Mail Correspondence Is A Document In Receivables Cases
13th Civil Chamber
Principal Number: 2017/1014
Decision Number: 2020/4488
“Case Law Text”
COURT :Civil Court of First Instance
At the end of the trial of the negative determination case between the parties, the judgment given for the dismissal of the original case in the original and combined file and the partial acceptance and partial rejection of the combined case due to the reasons written in the judgment was appealed by the attorneys of the parties within the time period, and the file was examined and discussed and considered.
DECISION
In the main lawsuit, the plaintiff claimed attorney’s fees due to the dismissal from the attorney’s office in the file numbered 2009/16466 of the … 12th Execution Directorate, initiated by the defendant, and in the file numbered 2009/867 of the … 15th Labor Court. Labor Court’s file numbered 2009/867, but he does not owe any debt to the defendant, the defendant was appointed as an attorney with a power of attorney dated 05/05/2009, he was dismissed due to necessity with the dismissal letter dated 08/10/2009, the defendant filed the lawsuit numbered 2009/867 of the … 15th Labor Court in order to cancel the premium debt accrued by the SSI against the plaintiff and to determine that the plaintiff is not indebted to the SSI.
Labor Court No. 2009/867, but the defendant was dismissed without even entering the first hearing of the case in question, the requested attorney’s fee was exorbitant, some payments were made as attorney’s fees to the persons determined by the defendant upon the instruction of the defendant, this issue is fixed by the correspondence between the parties, so there is no debt due to the payments made, … 12. Execution Directorate’s file numbered 2009/16466, and that the defendant be sentenced to compensation for bad faith, and in the combined case; with the follow-up file numbered 2010/218 of the … 1st Execution Directorate initiated by the defendant … 5. Civil Court of First Instance file numbered 2008/112,
the defendant submitted a power of attorney due to the fact that the defendant intervened in the aforementioned file on behalf of the company as the notified party, but did not make any written statement, nor did he take part in any hearing of this file; He requested the determination that he was not indebted to the defendant for the debt subject to the follow-up file and that the defendant be sentenced to malice compensation.
Defendant requested the dismissal of the lawsuit.
The court decided to dismiss the main lawsuit, to partially accept the combined lawsuit, to determine that the defendant is not liable for 37.071,00 TL due to the file numbered 2010/218 E of … 1st Execution Directorate; the judgment was appealed by the parties.
1-In the examination of the appeal objections of the parties to the merged case; All appellate objections of the parties should be rejected according to the writings in the file, the evidence on which the decision is based on the evidence and the reasons in accordance with the law, and especially since there is no inaccuracy in the appreciation of the evidence.
2- In the examination of the plaintiff’s appellate objections to the main case; the plaintiff filed the present lawsuit with the request to determine that he is not indebted due to the enforcement proceedings initiated by the defendant attorney for the collection of the attorney fee receivable. The court decided to dismiss the lawsuit by concluding in accordance with the expert report. In the expert report; the attorney fee was calculated by determining that there was no written fee agreement between the parties.
However, in the e-mail correspondence dated 2.9.2009 sent by the defendant lawyer to the plaintiff; a breakdown of the lawsuit to be filed with the SHK was made, 5.800,00 TL as expenses, 2.000,00 TL information fee received from the expert and the remaining 8.000,00 TL attorney fee was requested to be paid, and while explaining the remaining balance in parentheses, there is an explanation that 2.000,00 TL was paid after the petition of objection was written from the figure of 10.000,00 TL, and it is understood that the court did not evaluate the e-mail correspondence.
Article 199 of the CCP stipulates that “Written or printed texts, deeds, drawings, plans, sketches, photographs, films, video or audio recordings, electronic media data and similar information carriers that are suitable to prove the facts in dispute are documents according to this Law.” With this regulation, e-mail correspondence is also accepted as a document. In that case, while the court should decide whether the plaintiff is indebted or not by evaluating the e-mail correspondence and the payments made by the plaintiff, it is contrary to the procedure and the law to decide to dismiss the lawsuit in writing with incomplete examination and it is a reason for reversal.
CONCLUSION:
For the reasons explained in subparagraph 1 above, all appellate objections of the parties to the combined case are rejected, for the reasons explained in subparagraph 2 above, the decision is DISMISSED in favor of the plaintiff, the remaining fee of 1.898,32 TL as written below is to be collected from the appellant defendant and the remaining fee of 25,20 TL is to be collected from the appellant plaintiff, it was unanimously decided on 10/06/2020, with the decision correction path open within 15 days from the notification in accordance with Article 440/I of the HUMK.
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