On November 1, 2021, the Supreme Court as part of the Joint Chamber of the Civil Court of Cassation in case No. 333/6667/20 annulled the decision of the Court of Appeal, which returned the appeal to the applicant.
The concern appealed to the court with a lawsuit against consumers to collect debts for centralized heating and hot water supply services.
The consumer filed a counterclaim against the Concern for the protection of consumer rights and compensation for damages.
The decision of the district court refused to accept the counterclaim, the materials of the counterclaim were returned to the applicant on the grounds that the original claim based on the claimant's application was left without consideration.
By the decision of the appellate court, the consumer's appeal was returned to the applicant with reference to the fact that according to the provisions of Art. 353 of the Civil Code of Ukraine does not provide for an appeal against the decision of the court of first instance on the refusal to accept a counterclaim separately from the court's decision.
Having considered the cassation appeal of the consumer, the Supreme Court indicated that according to Clause 6, Part 1 of Art. 353 of the Civil Procedure Code of Ukraine, separately from the court decision, the decision to return the application to the plaintiff (applicant) may be appealed.
Part of the 6th Art. 185 of the Code of Civil Procedure of Ukraine, to which part 2 of Art. 194 of the Civil Code of Ukraine, it is stipulated that the court issues a decision on the return of the statement of claim. The decision to return the statement of claim may be appealed. About leaving a counterclaim in court in the event of its return to the applicant is specified in Part 3 of Article 194 of the Code of Civil Procedure of Ukraine.
The above shows that the procedural law defines a unified, unified approach to the application of the consequences of filing a claim (both initial and counterclaim), which was filed without complying with the requirements specified by the Code of Criminal Procedure of Ukraine. Thus, there is a need to apply a unified approach when the parties to the case exercise their right to appeal the court's decision to return the claim (both the original and the counterclaim).
In clause 15.10 of the chapter XIII "Transitional Provisions" of the Civil Code of Ukraine states that in case of filing an appeal against the rulings of the court of first instance, provided for in para. 1, 6-9, 11, 14-16, 20, 22, 23, 37-39 h. 1 st. 353 of the Code of Criminal Procedure of Ukraine (except for decisions on refusal to accept or return of a counterclaim, on refusal to accept or return of a claim of a third party who asserts independent claims regarding the subject of the dispute, decisions on stopping the proceedings in the case, which were submitted after missing the deadline for appealing them), or filing a cassation appeal against the rulings of the court of appeal (except for rulings on securing a claim, changing measures to secure a claim, on counter-enforcement, rulings on stopping the proceedings in the case that were filed after missing the time limit for appealing them, on imposing a fine in the order of procedural coercion, individual decisions) – all materials are transferred to the court of appeal or cassation instance.
It follows from the content of the specified rule that the decision to refuse to accept or return a counterclaim is subject to appeal.
The decision of the court of first instance resolved the issue of returning the counterclaim to the applicant on the basis of Part 3 of Art. 194 of the Code of Civil Procedure of Ukraine. Such a court decision is covered by the term "claimant's (applicant's) statement" contained in clause 6, part 1 of Article 353 of the Civil Code of Ukraine, therefore this decision is subject to appeal separately from the court decision.
Therefore, based on the content of the provisions of Part 6 of Art. 185, Part 2, Article 3. 194, clause 15.10, ch. XIII "Transitional Provisions" of the Civil Code of Ukraine, the decision of the court of first instance on the return of the counterclaim is subject to an appeal in accordance with Clause 6, Part 1 of Art. 353 of the Civil Code of Ukraine.
Such conclusions are consistent with the conclusions of the panel of judges of the Cassation Economic Court, set forth in the resolution of October 8, 2018 in case No. 927/490/18 .
Taking into account the above, the Supreme Court recognized as unfounded the conclusion of the appellate court regarding the existence of grounds for the return of the consumer's appeal in the part of the appeal of the decision of the court of first instance on the refusal to accept and the return of the counterclaim.
Therefore, the Supreme Court agreed with the legal conclusions set forth in the resolutions of the Supreme Court as part of the panels of judges of the Second Judicial Chamber of the Civil Court of Cassation dated February 17, 2021 in case No. 686/32337/19 , dated March 3, 2021 in case No. 753/ 11293/16 , dated March 3, 2021 in case No. 753/18694/18 , dated March 24, 2021 in case No. 613/1281/19 , dated March 24, 2021 in case No. 753/6582/18 . The Supreme Court did not establish a reason for deviating from the conclusions stated in the mentioned resolutions.