Petition For Declaration For Interim Decision Commercial Court
TO ISTANBUL … PRINCIPAL COMMERCIAL COURT
FILE NO:
THE PLAINTIFF :…….
ATTORNEYS :…….
DEFENDANT :…….
SUBJECT:
………………… dated interim decision is to submit our statements against the reply petition within the two-week deadline.”
EXPLANATIONS
All of the procedural and substantive defences put forward by the defendant in its reply petition are unjustified and devoid of legal basis. Namely
1- The defendant claimed that the lawsuit should be dismissed on the grounds of hostility. As a basis for this, ………………….. Public Prosecutor’s Office’s 2013/………. Preparatory Investigation and 2013/………. Decision numbered 2013/ Preparatory Investigation and 2013/ Decision numbered decision on non-prosecution.
In the decision on non-prosecution given by the Prosecutor’s Office, it is stated that “…… the suspect is the owner of …………….. which provides ………… service to this workplace …………….. A.Ş., which provides …………… services to this workplace, on the date of the crime, it was understood that the victims were poisoned due to the …………… incident and as a result, all victims were injured in a way that could be eliminated by a simple medical intervention;
the crime of negligent injury attributed to the suspects, as such, touches Article 89/4 of the Turkish Criminal Code No. 5237. Article 89/4 of the Turkish Criminal Code No. 5237 and since it is one of the offences whose prosecution is subject to complaint pursuant to paragraph 5 of the same article and since it is understood from the scope of the document that the victims are not complainants….”, the said decision was made on the grounds that there is absolutely no evidence to support that the defendant and its company have nothing to do with the poisoning incident.
Reports that the samples are healthy will also not eliminate the defendant’s liability. Because, as clearly stated in our petition; Official Institutions did not show the necessary sensitivity in determining the cause of poisoning, some of the meals were examined. No examination was made on some products. While the number of samples to be examined was 11, only 2 of them were examined. Moreover, while the samples taken from the morning – lunch – dinner should have been analysed, only the samples taken from the morning meal were analysed due to the intervention of the defendant.
Therefore, the reports received have no evidentiary force in the case before us. No toxicological examination was carried out on the samples. The client plaintiff, on the other hand, had the water sample analysed at the Istanbul Public Health Laboratory Directorate of the Istanbul Provincial Health Directorate and it was determined that the sample with the analysis number 22613 did not comply with the microbiological parameters in Annex 2 A of the “Regulation on Water Intended for Human Consumption” published in the Official Gazette dated …………….. and numbered …………….. In the defendant water sample, the number of coliform bacteria, which should be zero in 100 ml, was 175.
The fact that the water sample was contaminated, the doctor reports that the poisoning was caused by the food eaten, the fact that the workers who ate the same food were poisoned collectively, and the fact that the workers were poisoned in the same way in different companies served by the defendant on the same day are clear and indisputable evidence that the poisoning was caused by the food produced by the defendant.
For all these reasons, the defendant’s objection of hostility, which has no legal basis, should be rejected.
2- The defendant claims that the present lawsuit was filed before an unauthorised court. The defendant states that the damage requested to be compensated in the lawsuit is a damage suffered due to a tortious act, and therefore the lawsuit should be filed in the court where the act occurred or in the defendant’s residence. As we have stated in our petition, there is a contractual relationship between the defendant and the client and our claim in this case is based on the contractual relationship. To reiterate, the client company is one of the leading companies operating in the ready meals sector. Due to its commercial activity, it signed a “Catering Service Purchase Agreement” with the defendant on …………………. The subject of the contract is the supply of food to the Istanbul Headquarters Factory and stores of ……………, which is a customer of the client company, and to make all preparations.
Due to the fact that the food provided caused poisoning of the workers, the client company had to pay …………………TL to its customer within the framework of the contractual relationship. Due to the poisoning, the plaintiff client has also suffered other damages as stated in the petition. The plaintiff client has suffered a serious loss of reputation. All these damages must be compensated by the defendant due to the contractual relationship. Because the defendant has breached its obligation. Article 23 of the contract signed between the defendant and the plaintiff client stipulates that Istanbul Courts and Execution Offices are authorised in disputes arising from the contract. The defendant’s objection of jurisdiction should also be rejected.
3- The defendant has asserted the defence of statute of limitations. The defendant insistently claims that our claims are based on tort. However, our claims are based on the contract and the statute of limitations is 10 years pursuant to Article 125 of the Code of Civil Procedure. The defendant’s defence of statute of limitations has no legal basis and should be rejected.
4- In its objection on the merits, the defendant has not made any objection or statement concerning the merits of the case. The reply to the merits of the reply petition consists of only a short paragraph and includes allegations that are in no way related to the case. In this framework, we request that the prohibition of extension of defence, which is one of the most fundamental principles of our procedural law, be taken into consideration in the subsequent petitions to be submitted by the defendant.
CONCLUSION and REQUEST:
For the reasons explained above and in our petition, we request that our just cause of action be accepted and that the costs of the proceedings and the attorney’s fee be charged to the other party.
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