JUDGEMENT 70/2014

(Supplemental pleadings filing number: MT 87/2014)

KEFALLINIA’S SINGLE MEMBER COURT OF FIRST INSTANCE

SPECIAL PROCEEDINGS OF SECURITIES DISPUTES

 

Composed of Georgios Kakamanoudis, Judge of First Instance, appointed by the President of First Instance Judges and of Pinelopi Kosmatou, Secretary.

It heard the case in its open court on the 4th of June 2014 between:

THE CAVEATOR:Konstantinos Lampropoulos, son of Panagiotis, resident of Leeds of England (40a Station Road) for whom his authorized barrister, Evangelos Moshopoulos, appeared and filed pleadings.

THE RESPONDENT:«ΑLPHA BANK ». whose head office is in Athens of Attica (40 Stadiou Street) and is legally represented, in its capacity as absolute successor of «Commercial Bank of Greece» Banking S.A. whose head office was in Athens of Attica (44 Sofocleous Street) and was legally represented,…..………………………….…….

 

According to the provision of art. 624 par.2 of the Code of Civil Procedure, it is impossible for an order for payment to be issued and if so, it is invalid, in case it should be served on persons living abroad or of unknown residence and according to the provisions of art. 626 par. 2 pas. α΄ and 630 sec. b΄ of the same Code, the application for the issue of the order for payment as well as the order for payment itself must mention, among others, the residence and the address of the opponent litigant and respondent. Besides, according to the provisions of art. 632 par. 1 and 633 par. 2 of the Code of Civil Procedure, the respondent – debtor can file a caveat against the order for payment which is a title of execution within fifteen working days after its service. After the end of article’s 632 par. 1 of the Code of Civil Procedure time limit, there can be a second service of the order and the debtor can file a caveat within ten working days after this second service. From the aforementioned provisions it is concluded that for the issue of a valid order for payment, the person against whom the order for payment is applied, should not, as a negative procedural requirement, reside abroad or have an unknown residence. Also, from the fact that a) a residence is considered to be the place where the person has really settled in, b) this place doesn’t have to coincide with the article’s 51 of Civil Code domicile and it is definitely different from the domicile of art. 128 par. 2 of the Code of Civil Procedure as well (vide 10/1996 of the Plenary Session of the Supreme Court, “Greek Justice” 1996, page 1057) or their professional establishment by art. 124 par. 2 and 129 par. 1 of the Code of Civil Procedure and c) by the general procedural rule, concluded especially from the provision of art. 73 of the Code of Civil Procedure according to which the procedural requirements (positive or negative) must be satisfied at the time of the performance of the act for the validity of which they are claimed, it is deduced that the debtor against whom the order for payment is applied, must have an established presence (be physically present) in a known place of the Greek territory at the crucial time of the order’s issue (12/2001 of the Plenary Session of the Supreme Court «Nomiko Vima» 2001 page 1823, 10/1996 of the Plenary Session of the Supreme Court v.s, 1114/1996 of the Supreme Court “Greek Justice” 1997 page 1075, 1762/2008 of the Supreme Court “NOMOS” Legal database, 405/2000 of Piraeus Court of Appeal “Jurisprudence of Piraeus” 2000 page 306).

FOR THESE REASONS

IT TRIES hearing both parties.

IT ORDERS the hearing of the caveat and its supplemental pleadings according to the proper special proceedings of securities disputes.

IT ACCEPTS the supplemental pleadings of the caveat and thus, the caveat itself.

IT ANNULS the order for payment No 146/2013 of the Judge of Kefallinia’s Single member Court of First Instance.

IT CONVICTS the respondent to the payment of the caveator’s court expenses which it sets at three thousand four hundred seventy-five (3.475,00) euros.

IT WAS JUDGED, decided and published in a special public hearing in its open court in Argostoli on 18 August 2014.

THE JUDGE                                                          THE SECRETARY

 

JUDGEMENT 47/2014

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KEFALLINIA’S SINGLE MEMBER COURT OF FIRST INSTANCE

SPECIAL PROCEEDINGS OF SECURITIES DISPUTES

Composed of Aggeliki Liakouri, Judge of First Instance, appointed by the President of First Instance Judges and ofDimitra Papadatou, Secretary.

It heard the case in its open court on 16 January 2014 between:

THE CAVEATORS: 1)Company with limited liability under the name «IONIAN DEVELOPMENT COMPANY ΕΤΑΙΡΙΑΠΕΡΙΟΡΙΣΜΕΝΗΣΕΥΘΥΝΗΣ» and titled as «IONIAN DEVELOPMENT EΠE» that has its head office in Argostoli and is legally represented for which its authorized barrister, Evangelos Moshopoulos, appeared and filed pleadings, 2) David Barritt, son of Robert, resident of Cape Town of South Africa for whom his authorized barrister, Evangelos Moshopoulos, appeared and filed pleadings and 3) Leslie – Dawn, son of Leslie, resident of Cape Town of South Africa for whom his authorized barrister, Evangelos Moshopoulos,appeared and filed pleadings.

THE RESPONDENT: «ALPHA BANK » . whose head office is in Athens of Attica (40 Stadiou Street) and is legally represented for which its authorized barrister, appeared and filed pleadings.

…………………………

According to the provision of art. 624 par.2 of the Code of Civil Procedure, it is impossible for an order for payment to be issued and if so, it is invalid, in case it should be served on persons living abroad or of unknown residence and according to the provisions of art. 626 par. 2 pas. α΄ and 630 sec. b΄ of the same Code, the application for the issue of the order for payment as well as the order for payment itself must mention, among others, the residence and the address of the opponent litigant and respondent. Besides, according to the provisions of art. 632 par. 1 and 633 par. 2 of the Code of Civil Procedure, the respondent of the order – debtor can file a caveat against the order for payment which is a title of execution within fifteen working days after its service. After the end of article’s 632 par. 1 of the Code of Civil Procedure time limit, there can be a second service of the order and the debtor can file a caveat within ten working days after this second service. From the aforementioned provisions it is concluded that for the issue of a valid order for payment, the person against whom the order for payment is applied, should not, as a negative procedural requirement, reside abroad or have an unknown residence. Also, a residence is considered to be the place where the person has really settled in and this place doesn’t have to coincide with the article’s 51 of Civil Code domicile and it is definitely different from the domicile of art. 128 par. 2 of the Code of Civil Procedure as well (vide 10/1996 of the Plenary Session of the Supreme Court, “Greek Justice” 1996, page 1057) or their professional establishment by art. 124 par. 2 and 129 par. 1 of the Code of Civil Procedure. Moreover, by the general procedural rule, concluded especially from the provision of art. 73 of the Code of Civil Procedure according to which the procedural requirements (positive or negative) must be satisfied at the time of the performance of the act for the validity of which they are claimed, it is deduced that the debtor against whom the order for payment is applied, must have an established presence (be physically present) in a known place of the Greek territory at the crucial time of the order’s issue

 

Therefore, since it has been proved that the caveators were permanently residing abroad at the crucial time of the issue of the challenged order for payment and according to the legal reasoning, the issued order for payment against them is invalid and the caveat’s first ground is accepted as reasonable on the merits. Moreover because of the compulsory joinder between the guarantors and the first caveator company which is the principal debtor, deriving from the indivisible nature of the claimed provision and of the need for a uniform resolution of the existing dispute and for the caveat against an order for payment based on a joint account between principal debtor and guarantor, the challenged order for payment must be annulled (art. 624 par. 2 and 633 par. 1 of the Code of Civil Procedure), while the rest of the caveat’s grounds don’t have to be examined (1054/1999 of the Supreme Court “Greek Justice” 1999 page 1540, 5824/2001 of Athens Court of Appeal “Greek Justice” 2003 page 189). The defeated respondent is convicted to pay the court expenses of the caveators (art. 176 par. 1 and 191 par. 2 of the Code of Civil Procedure) according to what is specified below.

 

FOR THESE REASONS

IT TRIES hearing both parties.

IT ACCEPTS the caveat.

IT ANNULS the order for payment No 288/2013 of the Judge of Kefallinia’s Single member Court of First Instance.

IT CONVICTS the respondent to the payment of the caveators’ court expenses which it sets at twelve thousand (12.000,00) euros.

IT WAS JUDGED, decided and published in a special public hearing in its open court in Argostoli on 08-04-2014.

 

THE JUDGE                  THE SECRETARY

 

JUDGEMENT 70/2014 PDF File

 

 

JUDGEMENT 47/2014 PDF File

 

 

From 1st of January 2014 property purchase or transfer tax is 3%. The Greek government modified the transfer tax from 8% up to 20.000 Euros and 11% for any amount exceeding 20.000, down to 3%.
To this end they applied Capital gains tax on behalf of the seller. However its application and the way of payment is still pending.

Capital gains are the difference between the purchase (acquisition) price paid by the taxpayer andthe selling price payable to him.
The capital gains taxes are the percentage of 15% on the capital gain.

The capital gains, are reducted by applying the following rates :

Years of acqusition Reduction
From 1-5 095
Above 5-10 087
Above 10 to 15 0.79
Above 15 to 20 0.73
Above 20 to 25 0.66
More than 25 0.60

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