Failure To Deposit The Pre-emption Fee Is Not A Condition For Litigation
14th Civil Chamber 2021/554 E. , 2021/1438 K.
“Case Law Text”
14th Civil Chamber
COURT :Civil Court of First Instance
At the end of the hearing held upon the request for cancellation and registration of the title deed due to pre-emption with the petition filed by the plaintiffs’ attorney against the defendant on 14.10.2014; the Supreme Court of Appeal examination of the judgement dated 12.12.2014, which was dismissed due to the lack of a cause of action, was requested separately by the plaintiffs and the plaintiffs’ attorneys, and after the acceptance of the petition of appeal, which was understood to be in due time, the file and all the papers contained therein were examined and considered accordingly:
DECISION
The lawsuit is related to the request for cancellation and registration of title deed based on the right of pre-emption.
The attorney for the plaintiffs stated that the plaintiffs made a construction contract with the defendant company in return for flats, they filed a lawsuit against the debtor company with the file numbered 2013/94 Esas of Karşıyaka 2nd Commercial Court of First Instance and the lawsuit was decided to be accepted, they put the judgement into proceedings with the file numbered 2013/12953 of Karşıyaka 3rd. Execution Directorate’s file numbered 2013/12953, the proceedings were unsuccessful, the debtor company transferred its share in the immovable property subject to the lawsuit to the defendant …, stating that the transfer was made for the purpose of evading property and was collusive, and requested the cancellation of the disposition, and if not, the cancellation and registration of the title deed due to the right of pre-emption.
The defendant’s attorney defended the rejection of the lawsuit.
The court decided to dismiss the lawsuit due to the lack of a cause of action on the grounds that the sale price was not deposited by deciding to separate the lawsuit in terms of the claim for pre-emption and recording it in a separate case.
Judgement was appealed by the plaintiffs’ attorneys and the plaintiffs’ attorneys.
The right of pre-emption is a right that authorises the other shareholders to purchase the share first in the event that the share is sold to a third party in immovables subject to the provisions of shared ownership. This right arises as soon as the shared ownership relationship is established and becomes exercisable upon the sale of the share to the third party.
With the exercise of the pre-emption right, a sales relationship is established between the shareholder who uses this right and the buyer, the scope and terms of which are the same as the contract between the seller and the defendant. The pre-emption price consists of the sum of the sale price shown in the title deed and the fees and expenses paid by the defendant.
In the pre-emption case, the plaintiff must be given a period of time to deposit the pre-emption price, which consists of the sum of the sale price of the share subject to the lawsuit and the mandatory fees and expenses to be paid, within an appropriate time to be determined by the court before the judgement in accordance with Article 734/2 of the Turkish Civil Code No. 4721. The court may also decide that this period given to the plaintiff is definite. If the prescribed transaction is not performed within the definite period, the right of the party who does not perform the transaction in due time to perform that transaction is cancelled pursuant to Article 94 of the CCP No. 6100. However, in order for this article to be applied, the plaintiff must behave in a manner that will prolong the case.
On the other hand, the Code of Civil Procedure No. 6100 has divided the first instance proceedings into stages. These stages are
a) Mutual submission of the petitions,
b) Preliminary examination,
c) Investigation,
d) Oral judgement,
e) Judgement
The preliminary examination consists of five stages.
The purpose of the preliminary examination stage regulated in the “Fourth Section” of the Code of Civil Procedure is to make the necessary preparations before proceeding to the investigation stage, so that both the court and the parties can proceed to the investigation stage with full control of the case and free from the reasons that may prolong the case (Pekcanıtez/Atalay/Özekes, p.375-376; Ermenek, İbrahim: “Preliminary examination according to the Code of Civil Procedure”, İnönü University Law Faculty Journal, Vol. 2, No. 1, Y. 2011, pp. 145-146). When the relevant regulations on the subject are examined, Article 137 of the CCP No. 6100 regulates the scope of preliminary examination; Article 138 regulates the decisions to be made on the terms of the case and the first objections during the preliminary examination stage; Article 139 regulates the invitation to the preliminary examination hearing and Article 140 regulates the mandatory preliminary examination hearing.
When the regulations are examined more closely; Article 137 of the CCP No. 6100 titled the scope of the preliminary examination states that the preliminary examination shall be conducted after the mutual submission of the petitions, and considering Article 138. It is stated that the court may, if necessary, hear the parties at the preliminary examination hearing before making its decision on the conditions of the case and the first objections, that the court may fully determine the issues of dispute within the scope of the claims and defences of the parties at the preliminary examination hearing,
that it shall take the necessary actions for the parties to present their evidence and to collect the evidence, that it shall encourage the parties to settlement or mediation in cases where the parties can freely dispose of them, and that these matters shall be recorded in the minutes. During the preliminary examination hearing, it is envisaged to carry out procedures such as hearing witnesses, examining documents, obtaining expert opinions, conducting discovery and offering oaths, limited to the conditions of the case and the first objections.
Considering the procedures to be carried out at the preliminary examination stage; it can be said that the preliminary examination is accepted as a prerequisite for an effective investigation (Ermenek, p. 146). As a matter of fact, Article 137/2 of the CCP stipulates that “the proceedings cannot start until the preliminary examination is completed and the necessary decisions are taken, and a hearing date cannot be set for the proceedings”. This regulation is a mandatory regulation. In order to prevent the continuation of the old habits in practice regarding unnecessary hearings, the Legislator has strictly prohibited the proceeding to the investigation stage and setting a hearing date for the investigation before the preliminary examination stage is completed and the decisions required to be taken at this stage are taken (Pekcanıtez/Atalay/Özekes, p.375-376).
After the stage of mutual submission of the petitions is completed, firstly, the conditions of the case and initial objections are examined through the file and a positive or negative decision is made on these issues; the parties are invited to the preliminary examination hearing in order to decide on the conditions of the case and initial objections that cannot be decided through the file and to make other preliminary examination procedures, and after the necessary procedural procedures are carried out at the preliminary examination hearing according to Articles 137 and 140 of the CCP No. 6100, the investigation hearing should proceed.
Pursuant to Article 140 of the CCP No. 6100, in the preliminary examination hearing; it is regulated that the parties should be given a definite period of 2 weeks to submit the documents they have shown in their petitions but have not yet submitted to the court or to make the necessary explanation for the documents to be brought from elsewhere.
Pursuant to Article 147 of the CCP; “The parties are invited to the hearing for the investigation after the completion of the preliminary examination stage. In the invitation to be sent to the parties, it is notified that if they are not present at the court on the specified day and time without a valid excuse, the hearing will continue in their absence and they will not be able to object to the actions taken.”
On the other hand, Article 114 of the CCP; (1) The conditions for a lawsuit are as follows:
a) Turkish courts have jurisdiction.
b) The judicial remedy is permissible.
c) The court has jurisdiction.
ç) In cases where jurisdiction is conclusive, the court is authorised.
d) The parties have the capacity to act as parties and litigants; in cases where legal representation is in question, the representative must have the necessary qualifications.
e) Being authorised to pursue a lawsuit.
f) In cases pursued by proxy, the proxy must have the capacity to act as proxy and have a duly issued power of attorney.
g) The plaintiff has deposited the advance on expenses that should be deposited by the plaintiff.
ğ) Fulfilment of the decision regarding the provision of collateral.
h) The plaintiff has a legal interest in filing a lawsuit.
ı) The same case has not been filed before and is not still pending.
i) The same case has not been finalised before.
(2) The provisions regarding the conditions of action in other laws are reserved. It contains a regulation as follows.
In the concrete case; although the court gave time to the plaintiff’s attorney to deposit the pre-emption fee with the invitation to the preliminary examination hearing dated 14.10.2014 and decided to dismiss the case due to the absence of a cause of action since the fee was not deposited at the preliminary examination hearing, it is not correct not to consider that the preliminary examination cannot proceed to the investigation before the preliminary examination is completed and the necessary decisions are taken and that the time required to be given at the investigation stage cannot be given at this stage.
Again, considering the regulation in Article 114 of the Code of Civil Procedure, since the non-deposit of the pre-emption fee is not regulated as a condition of the lawsuit, it was not correct to decide to dismiss the lawsuit for the lack of a condition of the lawsuit due to the non-deposit of the pre-emption fee. For these reasons, the decision should be reversed.
CONCLUSION:
For the reasons explained above, the appeal objections of the plaintiffs’ attorney and the plaintiffs were accepted and the judgement was reversed, the prepaid fee was refunded to the depositor, and it was unanimously decided on 03/03/2021, within 15 days from the notification of the decision, with the way of decision correction being open.
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