of January 25, 2006 No. 4/2960-14/263
About collection of the amounts
(determination of Trial chamber on economic cases of the Supreme Court of Ukraine of 30.03.2006 it is refused to open production on review)
The Supreme Economic Court of Ukraine as a part of board of judges: Perepichy V.S. (chairman), Vovka I. V., Goncharuka P. A. having considered in proceeding in open court in Kiev the writ of appeal of Lvovoblenergo Open joint stock company on the resolution of the Lviv Economic Court of Appeal of 04.10.2005 on case on the claim of Lvovoblenergo Open joint stock company to Utility city children's clinical hospital, the third party - Management of health care Lviv city council about collection of the amounts.
Having heard explanations of the representative of the claimant, having checked case papers, having discussed arguments of the writ of appeal, court
In October, 2004 JSC Lvovoblenergo made in economic court the claim to Utility city children's clinical hospital for collection 13909, of 62 UAH of not counted electrical energy under the contract N62428 of 23.05.2001 for delivery of electrical energy.
(Judge Kitayeva S. B.) the claim was satisfied with the decision of economic court of the Lviv region of 13.04.2005 partially, 8717,08 of not counted electrical energy is collected from the defendant for benefit of the claimant.
The defendant appealed this decision in appeal procedure.
The resolution of the Lviv Economic Court of Appeal of 04.10.2005 (judges Kravchuk N. M. is the chairman, Gnatyuk G. M., Mirutenko O. L.), the petition for appeal was satisfied, the decision of economic court of the Lviv region of 13.04.2005 is cancelled, made the new decision by which it is refused the claim.
In the writ of appeal the claimant asks to repeal the resolution of the Lviv Economic Court of Appeal of 04.10.2005, and the decision of economic court of the Lviv region of 13.04.2005 to uphold, referring to violation of regulations of substantive and procedural law by Appeal Court.
The writ of appeal is not subject to satisfaction for the following reasons.
As it is established by court, according to the procedure of trial de novo,
23.06.2003 the claimant was performed in Utility city children's clinical hospital of means of accounting of the electric power by results of which under the same date and N657/010182 the statement of abuse of regulations of use of electrical energy was drawn up (the meter disk on phases "A" and "B" did not rotate) (further - Rules).
However neither this act, nor other proofs in case which the court of the second instance, according to the procedure of fulfillment of requirements of the Art. 43 GPK of Ukraine, gave proper legal evaluation in their set the claimant did not prove that the defendant interfered with work of settlement means of accounting while when checking by the claimant of 23.06.2003 of the reason of disability of means of accounting there was short circuit as a result of which the seal and test block burned down.
Therefore, the court of the second instance had the reasons for cancellation of the decision of economic court which satisfied the claim and to refuse satisfaction of claims.
Arguments of the writ of appeal do not give the grounds for the conclusions about the wrong application of regulations of substantive and procedural law by court which brought or could lead to the wrong dispute resolution, and the reference in the writ of appeal to absence of proof of the facts of the case, as well as check and revaluation of proofs, proceeding from the instruction of Art. 111-7 of the Economic Procedure Code of Ukraine, it oversteps the bounds of reconsideration of the case in cassation procedure.
To leave the writ of appeal of Lvovoblenergo Open joint stock company without satisfaction, and the resolution of the Lviv Economic Court of Appeal of 04.10.2005 - without changes.
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