DELIVERY FOR THE STATE DEFENSE ORDER IS REAL

As part of the bankruptcy case, the entrepreneur appealed to the court with an application for inclusion of the claim in the debtor's register (No. A24-1309/23).

The courts of two instances subordinated the claim, guided by the fact that at the time of conclusion of the supply agreement, the debtor was in a state of property crisis, as evidenced by the court decisions that took place but were not executed, the company's lack of assets other than cash (property), and the presence of credit obligations to the bank during the disputed period.

The cassation sent the dispute for a new review and noted that the courts, recognizing the behavior of the legal successor of the creditor who entered the register with compensatory financing, did not properly investigate and did not actually establish the circumstances of the presence (absence) of malice in the actions of the parties as a result of the conclusion and execution of the supply contract solely for the purpose of concealing information about the presence of an objective bankruptcy factor.

In particular, the courts formally referred to the legal affiliation of the debtor and the creditor's legal successor, the presence of which was motivated by the courts on the basis of the established fact of the management of companies by one person in the period under study, thereby actually avoiding the necessary amount of research on issues necessary to establish a set of circumstances that allow us to talk about the dishonesty of the parties (as during the period of conclusion the contract and the deliveries made within it, as well as the subsequent behavior of the parties).

When concluding that by its actions to provide unjustified preferences to the debtor in the form of deferred payment of the delivered goods, the creditor's legal successor actually provided compensatory financing to the debtor, the courts did not assess and did not verify the applicant's arguments that the purpose of concluding a supply agreement and further relations with the creditor was to receive the debtor of the agreed goods – sand (crushed stone) which is necessary for the debtor to fulfill a state defense order within the framework of the execution of a state contract, which indicates the reality of legal relations under the contract.