“If you listen to the plaintiff, one gets the impression that one side is white and fluffy, and the bank is some kind of unscrupulous side that forced them to subscribe to these conditions,” Denis Khairullin, a lawyer at the Bank of Kazan, responded to the claims of PSO Kazan on Tuesday. The construction company filed a claim with the bank for 250 million rubles for allegedly unfairly withheld a penalty on a bank guarantee. The credit institution not only disagrees with the requirements – it filed a counterclaim for 843 million on the balance of the accrued penalty. Ravil Ziganshin’s firm is now complaining about the initially “undemocratic” terms of the agreement with the bank. Details – in the material “BUSINESS Online”.
Ziganshin wants to sue 250 million from the Bank of Kazan
The story began in July 2018, when PSO Kazan, honored builder of Russia and Tatarstan Ravil Ziganshin, received a state contract for the reconstruction of 10 km of the M7 highway in the Innopolis area, the amount of the contract was 4.1 billion rubles. In December 2021, the customer, FKU Volgo-Vyatskupravtodor, unilaterally terminated the contract, citing numerous violations: the contractor missed construction deadlines, made defects, and did not provide reports. The road builders unsuccessfully tried to get an unspent advance from PSO and in January 2022 turned to the Bank of Kazan (BK), which issued a bank guarantee. On January 31 last year, the financial institution transferred 96.3 million rubles to the FKU as a return of the advance payment under the state contract and another 200 thousand rubles in a fine.
Further, the bank prepared payment requests and planned, in turn, to write off these 96.3 million rubles from the accounts of PSO Kazan, but ran into difficulties. The money was on a security account in the bookmaker itself, but in July 2021, the account was arrested by the decision of the Sovetsky District Court of Kazan as part of a criminal case against PSO. Ultimately, the bank contested the arrest and wrote off the required amount on April 6. But, since the PSO did nothing to lift the arrest, the bank withdrew another 250.8 million rubles from the “released” account as a penalty. Ziganshin’s firm did not agree with this and at the end of last year filed a lawsuit with the Arbitration Court of the Republic of Tatarstan, demanding the return of these 250 million.
“At the time of sending us a demand from the bank, there were 347 million rubles in the collateral account. This was enough to fulfill the requirements of the bank in the amount of 96 million rubles. We believe that the bank did not have the right to unilaterally withhold the forfeit,” Stanislav Zakharov, a lawyer at the construction company, said on Tuesday at a meeting in the AS of the Republic of Tatarstan.
The Bank of Kazan not only disagrees with the requirements, but also states that the amount of the accrued penalty is much higher – 1 billion rubles. Therefore, the bank filed a counterclaim for 842.3 million rubles.
Who should have appealed the arrest of the account?
PSO “Kazan” is sure that it is not their fault for the delay. Zakharov stressed several times that the company should not have removed the arrest from the account itself. They say that the money in the account is still pledged to the bank, even if the PSO appealed against the arrest, they could not dispose of these funds.
“The only person who had a legal interest in challenging the arrest was the bank as the pledgee of the disputed funds. Since June 2021, the bank knew about the arrest of the account, but only went to court in March 2022, when it had claims against PSO Kazan as a principal (the one who draws up a bank guarantee – ed. note)”, – said the representative of the PSO.
BK lawyer Denis Khairullin said that in 2021 they applied to the investigator with a request to cancel the arrest, but at that time the bank did not yet have the right to write off funds, so the investigator refused them. “But nothing prevented PSO Kazan from canceling the arrest and providing the bank with unhindered access for subsequent write-offs. But, as we can see, PSO “Kazan” neither removed the arrest nor fulfilled its obligations to the bank. And now he is indignant about the accrual of a penalty, ”said the lawyer.
“This is only the position of the investigator (about the impossibility of removing the arrest – ed.), and not the court. The arrest was made by the court. Why is the bank not going to appeal the arrest in court in 2021? The bank could say that there is a threat of violation of its rights as a pledgee, ”Zakharov retorted.
“It turns out 1,825 percent per annum …”
The next fundamental point of the dispute is the amount of the penalty. The Bank of Kazan considers it from the full amount of the guarantee, taking for the “penalty” period from January 31 to April 6, 2022. Under the terms of the agreement, 5% of the guarantee amount is accrued every day, and so a billion rubles “ran up”. In the PSO, such an amount is considered excessive.
“It turns out 1,825 percent per annum, which is clearly disproportionate to the consequences (for the bank). This amount of the penalty is not accepted anywhere. It is 91 times higher than the key rate of the Central Bank of the Russian Federation (for April 2022) and 214 times higher than the key rate for February 2022. The amount of the penalty written off is 2.6 times the amount of the principal debt that the bank paid to Volgo-Vyatskupravtodor. The accrual of a penalty from the entire amount of the bank guarantee, that is, 347 million rubles, clearly contradicts the compensatory function of the penalty and creates advantages for the bank as a creditor, ”Zakharov cited the figures. In addition, the lawyer announced more democratic conditions for the first bank guarantee that the BC issued to them in 2018 – the penalty there was in the amount of 0.05% of the debt.
– You signed an agreement on a bank guarantee with a penalty of 5 percent? Khairullin asked the PSO representative.
– Signed. But this does not mean that we cannot talk about its disproportion,” Zakharov replied.
You have already assessed the risks…
No, they didn’t appreciate it.
– You obviously planned not to fulfill this item?
– Why? We secured the required amount of money in the security account, we did not even think that you would present us with penalties, because all the money in the required amount was in your possession. We didn’t even have access to them.
“If you listen to the plaintiff, one gets the impression that one side is white and fluffy, and the bank is some kind of unscrupulous side that forced them to subscribe to these conditions,” the bank’s lawyer was indignant. He drew attention to the fact that PSO Kazan is a large federal company with large government contracts. It cannot be considered a weak party in this agreement, the lawyer pointed out.
System failure
An interesting detail of the dispute was revealed at the meeting in the RT AC. PSO “Kazan” attached to the case two payment requests dated February 5, 2022 for debiting funds from the collateral account. That is, when the arrest was still in effect. Then the money was returned and debited again on April 6, 2022. Therefore, the PSO believes that if a penalty is charged, then in just five days (from January 31 to February 5), and not in two months and a tail. Thus, according to Ziganshina’s calculations, the penalty is equal to 1.6 million rubles (this calculation takes into account the rate of 0.05% of the amount owed).
The BC lawyer explained that in fact there was no write-off on February 5 – it was an automatic system failure. “The Bank of Kazan is a professional market participant that values its reputation and is aware of the criminal consequences of providing false information to the court,” Khairullin assured.
Judge Alsu Sharipova found this to be insufficient justification. “The party (PSO – ed. note) has two payment orders for debiting in February and April for similar amounts. It turns out that this can be seen as a double write-off in the absence of evidence of a return in the form of an incomplete write-off. The court needs clear answers from bank employees,” the judge said and postponed the meeting to March 28.
Who else is suing Ziganshin?
The dispute with the Bank of Kazan is not the only legal battle in which Ziganshin is now involved. The Arbitration Court of the Republic of Tatarstan is considering a new bankruptcy case of PSO Kazan. The Federal Tax Service for the Republic of Tatarstan requires the company to pay 4.755 billion rubles to the treasury. However, the tax authorities were only the second to file an insolvency claim, granting the right of the first application to OSK Resource LLC. A PSO-affiliated firm has itself been declared bankrupt.
“As of November 2022, the main debt of the PSO to the tax is about 3 billion, the rest is penalties and fines,” a source familiar with the situation told a BUSINESS Online correspondent. According to him, the penalty was formed due to non-payment of VAT, income tax, personal income tax, transport tax, insurance premiums, as well as accrued fines for tax violations.
In January last year, it became known that Ziganshin himself became a defendant in another criminal case. And again, the investigative committee suspected him of tax evasion on an especially large scale (part 2 of article 199 of the Criminal Code of the Russian Federation). Sources said that now for Ziganshin it all depends on how the contracts with Roscosmos for the construction of the Vostochny cosmodrome will be eventually executed, because he has not signed “non-space” state contracts since 2018.
Meanwhile, creditors have already taken away the Sviyazhsky Hills resort, a Bell 429 helicopter worth 202 million rubles, on which the businessman himself liked to circle, as well as a CL-600-2B16 aircraft worth 611.7 million rubles, from the honored builder. A huge fleet of vehicles previously owned by the companies DorStroy and Inteko, as well as equipment for road works from Trio-VIS and others, was recovered.