In the civil procedure law, the parties in a civil dispute before the court are not limited to merely responding to a claim filed against them. The Defendant also has the legal right to file a counterclaim against the Plaintiff in the same case, known as a Counterclaim (Gugatan Balik / Gugatan Rekonvensi), which relates to the same matter brought by the Plaintiff.
Definition and Legal Basis
A Counterclaim (known in Indonesian as Gugatan Rekonvensi) refers to a retaliatory lawsuit filed by a Defendant in response to a lawsuit filed by a Plaintiff. This is regulated under Article 132a of the Herziene Indonesisch Reglement (“HIR”). A counterclaim is defined as a claim submitted by a Defendant as a counter-action to the lawsuit filed by a Plaintiff. With this Counterclaim, a Defendant can bring up his/her claims against the Plaintiff without having to start a whole new lawsuit.
When can a counterclaim be filed?
Under Article 245 of the Reglement op de Rechtsvordering (“Rv”) and Article 132b paragraph (1) HIR, a counterclaim must be submitted concurrently with the Defendant’s response to the Plaintiff’s claim.
Article 245 Rv:
“A counterclaim must be submitted immediately together with the response to the Plaintiff’s claim.”
Article 132b (1) HIR:
“The Defendant must submit the counterclaim along with their response, either in writing or orally.”
Further, Article 132a of the HIR states that if a counterclaim is not submitted before the District Court by the Defendant during the first instance proceedings, it cannot be submitted at the appellate proceedings.
What can a defendant dispute or claim in a counterclaim in a civil case?
For further information regarding Counterclaim, a counterclaim must also be relevant to the same issue as the lawsuit. If the issue in the counterclaim is different from that in the original lawsuit, in practice, Indonesian judges will typically rule that the counterclaim is inadmissible, or that it should have been filed as a separate lawsuit. In addition, it is also important to note that if the main claim (gugatan konvensi) is declared dismissed, then the counterclaim will also be declared inadmissible.
This is based on the following legal references:
- Article 132a of the HIR, which provides that a counterclaim is a claim filed by the Defendant against the Plaintiff within the same proceedings.
- Supreme Court Decision No. 913 K/Pdt/1975, which held that, due to the accessory nature of a counterclaim to the principal claim, if the principal claim is dismissed (niet ontvankelijk verklaard), the counterclaim must also be declared inadmissible.
- Bekasi District Court Decision No. 466/Pdt.G/2024/PN.Bks, which held that a Counterclaim may only be accepted if it is related to the main claim (gugatan konvensi). Accordingly, the only party that can be sued in a Counterclaim is the Plaintiff in the main claim.
- Bandung District Court Decision No. 225/Pdt.Sus-PHI/2024/PN.Bdg, which held that because the arguments in the main claim and the counterclaim contradicted each other, and the issues raised in the counterclaim were based on legal events that occurred after the events in the main claim, the panel of judges considered that the counterclaim could not be examined.
Thus, a counterclaim cannot stand alone and may only be examined if the main claim is also examined and the same issue as main claim.
Conclusion:
Given the above, a counterclaim must be filed simultaneously with the Defendant’s response at the first instance (district court) level. Accordingly, the following are key points to consider when filing a counterclaim:
- A counterclaim must be filed together with the Defendant’s response to the Plaintiff’s claim;
- A counterclaim must be filed during the first instance proceedings at the district court. If not filed at this stage, it cannot be submitted during the appeal stage;
- A counterclaim is optional and constitutes a right, not an obligation, of the Defendant.
- A counterclaim must also be relevant to the same issue as the lawsuit.
- If the main claim (Gugatan Konvensi) is dismissed, the counterclaim is automatically be declared inadmissible.