The Arbitration Court of Appeal reversed the decision of the court of the first instance and recovered losses in the amount of more than 66 million rubles from the state body and state-owned enterprise

The funds were recovered from LLC “U …” as a guarantor under a bank guarantee in favor of the Ministry of Construction of the Kaliningrad Region (Beneficiary 2), with whom the Main Control Department “B ..” (Beneficiary 1) entered into a cession agreement on the transfer of the right of claim under the bank guarantee. LLC “U …” pointed out in court that the calculation of requirements under the bank guarantee submitted by the Beneficiaries contained obvious and significant arithmetic errors, in connection with which funds  in the amount not exceeding 13 million rubles were subject to payment.

At the same time, with reference to the unconditional nature of the fulfillment of the requirement under the Bank guarantee and the lack of the Guarantor’s right to object to the amount of the settlements, the courts of the first, appeal and cassation instances, having formally examined the said case, recovered from LLC “U …” funds in the amount of more than 79 million rubles.

Having not agreed with the final result on the case of recovery of the Bank guarantee, LLC “U …” appealed to the Moscow Arbitration Court with a statement of claim to the Beneficiary1 and Beneficiary2 for joint recovery of 66 million rubles in the form of losses incurred in connection with the representation by the Beneficiaries of an incorrect calculation of claims under the Bank guarantee.

By the decision of the Moscow Arbitration Court, the claims were refused in full, and therefore, lawyers of MCBA “Bureau of Lawyers “De jure” prepared and filed an appeal with the court.

Canceling the decision of the Moscow Arbitration court, the Ninth Arbitration Court of Appeal agreed with the legal position and arguments of lawyers of  MCBA “Bureau of Lawyers “De jure»:

– judicial acts, adopted by the courts on the claim of the Beneficiary2 for recovering money from LLC “U…” under the bank guarantee, do not have prejudicial value in the case of recovering losses in connection with various objects of claim and objects of proof, as well as due to the lack of research and legal assessment by the courts in the previous case of the arguments-objections of LLC “U …” on the inaccuracy of the calculation of the Beneficiaries;

— inclusion in the register of creditors’ requirements in the framework of the bankruptcy case of LLC “A …”, which was a Principal under a bank guarantee, the right of claim of LLC “U …” in the amount of 79 million rubles  does not indicate abuse of the right and unjust enrichment by LLC “U …”, since the real restoration of the violated right of LLC “U …” does not imply a formal inclusion in the register of the Principal who is in bankruptcy proceedings, but an exclusively complete restoration of the position of LLC “U …”,  that existed before the violation of his rights, that is, a real cash payment in the amount of 69 million rubles;

– the calculation of requirements submitted by LLC “U …”, which is the counter-calculation for the incorrect calculation of the Beneficiaries, was recognized by the court to be justified, and the claims for the joint recovery of losses from the Beneficiaries are subject to satisfaction due to the fact that the initially incorrect calculation was prepared by the Beneficiary1 upon transfer of the right of claim under the cession agreement to the Beneficiary2, which, in turn, in the presence of objections from LLC “U …”, did not show due diligence and did not check the inconsistency of mathematical calculations in the document.

Head of MCBA “Bureau of Lawyers “De jure” N. V. Filippov, trainee lawyers M.V.Ovchinnikova and R.K.Gitinov participated in the preparation of the statement of claim, appeal and formation of the legal position on the case.

The interests of LLC “U…” in the Ninth Arbitration Court of Appeal were represented by trainee lawyer Gitinov R. K.