THE DISTRICT COURT SPOKE ABOUT THE RESPONSIBILITY OF KDL IN THE BANKRUPTCY OF GULLIVER

On November 17, 2023, the District Court (Arbitration Court of the Central District) considered the cassation appeal of Trekhsosensky, the creditor of Gulliver. He demanded to bring to subsidiary responsibility the ex-head of Gulliver and the founders. The lower courts refused to satisfy the application. The cassation canceled the previously adopted acts, pointing out the violations committed. The Bryansk arbitration court will have to consider the lawsuit anew.

The issue of subsidiary liability of Gulliver's participants arose in the company's bankruptcy case (No. A09-217/2017). The company was declared insolvent in February 2017 in a simplified manner. However, the term of bankruptcy proceedings was periodically extended until mid-June 2023. The reason for postponing the hearings this year was that the court did not complete the consideration of a separate dispute on the involvement of the controlling debtor of the person to the subsidiary.

The claim to bring Sergey Vinnikov, Vladimir Ignatkin and Sergey Kutuzov to responsibility within 121.6 million was declared by the company "Trekhsosensky". The same was demanded by Gulliver's bankruptcy trustee Sergey Artamonov. However, at first, the Arbitration Court of the Belgorod Region refused to file a claim against the persons who controlled the activities of the organization in a Ruling dated December 20, 2022. In July 2023, the Bryansk arbitration was supported by an appeal (the decision of the Twelfth Arbitration Court of Appeal of July 9).

The basis for the refusal to satisfy the petition of Trekhsosensky was the expert opinion submitted in August 2021. Answering questions about the factors that led the company to bankruptcy, the expert pointed to the loan obligations fully repaid by Gulliver in 2016. At the same time, their amount turned out to be more than the amount of money received in the same year. That is, the cause of bankruptcy was external factors, and not the actions of the management or owners of the organization.

However, the Arbitration Court of the Central District considered that the lower instances were hasty with their conclusions. The case involved borrowed funds (28.98 million) received on the settlement accounts of the organization in 2015-2016. The company, as a lessee, concluded transactions with subsidiary defendants, for which they received more than 20 million rubles. However, the courts did not investigate these facts and did not properly assess them.

In addition, there was evidence of illegal behavior in the case, which allowed us to consider other types of liability (according to Article 53.1 of the Civil Code of the Russian Federation). In particular, it could be about the recovery of damages. The courts had the opportunity to independently qualify the plaintiff's claim, regardless of how exactly this responsibility was named in the application.