The Economic Court of Luhansk Oblast, by a decision which was left unchanged by the decision of the Eastern Commercial Court of Appeal, in particular, opened proceedings in the bankruptcy case of PJSC "Alchevsk Metallurgical Combine", recognized the claims of the initiating creditor LLC "Eridius", introduced the procedure for the disposal of the debtor's property, appointed a property administrator, decided to consider the monetary claims of the creditor MARGIT HOLDINGS LIMITED ("Margit Holdings Limited") to the debtor, contained in the statements attached to the case materials, in a preliminary court session in the manner prescribed by Art. 47 KUzPB.
The Supreme Court as a part of the court chamber for consideration of bankruptcy cases of KGS left the mentioned court decisions unchanged, making the following conclusions.
The initiating creditor, who was the first to submit an application for the opening of bankruptcy proceedings before the date of commencement of operation of the Unified Judicial Information and Telecommunication System, if such an application is justified, has legitimate expectations regarding the appointment of the arbitration administrator specified in his application, which is directly consistent with the norms of 2-1 of the final and transitional provisions of the KUzPB.
Taking into account the prescriptions of para. 1 h. 3 st. 34, Part 8 of Art. 39 of the Code of Civil Procedure, it can be asserted that the initiating creditor, who was the first to file an application for the opening of bankruptcy proceedings, in the case of the validity of such an application, has legitimate expectations that the decision to open bankruptcy proceedings will indicate his creditor claims with a definition their size.
Simultaneous consideration of applications to open bankruptcy proceedings, provided for in Part 4 of Article 39 of the Code of Civil Procedure, consists in the fact that in the case when before the preparatory session the commercial court receives several applications from different creditors to open bankruptcy proceedings against the same debtor, the commercial court in the preparatory session considers the application that was received first, and only after establishing the groundlessness (necessity of return without consideration) of the first application, it examines the merits of subsequent applications for opening proceedings in the bankruptcy case.
The above shows that the prescriptions of Part 5 of Art. 38, Part 4 of Art. 39 of the Code of Civil Procedure determine the procedure for the actions of the commercial court in the preparatory session, which is considering several applications for the opening of bankruptcy proceedings against the same debtor, received from different creditors, provided that one of the applications (which was submitted first) is returned without consideration .
Precepts of Art. 38 of the Code of Civil Procedure do not define as a basis for returning an application for opening bankruptcy proceedings the validity of a previously submitted application for opening bankruptcy proceedings before applications submitted later.
Since the applications for the opening of bankruptcy proceedings, which are submitted later, are not subject to substantive consideration in the preparatory meeting in connection with the validity of the previously submitted application for the opening of bankruptcy proceedings, as well as in accordance with part 1 of Art. 38 of the Labor Code of Ukraine, they cannot be returned without consideration, they are noted in compliance with the requirements of par. 1 h. 3 st. 34 KUzPB information on the size of the creditor's claims to the debtor, then in order to comply with the provisions of Part 2 of Art. 47 of the Code of Criminal Procedure should be assigned for consideration in a preliminary meeting the monetary claims of creditors to the debtor, which are contained in the statements on the opening of bankruptcy proceedings attached to the case materials, which were received later.
You can read more about the text of the resolution of the KGS of the Supreme Court of July 6, 2022 in case No. 913/288/21 at the link https://reyestr.court.gov.ua/Review/105458876 .