A KDL cannot claim to challenge judicial acts that took place before…

it was brought to subsidiary liability, if such person had the opportunity to participate in the disputes in which these acts were pronounced before.

As part of the bankruptcy proceedings of Yugros LLC a transaction between that company and Evrotek LLC was challenged. Later Evrotek LLC applied to the court for reconsideration of the relevant court act under new circumstances, but this application was rejected.

M.Kh. Shapiev appealed to the court of appeals against this denial as a person brought to subsidiary liability in the bankruptcy case of OOO Evrotek. The plaintiff cited Resolution of the Constitutional Court of the Russian Federation № 49-P of November 16, 2021.

Position of the cassation:

▸ the right to appeal judicial acts by a person who did not participate in the dispute, on the basis of which they were adopted, which is mentioned in the Decision of the Constitutional Court of the Russian Federation of 16.11.2021 № 49-P is not absolute and unconditional, but is based on the violation of the rights of the person filing a complaint and the lack of a real opportunity to participate in a separate dispute by a judicial act;

▸ in this case the bankruptcy trustee Barkan A.B. pointed out in the court of appeal instance that Shapiev M.Kh. was not only the only founder, but also the director of the company “Eurotek”, the latter was duly notified about the initiated judicial process, in connection with which Shapiev M.Kh. Х. had an opportunity acting as a head of the company to express his position on the dispute and provide evidence to support it, including the confirmation of counter fulfillment in favor of the company “Yugros” in connection with the receipt of 2,457,300 rubles, timely appeal against the judicial act, but did not perform the relevant actions;

▸ Thus, at the time of consideration by the arbitration court of the dispute on invalidation of the transaction of the company “Yugros” with the company “Eurotek” Shapiev M.Kh. was the head of the latter, he as the general director should have been aware of these claims to the person he heads. Accordingly, a reasonable manager, acting within the framework of standard management practice, being aware of the possibility of negative property consequences of the claim both for the company and for the CEO as a controlling person, including the likelihood of his being held liable, should make the necessary efforts to prevent unjustified recovery;

▸ however Shapiev M.Kh. as a person authorized to act on behalf of the company “Evrotek” during consideration of the dispute did not provide comments and objections, the requested documents were not submitted to the court, the judicial act was not appealed in time. Inactivity of Shapiev M.Kh. indicates the refusal to use his procedural rights as the head of the company “Evrotek”. Part 2 Art. 9 of the APC RF sets forth that persons involved in the case bear the risk of occurrence of consequences of committing or not committing the procedural actions. Accordingly, the procedural omission of a person aware of the court consideration of the dispute, the results of which may affect the rights and obligations of such a person, is the risk of this person. In this regard, the subsequent change of Shapiev M.H.’s position on the claim of society “Yugros” cannot serve as a basis for granting additional procedural rights to the applicant.

The decision of the court of appeal instance is cancelled, production on an appeal is terminated. Decision of the Arbitration Court of the UO of 02.12.22 in case № A50-2174/2019.