Andrey Slabko, lawyer
This article is about the situation of penalty recovery for late payment after the conclusion of a reconciliation agreement according to the principal debt. Let’s consider the following example.
Company 1 supplied the Company 2 with products. The goods were not paid within the period specified in the delivery contract. In order to recover the principal debt for the delivered goods, Company 1 sent a claim, however, because of Company 2 disputing the claim, Company 1 had to file a lawsuit.
During the trial, the parties signed a reconciliation agreement on the following conditions:
- Company 2 pays the amount of the principal debt, the cost of legal assistance, as well as 50% of the paid amount of state duty during fixed terms;
- Company 1 refuses to collect other stated claims.
In such a situation, can Company 1 collect a contractual penalty and interest on the use of foreign funds?
Answer: Company 1 has the right to recover the contractual penalty and interest for the use of another's funds.
Then Company 1 sent Company 2 a claim for payment of the amount of the penalty and interest for using other funds, however Company 2 once again ignored the claim. In this regard, Company 1 appealed to the court with a statement about the initiation of mandative proceedings. The court charged the penalty and interest for the use of foreign funds, as well as the cost of legal services and the amount of state duty calculated due to the delay in payment under the contract.
Could Company 2 protect its interests?
The debtor, in case of disagreement with the stated requirements, has the right to send to the court a response to the application with an attachment to it of documents confirming objections to the collector’s request, within 7 days from the date of his receipt of the determination to initiate the writ proceedings.
However, in our opinion, this response may be related only to the procedure for calculating the penalty and interest for using other money.
Thus, the conclusion of a reconciliation agreement does not prevent the collection of late payment sanctions. But it is necessary to take into account that the period of delay does not include the period from the date of approval by the court of an agreement on reconciliation to the day of fulfillment of obligations specified in the agreement on reconciliation. Also, whether the debtor repaid the debt during the period specified in the reconciliation agreement, settlement agreement, or after it, the lender may collect sanctions for late payment.