When challenging cash withdrawal transactions, the bankruptcy trustee must prove that there was cash on hand

Ruling of 04.08.2022 in case A40-289887/2019 (305-ES21-22392 (3)

Case Background:

Within the Debtor’s bankruptcy case, its bankruptcy trustee applied to the court to invalidate the transaction of the Debtor’s return of personal savings in the amount of 3 136 100 rubles on expense cash vouchers from 16.12.2019 to 20.01.2020, application of its invalidity consequences.

Positions of the courts:

The courts of three instances granted the application.

The courts proceeded from the fact that the contested transaction had been effected when the Debtor showed signs of insolvency, at the moment of transaction the Debtor had other creditors of the third priority, therefore there was an evidence of giving preference to one of the debtor’s creditors over other creditors.

The courts noted that the fact of monetary funds having been transferred to the Depositor was confirmed by cash vouchers bearing the Depositor’s signature confirming receipt of the monetary funds.

Position of the Supreme Court:

The Depositor sent to the hearing of the court of first instance a response with a request to suspend the trial, in which he pointed out that in fact he did not receive funds on cash vouchers. The defendant referred to the fact that in the absence of attachments to the application of the CG on the recognition of the transaction invalid he needed to get acquainted with the case materials to draw up a reasoned response and documentary evidence of the position of the dispute.

In accordance with Part 5 of Art. 158 of the APC RF the arbitration court has the right to postpone the proceedings if it recognizes that it can not be considered in this hearing, in particular, when granting the petition of a party to postpone the proceedings in connection with the need to submit additional evidence, the implementation of other procedural actions.

By denying the motion to adjourn the trial and concluding that the Depositor received monetary funds only on the basis of the copies of cash vouchers submitted to the CG, the trial court gave the mentioned documents the force of irrefutable evidence and thus deprived the Depositor of the opportunity to refute the fact of receipt of funds, including by providing relevant evidence.

From the explanations of the persons participating in the court proceedings it follows that in fact the Depositor did not receive money from the Debtor, the unit was transferred to PK “Halyk” on the basis of the agreement on the transfer of debt, but due to incompetence of the accounting department this transfer was made by registration of expense cash vouchers.

The persons involved in the case pointed to the absence of cash in the cashier’s office of the Debtor at the time of the transaction.

In the proceedings of the Audiovisual Court of Appeal a separate dispute is pending over the claims of the CG to invalidate the transactions under the cash vouchers returned by the debtor to other shareholders (more than 30 persons), as well as the agreement on the transfer of debt.

If proven fictitious settlements with the Respondent for lack of money in the cash box of the cooperative satisfaction of the application of the CG can lead to an illegal reclamation of the Depositor of the funds equal to the amount of the share, which he had not returned.

The judicial acts were cancelled, the case was sent for new consideration.