T.C.
SUPREME
- law office
BASE NO: 2016/6461
DECISION NO: 2018/777
DATE OF DECISION: 12.2.2018
decCLAIM FOR COMPENSATION CAUSED BY AN INTER-TRADER TORT –ABSENCE OF A LEGAL ENTITY OF THE ORDINARY PARTNERSHIP–INCLUSION OF ALL PERSONS FORMING THE PARTNERSHIP IN THE LAWSUIT
2004/m.67
ABSTRACT: Since the partnership does not have a legal entity in the ordinary partnership, it does not have a license to act as a mere ordinary partnership, nor does it have the right and authority to sue only one of the partners, or it is not possible to file a lawsuit against someone. In other words, in the case that will be opened at the end of disputes arising from business and transactions conducted in the form of ordinary partnership, it is mandatory that all persons forming the partnership are shown as parties to the case. In the event of a lawsuit, the work to be done must be undertaken by the defendant and the non-defendant business entity as an ordinary partnership, and the defendant as well as the other partner must be a party to the lawsuit. It is contrary to the procedure and the law that the court continues to judge and rules by examining the merits of the business before the participation of the other business forming the ordinary partnership in the case is ensured.
CASE : The plaintiff is represented by the attorneys of the Communication Services Joint Stock Company, the defendant is Haf. Insh. Taah. Nak. Renown. and tic. Ltd. Şti. on the day the petition for compensation arising from tort against 21/11/2014 between merchants made available upon request by the court at the end of the trial; the case to the Supreme Court decision dated as of 27/10/2015 partially given for adoption investigation of first instance the parties within the period requested, but once the petition of Appeal has been decided upon the adoption of the examination by the judge with the report was discussed by examining the papers in the file:
DECISIONTHE case concerns a claim for compensation arising from an inter-trader tort. The court has decided to partially accept the case; the decision has been appealed by the deputies of the parties.The deputy plaintiff requested compensation for the damage caused, stating that the necessary measures were not taken during the construction of the road of which the defendant company is a contractor, and therefore the infrastructure facilities belonging to the client company were damaged.The defendant’s attorney the defendant company, and electrical contracting out of the case hafriyet Trading made by a joint venture, other entity should be included in the case, the case that is also substantive objections forced by friendship between them that should have dismissed the case argued.
The court decided to partially accept the case on the basis of the expert report.Road construction work of the contract dated hardwood contained within the file 23/07/2012 a review of the contract with the Municipal Directorate of excavation, construction contractor Shipping Trading Company-electrical contracting business partnership was signed between hafriyet revealed. In this respect, it is necessary to accept that the relationship between the respondent and the non-litigant commercial entity is an ordinary partnership and that they have received the decommissioned business as an ordinary partnership. Since the partnership does not have a legal entity in the ordinary partnership, it does not have a license to act as a mere ordinary partnership, nor does it have the right and authority to sue only one of the partners, or it is not possible to file a lawsuit against someone. In other words, in the case that will be opened at the end of disputes arising from business and transactions conducted in the form of ordinary partnership, it is mandatory that all persons forming the partnership are shown as parties to the case. In the event of a lawsuit, the work to be done has been undertaken as an ordinary partnership by the defendant and the non-defendant commercial entity, since the other partner besides the defendant, Hafriyet Elektrik Contracting Trade, must also be involved as a party in the lawsuit. Ignoring this aspect mentioned by the court, the fact that the merits of the business were examined and the trial was continued and the written judgment was established without the participation of the other business forming the ordinary partnership in the case was ignored, and the decision had to be overturned because it did not fall in accordance with the procedure and the law.
CONCLUSION: It was decided unanimously on 12.02.2018 that the appealed decision should be OVERTURNED for the reasons described above, that there is no room for the other appeals of the parties to be examined for now according to the reason of the reversal, and that the fee received in advance from the parties should be refunded if requested.
