With the initiation of bankruptcy proceedings in court, an insolvent company (hereinafter - the Debtor) represented by the Director is obliged to provide the court and the temporary Manager with information about their financial and economic activities and access to the documentation within three business days from the date of the temporary Manager. After the court makes a decision on the recognition of bankruptcy, the Debtor is obliged to transfer to the temporary Manager the rights to manage the property and affairs of the company, and all the documentation. For failure to provide information and documents, in case of insufficient property of the Debtor to satisfy the requirements of all creditors, the Director bears subsidiary liability for the debts of the company.
Circumstances of the case
In this case, the Director of the Debtor provided the temporary Manager with a full archive of documents, but neither the temporary bankruptcy manager nor the subsequent one provided the accounting base 1C (an unloading was provided for the last three years that did not contain information), and therefore the bankrupt manager was unable to decrypt Debtor's financial statements and analyze them taking into account the provided archive of documents.
The manager of the Debtor did not provide an answer to the notifications of the bankruptcy manager about the provision of the 1C accounting program with data three years before bankruptcy.
The trial in the court of first instance
In order to fulfill his obligations under the bankruptcy procedure, the bankruptcy manager formed and sent a lawsuit to the court to bring the head to subsidiary liability for the debts of the Debtor.
During the consideration of the case in the court of first instance, the Director of the Debtor provided the accounting program 1C, about which he informed the court. As a result, the court refused to satisfy the requirements of the bankruptcy manager regarding bringing the Director of the Debtor to subsidiary liability, reasoning that the defendant complied with the bankruptcy manager's requirement to provide the necessary information and 1C accounting program, and therefore there are no grounds for bringing the head to subsidiary liability. The court found the bankruptcy manager's arguments about the late transfer of the 1C accounting program to be insignificant.
Collection of receivables
Having received the accounting program 1C, the bankruptcy manager established the debtors of the Debtor and sent to the court the relevant claims for the recovery of receivables. To which the debtors in court announced the expiration of the limitation period. As a result of the expiration of the limitation period, the court refused the claims of the bankruptcy manager.
It is important that the statute of limitations expired during the bankruptcy proceedings, in other words, if the Director of the bankrupt timely submitted the 1C accounting program, the receivables would be recovered and the proceeds sent to the creditors.
Consideration of the case in the court of appeal
In parallel with the lawsuits in the collection of receivables from debtors, the bankruptcy manager sent an appeal against the decision of the court of first instance on the refusal to bring the Director of the Debtor to subsidiary liability. The main arguments of the bankruptcy manager for canceling the decision of the court of first instance were the untimely transfer by the head of the Debtor of the accounting program 1C, as a result of which the limitation period for suing the debtors of the Debtor expired. The evidence was the court ruling on the refusal to collect receivables, on the basis of the expiration of the limitation period.
The board of appeal, after hearing the arguments of the bankruptcy manager and the head of the Debtor, did not agree with the conclusions of the court of first instance that the Director of the Debtor complied with the bankruptcy manager and there was no longer any reason to be subsidized, and also indicated that a specific term was provided for by the law during which the Director of the Debtor is charged with providing access, namely within three business days from the date of appointment of the temporary Manager.
As a result, the appellate court quashed the decision of the court of first instance and brought the Director to subsidiary liability for the entire amount of the debtor's outstanding debt.