, assets analysis showed that in 2015, the plaintiff was not able to make a delivery worth RUB 17 mln.

3. During court proceedings, OOO Kurs applied for additional proof of debt from the Creditor and the plaintiff. Both failed to provide any documents, meaning that the plaintiff took the procedural risk and was responsible for the lack of procedural action as should there exist any doubts about transaction authenticity the plaintiff is to prove that it is genuine.

As a result, the plaintiff was not added to the List of Creditors of the Debtor.

We also represented the interests of OOO Su-6, a creditor on the List of Creditors of this Debtor, under the bankruptcy proceedings of the latter. Here, our task was to prevent other creditors from being added to the List of Creditors of the Debtor should their claims prove to be illegal. In our opinion, the claim submitted by OOO Chernogorsk Otdelstroi fell into this category. A plaintiff claimed that they were owed RUB 38,868,159.40 by OOO Kontsern-AKKhS: a debt under the contractor agreement and supply agreement. The Debtor did not acknowledge the claim.

When the plaintiff was asked to justify these liabilities under the agreement, they said that they made an advance payment worth RUB 23 mln in OOO Kontsern-AKKhS account, with the latter failing to fulfil its contractual obligations. The Debtor filed both primary documents signed by OOO Kontsern-AKKhS to prove the work had been done at the customer’s facility and documents to confirm the fact that Acceptance Certificates (KS-2 and KS-3 forms) were sent to the Customer.

The argument put forward by OOO Chernogorsk Otdelstroi suggested that the company could not sign these primary documents as the police seized all physical media being able to throw light on the real scope of work performed. We mainly focused on the customer’s failure to give a legitimate excuse for non-accepting the works in the hearings. During the trial, OOO Su-6 also applied for additional documents proving that the transaction was genuine. The court decided to grant the motion.

However, OOO Chernogorsk Otdelstroi did not provide the court with the documents demanded, thus taking the procedural risk.

The second claim was based on the plaintiff’s argument that they made a delivery worth RUB 16,137,559 mln to the Debtor.

First, we have noticed that the supply agreement mentioned by OOO Chernogorsk Otdelstroi contained no “Subject of the agreement” clause and thus had been void. Consequently, the court should examine the waybills to justify this claim. The waybills, however, not only failed to correspond to pro forma TORG 12 but also were not signed by the authorized individuals. They contained no record of goods destination, its quantity, and the name of the goods itself. Such factual background made the plaintiff’s claims non-verifiable, with the court rejecting their claim to be included in the List of Creditors of the Debtor.