The claim to Voentorgu
Business under the claim of the Central base of technical property (TSBTI) to Voentorgu #814 about compulsory collecting from it a rent and eviction from a rented premise applies for an original record. On September, 4th told about how judges of the second judicial structure of Arbitration court of Moscow Region (ASMO) rejected appeal complaints and statements TSBTI to rather disputable decision of the chairman of this structure Evgenii Panikar, resorting thus to frank jugglings. These illegal definitions were some times cancelled by higher judicial instances. And, at last, one of these days the Federal arbitration court of the Moscow district (FASMO) has cancelled the initial decision. So, it was typed five cancellations on one business at judicial norm in two cancellations on hundred affairs.
the Logic of judges is inaccessible to lawyers
In April, 1993 to Voentorg #814 Odintsovo areas of Moscow Region rented a premise at the Central base of technical property of #1729 Ministries of Defence, objazujas in time to bring a rent and to deduct a part of money in the budget. Contract term expired on December, 31st, 1995.
in 1994 the shop has ceased to pay. In February, 1996 the base management in bezaktseptnom an order has written off its debt TSBTI with Voentorga. The shop management has submitted the claim to ASMO, demanding to collect from base this sum back. Together with percent for use by base of another`s money and indemnification for the missed benefit (means have been withdrawn from a shop turn) the sum has made 233 million rbl.
Management TSBTI has addressed to lawyer Sergey Kireevu from jurkonsultatsii #13 Inter-regional boards of the help to businessmen and citizens. He has advised to the principals to return to shop of 135 million rbl. voluntary (The basic debt), and then already to demand them in a judicial order.
in April g - n Kireev on behalf of the clients has submitted to the same court the counterclaim to Voentorgu about collecting of this sum. As rent term by then for a long time already has expired, in the claim the requirement about compulsory eviction of shop contained also.
both claims were considered in April by the chairman of the second judicial structure ASMO Evgeniej Panikar which simultaneously is the chairman of qualifying board of court.
on process representatives of Voentorga asserted that they, despite the contract, anything should not to pay for rent, as in territory of military camps of a premise of Voentorgam are given free of charge. Thus a base management to move them cannot in any way as is only balansoderzhatelem premises. The proprietor, according to representatives of shop, the State Property Committee (GKI) which any claims to the tenant has also no eviction is does not demand.
In reply to the first statement of opponents lawyer TSBTI Sergey Kireev has explained that the rent is not brought by Voentorgami for using premises of military units or the closed military camps. But base not military unit, he confirmed, and the military camp where it is, is not closed.
an argument that TSBTI is not the proprietor of a premise, Kireev has denied the reference to the contract between base and GKI. According to it, GKI as the proprietor of federal property has transferred to base a premise in economic conducting together with all property rights. That economic conducting allocates the owner as well with the rights of the proprietor, article #305 of the Civil code says also. The same article grants to the proprietor the right to obtain on demand the property from illicit possession by other person. Means, Kireev confirmed, the proprietor is the base, and Voentorg should it pay and move down.
However judge Panikar has ignored the contract fact between GKI and base, at all without having mentioned it in the decision. Remained without attention and 305 - I article GK. In general, TSBTI its requirements it has been refused.
but the claim of the shop to base has been satisfied, though and partially: the basic debt which the base has returned voluntary not to collect, but to oblige her to return 110 million rbl. of the benefit missed by shop and 16 million - as percent for using another`s money. The reference to article #395 GK about liability default though, according to lawyer Kireeva, obligations - that were just at Voentorga before TSBTI, rather the reverse thus became. But the court in the decision has simply bypassed this question, at all without having specified, at whom, before whom and what were obzatelstva. Thus the court order which was given out by Voentorgu, has been made in such a manner that has relieved it of tax payment. Not only that this sheet has been dated in the Saturday afternoon when courts do not work, it also was given out by Voentorgu for 45 days before the term put under the law.
and to all of us it is equal...
it is interesting that in ASMO appeal complaints consider the judge of the same judicial structure who made the decision in the first instance (it, truth, it is not forbidden by the law, but in other courts such practice have already refused). The complaint of Kireeva should consider assistant Panikar Irina Lokshina. But, as already told, it has found an occasion this complaint not to accept at all, datirovav thus the refusal backdating and having rejected simultaneously without any motives the petition of the lawyer for a delay of payment of the duty. Voentorg such delay why - that has received.
this very day other judge from this an alternating cast, Elena Voronina, has again refused to Kireevu a delay of payment of the duty, but soon ASMO`S appeal instance has cancelled this refusal. It was the first cancellation of the judicial certificate on the given case. Simultaneously with it FASMO recognised that Lokshina has unreasonably returned the complaint to the lawyer. It was the second cancellation.
then the stream of unsatisfied complaints began to grow, as a snow clod. And Kireev has submitted one more claim - about a recognition not subject to execution of the court order and about collecting of means with Voentorga in bezaktseptnom an order. It was accepted by Panikar, having charged consideration again Lokshinoj. That, as usual, has again refused, datirovav refusal again backdating, but also this refusal has been excellent as illegal.
However, judge Voronina too has refused acceptance of the claim on decided, according to the lawyer, to the bases, but it it already worried a little: in the beginning of September has taken place - taki session of appeal board under the chairmanship of Lokshinoj.
Then the court was limited only to decrease collected with TSBTI the sums on 16 million rbl., but g - n Kireev of another and did not expect. It has submitted the appeal in FASMO, simultaneously having asked to suspend execution of the decision on collecting of money from base. There already decisions of both instances (that is Panikar and Lokshinoj) have cancelled as unreasonable, having sent business on new consideration, but already to other structure of judges.
in the decision of judge FASMO leant against the same arguments on which Kireev insisted from the very beginning. Besides, it was specified and in the main remedial infringement at hearing of business in the two first instances: both vessels have not given an estimation to all proofs available in business. And without it it is impossible to solve a question on the one who from debaters of the rights and who is guilty. And in the decision it is especially noticed that in ASMO why - that have not taken into consideration real-life obligations of Voentorga to base and have not found out even character pravootnosheny between the parties. The lawyer has counted in this business not less than 12 infringements of Arbitrazhno - the remedial code, from - for what business, prevonachalno finding room in one folder, has swelled to four volumes. And Sergey Kireev asserts that it has faced for the first time that on one business (by the way, not so difficult) five judicial certificates have cancelled already. Kireev, which itself when - that was the arbitrator, asserts that within norm at judges it is considered two cancellations on hundred affairs.
but it has not strongly afflicted Irina Lokshinu - recently it has gone on increase, becoming the chairman of again created fourth judicial structure ASMO. Now it begins to pass on the experience to young judges.
and in the meantime Voentorg continues to occupy a premise which term of rent has expired already almost one year ago. Thus, as heads of base tell, its management not only does not pay rent, but has ceased to pay also and for utilities. G - n Kireev considers that so the tenant wants to teach a good lesson the lessor: the shop will move down, and municipal debts will leave to base.
MAXIM - STEPENIN