Key issue in the case at hand: can one recover damages from a shareholder which it caused when blocking the company’s activity by interim measures in course of litigation?
VolgoStal'Montazh MPP AO claimed RUR 1.9 million from its shareholder – Evgeny Zakharkin, who deferred payment of about RUR 50 million to a creditor. In order to settle the debt, the company approved additional issue of shares, and only Zakharkin was against it. He appealed the decision made by the general meeting. Upon his request, the court banned additional issue of shares while proceedings were pending. The case ended up in Zakharkin’s favor, but the time for debt repayment was lost: VolgoStal'Montazh MPP AO had to pay RUR 1.9 million as interest for the delay. It is this amount that the company decided to recover from its shareholder.
RULING BY THE COURT OF APPEAL
The court decided that an obligation to pay interest does not relate to interim measures under a corporate dispute. The company had other means to settle indebtedness.
RULING BY CASSATION COURT AND SUPREME COURT
The courts partially granted the claim. Application for provisional measures as such may not be treated as a wrongdoing, even if claims are later held unfounded. But the claimant shall bear the risk of negative consequences of his procedural actions (s. 2 Article 9 of Arbitrazh Procedure Code). And since Zakharkin’s claim was unfounded he shall pay for the damages.
COMMENT BY S&K VERTICAL
A claim for interim measures as part of litigation, even being a right of the claimant, may have negative property-related impact for the respondent. And those shall be compensated. This was the court’s position in the given case founded on Article 98 of Arbitrazh Procedure Code and general provisions of the Civil Code on tort (Article 1064). The courts were also guided by the line of reasoning pronounced by the Economic Chamber of the Supreme Court under another case (№ А53-1835/2015). It stated that damages shall be recovered disregarding the fault. And the fact that applying for interim measures is not prohibited by the law makes no difference.