The claim “ Inkomservisa “ on 193 million
Secretary of plenum of the Supreme Arbitration Court has given yesterday motivirovannoe the decision under the claim of a commercial society “ Inkomservis “ to firm “ the Fax - M “ and Bytbanku on 193,4 million rbl. the claimant has listed This sum into the depositary account “ the Fax - M “ in Bytbanke as an advance payment for 90 cars of Volvo which and have not been put. The Moscow and higher arbitration courts made decisions on collecting of the sum of an advance payment with Bytbanka who has enlisted in infringement of the order of the Central Bank of Russia into the depositary account " three times; the Fax - M “ foreign means (193,4 million rbl.) And by that promoted their plunder by this firm. However court plenum has cancelled these decisions and has excluded Bytbank from among respondents.
In April, 1992 between a society “ Inkomservis “ and firm “ the Fax - M “ the contract on delivery of cars of Volvo has been concluded. “ Inkomservis “ has directed to the seller of 193,4 million rbl. of an advance payment. The commercial society has been assured that transfers money for the settlement account “ the Fax - M “ in Bytbanke. However it has appeared that in bank there is only a deposit “ the Fax - M “ on which the listed sum has got.
cars have not been put. “ Inkomservis “ the claim about advance payment collecting has brought an action, having specified as the respondent not only firm “ the Fax - M “ but also Bytbank. The claimant has shown to court the letter of Bytbanka guaranteeing payment under contracts " received by it; the Fax - M “. The claimant convinced court that similar guarantees are given by bank only to owners settlement, instead of the depositary account. Besides, Bytbank has resolved to the enterprise “ the Fax - M “ to direct money “ Inkomservisa “ to the partners whereas the order of the Central Bank of Russia from May, 22nd, 1991 it is forbidden to make from the depositary account payment for the goods and services to the third parties.
the Moscow arbitration court and supervising board of the Supreme Arbitration Court recognised arguments of the claimant lawful and have collected with Bytbanka in advantage “ Inkomservisa “ 193,4 million rbl. However this decision has been cancelled by the higher arbitration instance - court plenum. In the plenum decision it is underlined that the reason of occurrence of losses at the claimant are not actions of Bytbanka, and default by the counterpart of the claimant - the enterprise “ the Fax - M “ - contractual obligations. Bank, having enlisted 193,4 million rbl. into the depositary account “ the Fax - M “ Has broken the depositary contract with this firm and the mentioned order of the Central Bank. However for it to it measures " should be applied; not grazhdansko - legal, and it is administrative - legal responsibility “ (which - the Central Bank) should solve.
Plenum recognised that the judges considering this case, “ have wrongfully taken into consideration “ the letter of Bytbanka guaranteeing payment under contracts “ the Fax - M “ as in the contract there is no reference to the letter of guarantee, and in the letter the contract on which the bank guarantees payment is not specified. Meanwhile at absence in the contract of the creditor with the debtor of the reference to the letter of guarantee “ it is impossible to consider established the connexion on a guarantee “. Besides, to the reference with requirements to the guarantor the creditor is obliged to take measures on reception of money from the debtor.
plenum has excluded Bytbank from among respondents and has submitted the case to the Moscow arbitration court for collecting of the sum of the claim from firm “ Fax - M “ or its assignee.
EKATERINA - ZAPODINSKY