KEY MATTER IN DISPUTE
If a director, mortgaging real estate, forges shareholder's signature – who shall be liable for damages? Shall the sole shareholder be responsible for having chosen such an unreliable director, or shall it be the bank that failed to verify the signature on a forged document?
Asser OOO lacked RUR 10 million to complete construction of a shopping mall in Armavir, while banks refused to credit it. In 2009 Asser's director – Sergey Tereskin – informed the sole shareholder – Sergey Yelizaryants – that he borrowed the money from a friend of his – Oleg Gloushenko. Construction was resumed. But already in 2010 RosSelKhozBank (RSKhB) started claiming funds from Asser and Yelizaryants found out the truth. Gloushenko actually took a credit of RUR 55 million in his name on pledge of the uncompleted shopping mall. Tereskin helped him in documenting the pledge. Since major transaction required Yelizaryants' consent, they forged his signature. 10 million of the above 55 Tereskin transferred to Asser for construction. Gloushenko was not paying under the loan and went bankrupt, the bank went through debt recovery court proceedings (RUR 82 million with interest), and execution was levied over the mall and lease rights to the land under it (RUR 88 million).
Yelizaryants tried to rescue his real estate and contested mortgage as an immoral transaction (breaching the basics of the legal order and morale). By that time Tereskin was convicted for abuse of powers. Yelizaryants attached a copy of the ruling to his claim.
RSKhB insisted that mortgage shall be preserved: it did not know and shouldn't have known that the signature was forged. All documents were in place, director was a legitimate one elected lawfully. Besides that, Yelizaryants missed the statute of limitation period: performance of the mortgage agreement commenced in 2010, while his claim appeared in 2014.
RULINGS BY COURTS OF THREE LEVELS
Mortgage found void. The founder did not instruct anyone to pledge the mall, therefore damages to the company were caused by the director's actions – completion of an immoral transaction. Moreover, Yelizaryants’ signature looked obviously different from his usual ones. And this should have alerted bank's employees.
RULING BY SUPREME COURT
Sole shareholders usually appoint someone they trust as directors. Failure of such a trust is a risk of the shareholder, it may not be transferred on the bank. RSKhB acted in good faith, obtained full set of documents for the transaction, director was named in the state register. Mortgage itself does not threaten the basics of legal order and morale, and the transaction should have been interpreted to the benefit of preservation, not destruction.
Supreme Court rejected Yelizaryants' claims on holding the mortgage void. The only moral satisfaction for him was that Tereskin would stay in prison for long.
COMMENT BY S&K VERTICAL
This is one of the most high-profile cases on secondary liability of a controlling person of a truly unprecedented amount. Sergey Pougachyov was recognized as a controlling person despite the fact that he formally was neither a shareholder nor a top manager of the bank. In order to prove the actual control, the court had to examine numerous evidence, data and documents originating from foreign jurisdictions. All of the above confirmed that it was Pougachyov at the end of the structure.