RESOLUTION OF THE SUPREME ECONOMIC COURT OF UKRAINE

of May 22, 2007

About return of object of leasing

(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. 8/124-06

NAME OF UKRAINE

The Supreme Economic Court of Ukraine as a part of board: chairman, judge Kuzmenko M. V., Vasishchak I. M. judges., V.M.'s Bull-trout, having considered in proceeding in open court the writ of appeal of private agricultural enterprise "Zvezda" on the resolution of the Zhytomyr Economic Court of Appeal of February 6, 2007 on case N8/124-06 on the claim of closed joint stock company "The Agrotekhleasing leasing company to private agricultural enterprise "Zvezda" about return of object of leasing, ESTABLISHED:

In March, 2006 the closed joint stock company "The Agrotekhleasing leasing company appealed to economic court of Vinnytsia region with the claim to private agricultural enterprise "Zvezda" for return of disk harrow for the reasons of unseemly accomplishment of the obligation.

The defendant did not recognize the claim, claiming that he is not legal successor in disputable legal relationship, the requirement of the claimant is not based on the agreement, the property right to object of leasing passed to this person in 2002.

By the decision of economic court of Vinnytsia region of April 25, 2006 the claim it is refused based on groundlessness.

The decision is cancelled by the resolution of the Zhytomyr Economic Court of Appeal of February 6, 2007 (the judge A. Lyakhevich, I. Vechirko, L. Zarudnyanaya) and the claim is satisfied.

The resolution is motivated by failure to carry out of terms of the contract of financial leasing.

The private agricultural enterprise "Zvezda" asks to repeal the resolution for the reasons of the wrong application by economic court of part 2 of article 10 of the Law of Ukraine "About leasing" and to uphold the decision.

The parties were properly informed on time and the place of judicial session, however the closed joint stock company "The Agrotekhleasing leasing company did not use the right to provision of response to the writ of appeal and agents of the parties in judicial session were not.

The board of judges considers that the writ of appeal is not subject to satisfaction for the following reasons.

By economic courts it is determined that on July 23, 1998 closed joint stock company "The Agrotekhleasing leasing company and collective agricultural society of Kirov which legal successor is the private agricultural enterprise "Zvezda" signed the agreement of financial leasing of NFL 54 (further - the Agreement) on the terms of which the claimant gave to the defendant to ownership and use disk semi-hinged harrow worth 23 900 UAH.

Having paid 7 170 UAH or 30 percent of its cost on the terms of advance payment, the leasing recipient undertook to pay periodical leasing payments during the period from 1998 to 2002, namely: in October 23, 1998 - 2390 UAH; in October 23, 1999 - 9 560 UAH; in October 23, 2000 - 2390 UAH; in October 23, 2001 goda1 195 UAH; in October 23, 2002 - 1 195 UAH.

From case papers it is visible that on December 25, 1998 the parties changed and added terms of the contract, in particular, added condition which provided that the project cost of leasing is subject to indexation according to the legislation of Ukraine (Item 1.7.); changed the duration of the agreement (Item 2.1.); were reworded as follows Items 6.1., 6.2. and 6.8. Agreements.

Under such circumstances appeal economic came to reasonable conclusion that the parties approved payment of leasing payments taking into account inflationary tendencies which happen in economy of the state.

At the same time the parties did not establish obligation of the lessor to send to the partner the corresponding accounts with indication of the amount of inflation charges.

By Economic Court of Appeal it is determined that on October 15, 1999 the defendant carried out payment of object of leasing taking into account the inflation index (5 775 UAH leasing payment under the agreement and 2 UAH of indexation).

However further the defendant, in breach of agreement, performed payment of leasing payments without the inflation index.

Apparently from case papers, the claimant repeatedly addressed the defendant with the requirement to pay debt which was not paid off.

By rules of the subitem 2 of Item 2 of article 12 of the Law of Ukraine "About financial leasing" the leasing recipient shall timely and in full according to the schedule approved with the lessor to pay leasing payments according to terms of the contract.

According to Item 4.1 of the Agreement before implementation of calculations in full the lessor remains the owner of object of leasing.

Item 6.6. Agreements of the party provided that in case of failure to pay leasing payments by the leasing recipient during two calendar terms upon the demand of the lessor object of leasing is subject to return in indisputable procedure, with reference of all expenses on the leasing recipient.

According to Item 2.1. Agreements (in edition of December 25, 1998), the term of its action constitutes 7 years from day of signing of the act of acceptance transfer - on July 23, 2005.

According to Item 7 of part 2 of article 11 of the Law of Ukraine "About financial leasing" in case of the termination of term of leasing the leasing recipient shall return leasing subject.

Under circumstances not of payment of leasing payments in full the Economic Court of Appeal came to reasonable conclusion about satisfaction of the claim.

Therefore taking into account borders of reconsideration of the case in cassation instance, the board of judges considers that during consideration of the case its actual circumstances were established by Economic Court of Appeal based on comprehensive, complete and objective investigation of the submitted proofs, the conclusions of court answer these circumstances and they are given proper legal evaluation with the correct application of regulations of substantive and procedural law.

Being guided by Articles 111-5, 111-7, 111-9, 111-11 of the Economic Procedure Code of Ukraine, the court DECIDED:

To leave the resolution of the Zhytomyr Economic Court of Appeal of February 6, 2007 on case N8/124-06 without changes, and the writ of appeal of private agricultural enterprise "Zvezda" - without satisfaction.

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