Company Property Cannot Be Seized Due To The Personal Debt Of The Company Partner
8th Civil Chamber
Principal Number: 2016/1136
Decision Number: 2016/1136
“Case Law Text”
COURT :Enforcement Law Court
CASE TYPE : Forfeiture
Upon the request of the appellant to examine the above-dated and numbered Court decision on appeal within the due time, the file related to this matter has been sent to the Chamber from its neighborhood, and after the report prepared by the Examining Judge for the case file has been listened to and all documents in the file have been read and examined, the matter has been discussed and considered:
DECISION
On 04/06/2013, the plaintiff 3rd party attorney stated that the movables belonging to his client company were seized, that the debtor was a partner of the company, that the goods belonging to the company could not be seized due to the personal debt of the company partner, and requested and sued for a decision to remove the seizure by accepting the claims of appropriation.
The defendant creditor’s attorney stated that they initiated enforcement proceedings for the collection of the alimony determined for his client and his joint children, and that the plaintiff company intentionally made a claim of appropriation after the seizure, and that it was intended to prolong the lawsuit, and therefore requested a decision to dismiss the lawsuit.
At the end of the trial held by the court, the decision to dismiss the claim for appropriation was appealed by the counsel of the plaintiff 3rd party company.
Pursuant to Article 33 of the CCP No. 6100, it belongs to the parties to assert the material facts, and to the judge to make legal characterization and to determine the applicable articles of law. According to the way the claim is put forward, the lawsuit is in the nature of a “foreclosure” lawsuit filed by the third party pursuant to Articles 96 et seq. of the EBL, and the Court has made a judgment according to this characterization.
The proceeding subject to the lawsuit was initiated due to the alimony debt and is in the nature of a personal debt of the debtor, who is a company partner. Article 133 of the TCC No. 6102 Pursuant to Article 133 of the TCC No. 6102, the personal creditor of one of the partners has the authority to take his/her right from the profit share that falls to that partner in accordance with the balance sheet of the company, and if the company has been dissolved, from the liquidation share, if the balance sheet has not yet been issued, from the profit and liquidation share that will fall to the debtor as a result of the issuance of the balance sheet, or from the other receivables of the partner from the company, or by sequestration of the shares belonging to the debtors, whether bonded or unbonded, in accordance with the provisions of the Enforcement and Bankruptcy Law No. 2004 regarding movables, or by way of seizure of the partner’s other receivables from the company and for this purpose. Apart from this, since the seizure of the assets of the company due to the personal debt of the company partner debtor is contrary to the procedure and the law, it is not correct to decide to reject the lawsuit as written, while the lawsuit should be accepted.
CONCLUSION:
For the reason explained above, it was unanimously decided on 25.01.2016 to accept the appeal objections of the plaintiff 3rd party attorney and to DISMISS the judgment pursuant to Article 366 of the EBL and Article 428 of the HUMK No. 1086 with the reference of the Provisional Article 3 of the CCP No. 6100, that the parties may request a correction of the judgment within 10 days from the notification of the Court of Cassation Chamber judgment in accordance with Article 366/3 of the EBL, and that the advance fee of TL 24.30 be returned to the appellant.
You can access our other article examples and petition examples by clicking here.