The only participant did not show up for the auction. Auction. Failed auction - consequences

In the name Russian Federation

Magistrate of judicial district No. 4 of Sayanogorsk, Republic of Khakassia Beilman O.V.,

under secretary N.S. Yuryeva,

having considered in open court a civil case on the claim of Rizin against the Department of Architecture, Urban Planning and Real Estate of the city of Sayanogorsk for the recovery of funds, interest for use in cash,

INSTALLED:

Rizin D.V. filed a lawsuit against the Department of Architecture, Urban Planning and Real Estate of the city of Sayanogorsk for the recovery of funds, interest for the use of funds, motivating the claims by the fact that on the site municipality The city of Sayanogorsk published a notice of an auction for the sale of the right to conclude a lease agreement for a land plot with location: sq.m., with cadastral number. The organizer of the auction is the Department of Architecture, Urban Planning and Real Estate of Sayanogorsk. One of the conditions for participation in the auction was the deposit of funds into the defendant’s bank account in the amount of 6,700 rubles. as a deposit. To take part in the auction, he submitted an application to the Department of Architecture, Urban Planning and Real Estate of the city of Sayanogorsk in the appropriate form, attaching a document confirming the transfer of the deposit in the required amount, and indicated the details for the return of the paid deposit in the event that he does not become the winner of the auction. After submitting his application, he was recognized as a participant in the auction. The auction took place on October 5, 2015, in which he was unable to participate due to illness and the lot was raffled off between other participants. After the expiration of the three-day period provided for the return of the deposit to participants who did not become winners of the auction, funds in the amount of 6,700 rubles were returned to their personal account specified in the application. didn't arrive. When contacting the DAGN of Sayanogorsk with a request to return the funds, he was refused, since, in accordance with the notice, the deposit is not returned if the auction winner evades signing the protocol on the results of the auction or the lease agreement. However, the deposit is not returned only to the auction winner, in case of his refusal to fulfill the terms of the transaction, and not to other persons. When concluding an agreement with the person who has won the auction, the amount of the deposit paid by him is counted towards the fulfillment of obligations under the concluded agreement. The plaintiff believes that the defendant has no legal grounds for withholding the deposit amount, since his failure to appear to participate in the auction is not legal basis to refuse to return the deposit amount. He asks to recover from the defendant in his favor the amount of the deposit he made on September 18, 2015 to participate in the auction for the sale of the right to conclude a lease agreement for a land plot in the amount of 6,700 rubles, interest for the use of other people’s funds for the period from October 9, 2015. until November 8, 2015 in the amount of 50.57 rubles, the cost of paying the state fee when filing a claim in the amount of 400 rubles.

Plaintiff Rizin D.V. did not appear at the court hearing, was duly notified.

The plaintiff's representative, acting on the basis of a power of attorney dated November 16, 2015, at the court hearing supported the plaintiff's claims on the grounds specified in the statement of claim and asked that the claim be satisfied in full.

The representative of the defendant, acting on the basis of a power of attorney dated January 12, 2015, did not appear at the court hearing, she was duly notified, there is an application on file to consider the case in the absence of a representative. Previously, she submitted a response to the statement of claim in which she indicated that the plaintiff’s demand to recover from the DAGN of Sayanogorsk the funds paid as a deposit for participation in the auction in the amount of 6,700 rubles cannot be satisfied, since the specified amount is not refundable. 09/03/2015 DAGN of Sayanogorsk was placed in funds mass media and on the official websites of the municipality of Sayanogorsk, a notice of an auction for the sale of the right to conclude a lease agreement for a land plot with the location: According to the published notice, applications with the necessary package of documents had to be submitted by September 30, 2015, including an integral attachment The application included a document confirming payment of a deposit in the amount of 6,700 rubles. According to the protocol of applications for participation in the auction dated 10/01/2015, the commission reviewed 13 submitted applications for participation in the auction, all 13 applicants were allowed to participate in the auction, including D.V. Rizin, who was notified of this by a notification from the State Tax Inspectorate of Sayanogorsk dated 01.10. .2015. According to the protocol of the results of the auction for the sale of the right to conclude a lease agreement for a land plot dated 10/06/2015, 11 participants were present at the auction on 10/05/2015, while two were absent from the auction procedure, including D.V. Rizin. It should be noted that from Rizin D.V. no withdrawal of the application for participation in the auction was received either before 09/30/2015 or later specified date. It is believed that the deposit made by the plaintiff ensured the plaintiff’s obligation to participate in the auction; accordingly, the stated demands are not justified and cannot be satisfied.

The judge, after hearing the plaintiff's representative and examining the case materials, comes to the following conclusion.

DECIDED:

Rizin's statement of claim against the Department of Architecture, Urban Planning and Real Estate of the city of Sayanogorsk for the recovery of funds and interest for the use of funds shall be satisfied.

To collect from the Department of Architecture, Urban Planning and Real Estate of Sayanogorsk in favor of Rizin the amount of a deposit in the amount of 6,700 rubles, interest for the use of other people's funds in the amount of 50 rubles. 57 kopecks, expenses for paying state duty in the amount of 400 rubles.

The decision can be appealed to the Sayanogorsk City Court within one month from the date of its adoption in final form.

World judge

judicial district No. 4 of Sayanogorsk O.V. Beilman

The operative part of the decision was announced on December 16, 2015.

The motivated text of the decision was made on December 21, 2015.

Court:

Judges of the case:

Judicial practice on:

Arbitrage practice on the application of Art. 380, 381 Civil Code of the Russian Federation

1. State or municipal property is sold at an auction if its buyers do not have to fulfill any conditions in relation to such property. The right to acquire it belongs to the buyer who offers the highest price for such property during the auction.

2. The auction is open in terms of participants.

3. Proposals for the price of state or municipal property are submitted by auction participants in sealed envelopes (closed form for submitting price proposals) or they are declared openly during the bidding ( open form submission of price proposals). The form for submitting proposals for the price of state or municipal property is determined by the decision on the conditions of privatization.

An auction in which only one participant took part is considered invalid.

If two or more proposals for the price of state or municipal property are equal at an auction closed according to the form for submitting a price proposal, the winner is the participant whose application was submitted earlier than other applications.

4. The duration of accepting applications for participation in the auction must be at least twenty-five days. Recognition of applicants as participants in the auction is carried out within five working days from the date of the deadline for accepting these applications. The auction is held no later than the third working day from the date of recognition of applicants as participants in the auction.

5. When holding an auction, if an open form for submitting proposals on the price of state or municipal property is used, in the information message in addition to the information specified in Article 15 of this Federal Law, indicates the amount of increase in the initial price ("auction step").

6. To participate in the auction, the applicant makes a deposit in the amount of 20 percent of the starting price specified in the information message on the sale of state or municipal property.

The document confirming receipt of the deposit to the account specified in the information message is an extract from this account.

(see text in the previous edition)

7. In case of a closed form of submission of proposals on the price of state or municipal property, they are submitted on the day of summing up the results of the auction. At the request of the applicant, a sealed envelope containing an offer for the price of the specified property may be submitted when submitting the application.

8. The applicant is not allowed to participate in the auction on the following grounds:

the submitted documents do not confirm the right of the applicant to be a buyer in accordance with the legislation of the Russian Federation;

not all documents have been submitted in accordance with the list specified in the information message (with the exception of proposals on the price of state or municipal property at an auction), or the execution of these documents does not comply with the legislation of the Russian Federation;

the application was submitted by a person not authorized by the applicant to carry out such actions;

receipt of the deposit on the accounts specified in the information message has not been confirmed within the established period.

The list of grounds for refusing an applicant to participate in the auction is exhaustive.

9. Before the bidder is recognized as an auction participant, he has the right to withdraw the registered bid by notification in writing. If the applicant withdraws the application in accordance with the established procedure before the closing date for accepting applications, the deposit received from the applicant must be returned no later than five days from the date of receipt of the notice of withdrawal of the application. If the bidder withdraws the bid later than the deadline for accepting bids, the deposit is returned in the manner established for auction participants.

10. One person has the right to submit only one application, and in the case of an auction with a closed form of submission of proposals for the price of state or municipal property, only one proposal for the price of the property sold at the auction.

11. A notice of recognition of an auction participant as a winner is issued to the winner or his authorized representative against signature on the day of summing up the auction results.

One of the forms trading activities According to the Civil Code of the Russian Federation, enterprises participate in tenders, which are held in the form of auctions or.

Commodity auctions(Latin - sale at public auction) is a way of selling goods that have individual properties and values.

Exist permanent auctions that are held one or more times a year, usually at a specific time, but can be organized one-time auction for the sale of a specific or batch of goods. Unlike commodity exchanges, auctions are not permanent, but periodically operating centers for the intermediary of real goods.

These are specially organized operating markets in which, by public auction the sale is carried out at a predetermined time and in a specially designated place.

Often this large companies, concentrating trade in a certain type of product. They usually buy goods from manufacturers at their own expense, dictating purchase prices, and resell them, profiting from the difference in prices. These same auctions accept goods from independent manufacturers for resale. Large auctions have their own production and processing of raw materials (for example, furs).

Other auctions are specialized brokerage firms that resell goods on a commission basis, receiving compensation from the sellers. Sellers and buyers themselves do not participate in such auctions.

Auction organizers can also be enterprises for which auction trading is not the main activity: museums, art salons, exchanges, permanent exhibitions, the charter of which provides for this type of activity.

Sellers at an auction can be enterprises, organizations or individuals(owners of goods or property). They can also act as buyers.

The main parties to the auction are: the owner of the goods, the seller, the auction organizer, and the buyer.

An auction in which only one participant participates is considered invalid.

Objects of bidding at auction may be items of personal use with individual characteristics(paintings, antiques), as well as furs, cattle, horses, tobacco, tea, coffee, unwashed wool, flowers, fruits, etc. In our country, auction trade of furs is carried out in St. Petersburg, breeding horses - in Moscow, Rostov-on-Don, Pyatigorsk.

Both large quantities of goods and individual products can be offered for auction. When selling at auction, unlike a regular sale, neither the seller nor the auction organizers are responsible for .

The commercial meaning of the auction is that maximum price for the goods sold is established by direct buyer competition simultaneously present at the point of sale. The winner of the auction is the person who offers the highest price.

Resolution of the Fifth Arbitration Court of Appeal dated February 19, 2009 No. 05AP-3147/2008 in case No. A51-9714/2008-36-273 The failure of a representative to appear at the auction does not relieve the defendant of the obligation to return the deposit, since the plaintiff was a participant in the auction, but did not win it. The current legislation does not separately regulate the issues of deposit return in cases where a person recognized by the participant auction, is not included in the auction.

RESOLUTION

Case No. A51-9714/2008-36-273

(extraction)

Fifth Arbitration Court of Appeal,

having considered in court the appeal of the Vladivostok City Administration

in case No. A51-9714/2008-36-273 of the Arbitration Court of the Primorsky Territory

according to the claim of Stroyetalon LLC

to the Vladivostok City Administration

on the recovery of 787,916 rubles

installed:

LLC “Stroyetalon” filed a claim with the Arbitration Court of the Primorsky Territory against the Administration of the city of Vladivostok for the recovery of 787,916 rubles, of which 485,580 rubles were the amount received as security for the auction application, 2,336 rubles were interest for the use of other people’s funds, 300,000 rubles were lost profits.

In accordance with Article 49 of the Arbitration Procedure Code of the Russian Federation, the plaintiff clarified the claims and asked to recover the principal debt in the amount of 485,580 rubles, interest in the amount of 11,653 rubles 60 kopecks, as well as legal costs in the form of expenses for a representative in the amount of 20,000 rubles.

By decision dated November 20, 2008, the Arbitration Court of the Primorsky Territory partially satisfied the claims, collected from the Vladivostok City Administration 496,707 rubles 75 kopecks, including 485,580 rubles of the principal debt and 11,127.75 rubles of interest, 11,432 rubles 57 kopecks of state duty and 10,000 rubles of legal costs.

Disagreeing with this decision, the Vladivostok City Administration appealed it, pointing out in the complaint that the court incorrectly applied the rules of substantive law and gave an incorrect assessment of the circumstances of the case.

According to the applicant, the court unlawfully satisfied the claims, since the law establishes an exhaustive list of cases when the deposit made by a person to participate in an auction is subject to return.

In addition, the Vladivostok City Administration believes that the plaintiff has not proven that the defendant used the plaintiff’s funds.

At the court hearing, the applicant's representative supported the arguments of the complaint in full and considers the decision subject to cancellation.

The plaintiff's representative did not appear at the court hearing; he was duly notified of the time and place.

Guided by Art. 156 of the Arbitration Procedure Code of the Russian Federation, the appellate court considered the complaint in the absence of the person who failed to appear.

The decision is checked in accordance with Articles 268 - 271 of the Arbitration Procedure Code of the Russian Federation.

As follows from the case materials, in accordance with the minutes of the meeting of the unified commission for placing orders of the Vladivostok City Administration dated August 18, 2008 N 322.1 “On consideration of applications for participation in an open auction for the right to conclude a municipal contract for the performance of contract work on major renovation roads st. Russian - st. Vyselkovaya LLC “Stroyetalon” was recognized as a participant in the auction for the right to conclude a municipal contract for contract work on the major repairs of the Road.

According to clauses 2.10, 2.10.1 “Documentation of an open auction for the right to conclude a municipal contract for contract work on the major repairs of the road on the street. Russian - st. Vyselkovaya “participants are required to provide an application for participation in the auction by transferring to the account of the municipal customer - the Administration of the city of Vladivostok 1% of the initial (maximum) value of the Contract price, which is 485,580 rubles. rubles

In fulfillment of the above, the plaintiff transferred this amount of money, which is confirmed by payment order No. 255 dated August 14, 2008.

As a participant, Stroyetalon LLC on open auction 08/20/2008 did not appear. The last day to return the amount of money received was August 25, 2008. Since the Vladivostok City Administration did not return the funds received as security for the plaintiff’s application to participate in the auction, the plaintiff filed this claim in court.

Having examined the case materials, assessed the arguments of the appeal, and listened to the applicant’s explanations, the appellate court finds no grounds for canceling the judicial act.

According to paragraph 1 of Art. 447 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), an agreement, unless otherwise follows from its essence, may be concluded through tendering. Paragraph 4 of this article establishes that trading can be held in the form of an auction or competition.

By virtue of clause 4 of Art. 448 of the Civil Code of the Russian Federation, bidders make a deposit in the amount, terms and manner specified in the notice of bidding.

In accordance with Article 37 of the Federal Law “On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs” dated July 21, 2005 N 94-FZ, if a requirement has been established to secure an application for participation in the auction, customer, authorized body within five working days from the date of signing the auction protocol, they are obliged to return the funds contributed as security for applications for participation in the auction to auction participants who participated in the auction but did not become auction winners.

In paragraph 4 of Art. 448 of the Civil Code of the Russian Federation establishes that the deposit is returned to persons who participated in the auction but did not win it.

The case materials confirm that the plaintiff contributed the amount established by the defendant sum of money and was recognized as a participant in the auction in accordance with clause 4.2 of the protocol for considering applications for participation in the auction N 322.1 dated 08/18/2008.

Failure to appear by the auction participant (plaintiff) is not grounds for earlier cancellation decision taken on his recognition as a participant in the auction.

Thus, the appellate court rejects the applicant’s arguments in this part and considers the conclusion of the trial court to be justified that the failure of a representative of Stroyetalon LLC to appear at the auction does not relieve the defendant from the obligation to return the deposit, since the plaintiff was a participant in the auction, but did not win it .

The current legislation does not separately regulate the issue of return of the deposit in cases where a person recognized as an auction participant does not appear at the auction.

Based on the general norms of civil legislation, taking into account the prevention of unjust enrichment at the expense of another person, the appellate court considers the reference of the trial court to Article 448 of the Civil Code of the Russian Federation as a basis for returning the deposit to be justified.

The applicant's arguments that the current legislation contains an exhaustive list of grounds for the return of the deposit by the appellate court are not accepted as unfounded.

The appellate court rejects the applicant’s arguments about the lack of proof of the fact that he used other people’s funds and the illegality of collecting interest in accordance with Article 395 of the Civil Code of the Russian Federation.

By virtue of paragraph 1 of Art. 395 of the Civil Code of the Russian Federation for the use of someone else’s funds due to their unlawful retention, evasion of their return, other delay in their payment or unjustified receipt or savings at the expense of another person, interest on the amount of these funds is subject to payment.

Considering that the Administration of Vladivostok, in violation of current legislation in deadlines did not return the amount paid as security for the auction application, the court lawfully collected interest under Art. 395 of the Civil Code of the Russian Federation.

Under such circumstances, the court of first instance lawfully and reasonably satisfied the claims, correctly applied the rules of substantive law, and there are no grounds for canceling the judicial act.

Guided by Articles 258, 266 - 271 of the Arbitration Procedural Code of the Russian Federation, the Fifth Arbitration Court of Appeal,

decided:

the decision of the Arbitration Court of Primorsky Krai dated November 20, 2008 in case No. A51-9714/2008-36-273 is left unchanged and the appeal is not satisfied.

The decision can be appealed to the Federal Arbitration Court of the Far Eastern District through the Arbitration Court of the Primorsky Territory within two months.