The funds\nwere recovered from LLC \u201cU …\u201d as a guarantor under a bank guarantee in favor\nof the Ministry of Construction of the Kaliningrad Region (Beneficiary 2), with\nwhom the Main Control Department \u201cB ..\u201d (Beneficiary 1) entered into a cession\nagreement on the transfer of the right of claim under the bank guarantee. LLC\n\u201cU …\u201d pointed out in court that the calculation of requirements under the\nbank guarantee submitted by the Beneficiaries contained obvious and significant\narithmetic errors, in connection with which funds in the amount not exceeding 13 million rubles\nwere subject to payment. <\/p>\n\n\n\n
At the same\ntime, with reference to the unconditional nature of the fulfillment of the\nrequirement under the Bank guarantee and the lack of the Guarantor’s right to\nobject to the amount of the settlements, the courts of the first, appeal and\ncassation instances, having formally examined the said case, recovered from LLC\n\u201cU …\u201d funds in the amount of more than 79 million rubles.<\/p>\n\n\n\n
Having not agreed\nwith the final result on the case of recovery of the Bank guarantee, LLC \u201cU\n…\u201d appealed to the Moscow Arbitration Court with a statement of claim to the Beneficiary1\nand Beneficiary2 for joint recovery of 66 million rubles in the form of losses\nincurred in connection with the representation by the Beneficiaries of an\nincorrect calculation of claims under the Bank guarantee.<\/p>\n\n\n\n
By the\ndecision of the Moscow Arbitration Court, the claims were refused in full, and\ntherefore, lawyers of MCBA\n“Bureau of Lawyers “De jure” prepared and filed an appeal with\nthe court.<\/p>\n\n\n\n
Canceling the\ndecision of the Moscow Arbitration court, the Ninth Arbitration Court of Appeal\nagreed with the legal position and arguments of lawyers of MCBA “Bureau of Lawyers “De jure\u00bb:<\/p>\n\n\n\n
– judicial\nacts, adopted by the courts on the claim of the Beneficiary2 for recovering\nmoney from LLC \u201cU\u2026\u201d under the bank guarantee, do not have prejudicial value in\nthe case of recovering losses in connection with various objects of claim and\nobjects of proof, as well as due to the lack of research and legal assessment by\nthe courts in the previous case of the arguments-objections of LLC \u201cU …\u201d on\nthe inaccuracy of the calculation of the Beneficiaries;<\/p>\n\n\n\n
\u2014 inclusion in\nthe register of creditors’ requirements in the framework of the bankruptcy case\nof LLC \u201cA …\u201d, which was a Principal under a bank guarantee, the right of\nclaim of LLC \u201cU …\u201d in the amount of 79 million rubles does not indicate abuse of the right and\nunjust enrichment by LLC \u201cU …\u201d, since the real restoration of the violated\nright of LLC \u201cU …\u201d does not imply a formal inclusion in the register of the Principal\nwho is in bankruptcy proceedings, but an exclusively complete restoration of\nthe position of LLC \u201cU …\u201d, that\nexisted before the violation of his rights, that is, a real cash payment in the\namount of 69 million rubles;<\/p>\n\n\n\n
– the\ncalculation of requirements\nsubmitted by LLC \u201cU …\u201d, which is the counter-calculation for the incorrect\ncalculation of the Beneficiaries, was recognized by the court to be justified,\nand the claims for the joint recovery of losses from the Beneficiaries are\nsubject to satisfaction due to the fact that the initially incorrect\ncalculation was prepared by the Beneficiary1 upon transfer of the right of\nclaim under the cession agreement to the Beneficiary2, which, in turn, in the\npresence of objections from LLC \u201cU …\u201d, did not show due diligence and did not\ncheck the inconsistency of mathematical calculations in the document.<\/p>\n\n\n\n
Head of MCBA\n“Bureau of Lawyers “De jure” N. V. Filippov, trainee lawyers\nM.V.Ovchinnikova and R.K.Gitinov participated in the preparation of the\nstatement of claim, appeal and formation of the legal position on the case.<\/p>\n\n\n\n
The interests\nof LLC “U…” in the Ninth Arbitration Court of Appeal were\nrepresented by trainee lawyer Gitinov R. K.<\/p>\n","protected":false},"excerpt":{"rendered":"
The funds were recovered from LLC \u201cU …\u201d 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 \u201cB ..\u201d (Beneficiary 1) entered into a cession agreement on the transfer of the right of claim under the bank guarantee.…<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[147],"tags":[],"_links":{"self":[{"href":"https:\/\/de-ure.ru\/en\/wp-json\/wp\/v2\/posts\/32932"}],"collection":[{"href":"https:\/\/de-ure.ru\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/de-ure.ru\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/de-ure.ru\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/de-ure.ru\/en\/wp-json\/wp\/v2\/comments?post=32932"}],"version-history":[{"count":1,"href":"https:\/\/de-ure.ru\/en\/wp-json\/wp\/v2\/posts\/32932\/revisions"}],"predecessor-version":[{"id":32933,"href":"https:\/\/de-ure.ru\/en\/wp-json\/wp\/v2\/posts\/32932\/revisions\/32933"}],"wp:attachment":[{"href":"https:\/\/de-ure.ru\/en\/wp-json\/wp\/v2\/media?parent=32932"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/de-ure.ru\/en\/wp-json\/wp\/v2\/categories?post=32932"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/de-ure.ru\/en\/wp-json\/wp\/v2\/tags?post=32932"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}