of November 10, 2004 No. 10-0417/55
If powers of the person for transaction are limited, then such transaction can be recognized as invalid.
The Tashkent city branch SAC of bank of Usak, being effective by proxy, appealed to economic court with the claim to JV BANNO (the borrower of the credit) and JSC Bukhoroturist (guarantor) about collection of the amount of principal debt (the amount of overdue loan) in the amount of 80290700 bags and percent in the amount of 240803508 bags.
During consideration of the case of JSC Bukhoroturist, being guarantor according to the guarantee agreement of August 1, 2001, declared the counter action recognition of the guarantee agreement to invalid.
Requirements of the claimant are satisfied with the judgment of February 9, 2004 partially, from pledged property of JV BANNO is collected 103257991 bags, from the settlement account of 150000000 bags, total 253257991 bags, the demand in reconvention of JSC Bukhoroturist is met, the guarantee agreement is nullified.
The decision is cancelled by the resolution of cassation instance of June 4, 2004, the case is submitted on new trial.
In case of new trial the claimant increased sum in dispute to 550434603 bags.
Requirements of the claimant are met by the decision of July 9, 2004 partially, is collected from the defendant of JV BANNO 400434601 bags, 150000000 bags are collected from the defendant of JSC Bukhoroturist, the demand in reconvention of JSC Bukhoroturist is left without satisfaction.
The decision is left by the resolution of appellate instance of September 16, 2004 without change.
Without having agreed with court resolutions, JSC Bukhoroturist appealed to the Supreme Economic Court with the writ of appeal in which it asks to change the taken place court resolutions. Satisfy counter claim about recognition of the guarantee agreement invalid.
Judicial board, having listened to explanations of agents of the parties, opinion of the prosecutor believing to leave court resolutions without change, having studied case papers, having discussed arguments of the writ of appeal, considers the writ of appeal reasonable.
As GAKB of Usak, on behalf of the Tashkent city branch SAC of bank of Usak is seen from case papers, (the acting on the basis of the Provision) according to the agreement N01-31 of September 6, 2001 issued to JV BANNO the credit in the amount of 517 720 000 bags for a period of 3 years under 30% per annum.
One of types of ensuring credit recovery were served by the guarantee agreement of August 1, 2001 according to which the guarantor of JSC Bukhoroturist according to item 1.2. agreements the debtor in case of non-execution of obligations by the last according to the credit agreement undertook to answer to the creditor in the same amount, as. The guarantee agreement amount on loan repayment and the added percent on it is established in the amount of 150000000 bags.
Considering that the guarantee agreement was signed with violation of regulations of the current legislation, the guarantor filed the counter action for declaration in court about recognition of the agreement invalid.
By courts of the previous instances it is unreasonably refused to the guarantor of JSC Bukhoroturist the claim as the arguments of the guarantor given to reasons for the requirements meet case papers and precepts of law.
According to Article 126 of RUZ Group if powers of the person for transaction are limited, then such transaction can be recognized as invalid. According to articles 89 and 90 of the Law RUZ "About Joint-stock Companies and Protection of Shareholder Rights" the solution on making of large deal which subject is the property of book value of assets worth from 25% to 50% of society for decision date about making of such transaction, is accepted by the supervisory board.
In this case the guarantee agreement was signed without the consent to that of the supervisory board and general shareholder meeting though the subject of the transaction (guarantee agreement) exceeded twenty five percent of book value of assets of society and belonged to large deals. When it was charged to JSC Bukhoroturist about payment of 150000000 bags, assets of society constituted 283641900 bags.
The vice chairman of the board of the joint-stock company Makhmudov K. who signed the guarantee agreement was not given right to sign on financial records. Neither the supervisory board, nor general shareholder meeting conferred powers to Makhmudov K. on the conclusion of the guarantee agreement.
The resolution of board N41 of August 2, 2001 (л.д. 103) about exposure of property on the security on the amount of 150000000 bags for the purpose of the ensuring credit recovery issued to JV BANNO has no relation to the guarantee agreement.
Under such circumstances the writ of appeal of JSC Bukhoroturist is subject to satisfaction, the decision of economic court of July 9, 2004, the resolution of appellate instance of September 16, 2004 godaizmeneniya.
Based on stated, the judicial board decided:
To satisfy counter claim of JSC Bukhoroturist. The guarantee agreement of August 1, 2001 to nullify, exempt JSC Bukhoroturist from the guarantee agreement responsibility.
Collect from JV BANNO for benefit of the GAKB Tashkent city branch of Usak of 150000000 bags.
Judgments regarding collection with JV BANNO for benefit of the GAKB Tashkent city branch of Usak of the amount in the amount of 400434601 sum and regarding leaving without consideration of the requirement of the GAKB Tashkent city branch of Usak about termination of the credit agreement to leave without change.
To assign court costs on the national duty in all instances at the rate of collection of the amount in the amount of 550434603 bags to the defendant of JV BANNO. Regarding the requirement about recognition of the guarantee agreement invalid to carry the amount of the national duty on JV BANNO and JSC Bukhoroturist on 54400 bags on everyone.
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