Implementing an economically sound plan can still result in liability

Within the framework of the bankruptcy case of LLC “Kameya” IP Grishin A.A. applied to the court with a statement to bring Bulatov I.R. to subsidiary liability for the debtor’s obligations in the amount of 5,720,047.64 rubles.

The courts of two instances refused to satisfy the application.

The position of the district court:

📌 the reality of the legal relations between the defendant and the debtor, formalized by loan and lease agreements, are not in doubt (the funds were provided within the framework of borrowing legal relations and received by the company for its business needs; the premises transferred by the defendant to the debtor house a confectionery shop). However, the market conditions of transactions and the reality of legal relations are not in themselves an unconditional motive for stating that there are no grounds for bringing the former head of a commercial enterprise to civil liability;

📌 lending by the defendant to the company controlled by him was carried out along with the execution of the plan of withdrawal of the enterprise from temporary financial difficulties in parallel with the increase of accounts payable, respectively, loan obligations were in essence a hidden additional capitalization of the enterprise, had a compensatory nature, respectively, their subsequent return to the person controlling the debtor in a significant amount in the period when there were already signs of objective bankruptcy, goes beyond the normal business risk;

📌 placement by the company in the building provided to it by the defendant under lease agreements, a confectionery shop, which is the only asset of the company necessary for the implementation of the main line of business, taking into account that the ultimate beneficiary of the entire business was the Bulatov family, obviously indicates that such organization of commercial activities by the debtor was planned by its owners from the beginning. Under such circumstances, the withdrawal by the business owner from the turnover of the enterprise under his control in the presence of unfulfilled obligations to independent creditors of funds, the amount of which (RUR 3,292,000) is half of the total amount of the entire register of creditors’ claims (RUR 6,026,038), contrary to the conclusions of the courts of the first and appellate instances, clearly indicates the actions of the controlling person, going beyond the normal business risk and committed to the detriment of the interests of the civil law community of creditors.

The judicial acts were canceled, the dispute was sent for a new consideration. Decision of the Court of Arbitration of the Western Siberian Federal District of 21.05.24 in case No. A27-1167/2021.