T.C.
Istanbul
DISTRICT COURT OF JUSTICE
- law office
MAINLY NO: 2017/1399
DECISION NO: 2018/878
DATE OF DECISION: 4.7.2018
MEN OF THE MUARAZAN PROMPT-MUVAZAA-BURDEN OF PROOF-DEPENDING ON THE REQUEST
6100/m.190,353/1-b-2
ABSTRACT : The case is related to the client’s request for a men.
According to the expert report, it was reported that the plaintiff cannot be held responsible for the debt of the previous subscriber with an old date, therefore, the failure to establish a subscription agreement is contrary to the articles of the regulation, the case of muvazaa should be considered by the court.
As a result, in order not to pay the decease of the decease subscriber, it is stated that the claimant and the decease subscriber have not been proven by the defendant that they have been saving successfully on the basis of insistence, the plaintiff will not show that the restaurant business, like the previous tenant, has an organic relationship between them, there is no record of a relationship or document indicating the transfer of the business between them, the decision of decisiveness between the plaintiff and the defendants to resolve the dispute is correct.
On the basis of the court’s previous Subscription Agreement and its terms are in the contract in a way that exceeds the demand of the plaintiff to be made a decision on these matters due to the ex officio examination of the public order as a result of 353/1 HMK-B-2 in accordance with the decision of the court by removing “the case with the acceptance of the defendants, the plaintiff to sign a subscription contract created by the subject of the case at address muaraza of men” in the form of re based on a decision had to be made.
CASE: At the end of the examination conducted on the case file due to the appeal of the decision made by the court of first instance regarding the above-mentioned parties and the case in writing;
IT WAS CONSIDERED NECESSARY:
DECISION : The deputy plaintiff summarizes the petition of the deputy plaintiff; your client Fatih Istanbul in order to operate in the food and beverage industry at the place of business …he rented, leased receive a business tax registration when the opening of the workplace and to be able to make electricity, water, gas and internet services such as applications made to the institutions in order to benefit from the necessary subscriptions baslatig, but the electricity connection was not made, the previous subscription to the subscriber if their applications are denied bet since it is the obligations of the defendant company to avoid making a contract with the client, he requested and sued to conclude a contract with his client on the use of electrical energy by informing him that it is completely devoid of legal basis and unfair, and to connect the electrical energy as a precaution until the trial is concluded.
The defendant’s attorney summarizes the response petition; the plaintiff’s previous claim that the subscriber is not done with himself that it was unacceptable for debts due to the contract, the plaintiff’s actual connection with any legal or previous subscriber didn’t have an entrepreneur who is trying to open a new artisan shop that has nothing to do with the truth of the statement that is, the subscribers without paying their bills from the previous case that keeps him going is a commercial transaction muvazal doing, by notification in the previous operates in the same industry abonen move the business premises, the rejection of the case is asked to decide.
In summary, the answer of the defendant, the deputy, the plaintiff hired in the history of the workplace and 20.11.2015 at the relevant address, which received tax 30.11.2015 started a new job in the history of the plates, the electrical services necessary to enable to benefit from the applications made, the subscription is started, if the client is incorrect orienting of animosity in the company, the separate corporate bodies possessing beef just what to unjust and unwarranted by declaring that the plaintiff should be directed to the decision of the trial has advocated that it be given of the denial.
By the court of first instance, the defendant institution is authorized to contract with the consumers of the defendant that determines whether the subscription is made before the research institution of electrical bedas muvazaa that is requesting a determination as to whether there is muvazaa bedas the unlawfulness of the defendant by the plaintiff in the absence of animosity towards me, continues to work in the same place as the previous tenants of the plaintiff to the defendants, the electrical to get rid of debt, his claims on behalf of the plaintiff that they are based on the application of electricity to the respondent the burden of proof belongs, muvazaa claim has not been submitted as evidence, submitted as evidence by the parties in the lease agreement which the plaintiff, the plaintiff’s tax shown that the previous tenant does not have a connection with the prosecution’s case by specifying the acceptance of the plaintiff that operate between a subscriber in the same workplace with the previous muvaz the expenses between the parties that did not have commercial activity conducted by the plaintiff … muaraza Fatih/ ISTANBUL instead of the business address with other subscribers are given the contract between the defendant and the electrical connection in accordance with the conditions, the remedy of the law of appeal was applied against the decision by the defendants’ deputies within the period of time.
In summary, the defendant’s deputy filed an appeal; between the plaintiff with the previous subscriber, subscribers, paying their bills to ensure you continue without previous commercial life, they had identified that there is no collusive relationship, the burden of proof belongs to the plaintiff, the plaintiff can’t prove this point with all the evidence that the side has to offer, if the arrangement of the lease agreement is always possible, therefore, that the determination of whether a situation is based on the fact that collusive is not possible, and that the complaining party to operate in line with a previous subscriber’s installation in question, despite being in the middle of using the same, ignoring this issue, the expert requested that the court decision be lifted, which is contrary to the procedure and law, by informing the court that it is against the law to base the report prepared without focusing on muvazaa on the provision.
In summary, the defendant’s deputy filed an appeal; although the local
although the court has imposed the burden of proof of the agreement on them, the main burden of proof is on the plaintiff who claims that he has no connection with the former debtor by filing this case, because HMK m. 190: ” The burden of proof belongs to the party that derives the right in its favor from the legal conclusion attached to the alleged case, unless there is a special regulation in the law.” provision is included here because the plaintiff is the party who deserve a concrete mismatch in its favor, is the notion that should prove any link between the former tenant, the documents that the plaintiff has to offer, that is not enough to prove the claim, the evidence collected thus missing from the assessment to decide the case upon the adoption of the provision, by declaring that the law was contrary to the decision of the court procedures and removed by, he requested that the case be dismissed as a result of the retrial.
Manufacturer and seller / distributor company holding a retail sales license: It is obliged to enter into a connection agreement and subscription agreement with consumers connected to the distribution system in accordance with the Rules regulated in accordance with the Electricity Market Law, as well as with free consumers. If the seller / distributor company does not approach the subscription agreement facility, a claim for the elimination of the muarazan may be filed.
29.09.2004 day and 2004/13-417 E of the General Assembly of the Law.- 2004/442 K. as explained in ilam No. 1; muarazan’s men (prevention of strife) cases are not determined in the sense of procedural law, but are eda cases. Because, in such cases, both the determination of the existence of a muarazan and its men are requested.
Moreover, the General Assembly of the Law is scheduled for 17.03.2010 days and 2010/3-119 E. 2010/159 K. muaraza by one of the parties during the continuation of an agreement in a sentence numbered(contention) removal, in case of this situation, which may damage any other party to end the legal status in doubt is deemed to have a legal interest in opening the case to recover from being found.
In a concrete case, a subscription was established before the plaintiff out of the case … accrued on the basis of the minutes dated 28.07.2010, which were issued for using illegal electricity without a subscriber about 2010/7. after paying the debt of TL 551.76 for the period, a subscription agreement was concluded between the plaintiff … and BEDAŞ on 25.08.2010, and then, with the lease agreement submitted by the plaintiff as evidence, the plaintiff rented the address as a workplace on 22/03/2011, but did not contact the electricity administration to establish a subscription agreement, dec actually used electricity for a long time via subscription on behalf of Istanbul 12. The decision of the Executive Court dated 17.02.2015 and dated 2014/ 970 E, 2015/183 K. by his numbered decision, he also; out of the case … Istanbul 35, where a decision was made to evict him from the address in question due to default on his lease debts. 2014/11874 E of the Executive Directorate. from the tracking file numbered, it is understood that the property of the workplace, which is a restaurant, has been foreclosed.
According to the expert report received by the court, it was also reported that the plaintiff cannot be held responsible for the debt of the previous subscriber with an old date, therefore, the failure to establish a subscription agreement is contrary to the articles of the regulation, the case of muvazaa must be evaluated by the court. Examination of all the evidence the court also the case with the previous tenant between the plaintiff who wants to make a subscription agreement with kinship, intimacy, does not have a commercial partnership, as a result, the subscriber would receive from the case to avoid paying subscriber’s saving the previous out of the case the plaintiff and the defendant, with intent has been proven by collusive izrar where they are, and ultimately; the plaintiff, like the previous tenant, do not show that there is a relationship between the organic restaurant business, relationship or proof of transfer between them by indicating the absence of registration of the enterprise, formed between the plaintiff and the defendant for the elimination of muaraza considered in the judgment of the evidence are discussed and on the basis of the evaluation procedures and in the absence of a direction that is contrary to the law, the defendants made due to reasons of Appeal understood as a result of appellate review, HMK 353/1-B-1 of the merits of the appeal of the denial of the defendant in accordance with reason; however, the court’s previous Subscription Agreement and its terms, on the basis of the contract to be made in a way that exceeds the demand of the plaintiff, the decision on these matters due to the ex officio examination of the public order as a result of 353/1 HMK-B-2 in accordance with the decision of the court by removing “the case with the acceptance of the defendants, the plaintiff to sign a subscription contract created by the subject of the case at address muaraza of men” in the form of re based on a decision had to be made.
CONCLUSION : For the reasons described above;
With partial acceptance of the defendants’ requests for appeal; as a result of personal examination due to public order, the court’s decision was lifted in accordance with Article HMK 353/1-b-2 and re-issued on the merits;
1-) Upon acceptance of the case, the defendants are entitled to the men of the muarazas that they have created by not signing a subscription agreement with the plaintiff at the address of the subject of the case … Fatih / ISTANBUL,
2-) The injunction granted in the continuation of the case shall be continued until the judgment is finalized,
3-) Deducting the 31.40 TL fee that must be received from the 29.20 TL fee received in advance and collecting the 2.20 TL fee from the plaintiff and registering it in the treasury,
4-) In favor of the plaintiff’s attorney, the relative attorney’s fee of TL 1,980.00, calculated on the basis of the portion provided for in accordance with the minimum wage tariff of the attorney in force at the date of the decision, shall be collected jointly and severally from the defendants and provided to the plaintiff,
5-) The collection made by the plaintiff
am 1.308, providing the plaintiff with a joint and severally collection of the trial expense of 20 TL from the defendants,
6-) The advance of the expenses deposited by the parties and the balance remaining will be paid upon the finalization of the decision and its refund to them upon request,
Refusal of the defendants for other reasons of appeal,
The fee for the appeal decision received in advance is refunded to the applicant on request,
The defendant … is entitled to receive from the plaintiff the cost of the 5.80 TL appeal hearing that the defendant has made due to the claim and give it to this defendant,
If there is an advance balance of expenses deposited due to the appeal, the applicant must be refunded by the court of first instance,
At the end of the review of the file, it was unanimously decided that the path of appeal to the Supreme Court would be open within 2 weeks from the notification of the reasoned decision to the parties. 04.07.2018
