T.R. YARGITAY 8th Law Office Base: 2018/ 14999 Decision: 2018 / 18937 Decision Date: 20.11.2018
SUMMARY: The case is about the request for the removal of the objection to the proceedings initiated for the collection of the rent receivable. There is no disagreement between the parties regarding the lease agreement with a starting date and a five-year term on which the lawsuit was based and the decision was taken. As the lessor on the front of the lease agreement … Kim Amb. Trade Inc. and the signature part of the contract has been signed by the plaintiff … (147/200 representation) and … (53/200 shares) by stamping the company. In the face of the arrangement of the lease agreement in this way, it must be accepted that the lessor is the company. Since the capacity to be hostile is related to public order, it is a matter that should be observed by the court itself. For this reason, the court had to decide to reject the request, since the plaintiff did not have the capacity to actively hostile, but the decision had to be reversed because the decision was not correct.
(6098 No. K. Art. 136, 331) (6100 No. K. Art. 3) (2004 No. K. Art. 366)
At the end of the trial in the above-mentioned case between the parties, the Court decided to reject the case and upon the appeal of the judgment by the plaintiff’s attorney, the file was examined by the Chamber and it was considered necessary.
Based on the written lease agreement dated 01.09.2013, the claimant demanded the collection of a total of 36.890.00 TL, including 5.270.00 TL for December 2015 and 31.620.00 TL for the next six months, with the enforcement proceedings initiated on 17.12.2015. The payment order was notified to the defendant debtor company on 22.12.2015. In the petition of objection dated 28.12.2015, the defendant debtor company stated that it was a tenant at the current address until 17.11.2015, all lease obligations were fulfilled as long as the leased property was used, and even paid the rent for the 11th and 12th months when the client did not use the leased property, on 17.11.2015. that the leased property has become unusable, raw materials and machinery equipment belonging to the client have become unusable as a result of the fire, therefore the immovable cannot be used by the client company after 17.11.2015, since the immovable has not been made usable, the contract has been terminated on 16.12.2015 in accordance with Article 331 of the TCO. that the cause of the fire was due to the negligence of the property owner, that the plaintiff established a right of imprisonment on his client’s properties, that this right of imprisonment is contrary to the procedure and the law, a letter of guarantee equal to the non-due 6-month rental fee and the current client for the abolition of the right of imprisonment. The rent for the month of December, which was not used by the lien, was also deposited in the execution file, that his client did not owe any debt to the creditor, that the lease agreement between them was terminated with a just cause on 16.12.2015, therefore the right to imprisonment and the right to imprisonment were initiated by converting the movable pledge opened in the 15-day period given. He stated that he objected to the follow-up, all his receivables and ancillaries. Upon the objection by the defendant debtor company to the payment order, the plaintiff creditor applied to the enforcement court and requested that the objection be lifted.
In his statement during the hearing, the defendant’s attorney stated that the condition of the lawsuit was not fulfilled, and that his client … Kim Amb. Trade A.Ş., that the plaintiffs are the partners of the … company, that the company has a legal personality, therefore the plaintiffs do not have the capacity to be a party, and that the lawsuit should be dismissed on a procedural basis.
It is accepted by the court that the immovable that is subject to the lease has been burnt down on 17/11/2015, that the immovable has become unusable, that the contract has been terminated with the notice dated 16.12.2015, that it has lost its quality as a leased immovable, and that the contract has ended according to Article 136 of the Code of Obligations. At the same time, it was understood that the termination conditions were met according to the 331st article of the Code of Obligations, that the tenant terminated the contract and that the legal conditions were fulfilled.
The case is related to the request for the removal of the objection to the proceedings initiated for the collection of the rent receivable.
There is no dispute between the parties regarding the lease agreement with the starting date of 01.09.2013 and the duration of 5 years, which is the basis of the lawsuit and taken as a basis for the decision. As the lessor on the front of the lease agreement … Kim Amb. Trade Inc. and the signature part of the contract has been signed by the plaintiff … (147/200 representation) and … (53/200 shares) by stamping the company. In the face of the arrangement of the lease agreement in this way, it must be accepted that the lessor is the company. Since the capacity to be hostile is related to public order, it is a matter that should be observed by the court itself. For this reason, while the court should decide to reject the request since the plaintiff does not have the capacity to act as an active hostility, the decision is annulled because it is not correct to make a written decision.
it needed to.
Conclusion: With the acceptance of the appeals for the reasons explained above, considering the provision of the provisional article 3 added to the HMK No. 6100 with the Law No. 6217, the decision to be overturned pursuant to Article 428 of the HUMK. It was unanimously decided on 20.11.2018 that a request for rectification of the decision can be made against the decision within 10 days following the notification of the Supreme Court Chamber’s decision, and that the advance fee be refunded to the appellant upon request. (¤¤)
