of June 5, 2007
About recognition of the agreement of mortgage invalid
(determination of Trial chamber on economic cases of the Supreme Court of Ukraine of 26.07.2007 it is refused to open production on review)
Case No. 18/513
NAME OF UKRAINE
The Supreme Economic Court of Ukraine as a part of board of judges:
the chairman, the judge - Kuzmenko M. V.
judges there is Vasishchaka I. M.
judges - the Bull-trout V. M.
having considered the writ of appeal of the Ukrainian state-owned innovative company
on the resolution of the Kiev Economic Court of Appeal of 13.03.2007.
On case N18/513
in the claim of Hersonsnabsbyt Private company
to the Ukrainian state-owned innovative company
about recognition of the agreement of mortgage of 04.02.2006 invalid,
with the participation of agents of the parties:
from the claimant: Teplova Ya. S. (power of attorney of 15:08. 06),
from the defendant: Kolesnik Yu. V., Baranovsk T.V. (copy of powers of attorney for case),
The Hersonsnabsbyt private company appealed to economic court of the city of Kiev with the claim to the Ukrainian state-owned innovative company and asked court to nullify the agreement of mortgage signed between the parties of 04.02.2005 certified by the notary of the Kherson city notarial district under register N241.
Claims are proved by the fact that considering instructions of Art. 576 of Civil Code of Ukraine and Art. 5 of the Law of Ukraine "About mortgage", the property which belongs to the claimant as the resolution of the Supreme Arbitration Court of Ukraine of 25.06.2001 on another matter of N10/145-5/1/182-4/3/793, to the claimant - Hersonsnabsbyt Ltd is forbidden to perform actions for alienation of its property before adoption of the decision by court on the specified case cannot be subject of the controversial agreement of mortgage. Considering that subject of pledge cannot be the property which is under prohibition of its alienation, the claimant considers that the disputed agreement of mortgage of 04.02.2005 is subject to recognition by the Civil Code of Ukraine, invalid according to the procedure of Art. 215.
The defendant, denying the declared claim, refers to the fact that the claimant does not provide proofs of introduction of property which constitutes subject of the controversial agreement, in the register of prohibitions of alienation of real estate and existence of prohibition of alienation of the specified property. Besides the specified agreement is certified by the notary of the Kherson city notarial district according to Art. 55 of the Law of Ukraine "About notariate" which checked lack of prohibition for alienation of subject of mortgage.
By the decision of economic court of the city of Kiev of 29.11.2006 (judge O. V. Mandrichenko) satisfaction of the claim it is refused on those bases that the agreement of mortgage of 04.02.2005 was signed and certified by the notary according to regulations of the legislation of Ukraine existing for the period of the conclusion of the agreement, including Art. 55 of the Law of Ukraine "About notariate", and 33 GPK of Ukraine are not provided by the claimant according to the Art. proofs, in particular, of the statement from the Unified register of prohibitions of alienation of real estate units which confirm availability of prohibitions on property acquisition which constitutes subject of the controversial agreement, as of day of the conclusion of this agreement. Thus, the Trial Court came to conclusion about lack of the bases for statement of the claimant about prohibition availability on condition for 04.02.2005 on alienation of real estate which is the subject of the agreement of mortgage and therefore about lack of the bases for its recognition by it which contradicts the current legislation of Ukraine.
The resolution of the Kiev Economic Court of Appeal of 13.02.2007 (the chairman, the judge Otryukh B. V., the judge Verkhovets A. A., Tyshchenko A. I.) resolution of the Trial Court the new decision on satisfaction of the claim is cancelled and made: the agreement of mortgage of 04.02.2005 signed between Hersonsnabsbyt Private company and the Ukrainian state-owned innovative company is nullified.
The specified resolution is motivated, in particular, that lack of information in the Unified register of prohibitions of alienation of real estate units on encumbrances of subject of mortgage does not change the status of this property. The resolution of the Supreme Arbitration Court of Ukraine of 25.06.2001 on another matter of N10/145-5/1/182-4/3/793 according to the statement of the National export-import bank of Ukraine is forbidden to perform Hersonsnabsbyt Ltd action for alienation of its property before adoption of the decision by court on above-mentioned case. This case is in production and on the date of consideration of this case.
Without agreeing with the court order of appellate instance, the defendant appealed to the Supreme Economic Court of Ukraine with the writ of appeal in which he asks it to cancel as it which is accepted with violation of regulations of substantive and procedural law, having upheld resolution of the Trial Court.
Board of judges, accepting in attention of border of reconsideration of the case in cassation instance, having discussed arguments of the writ of appeal and amendment to it, having analyzed based on the actual facts of the case of application by court of regulations of substantive and procedural law in case of acceptance of the appealed court resolution, finds the writ of appeal such which is not subject to satisfaction on such bases.
The claimant sent response to the writ of appeal of the defendant in whom asks to leave the appealed resolution without changes, and жалобубез satisfactions based on, stated in response.
By courts of two instances it is determined that 04.02.2005 between the claimant and the defendant the agreement of mortgage certified by the notary of the Kherson city notarial district and registered in the register under N241 was signed.
The specified agreement of mortgage provides requirements of the defendant as mortgage holder which follow from the agreement of 01.02.2005 of N15-49/01/02/05 about loan granting signed between the defendant and Sostav-Service LLC which undertook to return to the defendant the credit in the amount of 6 570 300, of 0 UAH step by step, with the subsequent return of the credit till 01.02.2010.
According to terms of the contract of mortgage the defendant has the right in case of failure to carry out of Sostav-Service LLC of agreement obligations from
To become widespread 01.02.2005 of N15-49/01/02/05, at the expense of the provided item 3 of the agreement of mortgage of property it is preferential before other creditors of the claimant. The mortgage subject - part of complete property complex belongs to the claimant on the property right based on the registration certificate issued to the Kherson BTI of 16.05.1997.
Reality of the prisoner between the claimant and the defendant of the agreement of mortgage of 04.02.2005 are consideration subject of this case.
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