T.C. SUPREME COURT 12. DEPARTMENT OF LAW 2016/1954 E., 2016/15638 K., Dated 02.06.2016
- AN 89/1 LIEN NOTICE CAN BE SENT TO THE COMPANY’S PARTNER / THE SUPREME COURT HAS AMENDED THE CASE LAW (Cancellation of Lien Notices – IIK Earlier by the Department. Md. 89 From the Point of View of the Company Partner from the Point of View of the Company 3. Due to the Fact that the Person has Not Been Accepted / The Change of Case Law has Been Made About the Company As a Debtor Due to the Enforcement Proceedings Against the Debtor, the Debtor has been Transferred to the Company’s Partner for the Foreclosure of the Rights and Receivables of the Company. Md. A Notice of Foreclosure May be Sent in Accordance with 89)
- 3 OF THE COMPANY’S PARTNER FROM THE POINT OF VIEW OF THE DEBTOR COMPANY. (Cancellation of Foreclosure Notices – 3 From the Point of View of the Debtor Company, the Partner of the Apartment’s Company. While It is Considered That the 89/1 Lien Notice Cannot be Sent to the Company’s Partner Because the Person Cannot be Counted, the HGK Issued on 11.05.2016.According to the Case Law 2014/12-1078, which Changes in Accordance with the Case Law No. 3 in Respect of the Debtor Company of the Company’s Partner. 89/1 The Sending of a Foreclosure Notice to the Complainants will be Deemed a Person / Company Partner in Accordance with the Law)
- FORECLOSURE OF THE RIGHTS AND RECEIVABLES OF THE COMPANY (IIK to the Company’s Partner for the Foreclosure of the Rights and Receivables of the Debtor Company Due to the Enforcement Proceedings Against the Company As a Debtor. Md. 89 A Lien Notice May be Sent in Accordance with – IIK of the Company’s Partner. 3. From the Point of View of the Company in the Application of Md 89. Number of Persons)
- ENFORCEMENT AND BANKRUPTCY CODE ART. 89 COMPANY PARTNER IN THE APPLICATION (3 From the Company’s Point of View. – There is No Direction that Does Not Comply with the Law in Sending an 89/1 Lien Notice to the Company Partner for the Foreclosure of the Rights and Receivables of the Debtor Company Due to the Enforcement Proceedings Conducted as a Debtor About the Company–
2004/m. 89
6102/m. 124, 125, 128
ABSTRACT: In the decision of the General Assembly of the Law dated 11.05.2016 and based on 2014/12-1078, decision No. 2016/1600, the company’s partner is the first.nun 89. article 3 from the point of view of the company in its application.due to the enforcement proceedings conducted about the company as a debtor, which will be considered a person, the debtor is transferred to the company’s partner for the foreclosure of the company’s rights and receivables.nun 89. it has been accepted that a foreclosure notice can be sent in accordance with the article.
In the apartment, first of all.nun 89. in terms of the article, if the company’s partner is not considered a third party from the point of view of the company, the principle adopted by the General Assembly of the Law has been adopted by amending the case law in accordance with the said decision.
In that case, IIK is the complainant who is a partner of the company due to the enforcement proceedings against the company.nun 89. since there is no violation of the law in submitting a foreclosure notice in accordance with the article, the court’s decision to accept the complaint instead of rejecting it is incorrect.
CASE: After the appeal court’s decision was requested by the creditor, the file related to this work was sent from the apartment to the apartment, and after the report prepared by the Examining Judge for the case file was heard and all the documents in the file were read and examined, the job was discussed and considered as necessary :
DECISION : on the basis of the debtor by the creditor about the company the tenancy agreement unpaid rent voluntary evacuation of revenue collection and enforcement proceedings initiated ilamsiz ordinary rent and rent; deputy executive of the complainants in his application to the court, the complainant’s partner follow debtor… A… E Hospitality, Tourism and trade limited company in pursuit of made against the complainant of the EBL 89. it was understood that the foreclosure notice was sent in accordance with the article, whereas the company’s partners requested that the decision on the sending of foreclosure notices dated 02.03.2015 be decided to be lifted, arguing that the debtor cannot be considered a third party from the point of view of the company, the court decided to accept the complaint.
Article 89 of the IIK. according to the article, if the right of claim or other claim that does not belong to the bearer or is not covered by a bill of exchange capable of turnover, or if the debtor’s movable property in the hands of a third party is foreclosed, the bailiff; real or legal person who owes henceforth, however, the debt to the debtor that follow enforcement of payment to the office odiyebi or movable property that is not valid third party in possession of the goods hereinafter, however, that goods can be delivered to the Executive Office of debtor is not right to follow, otherwise they would be forced to pay to the Executive Office reports that the price of the goods (Lien notice). In this foreclosure notice, the provisions of paragraphs 2, 3 and 4 are also notified to the third party.
Article 124 of the Turkish Commercial Code No. 6102. article 125 of the same Law states that limited liability companies are capital companies. article 128 of this Law states that trading companies have a legal entity and can exercise all rights and assume debts within the framework of Article 48 of the Turkish Civil Code. in its article, it is attached to the provision that each partner is indebted to the company for the capital that it undertakes to put in accordance with the company’s contract, which has been duly arranged and signed.
- Issued on 02.03.2015 for the debt of E… A… Otelcilik Turizm Ticaret Limited Şirketi. in the examination of the 89/1 lien notice sent to the complainants as a person, it is reported that “The rights and receivables that were born and will arise before the debtor company and the amount that you have to pay to the company have been decided to foreclose on the amount that you have to pay”. As a rule, all kinds of property and rights of the debtor can be foreclosed. It is mandatory that there is a clear provision in the Enforcement and Bankruptcy Code or special law for non-foreclosure. In other words, in order to accept that a good or right cannot be confiscated, it is necessary that there is clearly a provision of the law on this issue or that there is a legal regulation preventing the sale and transfer of that good or right in the sense of material law. 3. According to the company, since the company partner has a separate personality from the legal entity of the company in which he is a partner and is a natural person in the sense of TMK. it’s almost a person. Described above in accordance with the articles of the TCC, the company partners, with the agreement of the Company undertakes to the company that put the capital because of the company’s partner in the capital against the debtor and debtor receivables receivables to stop foreclosure foreclosure is a legal arrangement that it is possible to the capital. Besides, the debtor’s company, 3. except for the capital debt owed by the person to the company partner, it is possible that it is completely caused by private law and can be converted into money, Article 89 of the IIK. it is also undoubted that there may be other rights and receivables that can be foreclosed within the scope of the article.
Our apartment; 3 from the point of view of the company partner, the debtor company. while the company considers that the 89/1 lien notice cannot be sent to the partner because the person cannot be counted, in accordance with the case law No. 2014/12-1078 of the HSI issued on 11.05.2016 and according to the changing case law of our Department in the face of the cases described above; the company partner is 3rd in terms of the debtor company. since the company partner will be considered a person, there is no aspect that does not comply with the law in sending a notice of 89/1 lien to the complainants, and the court should decide on the rejection of the complaint, while the provision on the acceptance of the complaint is incorrect.
CONCLUSION : For the reasons mentioned above, the decision of the court on the acceptance of the creditor’s appeals was made in accordance with Article 366 of the IIK and Article 428 of the IK. in accordance with the articles, it was decided unanimously on 02.06.2016 to CANCEL it, to return the fee received in advance on request, with a clear way to correct the decision within 10 days from the notification of the notification.
