of January 12, 2006 No. 3/321
About purchase agreement cancelation - sales of shares, return of the block of shares to property of the state, recovery of penalty for failure to carry out of terms of the contract
(the resolution of Trial chamber on economic cases of the Supreme Court of Ukraine of 09.03.2006 it is refused initiation of production on review)
The Supreme Economic Court of Ukraine as a part of board
the chairman - Usenko E. A.
judges: Bakulina S. V., Glaus O. I. having considered the writ of appeal of Fund of state-owned property of Ukraine on the resolution of the Kiev Economic Court of Appeal of 27.10.2005 on case N3/321 of economic court of Kiev on the claim of Fund of state-owned property of Ukraine to First Investment Company private company of National Register private company the third parties on the party of the claimant "Vishnivsky Foundry and Forge Plant" open joint stock company the State Treasury of Ukraine about purchase agreement cancelation - sales of shares, return of the block of shares to property of the state, recovery of penalty for failure to carry out of terms of the contract with the participation of agents of the parties:
from the claimant - Vakulenko N. V., Shramk A. V.
from the defendant - Shmidt M. G.
from the third party - Poluyektova G. O.
The decision of economic court of Kiev of 26.07.2005 (the judge of Hilinsk V.V.) left without changes by the resolution of the Kiev Economic Court of Appeal of 27.10.2005 (the judge Zelenin V. O., Repin L.O., O. F. Titmouse), is refused satisfaction of the claim for those reasons that First Investment Company Ltd according to Item 11.1.4 of the agreement of 14.08.2003 NKPP-414 of purchase sale of the block of shares of JSC Vishnivsky Foundry and Forge Plant within corporate laws promoted observance of types of economic activity and production volumes of the specified plant which took place at the time of the conclusion of noted agreement.
In the writ of appeal FGI of Ukraine asks to abolish judgments which took out on case, referring to their discrepancy Art. 614 of Civil Code of Ukraine.
Having heard representatives of persons who take part on case and who exercised procedural law on participation of the representative in judicial session of cassation instance, the board of judges of the Supreme Economic Court of Ukraine comes to conclusion that the writ of appeal is not subject to satisfaction for such reasons.
By courts of the previous instances it is determined that 14.08.2003 between FGI of Ukraine (seller) and First Investment Company Ltd (buyer) the agreement of purchase sale NKPP-414, according to which First Investment Company Ltd following the results of tender acquired the block of shares of JSC Vishnivsky Foundry and Forge Plant the size 18,59 of % of authorized capital of joint stock company and the number of common nominal shares 266522 pieces issued in documentary form, nominal value of one share 0, of 25 UAH and the nominal cost of the block of shares 66630, of 50 UAH was signed.
Among obligations, stipulated in Item the 11th the agreement the buyer, in particular, shall promote in borders of corporate laws to observance of those types of economic activity, production volumes which are at the time of purchase sale agreement signature (Item 11.1.4 of the agreement).
On failure to carry out by the defendant of the specified obligation the claimant refers as to the claim basis, specifying that for 2004 production volumes of JSC Vishnivsky Foundry and Forge Plant made 1801, 0 thousand UAH against 3189, 0 thousand UAH for 2002.
According to Art. 614 of Civil Code of Ukraine person which violated obligations bears responsibility with his fault if another is not established by the agreement or the law. Person is innocent if finishes that took all measures of rather proper accomplishment of the obligation depending on it.
By court it is determined that First Investment Company Ltd promoted in borders of the corporate laws to preserving production volumes of JSC Vishnivsky Foundry and Forge Plant which were at the time of the conclusion of the agreement of purchase sale of 14.08.2003 NKPP-414.
Such conclusion of court is based on assessment available in the matter of written proofs, namely: copies of protocols of general meeting of shareholders of the specified joint stock company of 26.03.2004 and of 18.03.2005 which confirm the fact of vote of the defendant's representative for the direction of 50% of profit of joint stock company for production development.
12.08.2004 the supervisory board of JSC Vishnivsky Foundry and Forge Plant approved with the following implementation in production the business plan developed by the defendant in production organization of bimetallic radiators of heating.
Having taken in attention that the defendant's share in authorized capital of JSC Vishnivsky Foundry and Forge Plant does not provide decisive action of the defendant on the decision of governing bodies of this joint stock company, and also availability of the objective reasons which influenced reduction of production volumes, including increase in prices for energy carriers, component parts that entailed came to increase in product cost and reduction of orders (demand) for it, courts of the previous instances to lawful to conclusion about lack of fault of First Investment Company Ltd in reduction of production volumes of the specified plant.
Given confutes arguments of the writ of appeal of rather wrong application by courts of the previous instances of regulations of the substantive right.
To leave the writ of appeal of Fund of state-owned property of Ukraine without satisfaction, and the resolution of the Kiev Economic Court of Appeal of 27.10.2005 - without changes.
The chairman - the judge
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