of June 5, 2007
(Determination of Trial chamber on economic cases of the Supreme Court of Ukraine of 19.07.2007 it is refused to open production on review)
Case No. 5/1/75
NAME OF UKRAINE
The Supreme Economic Court of Ukraine as a part of board of judges: Udovichenko O. S. - the chairman, Panova I. Yu., Handurina M. I.
having considered the writ of appeal of JSC Repair and Construction Management N51
on determination of economic court of the Zaporizhia region of 20.11.2006
on case N5/1/75 of economic court of the Zaporizhia region
according to the statement of JSC Repair and Construction Management N51
to Germetik-Universal Ltd
liquidator Shevtsov E. V.
with the participation of agents of the parties:
from JSC RBU-51 - Fisyuk L. O.
from Germetik-Universal Ltd - Kochergin O. L.
Determination of economic court of the Zaporizhia region on case N5/1/75 approves of 20.11.2006 the liquidation balance sheet of the bankrupt of Germetik-Universal Ltd and the report of the liquidator. The debtor is liquidated. Obliged the arbitration manager Shevtsov E. V. file to GKTsBFR of Ukraine all necessary documents for cancellation of share issue of the bankrupt. Proceeedings are stopped.
Without agreeing with the specified determination, JSC Repair and Construction Management N51 which considers that the court made the decision concerning its rights and obligations appealed to the Supreme Economic Court of Ukraine with the writ of appeal in which it asks to cancel determination of economic court of the Zaporizhia region of 20.11.2006 in the matter of N5/1/75, and case - to tell to new trial to Trial Court.
The claim is motivated with violation of regulations of procedural law by local economic court.
Board of judges of the Supreme Economic Court of Ukraine, having reviewed determination of local economic court in cassation procedure, having checked application of regulations of substantive and procedural law by Trial Court, considers that the writ of appeal is subject to satisfaction, proceeding from the following:
from case papers it is visible that determination of economic court of the Zaporizhia region of 04.08.2006 stops proceeedings of N5/1/75 about bankruptcy of Germetik-Universal Ltd before consideration by economic court of the Zaporizhia region of case N16/456 on the claim of JSC Repair and Construction Management N51 to the bankrupt about recognition of the property right to property. The specified determination is motivated that consideration of the case of N16/456 can significantly influence forming by the liquidator of the bankrupt of liquidating mass of Germetik-Universal Ltd and further satisfaction of requirements of creditors of the bankrupt.
Of 09.11.2006 proceeedings of N5/1/75 about bankruptcy of Germetik-Universal Ltd are resumed by determination of economic court of the Zaporizhia region, judicial session for consideration of the report of the liquidator, the liquidation balance sheet, the register of requirements of creditors, documents which confirm holding liquidating procedure of the bankrupt, appointed on 20.11.2006. The copy of determination is sent to creditors, the liquidator, JSC Repair and Construction Management N51.
Apparently from stamp print on envelope which was requested by court of cassation instance in determination of 22.05.2007 about adjournment of consideration of the writ of appeal at 05:06. 2007, the economic court directs the specified determination to JSC Repair and Construction Management N51 - 15.11.2006. However in connection with the wrong specifying of index of the receiver, actually determination is directed to 16.11. 2006, about what is also witnessed by print of stamp of postal department on the same envelope.
Considering that determination of economic court is directed 16.11.2006 on Thursday, and court session is appointed to Monday 20.11. 2006, the Supreme Economic Court of Ukraine came to conclusion that it was not informed by JSC Repair and Construction Management N51 properly on time and the venue of judicial session.
Besides, determination of economic court of the Zaporizhia region of 09.11.2006 on case N5/1/75 on production renewal the economic court refers to the decision of economic court of the Zaporizhia region of 25.10.2006 on case N16/456-8/221/06 which in the claim of JSC Repair and Construction Management N51 to Germetik-Universal Ltd, the third party-1 of DVS in Leninsky district Zaporizhia, the third party-2 of Magellan LLC about recognition of the property right to disputable property is refused. Based on the p. 3 of the Art. 79 GPK of Ukraine in connection with consideration of the Zaporizhia region of case N16/456-8/221/06 by economic court the economic court resumed proceeedings of N5/1/75.
However in case papers into the moment of removal by economic court 20.11.2006 of determination about approval of likvidballans and suit abatement, the specified decision of economic court which the local economic court was the basis for the conclusions about property of the bankrupt, no.
According to the Art. 43 GPK of Ukraine economic court, being guided by the law, comprehensively, full and objectively considers in legal procedure all facts of the case in their set.
According to the Art. 47 GPK of Ukraine the judgment is made by the judge by results of discussion of all facts of the case.
According to Art. 111-10 of HPK of Ukraine violation of regulations of procedural law is anyway the basis for cancellation of the decision local or resolutions of Economic Court of Appeal if case is considered by court in absence of the either party which is not informed properly on time and the place of court session.
To satisfy the writ of appeal of JSC Repair and Construction Management N51.
Of 20.11.2006 on case N5/1/75 to cancel determination of economic court of the Zaporizhia region.
Send case for consideration in economic court of the Zaporizhia region.
O. S. Udovichenko
M. I. Handurin
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