Can a loan be the cause of bankruptcy: the cassation sent for review the case of subsidiary liability of “Mostostroy No. 6”, OJSC
The company “Mostostroy No. 6”, OJSC, formerly one of the largest contractors of St. Petersburg, in the portfolio of which there were orders in the amount of about 11 billion rubles as a lump sum, was declared bankrupt in March of 2016. Currently the amount of claims of creditors included in the bankrupt company’s register is about 7 billion rubles. As part of accounts payable - debts on loans and bank guarantees of "Sberbank of Russia", PJSC, "AB" Russia", JSC, “GLOBEXBANK”, JSC.
In January 2019 the Ninth arbitration court of appeal brought to subsidiary responsibility for bringing the company to bankruptcy two managers of the debtor who consistently fulfilled their duties until the recognition of “Mostostroy No. 6”, OJSC bankrupt, and six members of the Board of Directors of the company. The court of appeal called the deal to conclude a loan agreement with "Sberbank of Russia", PJSC the main reason for bankruptcy. This gave grounds for some experts to assert that the persons controlling the company could be brought to liability for the company's debts for replenishing working capital in an unfavorable financial situation.
However, the cassation court sent the case for review, indicating that the conclusions of the court of appeal were contradictory, and for bringing to subsidiary liability both for bringing the company to bankruptcy and for inaction in the form of not going to court with a statement of declaring a debtor bankrupt (to which the applicants also referred) the exact moment of occurrence of the debtor’s property insufficiency and objective bankruptcy must be precisely determined. In general the court will have to re-examine not only the circumstances of the company’s assuming obligations under credit agreements, but also the circumstances of the conclusion of other transactions by “Mostostroy No. 6”, OJSC in the pre-bankruptcy period. In this case it is also interesting that both the leaders of the debtor and the members of the Board of Directors of the company who had approved the controversial loan were brought to justice. In addition the bankruptcy trustee and creditors insist that not only former directors, but also members of the supervisory board should be responsible for not initiating a meeting to resolve the issue of applying to the court for declaring a debtor bankrupt. The procedure was initiated by the application of one of the lenders. “Determining in the company’s activities signs of objective bankruptcy and insufficiency of property, as well as assessing the unprofitability of transactions, including government contracts concluded during the pre-bankruptcy period, is not an easy task,” explained Kirill Saskov, Partner, Head of Corporate and Dispute Resolution Practice of Kachkin and Partners and Alexandra Ulezko, Head of the Bankruptcy Group of Kachkin and Partners, attracted to represent the interests of one of the former directors of "Motostroy No. 6", OJSC at the stage of cassation appeal.
According to Kirill Saskov, bringing to responsibility in a situation when a commercial organization carried out current activities that did not go beyond the framework of ordinary business risk and took loans on market terms does not correspond to the purpose of subsidiary liability in bankruptcy. “It is also significant that at the cassation instance court one of the three judges was interested in how Sberbank of Russia checked its borrower”, adds Alexandra Ulezko. "A fair question, because if the bank claims that the insufficiency of the property was evident in early 2014 and the company had to go to court with a statement of recognition of its bankruptcy, it turns out that the bank, realizing the situation, issued a knowingly unrecoverable loan", said the lawyer. In any case, the answer to the question of whether the bankruptcy of the largest contractor of St. Petersburg is its management fault will be given shortly by the Arbitration Court of the Moscow Region.