Form of addition to the appeal. Addendum to the appeal

By a court decision, a civil case based on the claim of the plaintiff against the defendants for failure to interfere with the use of a home or land plot was denied. The plaintiff requests that the addition to the appeal be accepted for consideration, taking into account new evidence in this case. The plaintiff asks to cancel the court decision and send the claim to the court of 1st instance for re-examination with a different composition of the court.

To the Judicial Collegium for Civil Cases
Moscow City Court
_____________________________

Plaintiff: ___________________________________
__
tel. _____________________________

Defendants:
1. ______________________________
address: ___________________________
2. ______________________________
address: ___________________________

Addendum to the appeal against the decision of the ___________ district court of Moscow, civil case No. _________ dated __________ (judge ________________)
By the decision of the _____________ District Court of Moscow dated ___________ in civil case No. __________ on the claim of _______________ against ________________ and against ______________ for non-obstruction of the use of home ownership or land plot, the claim was denied.
The Moscow City Court is processing an appeal against the decision of the ___________ District Court of Moscow dated _____________ in civil case No.___________ on the claim of _______________ to ______________ and to ______________ for non-obstruction in the use of a house or land plot, which is scheduled for consideration on _____________ .
Since at the time of filing the appeal, responses to my requests had not yet been received from the Administration of the Podolsk municipal district of the Moscow region and the Administration of the settlement _____________ in Moscow, I ask you to accept for consideration the addition to the appeal, taking into account new evidence in this case.
In the summer of _____, _____________ fenced off plot No. ___ belonging to me with fences, destroyed the passages from public roads to my plot that previously existed according to the general development plan, and deprived me of access to the electricity and gas supply communications of the village.
Then he arbitrarily built up the previously existing driveways with sheds, depriving me of the opportunity to use the driveways for their intended purpose.
In return for the eliminated passages to my land plot, I was promised to be allocated a plot of land five meters wide on the right side of my plot for passage, despite the fact that the house and garage on my plot are located on the left.
There were no agreements on changing the check-in scheme with me, as the owner of the adjacent plot.
In accordance with Art. 554 of the Civil Code of the Russian Federation, in the absence of written data on agreement in the purchase and sale agreement, the conditions regarding real estate are considered inconsistent.
The plot of land left for me to travel through is located in the protected zone of military communication cables.
So in accordance with Art. 7 of the Federal Law of July 7, 2003 No. 126-FZ “On Communications”, communication networks and facilities are under state protection.
Also, in accordance with clause 48 of the Government of the Russian Federation of 06/09/1995 No. 578 “On approval of the rules for the protection of communication lines and structures of the Russian Federation” within security zones without the written consent and presence of representatives of enterprises operating communication lines and radio lines, legal and individuals are prohibited, including from arranging passages and parking for vehicles, tractors and machinery, transporting oversized cargo under the wires of overhead communication lines and radio lines, building canals (aryks), arranging barriers and other obstacles.
Documents confirming written agreement with the owner of the communication lines and permission to build a road and access to my site were not provided to me by ______________ and ____________, as well as the Administration of the Ryazanovskoye settlement.
Moreover, all permanent buildings are located on my land on the left, and even moving the gate and entrance to the right side will not provide adequate access to the house and garage.
In accordance with Art. 60 of the Land Code of the Russian Federation, the violated right to a land plot is subject to restoration, including in cases of unauthorized occupation of a land plot.
_____________ refuses to allocate land for the restoration of previously existing passages from public roads to my site. He does not want to restore the passages he destroyed.
The allocated _______________ plot with cadastral number _________________ is intended for improvement and landscaping of the territory.
Landscaping is a set of measures for the engineering preparation of the territory being developed to ensure the convenience and safety of its use, landscaping, construction of road surfaces, rain gutters, and lighting.
Regulatory documentation for the formation of this site, when transferring it into ownership and use for its intended purpose, are:
1. The general plan for the development of the new territory of the village of Molodtsy at the time of formation of the land plot with cadastral No. _____________ was not available in the Administration of the settlement ____________: see the letter of the Administration of the settlement ___________ No. __________ dated ___________.
2. Norms and rules for design, planning and territory development: MGSN 1.01-099; SNIP 21-01-97; VSN 62-91 and Territory Improvement Rules MGSN1.02; TSN 30-307-2002

Neither _____________ nor the Administration of the settlement _____________ take their existence into account when landscaping the territory.
The formation of this site was carried out confidentially under the guarantees of the head of the development ______________ in violation of the dimensions of the boundaries specified in the general. plan, as a result, part of the passages along the gene. plan along the border with my site was included in this site.
Neglecting the permitted use and purpose of the site with cadastral number ____________________, _________________ blocked the previously existing passages to my site from public roads with fences, destroyed these passages, eliminated the gate for entering my site from the utility driveway, removed the road surface as construction waste, and without permission built up the area that was previously under driveways with sheds, which contradicts the principle of territory improvement, where, during the engineering preparation of the area for improvement, all unauthorized sheds must be eliminated, and the driveways must be cleared and landscaped.
In accordance with Art. 35 of the Constitution of the Russian Federation, the right to private property is protected by LAW.
No one can be deprived of his property except by a court decision. Forced alienation of property for state and municipal needs can only be carried out subject to prior and equivalent compensation.

Article 11.2 of the Land Code of the Russian Federation No. 136-FZ of October 25, 2001. - Formation of land plots.
clause 4 - is allowed with the written consent of all land users, from whose plots, during division, merger, redistribution, land plots are formed in accordance with the law of July 24, 2002. No. 101-FZ. “On the turnover of agricultural land.”
Since the newly created site is formed in a built-up area, in accordance with the territory planning documentation, one should be guided by the urban planning code Article 46,
Necessary:
Article 46.2. Conclude an agreement with the Administration on the development of the built-up area.
clause 3. Prepare a project for the development of the territory under construction, carry out all necessary approvals, approve the project, and determine the timing of the work.
You should be guided by:
Article 11.9 of the RF Land Code No. 136-FZ dated October 25, 2001.
clause 4. The formation of land plots is not allowed if this leads to the impossibility of using the real estate located on them for their intended purpose.
clause 6 The formation of land plots should not lead to wedging, interspersing, broken boundaries, or the impossibility of using real estate.
Here, the lands allocated for passages to my site from public roads are unauthorizedly built up with _________________ sheds, making it impossible to use them for their intended purpose and contrary to the principle of improvement of the specified territory; during the engineering preparation of the improved territory, on the contrary, unauthorizedly built sheds must be eliminated, and In the territory freed from them, the previously existing passages were restored.

Registration of a land plot with cadastral number _______________ into ownership was also carried out with significant violations of the current legislation.
According to Part 1 of Article 37 of the Land Code of the Russian Federation, only land plots that have undergone state cadastral registration can be the object of purchase and sale.

Thus, in response to the application of _____________ No.____ dated ___________ to provide him with an additional plot of land for running a personal subsidiary plot, the head of the settlement Administration ___________ _______________ obliges ____________ in his resolution dated ____________, at his own expense, to carry out geodetic and topographical work in the organization which has a license for this type of activity.
At that time, the plot transferred into ownership by _____________ had neither a number according to the general development plan, nor a cadastral number. Its position on the ground was not determined.
Then, from ____________, Federal Law No. 221-FZ “On the State Real Estate Cadastre” was already in force.
In order to transfer into ownership ______________ a plot that previously did not have a cadastral number, in accordance with the requirements of land legislation, it was necessary to carry out cadastral work in accordance with Articles 39, 40 of the Federal Law of July 24, 2007. No. 221-FZ “On the State Real Estate Cadastre”.
In accordance with paragraphs 3, 4 of Article 1, State cadastral registration of real estate recognizes the actions of the authorized body to enter information about real estate into the state real estate cadastre. Cadastral activity is the performance by an authorized person (cadastral engineer) of real estate in accordance with the requirements established by this Federal Law, of work that results in the preparation of documents containing information about such real estate necessary for cadastral registration.
In accordance with subparagraph 2 of paragraph 1 of Article 22, the document necessary for cadastral registration is a boundary plan.
In accordance with paragraph 5 of Article 38, the graphic part of the boundary plan reproduces information from the cadastral plan of the corresponding territory or a cadastral extract about the corresponding land plot, and also indicates the location of the boundaries of the formed land plot, access to the formed or changed land plot (passage or passage from land plots of common use), including by establishing an easement.
In accordance with paragraph 9 of Article 39, the notice of a meeting to agree on the location of the boundaries must indicate:
1) information about the customer of the relevant cadastral work, including postal address and contact telephone number;
2) information about the cadastral engineer performing the relevant cadastral work, including his postal address, email address and contact telephone number;
3) cadastral number and address of the land plot in respect of which the corresponding cadastral work is being carried out, cadastral numbers and addresses of land plots adjacent to it (in the absence of addresses, information about the location of the land plots is indicated) or the cadastral number of the cadastral quarter within the boundaries of which the specified land plots are located ;
4) the procedure for familiarizing yourself with the draft boundary plan, the place or address where this project can be familiarized with from the day of delivery, sending or publication of the notice;
5) place, date and time of the meeting to agree on the location of the boundaries;
6) deadlines and postal address for the delivery or sending by interested parties of requests for coordination of the location of boundaries with the establishment of such boundaries on the ground and (or) in writing justified objections to the location of the boundaries of land plots after familiarization with the draft boundary plan.
In accordance with paragraph 11 of Article 39, when coordinating the location of boundaries, the cadastral engineer is obliged to:
1) check the powers of interested persons or their representatives;
2) provide the opportunity for interested parties or their representatives to familiarize themselves with the relevant draft boundary plan and provide the necessary explanations regarding its content;
3) indicate to interested persons or their representatives the location of the boundaries of land plots on the ground, subject to approval.
In accordance with Article 40, the result of coordination of the location of boundaries is drawn up by the cadastral engineer in the form of an act of coordination of the location of boundaries on the back of the sheet of the graphic part of the boundary plan. The location of the boundaries of the land plot is considered agreed if the act of agreeing on the location of the boundaries contains personal signatures of all interested persons or their representatives. Disputes that are not resolved as a result of agreeing on the location of boundaries, after drawing up an act of approval of boundaries, are resolved in the manner established by the Land Code of the Russian Federation.
In this case, the boundary plan was not submitted for approval. Moreover, no authorized cadastral engineer made any approvals of the boundaries of the location of the plot with cadastral number __________________ in my presence.
No documents confirming the fact of cadastral work were presented, nor were they requested by the court.
The act of approving the boundaries of the site with the cadastral number _____________________.
In accordance with Art. 39, 40 of the Federal Law of July 24, 2007. No. 221-FZ “On the State Real Estate Cadastre”, in accordance with subparagraph 2 of paragraph 1 of Article 22, the document required for cadastral registration is a boundary plan.
The appeal ruling of the Moscow City Court dated ____________ established that there was no boundary plan on the reverse side of the boundary approval act at the time of its signing. Moreover, the act of border approval in accordance with paragraph 9 of Article 39 does not indicate:
Name of the organization that carried out the cadastral work
Time and place of cadastral work
Information about the cadastral engineer who carried out the cadastral work
There must be an authorized person's signature and seal
That is, there is no information required in accordance with paragraphs 39.40 of Federal Law No. 221-FZ of July 24, 2007. "On the state real estate cadastre."
Since no cadastral work was carried out on the plot with cadastral number ___________________ until the act was signed with the owners of adjacent plots, this information is not included in the boundary approval act.
In addition, according to the appeal ruling of the Moscow City Court dated _____________, the border approval act dated _____________ does not contain cadastral numbers:
Owners of plots adjacent to a plot with a cadastral number with the agreed plot ____________________.
Cadastral number of the main plot _________________
Cadastral number of the agreed plot ______________
There is only a cadastral number for the plot _________________, located at the address: __________________________________, which was already registered at that time in the cadastral register since ______, and had a different area, namely ______ sq. m. m, another purpose, namely for the production of agricultural products, due to its size and purpose, which did not have common borders with the plot belonging to me No.___ under gene. development plan.
________________ ____________ received my signature in the act of approving the boundaries of the site with the cadastral number fraudulently, because he did not provide the graphic part of the boundaries of the boundary plan for approval.
In the absence of a graphic part of the boundary plan, it is impossible to identify either the location of the agreed site, or its dimensions, or the boundaries with neighboring sites.
Therefore, I withdraw my signature.
Thus, from the letter of the Administration of the Podolsk municipal district of the Moscow region dated ___________, No. __________, it follows that the formation of a land plot in the village of Molodtsy with cadastral No. ________________ was carried out by the Administration of ____________ rural district on the basis of a previously developed master plan for this part of the settlement, which was adopted as a basis for the provision of land plots and putting them up for auction (by resolution of the head of the Administration of _____________ rural district ______________ with subsequent publication in the newspaper "________________" dated ______________).
According to the state cadastral registration, a land plot with cadastral number _______________, owned by ______________, was formed in violation of the boundaries specified in the general plan, as a result, part of the driveways according to the general plan, including along the border with my site, was included in the composition of this area.
The letter of the Administration of the settlement ___________ in Moscow No. ____________ dated ___________ explains that at the time of the transaction the Administration of the settlement ____________ no longer had the authority to dispose of land plots, therefore the documents for the transfer of the plot with cadastral No. ______________ into the ownership of ____________ in the Administration of the settlement ___________ are missing.
Also, by letter No. __________ dated ____________, the administration of the settlement ____________ explains that at the time of the transaction they did not have a master plan for the development of the village of Molodtsy.
When preparing a package of documents by the Administration of the settlement ____________ (in accordance with the resolution of the Administration of the Podolsky District of the Moscow Region No.____ dated ___________) for the registration of a land plot with cadastral number _______________ in the ownership of the Administration of the Podolsky District of the Moscow Region instead of carrying out cadastral survey work for cadastral registration a newly formed site that had neither a number according to the general development plan of the territory, nor a specific location on the ground, nor a location on the cadastral plan in accordance with the Federal Law of July 24, 2007. No. 221-FZ “On the State Real Estate Cadastre” there was a substitution of documents for plot No. _______________, which has an area of ​​________ sq. m. m, for documents of a plot with cadastral number ______________, which was already registered in the cadastral register since _____, and had a different area, namely ________ sq. m. m, intended for agricultural production, and not having any encumbrances, as well as boundaries with my land plot.
From the letter dated __________, No. _________ to the Administration of the settlement ___________ in Moscow, it is clear that plots with cadastral numbers _____________ and _____________ are two different plots.
They are united only by their location. They have different areas, different encumbrances, different purposes, different permitted uses.
Both of them were located at: _________________________.
The area of ​​the plot with cadastral number ______________ is _______ square meters.
The area of ​​the plot with cadastral number ______________ is ________ square meters. At the present time and at the time of registration of ownership of plot No. _____________, plot No. _____________ had already been removed from the cadastral register since ____________.
That is, the areas of these areas differ by more than 70 times, and accordingly, these areas have different lengths of boundaries.
It follows from this that the act of agreeing on the location of the boundary boundaries of a plot with cadastral No. _____________ cannot in any way be used as an act of coordinating the location of the boundary boundaries of a plot with cadastral No. ______________.

As a result, based on the data on the approval of the boundaries of the plot with cadastral number ________________, submitted by the Administration of the settlement __________ without carrying out cadastral boundary work in accordance with Art. 39, 40 of Federal Law No. 221-FZ of July 24, 2007. “On the State Real Estate Cadastre” to the Administration of the Podolsk District of the Moscow Region, by resolution No. _____ dated _____________ of the Administration of the Podolsk District of the Moscow Region, the layout of the plot with cadastral number ______________ with an area of ​​_____ sq. was approved. m, as a site intended for the production of agricultural products, which does not have any encumbrances in use.

I have the following complaints and comments regarding the purchase and sale agreement dated _____________.
1) clause 3. There is no information about the encumbrances of the plot being sold, although it is cut on public lands that were under roads and existing communications for more than 10 years at the time of sale, and this is confirmed by the Administration of the settlement ____________ with subsequent publication in the newspaper “_____________” dated ____________.
2) clause 3.1. The land plot is not burdened with the rights of 3 persons. Although engineering and transport communications had already had an owner for more than 10 years by the time the plot with cadastral number _____________ was sold.
3) clause 5.2. He is not listed in the dispute or under arrest. How does it not appear if the case is about a dispute over this plot from _____, i.e. from the moment when ____________ fenced off my site with fences and cut me off from roads and existing communications, is in the ___________ District Court of Moscow and the Moscow City Court.
4) clause 5.3. Responsibility, rights and obligations of the parties: We are familiar with the contents of Articles 167, 209, 223, 260, 433, 551, 556 of the Civil Code of the Russian Federation.
Actions that violate the land rights of citizens and legal entities or create a threat of their violation can be suppressed by, inter alia, restoring the situation that existed before the violation of the right and suppressing actions that violate the right or create a threat of its violation.
I believe that the illegal actions of ______________ and ______________ violated not only my civil and land rights, but also the rights guaranteed to me by the Constitution of the Russian Federation, in terms of freedom to use the property that belongs to me.

Based on the above and guided by Articles 131,132 of the Code of Civil Procedure of the Russian Federation

1. I ask you to cancel the decision of the __________ District Court of Moscow dated _____________ No. __________, chaired by Judge __________, and send the claim to the court of 1st instance for re-examination with a different composition of the court.

Application:

1. Response to my claim from the Settlement Administration __________ No.__ dated ___________ and No.__ dated ____________.
2. Response to my complaint from the Administration of the Podolsk District of the Moscow Region

____________________ _________________

(downloads: 298)

We use THREE types of appeals, each of which has its own separate task:

Objectives of this document:

Why might it be necessary to supplement the appeal? Not everything is as obvious here as it seems at first glance. There can be TWO goals.

Tactical goals of an additional complaint:

a) The first goal, “lying on the surface”, is simply to supplement the main complaint; after filing the main complaint, you need to reflect a thesis in more detail / managed to obtain new data (documents, etc.).

b) The second goal, NOT obvious, is to make it difficult for opponents to prepare for the “battle.” When you have submitted a complaint to the court, the process begins processing ".

During this process, your adversaries will receive a copy of your underlying complaint.

They will become familiar with it;

Calmly, without time pressure, prepare for the court hearing.

This preparation can be made difficult for them!

According to Part 4 389.8 Code of Criminal Procedure"4. An additional appeal or presentation is subject to consideration if it is received by the appellate court no later than 5 days before the start of the court hearing ".

Pay attention to TWO important aspects:

a) The convicted person (his defense) can submit an addition almost at the last moment - 5 days before the court hearing. During this period it is impossible to send copies of the additional complaint to other parties. This means that the enemy will have the opportunity to familiarize himself with your additions at the very last moment. He will be deprived of the opportunity to calmly prepare to parry your new arguments.

b) The prosecution is deprived of the opportunity to supplement the requirements to worsen the situation of the convicted person.

Procedure for filing an additional complaint

We file the main complaint.

We are waiting for us to be notified of the date of the court hearing.

We submit the complaint to the court no later than 5 days before the start of the hearing. (Important - don’t get confused, it’s not the court that passed the verdict, but directly to the appellate court).

The formal requirements for an Additional Complaint are similar to the requirements for the Main Complaint (specified in Part 1 389.6 Code of Criminal Procedure). (Exception: in an additional complaint there is no need to provide " arguments, indicating the grounds provided for389.15 UpK", since you have already indicated this in the main or preliminary complaint).

Tactic option: “save” part of the arguments for the court hearing

WARNING: This technique is dangerous, do not try it without a lawyer:

It is necessary to distinguish an additional appeal from “additional materials”; these are not identical terms.

How to submit additional materials for an appeal

3032

• Themes:
• Appeal, cassation, supervision
• Complaint

Answers to questions from appellate judges about additional appeals and additions to complaints.

Additions to the complaint are filed by a new lawyer

In the court of first instance, the interests of the defendant were represented by one lawyer, who filed an appeal, but an agreement with him for his participation in the court of second instance was not concluded. During the consideration of the case in the appellate court, another lawyer entered the case and filed additions to the appeal in the interests of the convicted person. But he submitted them in violation of the deadlines provided for in Part 4 of Art. 389.8 of the Code of Criminal Procedure of the Russian Federation (5 days). Is the appellate court required to accept co-counsel's additions to the appeal?

The answer to this question needs to be divided into several parts. It is necessary to find out whether the defense lawyer who has entered the case again is the proper entity authorized to file an additional appeal if he did not participate in the trial court and did not file the initial complaint?

Within the meaning of Part 1 of Art. 389.1 of the Code of Criminal Procedure of the Russian Federation, which regulates the right to file an appeal in the generic sense, that is, both the main one - the initial one, and the additional one, the defense attorney is given the right to file an appeal. Consequently, the question of the moment when such a right arises for the defender is resolved on the basis of Part 4 of Art. 49 of the Code of Criminal Procedure of the Russian Federation, according to which a lawyer is allowed to participate in a criminal case as a defense attorney upon presentation of a lawyer’s certificate and a warrant.

The Constitutional Court of the Russian Federation proceeds from the fact that the performance by a lawyer who has a warrant of the procedural duties of a defender cannot be made dependent on the discretion of the official or body in charge of the criminal case, based not on the circumstances listed in the Code of Criminal Procedure of the Russian Federation, which exclude the participation of this lawyer in in fact.

Consequently, after concluding an agreement with the convicted person, the lawyer receives the right to file an appeal, including an additional one.

An additional complaint was filed with the court of appeal in violation of the deadline

Another question: what to do with an additional appeal filed directly to the appellate court and in violation of the deadline of 5 days?

If we are talking about an additional complaint, in which new demands are put forward in comparison with the main complaint, then the appeal has the right to leave it without consideration as filed later than 5 days before the start of the meeting. If in the complaint the lawyer indicated only additions to the main complaint, presented only additional arguments and arguments, then they can be accepted by the court even outside the 5-day period, since he can present such arguments orally at the appeal hearing.

Compliance with the requirements of Part 1 of Art. 389.3 Code of Criminal Procedure of the Russian Federation

Finally, the question arises of compliance with the requirements of Part 1 of Art. 389.3 of the Code of Criminal Procedure of the Russian Federation, according to which an appeal or presentation is brought through the court that decided the verdict or made another appealed decision. How should the appellate court act after receiving an additional complaint that was not sent to the parties by the court of first instance, for which there is no information about providing the parties with a period for filing objections to it? The court must return the case and the additional complaint to the court of first instance to comply with the requirements of Art. 389.7 of the Code of Criminal Procedure of the Russian Federation or send a complaint to the parties independently?

There are two possible options. First: if an additional complaint was received directly by the appellate authority, that is, in violation of the general procedure, the appellate court returns it according to the rules of Part 3 of Art. 389.8 of the Code of Criminal Procedure (as filed by a person not entitled to do so). Let us recall that an additional complaint can be submitted to the appellate court only according to the general rule of Part 1 of Art. 389.3 of the Code of Criminal Procedure of the Russian Federation, that is, through the court that decided the verdict, it issued a different appealed decision. After all, an additional complaint is a type of complaint.

However, from the point of view of the priority of protecting individual rights (Article 2 of the Constitution of the Russian Federation), another option is more preferable. The appellate court does not return the complaint, but itself ensures the rights of the parties to familiarize themselves with its text. This decision is based on Part 4 of Art. 389.8 Code of Criminal Procedure of the Russian Federation. It contains a special rule that allows for the filing of an additional appeal directly to the appellate court.

To the Ninth Arbitration Court of Appeal

127994, Moscow, Solomennaya Storozhki passage, 12

Respondent (applicant): B

A third party who does not make independent claims regarding the subject of the dispute: B

Addendum to the appeal
on the decision of the Moscow Arbitration Court

The Moscow Arbitration Court made a decision in the case of the recovery from B in favor of A of a penalty for improper fulfillment of obligations under an agreement for the supply of petroleum products in the amount of 1,045,847.11 rubles; The state duty amounted to 20,363.11 rubles.

In accordance with Article 270 of the Arbitration Procedural Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation), the grounds to change or cancel decisions of the arbitration court of first instance are:

1) incomplete clarification of circumstances relevant to the case;

2) failure to prove circumstances relevant to the case that the court considered established;

3) discrepancy between the conclusions set out in the decision and the circumstances of the case;

4) violation or incorrect application of substantive law or procedural law.

When considering the case in the arbitration court of first instance, the following violations occurred: incomplete clarification of circumstances relevant to the case and failure to prove circumstances relevant to the case that the court considered established.

I . Due to the fact that the debtor was not provided with evidence of the transfer of the claim to a new creditor, it is legal to charge a penalty until February 19, 2009.(Calculation of the amount of the penalty in Appendix No. 1).

In accordance with section 12 of the Agreement “Details of the parties”, the notice of assignment (with evidence of transfer of the claim to the new creditor) had to be sent to both specified addresses of the buyer:

Legal address 649007, Altai Republic, Gorno-Altaisk, st. Lenina, 199

Actual address 625000, Tyumen, st. Chelyuskintsev, 29.

The location of a legal entity is determined by the place of its state registration (clause 2 of Article 54 of the Civil Code of the Russian Federation).

B sent notification of the completed assignment of the right of claim under the Agreement only to the actual address of the buyer. The defendant did not receive the notice at the actual address; the envelope was returned to the plaintiff’s address with the mark “expired.”

The notification was not sent to the legal address (there is no evidence of sending in the case materials). In this regard, the debtor (B) did not receive evidence of the transfer of rights of claim to the new creditor (A). This fact is confirmed not only by the inventory of the attachment with a postal mark, but also by the official correspondence of the parties, in particular by the objection to claim A ref. No. 243 dated May 28, 2009.

In accordance with Article 385 Civil Code of the Russian Federation debtor has the right not to fulfill an obligation new creditor before providing him with evidence of the transfer of the claim to this person. A creditor who has assigned a claim to another person is obliged to transfer to him documents certifying the right of claim and provide information relevant to the implementation of the claim.

According to clause 3 of Art. 406 of the Civil Code of the Russian Federation on a monetary obligation, the debtor is not obliged to pay interest during the creditor’s delay.

This position is confirmed in arbitration practice. Resolution of the Federal Antimonopoly Service of the North-Western District dated April 24, 2007 in case No. A21-2960/2006:

The court found that SME Rossban LLC was not notified of the assignment of the right of claim when concluding the assignment agreement.

LLC SME "Rossban" learned about the assignment of the claim when it received from LLC "IK" a statement of claim for the recovery of the loan amount, the right to claim which was transferred to the plaintiff under the assignment agreement dated 03/09/2004. However, this is not proper execution of the debtor’s notice of the transfer of the right of claim against him on the basis of an assignment agreement, as was reasonably indicated by the court of appeal.

In accordance with paragraph 3 of Article 382 of the Civil Code of the Russian Federation, if the debtor was not notified in writing of the transfer of the creditor's rights to another person, the new creditor bears the risk of the adverse consequences caused by this for him. In this case, the fulfillment of the obligation to the original creditor is recognized as fulfillment to the proper creditor.

By virtue of paragraph 3 of Article 405 of the Civil Code of the Russian Federation, the debtor is not considered to be in default until the obligation cannot be fulfilled due to the creditor’s delay.

It is worth noting that the defendant made an independent calculation penalties (Appendix No. 1), according to which the maximum amount of the penalty is 1,489,768 rubles. 70 kopecks. However, according to the plaintiff, the amount of the penalty is 2,091,694 rubles. 23 kopecks... which is significantly different from counter-calculation. The amount of the penalty received by the plaintiff exceeds the defendant’s data by 601,925 rubles. 53 kopecks, and therefore is incorrect and subject to revision.

II . Delivery according to delivery note No. 4333 dated 08/03/2008 for RUB 3,054,661.60. took place outside the scope of the Treaty , since there is no annex to the agreement in which the essential terms of the supply agreement are agreed upon: name, quantity, delivery conditions and price of the product batch (according to clause 1.2 of the Agreement).

According to clause 1.2 of the Agreement, the name, quantity, delivery terms, payment terms and price of each batch of products to be supplied are agreed upon by the parties in the appendices for each product delivery period.

The claims and demands of the claim were based on obligations to pay for goods in accordance with Annexes No. 7 of 08/06/2008, No. 9 of 08/19/2008 and No. 10 of 09/11/2008.

Appendices No. 7, 9, 10 agreed on the terms of delivery of stable gas condensate. Summer diesel fuel was not the subject of supply under the Agreement.

Delivery according to consignment note No. 4333 dated 08/03/2008 was not agreed upon by the parties in a separate annex to the contract.

Thus, the liability provided for in the Agreement is not applicable to delivery under the specified delivery note. The specified delivery note is a one-time purchase and sale agreement. For late payment there is liability in accordance with Art. 395 of the Civil Code of the Russian Federation.

Qualifying a bill of lading as a one-time sales contract allows reduce the penalty by 59,749.93 rubles.(according to the plaintiff's calculations).

III . The defendant petitions for the application of Article 333 of the Civil Code of the Russian Federation.

The defendant may petition to reduce the amount of the penalty as disproportionate on the basis of Art. 333 of the Civil Code of the Russian Federation. In accordance with Art. 333 of the Civil Code of the Russian Federation, if the penalty payable is clearly disproportionate to the consequences of breach of obligation, the court has the right to reduce the penalty.

The penalty presented for collection is 36.5% per annum, while the refinancing interest rate applied when calculating interest for the use of other people's funds, from February 24, 2010, is 8.5% ( Directive of the Bank of Russia dated February 19, 2010 No. 2399-U “On the amount of the refinancing rate of the Bank of Russia”).

In paragraph 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6 and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 of 01.07.1996 “On some issues related to the application of part one of the Civil Code of the Russian Federation” it is indicated that when deciding on the reduction of the penalty, it is necessary to have in view that the amount of the penalty can be reduced by the court only if the penalty payable is clearly disproportionate to the consequences of the violation of the obligation. When assessing such consequences, the court may take into account, among other things, circumstances that are not directly related to the consequences of breach of obligation (price of goods, work, services, amount of the contract, etc.).

According to paragraph 2 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 14, 1997 No. 17 “Review of the practice of application by arbitration courts of Article 333 of the Civil Code of the Russian Federation,” the criteria for establishing disproportionality in each specific case may be: an excessively high percentage of the penalty; a significant excess of the amount of the penalty of the amount of possible losses caused by violation of obligations, the duration of non-fulfillment of obligations, etc.

The Determination of the Constitutional Court of the Russian Federation dated December 21, 2000 No. 263-O states that the opportunity given to the court to reduce the amount of the penalty if it is excessive compared to the consequences of violation of obligations is one of the legal methods provided for in the law that are aimed against abuse the right to freely determine the amount of the penalty, i.e., essentially, to implement the requirements of Part 3 of Art. 17 of the Constitution of the Russian Federation, according to which the exercise of human and civil rights and freedoms should not violate the rights and freedoms of other persons. That is why in part 1 of Art. 333 of the Civil Code of the Russian Federation we are not talking about the right of the court, but in essence, about its responsibilities to strike a balance between the measure of responsibility applied to the violator and the assessment of actual (and not possible) damage caused as a result of a specific offense.

Taking into account the above, as well as the circumstances that the amount of the principal debt was repaid in full by the defendant on 05/04/2009, which is not denied by the plaintiff, and the claim for the collection of the penalty was filed much later, the amount of the penalty to be collected should be reduced in proportion to the consequences of the violation of the obligation.

IV . According to Art. 404 of the Civil Code of the Russian Federation, if non-fulfillment or improper fulfillment of obligations occurred through the fault of both parties, the court accordingly reduces the amount of liability of the debtor. The court also has the right to reduce the amount of liability of the debtor if the creditor intentionally or negligently contributed to an increase in the amount of losses caused by non-performance or improper performance, or did not take reasonable measures to reduce them.

The plaintiff and the former creditor (B) did not take proper measures to properly notify the defendant about the assignment of the rights of claim, which contributed to an increase in the amount of the penalty and made it impossible to negotiate the settlement of the debt between the debtor and the new creditor.

According to Art. 401 Civil Code of the Russian Federation, a person who fails to fulfill an obligation or fulfills it improperly is liable in the presence of guilt (intention or negligence), except in cases where the law or contract provides for other grounds for liability.

V . There was an abuse of rights on the part of the plaintiff.

In accordance with Article 10 of the Civil Code of the Russian Federation, actions of citizens and legal entities carried out solely with the intention of causing harm to another person are not allowed, as well as abuse of rights in other forms. If these requirements are not met, the court, arbitration tribunal or arbitration tribunal the court may refuse to protect a person's rights.

According to clause 3 of Art. 382 of the Civil Code of the Russian Federation, if the debtor was not notified in writing about the transfer of the creditor’s rights to another person, the new creditor bears the risk of the adverse consequences caused by this for him. In this case, the fulfillment of the obligation to the original creditor is recognized as fulfillment to the proper creditor.

B sent notification of the completed assignment of the right of claim under the Agreement only to the actual address of the buyer. No notification was sent to the legal address. In this regard, B did not receive notice of the assignment of the right of claim that took place on February 19, 2009, which did not allow the debt repayment issues to be resolved with the new creditor.

An agreement dated April 24, 2009 was concluded between B and the previous creditor (B), which provided for the repayment of part of the debt in the amount of RUB 1,277,998. by transferring funds, during which The parties do not have the right to make any claims, including for the recovery of penalties.

B and A are interested in disapproval of the above transaction, since the former creditor and the new creditor have one sole executive body - the general director _______, and a similar composition of founders.

B duly fulfilled her obligations to the former creditor, the former creditor accepted the performance, refusing to collect the penalty under the contract.

The new creditor accepted what was performed under this agreement, but, abusing his right, turned to B to collect the penalty. The essence of the abuse of right on the part of the plaintiff is that the plaintiff, represented by the sole executive body, accepted the execution as the previous creditor, but in violation of the agreement reached by the parties, applied for the recovery of a penalty.

Based on Art. 257, 260, 269, 270 Arbitration Procedure Code of the Russian Federation,

ASK:

1. The decision of the Moscow Arbitration Court is cancelled.

2. Redistribute the costs of paying state duty between the parties.

3. Adopt a new judicial act in the case.

Application :

1. Calculation of the penalty - on 1 sheet.

2. 1 Documents confirming the direction of the addition to the appeal to the plaintiff and a third party who does not make independent claims regarding the subject of the dispute - on 6 sheets.

3. Power of attorney of the representative of the defendant (applicant) (copy) – 1 sheet.

Representative B