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14.01.2022

Enrollment of counterclaims is possible at any stage of the process, in particular at the stage of execution of the court decision

On September 8, 2021, the Supreme Court, as part of the panel of judges of the Second Judicial Chamber of the Civil Court of Cassation in case No. 761/33621/18, sent the case for a new hearing to the court of first instance, since the courts did not consider the merits of the claim.

One person appealed to the court with a lawsuit against another and asked to recognize her monetary obligation as completely terminated, justifying the fact that by the decision of the local court on the invalidation of the deed, the division of property and the collection of funds, which had gained legal force, were collected from her in favor of the defendant 1/2 share of the value of the joint property of the spouses; executive proceedings have been opened. Later, by the decision of the same court in case No. 757/2129/14-ts on the recognition of the property as joint co-ownership, the division of the property, which has entered into force, compensation for 1/2 share in the joint property was collected from the defendant in favor of the plaintiff; executive proceedings have been opened.
The plaintiff submitted an application for the inclusion of counterhomogeneous claims, according to which her debt as a debtor in one enforcement proceeding is fully repaid at the expense of partial repayment of the debtor's (defendant's) obligation to her as a debt collector in another enforcement proceeding.
The local court, with which the appellate court also agreed, refused to grant the claim, considering that the court's decision is mandatory to be implemented and that counter-uniform requirements are entered only within the framework of executive proceedings in accordance with the Law of Ukraine "On Executive Proceedings", and not through pre the appearance of a new lawsuit.
Having considered the cassation appeal of the plaintiff, the Supreme Court indicated that the interpretation of the norms of Art. 601, 602 of the Civil Code of Ukraine indicates that it is necessary to distinguish between enrollment and application for enrollment. After all, the presence of opposing uniform requirements does not lead to their inclusion and, accordingly, does not terminate the obligation. It is necessary and sufficient to have a statement on the admission of counterclaims by at least one of the parties.
A statement by one of the parties to include counterclaims in order to achieve the desired legal effect does not require a response from the addressee, but only requires acceptance of the statement by the latter. The consequence of submitting an application for crediting counterclaims, if the prescribed conditions for crediting are present, is the final and irreversible termination of the corresponding obligations in whole or in part.
Claims that can be set off must be opposite (the creditor of one obligation is the debtor of another, and the debtor of the first obligation is the creditor of the second); homogeneous (requirements for the transfer of things of the same kind may be counted); the deadline for the fulfillment of such requirements has not been established or determined at the time of presentation of the requirement. Enrollment of counterclaims is possible at any stage of the development of relations between the parties, including at the stage of execution of a court decision.
When deciding the dispute, the courts of the first and appellate instances did not take into account the above, did not pay attention to the fact that the plaintiff made a statement on the inclusion of counterclaims, the consequence of which submission, in the presence of the prescribed conditions for inclusion, is the final and irreversible termination of the relevant obligations in whole or in part , including at the stage of execution of the court decision.
Therefore, the Supreme Court annulled the decisions of the first and appellate courts and referred the case to the court of first instance for a new trial.
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