RusBankrot
We know everything about bankruptcy
03/05/2024
Friday
THIS DAY IN HISTORY:
3 May 
2021 World Press Freedom Day
2020 World Press Freedom Day
1957 Collective farms were transformed into the state farms in the USSR.
1957 Collective farms were transformed into the state farms in the USSR.
1841 New Zealand was declared a British colony.
1841 New Zealand was declared a British colony.
3 May
2021 World Press Freedom Day
2020 World Press Freedom Day
1957 Collective farms were transformed into the state farms in the USSR.
1957 Collective farms were transformed into the state farms in the USSR.
1841 New Zealand was declared a British colony.
1841 New Zealand was declared a British colony.
WHEN CHALLENGING A SERVICE AGREEMENT, IT IS NECESSARY TO FIND OUT THE POSSIBILITY OF THEIR PROVISION
As part of the bankruptcy case (A52-3965/21), the manager appealed to the court with an application to challenge transactions involving the transfer of funds by the debtor to the defendant under a contract for the provision of cleaning services.
The courts of two instances refused to satisfy the application, noting that the evidence provided (payment orders, invoices for payment, correspondence between the parties, the defendant's staffing table, tariffs for maintenance of premises, acts of acceptance of services rendered and testimony of witnesses – employees of the company) confirms the existence of a counter-provision regarding payments made.
The cassation did not share this approach and sent the dispute for a new consideration, guided by the following:
• Based on the lack of indication in the purpose of payments to the details of the specific contract under which they were made; the discrepancy in the amount of transfers to the price of the contract referred to by the defendant in support of arguments about the existence of a proportionate counter-provision regarding the amounts paid, the bankruptcy trustee reasonably doubted the reality of the company (defendant) performing cleaning work in favor of the company (debtor) premises. Assessing the arguments of the bankruptcy trustee, the courts wrongfully placed on the latter the burden of refuting the reality of the defendant's performance of work.
• Acts of acceptance of services, invoices, an agreement drawn up exclusively with the participation of interested parties, the testimony of two employees of the company subordinate to its management, cannot be sufficient evidence of the reality of disputed services in a bankruptcy case, taking into account the existence of grounds for applying an increased standard of proof to the defendant. There is no objective evidence of the performance of work under the contract by the company in the case file.
• Concluding that the disputed work was carried out in the public interest by the company, the courts did not check whether the disputed work could be carried out, taking into account their volume, by two employees.
The courts, pointing out the lack of evidence of the performance of controversial works by the company itself, did not investigate and did not establish the composition of the latter's full-time employees and the nature of their positions. That is, in fact, they did not exclude the possibility of performing controversial work by the forces of the society itself.
• The list of apartment buildings that were managed by the debtor during the disputed period has also not been established. At the same time, there is information in the case materials that the company also carried out activities for the operation of apartment buildings, which should have been taken into account when checking the possibility of providing cleaning services to the company by employees of the company.
The courts of two instances refused to satisfy the application, noting that the evidence provided (payment orders, invoices for payment, correspondence between the parties, the defendant's staffing table, tariffs for maintenance of premises, acts of acceptance of services rendered and testimony of witnesses – employees of the company) confirms the existence of a counter-provision regarding payments made.
The cassation did not share this approach and sent the dispute for a new consideration, guided by the following:
• Based on the lack of indication in the purpose of payments to the details of the specific contract under which they were made; the discrepancy in the amount of transfers to the price of the contract referred to by the defendant in support of arguments about the existence of a proportionate counter-provision regarding the amounts paid, the bankruptcy trustee reasonably doubted the reality of the company (defendant) performing cleaning work in favor of the company (debtor) premises. Assessing the arguments of the bankruptcy trustee, the courts wrongfully placed on the latter the burden of refuting the reality of the defendant's performance of work.
• Acts of acceptance of services, invoices, an agreement drawn up exclusively with the participation of interested parties, the testimony of two employees of the company subordinate to its management, cannot be sufficient evidence of the reality of disputed services in a bankruptcy case, taking into account the existence of grounds for applying an increased standard of proof to the defendant. There is no objective evidence of the performance of work under the contract by the company in the case file.
• Concluding that the disputed work was carried out in the public interest by the company, the courts did not check whether the disputed work could be carried out, taking into account their volume, by two employees.
The courts, pointing out the lack of evidence of the performance of controversial works by the company itself, did not investigate and did not establish the composition of the latter's full-time employees and the nature of their positions. That is, in fact, they did not exclude the possibility of performing controversial work by the forces of the society itself.
• The list of apartment buildings that were managed by the debtor during the disputed period has also not been established. At the same time, there is information in the case materials that the company also carried out activities for the operation of apartment buildings, which should have been taken into account when checking the possibility of providing cleaning services to the company by employees of the company.
30.01.2024
