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The Supreme Court considered that the conclusion of a subcontract agreement does not in itself entail the inclusion of rights from it in the subject of pledge under a contract agreement (Decision No. 303-ES18-7751 (4) of May 28, 2020 in case No. A59-2230 / 2015 ) In August 2014, the municipal government institution of Yuzhno-Sakhalinsk “Capital Construction Department” entered into a work contract with CJSC Sakhalin Installation Department “Dalenergomontazh” named after G. A. Yuzefovich ”, which undertook to reconstruct and build distribution electric networks.

In November 2014, the installation department attracted a subcontractor - JSC Elektroshchit Group of Companies - TM Samara - to carry out part of the work, and at the end of December of the same year took a loan from Rosselkhozbank to finance its costs under the municipal contract. The fulfillment of obligations to the bank was ensured by the agreement on the subsequent pledge of property rights under the municipal contract.

The Agricultural Bank was pledged to the existing and future property rights of the contractor under this contract: the right to receive the cost of work, as well as penalties for late payment and compensation for any expenses that the mortgagor may incur under the municipal contract.

In June 2015, a monitoring procedure was introduced with respect to the installation management, and on May 18, 2017, the AS of the Sakhalin Region declared it bankrupt. Back in October 2015, the bank's claims on principal, interest and interest in the total amount of 207 million rubles. were included in the register as secured by a pledge.

When in December 2018, the debtor’s claim for the recovery of 44 million rubles from the Electroshield Group of Companies - TM Samara JSC was satisfied. of an unspent advance payment under a subcontract, disagreements arose between the Russian Agricultural Bank and the bankruptcy trustee on the procedure for distributing this money.

The Bank believed that since the subcontract was concluded as part of and in fulfillment by the debtor of the obligations under the municipal contract, the property rights of which are pledged, the unpaid advance collected from the subcontractor is also subject to the pledge regime. Accordingly, Rosselkhozbank said that 95% of this amount should be given to him, and the remaining 5% should be spent on paying off current expenses. The arbitration manager, on the contrary, considered that this amount was not encumbered with a pledge and should be distributed in accordance with Art. 134 of the Bankruptcy Law, that is, first of all, to repay the claims of creditors on current payments.

When resolving disagreements in favor of the bankruptcy trustee, the first and appellate courts were guided by art. 336, 339, 358.1, 358.3 of the Civil Code and came to the conclusion that the mortgage regime does not apply to the requirements of the subcontractor in the bank, since the subject of the mortgage agreement is the property rights of the debtor-mortgagor to receive payments from the municipal customer in connection with the fulfillment of contractor obligations under the municipal contract , and the property rights of the contractor under the subcontract are not included in the subject of this pledge agreement.

However, the district court found these findings erroneous, since it follows from the terms of the subcontract that it was concluded as part of and in fulfillment of obligations under the municipal contract. That is, the right of demand from the counterparty-subcontractor arose from the contractor in connection with the conclusion of a municipal contract, property rights under which are pledged to the bank, the cassation instance explained.

The debtor and the subcontractor, to whom the installation department had current payment arrears in the amount of more than 100 million rubles, filed a cassation appeal with the Judicial Collegium for Economic Disputes of the RF Armed Forces. She, having analyzed the positions of lower instances, came to the conclusion that the AC of the Far Eastern District had no reason to make a new decision on the case.<...>

According to Stanislav Shibulkin, lawyer of the bankruptcy branch of the VEGAS LEX law firm, the conclusion of the Supreme Court that the subject of the pledge agreement was property claims arising from the municipal contract without any indication of the subcontract, is legitimate. “The bank’s pledge does not automatically apply to claims arising from a subcontract, although the latter was concluded in order to fulfill obligations under a municipal contract,” the expert emphasized.

The position of the Armed Forces will serve as a guideline for lower courts when considering determining the right of pledge of bankruptcy creditors to property rights of the debtor and the fair distribution of funds received under such rights between bankruptcy creditors, Stanislav Shibulkin is sure.

“The conclusions of the Supreme Court will also contribute to a more attentive attitude of banks to determining the subject of a pledge agreement in order to obtain a collateral advantage not only in terms of property requirements under the main contract, but also in other obligations of the pledger aimed at fulfilling the contract,” he said.

You can find the full version of the article here: https://www.advgazeta.ru/novosti/zalog-prav-po-dogovoru-podryada-ne-rasprostranyaetsya-na-prava-iz-s...