Acórdão nº 05A3958 de Supremo Tribunal de Justiça, 24 de Janeiro de 2006
Magistrado Responsável | FERNANDES MAGALHÃES |
Data da Resolução | 24 de Janeiro de 2006 |
Emissor | Supremo Tribunal de Justiça |
Acordam no Supremo Tribunal de Justiça: A "A", Lda. vem no processo 57/01, do 1º Juízo do Tribunal da Comarca de Abrantes recorrer de revista do acórdão do Tribunal da Relação de Évora que confirmou a sentença daquele Juízo que decretou a sua falência a requerimento da B, Lda.
Formula nas suas alegações as seguintes conclusões: I - O presente recurso vem interposto do Acórdão da Relação de Évora que considerou improcedente o recurso oportunamente apresentado da decisão de Embargos; II - A Recorrente não obstante aceitar que se encontra em situação económica difícil, não aceita que esteja em situação de insolvência nem que estejam verificados os pressupostos para que seja declarada a falência.
DE FACTO, III. Tem um activo provado em audiência de cerca de cinco vezes superior ao passivo.
IV. Activo esse traduzido em activos imobiliários cujo valor patrimonial atinge cerca de € 7.500.000,00, quando o passivo se situa próximo de € 1.500.000,00, V. O que por si só era razão suficiente para o M.mo juiz determinar o prosseguimento dos autos como de Recuperação.
VI. O não cumprimento pontual das suas obrigações deve-se a imponderáveis que não dependem da vontade ou da gestão que tem sido promovida pelos gerentes da Requerida.
VII. Designadamente, o incumprimento deve-se ao facto de haver um claro e manifesto excesso das penhoras e das hipotecas relativamente aos montantes que garantem.
VIII. É incorrecta e ilegal, por falta de suporte legal e fáctico, a conclusão das Sentenças quando referem que pelo facto do património da Requerida se encontrar onerado, esta não pode dispor dele.
DE FACTO IX. As garantias registadas determinam, tão só, o direito do credor a ser pago pelo montante garantido, assistindo-lhe o direito a seguir o bem até que esse pagamento se encontre efectuado, X. Não determina qualquer impossibilidade ou limitação de disposição patrimonial, para além daquela que resulta da garantia do referido crédito.
ALÉM DISSO, XI. È certo que a Requerida só não resolveu uma parte relevante do passivo reclamado porquanto durante sete anos esteve impedida de alienar "os lotes de terreno da urbanização" que promoveu exactamente para gerar receitas e, desse modo, liquidar parte do seu passivo.
DE FACTO XII. Subjacente à promoção da urbanização está um contrato de associação em participação, que determinada, designadamente, a obrigatoriedade de intervenção de todos os parceiros no empreendimento para a venda dos lotes XIII. Tendo falecido um desses parceiros (no caso o DR. C) e tendo-lhe sucedido um menor, a necessidade de autorização judicial para alienação dos lotes demorou três anos a ser conseguida pelos demais herdeiros; XIV. E quando esta foi conseguida junto do Tribunal Judicial da Comarca de Cascais, o outro parceiro havia, entretanto, accionado a sociedade por incumprimento, o que determinou a condenação da requerida no pagamento do montante da dívida de capital para com este, acrescida de juros de mora vencidos e vincendos á taxa legal em vigor.
XV. Estas circunstâncias alheias à vontade da Requerida, aliadas ao facto do Contrato de Associação em Participação não prever nenhum mecanismo para salvaguardar estas situações, determinaram a impossibilidade de alienação de lotes de terreno da urbanização e, consequentemente, determinaram o cerceamento da liquidez da requerida...
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