of April 5, 2007
About duty to eliminate obstacles, money recovery and prohibition to make actions
(Determination of Trial chamber on economic cases of the Supreme Court of Ukraine of 14.06.2007 it is refused to open productions on review)
Case No. 7/258
NAME OF UKRAINE
The Supreme Economic Court of Ukraine as a part of board of judges: V. I. Derep - presiding (speaker), Greek B.M., Stratiyenko L. V.
with the assistance of plenipotentiaries: claimant
the defendant - Kukharov O. O.,
having considered the writ of appeal of Perspektiva Engineering Limited liability company on the decision of economic court of the Dnipropetrovsk region of October 9, 2006 and the resolution of the Dnipropetrovsk Economic Court of Appeal of January 15, 2007 on case on the claim of Alcon-front Studio Limited liability company to Perspektiva Engineering Limited liability company, the third parties on the party of the claimant Limited liability company the Pavlogradspetsmash plant, Spetsmontazh Limited liability company about duty to eliminate obstacles, collection 15570, of 05 UAH and prohibition to make actions, ESTABLISHED:
In August, 2006 the claimant appealed to economic court of the Dnipropetrovsk region with the claim to the defendant for duty of the defendant to eliminate obstacles to the claimant during the implementing and dismantle of the construction woods, export of their elements in quantity according to the N12 specification of the supplementary agreement N13 to the lease agreement of 04.04.2006, export of tubes electric in quantity according to the appendix N2 to the lease agreement of 15.03.2006, not to interfere with the claimant in use of this property of any other method; about prohibition to the defendant to use and make any other actions with the specified property; about collection from the defendant for benefit of the claimant of losses in the amount 15570, 05 UAH.
The decision of economic court of the Dnipropetrovsk region of October 9, 2006 (the judge Koval of L.A.) the claim is satisfied partially. Obliged Perspektiva Engineering Limited liability company to eliminate and not to interfere with Alkon-fasadne Studio Limited liability company during the implementing and dismantle of the construction woods, export of their elements in quantity according to the N12 specification of the supplementary agreement N13 to the lease agreement of 04.04.2006 of N05/20a concluded by Alcon-front Studio Limited liability company with Limited liability company "the Pavlogradspetsmash Plant, export of tubes electric modular in quantity according to the appendix N2 to the lease agreement of 15.03.2006 N01/03-06, to the prisoner by Alkon-fasadne Studio Limited liability company with Spetsmontazh Limited liability company from the building site on Ulitsa Dzerzhinskogo, 35-b in Dnipropetrovsk, not to interfere with Alcon-front Studio Limited liability company in use of this property. Other requirements it is refused.
Court costs are levied from the defendant for benefit of the claimant.
The substantive provisions of the judgment are changed by the resolution of the Dnipropetrovsk Economic Court of Appeal of January 15, 2007. The specific property concerning which obliged the defendant to eliminate and not to create to the claimant of obstacle is specified. For the rest the decision is left without changes.
Without agreeing with judgments, OSOO "Perspektiva Engineering" asks them to cancel, referring to the wrong application of regulations of substantive and procedural law by courts.
Having heard explanations of agents of the parties, having discussed arguments of the writ of appeal, having studied case papers, the court considers that the writ of appeal is not subject to satisfaction for the following reasons.
As also OSOO "Perspektiva Engineering" is established by courts, based on the works agreement N01/30 of the March 31, 2006 signed between "OSOO Alcon-front studio", the contractor undertook to make on the risk of the customer's materials on the instructions of the customer of work on installation of granite front system with winterization, to transfer the performed works to the caused terms to the customer, and the customer - to accept and pay the performed works (item 2.1 of the agreement).
It agrees p.1 Art. 839 of Civil Code of Ukraine, the contractor shall perform the work defined by the works agreement from the material and the means if another is not established by the agreement.
From case papers it is visible that 04.04.2006 between OSOO the Pavlogradspetsmash plant and Alkon-fasadne Studio Limited liability company was signed the lease agreement N05/20a under the terms of which the claimant receives elements of the construction woods in lease. To this lease agreement supplementary agreements to which specifications which changed players of leased property (structure of elements of the construction woods, their quantity) which was transferred to the claimant under acts of acceptance - cessions of property are constituted were signed.
The specification of elements of the woods to the supplementary agreement N13 of 01.08.2006 to the lease agreement N05/20a of 04.04.2006 (the specification of elements of the woods N 12) includes 19 names, specifies quantity of elements of each name, their cost. According to the supplementary agreement N13 the duration of the agreement of lease was extended in 31.08.2006.
15.03.2006 between "OSOO Spetsmontazh" and Alkon-fasadne Studio Limited liability company the lease agreement N01/03-06, under the terms of which was signed the claimant receives in lease tube electric modular LEMMA-1 in number of 3rd set. According to the act of acceptance - cessions of property, the claimant received in lease three tubes electric modular LEMMA-1 for term on till 15.03.2007.
According to Art. 319 of the Civil code of Ukraine the owner owns, uses, disposes of the property on own discretion.
According to Art. 391 of the Civil code of Ukraine the owner of property has the right to require removal of obstacles in implementation by it of right to use and the order the property.
Based on Art. 48 of the Law of Ukraine "About property", the owner can require elimination of any violations of its right, at least these violations also were not combined with deprivation of ownership, and compensation of the loss caused by it. Protection of the property right is performed by court or reference tribunal. Regulations on protection of the property right extend also to person who though is not owner, but owns property on the right of complete economic maintaining, operational management, life tenancy inherited or on other basis provided by the law or the agreement.
It agrees p.1 Art. 596 of Civil Code of Ukraine, to the creditor who holds at himself the debtor's thing, does not pass the property right to it.
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