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Moscow Commercial Court Decision, 16 July 2012

MOSCOW COMMERCIAL COURT

17 Bolshaya Tulskaya St., Moscow 115191

http://www.msk.arbitr.ru

 

D E C I S I O N

In the name of the Russian Federation

 Moscow Case # A40-72710/11

34-637

 16 July 2012

The operative part of the decision was announced on 10 July 2012

Full text of the decision was produced on 16 July 2012

 

Commercial Court made up of Judge A. A. Kochetkov,

With the minutes of the court session taken by assistant G. A. Sukhareva,

Having considered in an open session a claim by ZAO Finansovyy Assistent

Against AKB Bank of Moscow (Open Joint-Stock Company), Marvil Management, Ltd.

Third parties: Billiton, Ltd., OOO Registrator KRTs

For reclamation from alien unlawful possession of nominal equities and their entry on a personal account of the claimant

With participation of representatives:

From the claimant – M. V. Sizov, power of attorney of 9 December, 2011

From the 1-st defendant – failure to appear

From the 2nd defendant – Y. I. Reznik, power of attorney of 12 December 2011

From the 1st 3rd party – Y. I. Reznik, power of attorney of 26 January 2012

From the 2nd 3rd party – failure to appear

HAS ESTABLISHED:

The claim is made to reclaim from alien unlawful possession by Marvil Management, Ltd., of nominal equities of OAO Stolichnaya Strakhovata Kompaniya in the amount of two units, share issue government registration number 1-01-55281-E and obligate AKB Bank of Moscow (Open Joint-Stock Company) to charge off account #003003П01, belonging to Marvil Management, Ltd., two equities of OAO Stolichnaya Strakhovaya Gruppa, issue registration number 003003П01, and enter them on account #000993П01, belonging to ZAO Finansovyy Assistent.

The claimant has supported the claim.

The 2nd defendant and the 1st 3rd party objected to the claim, based on grounds stated in submitted written opinion, citing its groundless nature.

The 1st defendant and the 2nd 3rd party failed to appear and submitted no written opinions.

The case is considered under stipulations of Articles 123, 124 and 156 of the Arbitration Procedure Code of the Russian Federation.

Having considered case materials and listened to opinions of the parties taking part in the case, the court established that the claim should be denied on grounds detailed below.

Under a purchase/sale contract concluded between ZAO Finansovyy Assistent and Billiton, Ltd., of 11 October 2010, the claimant sold to the 1st 3rd person two nominal equities of OAO Stolichnaya Strakhovaya Gruppa each with face value of 1,000 roubles, government registration number 1-01-55281-E, for 2,400 roubles, which fact is confirmed by a deposit instruction received by the depositary on 18 October 2010 (Case Vol. 1, p. 95), and as a result of its execution the shares at issue were entered on a Billiton, Ltd., account.

On 18 October 2010 ZAO Finansovyy Assistent and Billiton, Ltd., concluded a purchase/sale contract with a buyback commitment.

On 18 October 2010, in fulfilment of this contract, Billiton, Ltd., removed two equities of OAO Stolichnaya Strakhovaya Gruppa from its deposit account and entered them on the deposit account of the claimant.

On 30 March 2011, the claimant made a deposit instruction (Case Vol. 1, p. 97) to the depositary ordering the above shares to be written off its deposit account and entered on the deposit account of Billiton, Ltd.

The same day, in accordance with a purchase/sale contract concluded between Billiton, Ltd., and Marvil Management, Ltd., dated 30 March 2011, the shares at issue were entered on the deposit account of the 2nd defendant, which fact is confirmed by the instruction (Case Vol. 1, p. 98).

The execution of said deposit instructions is confirmed by reports of the depository of the Bank of Moscow on account activity for the period from 18 October 2010 until 31 March 2011 (Case Vol. 3, pp. 74-75, 80-81).

Thus, as a result of the above transactions, pursuant to Article 29 of the Federal Law “On the securities market,” the title to the shares at issue belongs to Marvil Management, Ltd.

In the opinion of the claimant, the shares dropped out of its lawful possession against its will, due to the fictitious nature of the contracts of 11 October 2010 and 18 October 2010 as well as due to abuse of the company’s sole executive body.

Pursuant to Article 301 of the Civil Code of the Russian Federation, the owner has the right to reclaim their property from alien unlawful possession.

Pursuant to Article 301 of the Civil Code of the Russian Federation, if a property has been acquired for compensation from a person that did not have the right to alienate it, about which the acquirer did not and could not have knowledge (good faith purchaser), then the owner shall have the right to reclaim the property from the acquirer in a case when the property has been lost by the owner or the person to whom possession of the property has been transferred by the owner or has been stolen from the former or the latter or has dropped out of their possession otherwise in spite of their will.

Pursuant to Paragraph 39 of Decree #22 of the Supreme Commercial Court of the Russian Federation of 29 April 2010, by implication of Paragraph 1 of Article 302 of the Civil Code of the Russian Federation, the owner shall have the right to reclaim their property from alien unlawful possession irrespective of the objections of the respondent to the effect that they are a good faith purchaser, if the owner proves that the property has dropped out of their possession or possession of the person to whom possession of the property has been transferred by the owner in spite of their will.

Invalidity of a transaction that has resulted in property transfer does not in itself indicate that title to the property has been transferred from the person that has handed the property over against their will. Courts need to establish if the owner has willingly transferred title to a different person.

Thus, the ultimate fact to be established in the claim is the presence of grounds for the claimant to have title to the claimed property, with its individually specific features, the unlawfulness of the defendant’s title to the property and the presence of the claimed property in possession of the defendant, as well as study of the question if the owner has expressed their will to transfer property title to a different person or if the property title has been transferred against the owner’s will.

Pursuant to Article 53 of the Civil Code of the Russian Federation, a legal entity shall acquire civil rights and assume civil obligations through its bodies operating in accordance with law and other regulations and incorporation documents.

The court believes that the claimant has not proven that the transfer of the two shares in dispute has occurred against their will. To the contrary, the claimant recognizes that, when the transfer occurred, the general director of the company acted in correspondence with the corporate charter and within the scope of his competence (Case Vol. 1, p. 9), which fact the claimant has not disputed during court session and is confirmed by case materials (Case Vol. 1, pp. 33, 74-75).

The court cannot agree with the claimant’s argument about the fictitious nature of the transactions that have taken place in connexion with the following.

Pursuant to Paragraph 1 of Article 170 of the Civil Code of the Russian Federation, a fictitious transaction is one conducted for the sake of appearance only, without the desire to create respective legal outcome.

The transactions executed when the shares were alienated are, by their nature, purchase/sale transactions.

Pursuant to Paragraph 1 of Article 454 of the Civil Code of the Russian Federation, in a purchase/sale contract, one party (the seller) undertakes to hand over title to an item (a commodity) to the other party (the buyer) and the buyer undertakes to accept the commodity and pay for it a certain monetary amount (price).

Thus, the consequence of the execution of a purchase/sale transaction is the transfer of title to the subject of the contract from the seller to the buyer.

The court has established that the title to the shares in dispute was transferred to the buyer, that is, in spite of the various steps of the transactions executed on 11 October 2010 and 18 October 2010, the legal consequences of their execution stipulated by law arose.

The court also rejects the claimant’s argument about the violation of the procedure of the transfer of title to the shares stipulated by the contract of 11 October 2010 by using the securities stocktaking system in the register, not the depository, due to the following.

As it follows from case materials, the claimant handed over 2,909,957 shares of OAO Stolichnaya Strakhovaya Gruppa into nominal holding of the Bank of Moscow on 18 October 2010 (Case Vol. 1, pp. 84-94).

Pursuant to Paragraph 2 of Article 8 of the Federal Law “On the securities market,” the nominal holder of securities is a person registered in the register system, including one that is a deponent of a depository and is not the owner with respect to the securities.

Thus, as a result of the transfer of the shares into nominal holding, the procedure of their stocktaking in the register system changed, which does not affect the claimant’s execution of the share purchase contract of 11 October 2010, because that is not in conflict with Article 29 of the Federal Law “On the securities market.”

In those circumstances, there are no grounds to deem the disputed transactions fictitious in keeping with Article 170 of the Civil Code of the Russian Federation.

In addition, invalidity of said transaction is immaterial to the case, because in itself it does not mean that the property was alienated against the claimant’s will, given the fact that, in violation of Article 65 of the Code of Arbitration Procedure of the Russian Federation, the claimant has failed to provide proofs of abuse of rights by former general director D. V. Zhukevich at the time of closing the deals.

The court rejects the claimant’s citing of the decree of the Investigation Committee under the Ministry of Internal Affairs of Russia of 30 June 2011 on separating from Criminal Case #89816 materials concerning D. V. Zhukevich and opening a case against him, because information contained in the decree haы not been confirmed by an effective court sentence.

At the same time, the court informs the claimant that the claimant retains the right to seek revision of the judicial act based on newly revealed circumstances, if an effective court ruling establishes criminal acts of D. V. Zhukevich at the time of closing the above deals.

In addition, the court also takes into account the fact that the 2nd defendant agrees to sell to the claimant the disputed shares at the price of their acquisition, for which the sides were given time to settle the case out of court, but the claimant refused to do so.

The claimant’s demand to obligate the Bank of Moscow to charge the disputed shares off the account of Marvil Management, Ltd., and enter them on the account of ZAO Finansovyy Assistent is accessory (additional) with respect to the claim on reclaiming the shares from alien unlawful ownership of Marvil Management, Ltd., which, due to the rejection of the principal claim, is also rejected.

Thus, the court comes to the conclusion that the entire claim is rejected.

Expenditures of paying state duty are to be distributed in accordance with Article 110 of the Arbitration Procedure Code of the Russian Federation and due to the rejection of the claim are to be covered by the claimant.

Guided by Articles 8, 11, 301, 302 of the Civil Code of the Russian Federation, the Federal Law “On joint-stock companies,” the Federal Law “On the securities market,” the Regulations on the Register of Security Owners and Articles 4, 65, 68, 71, 102, 110, 121, 123, 124, 156, and 167-170 of the Arbitration Procedure Code of the Russian Federation, the court

 

HAS DECIDED:

 

To reject the claim.

This decision may be appealed against at the Ninth Commercial Appellate Court in the course of one month from the date of the passing.

Judge A. A. Kochetkov