Claim Of Appropriation- There Is A Close Organic Link Between The Defendant 3rd Party Company And The Debtor Company And They Smuggled Goods From The Creditors
Republic of Turkey Court of Cassation 8th Civil Chamber E: 2018/1051, K: 2018/14800, K.T.: 03.07.2018
COURT :Enforcement Law Court
CASE TYPE : Forfeiture
At the end of the trial held in the case between the parties and explained above, the Court decided to partially accept the case, and the review of the judgment by the Court of Cassation by holding a hearing was requested by the defendant 3rd party attorney and by the plaintiff creditor attorney without a request for a hearing. The file was examined and it was understood that the matter was subject to a hearing and a call was sent to the parties by appointing Tuesday, 30.05.2017 for the hearing. On the day of the hearing, the appellant defendant 3rd party attorney Av. … came. After the hearing was started and it was understood that the request for appeal was within the time limit and the verbal explanation of those present was listened to, the hearing was terminated; Following the decision to return the file to the district court for the completion of the deficiencies seen as a result of the examination of the file, the deficiency was completed and the file was re-examined and considered:
DECISION :
The attorney of the plaintiff creditor in the main and combined case; … stated that a claim of appropriation was made during the seizures made on 18.11.2014 and 30.07.2015 in the follow-up file numbered 2011/9863 of the 14th Execution Directorate, that these claims are unfair, that the debtor and the companies claiming appropriation operate in the same field, that they have first degree kinship relations, that no evidence proving the claim of appropriation has been presented, and requested and sued for the decision to remove the claim of appropriation of the third party by accepting the lawsuit.
In the main and combined case, the defendant 3rd party attorney argued that the lawsuit was not filed in due time, the seizures were removed, the lawsuit was not subject to the lawsuit, the place of seizure was not related to the debtor, it was the factory where the client company made production, and the lawsuit was unfair and requested the dismissal of the lawsuit.
The court, according to the expert examination made as a result of the collection of the evidence submitted by the parties, the invoice of the five pools and eight drums washing and drying machine among the seized goods is registered in the commercial books of the defendant company, and the invoices of the other seized goods are not found, and the fixture records mentioned in Article 8 of the report. The fixture records mentioned in Article 8 of the report are available in the commercial books of the defendant company, but due to the absence of invoices, a one-to-one determination could not be made, in this respect, the claim of appropriation is unfair in terms of the main lawsuit, and in terms of the combined lawsuit, the third party’s claim of appropriation is unfair in terms of the seized goods other than one five-pool eight-drum wool washing machine, with the acceptance of the main lawsuit and the acceptance of the main lawsuit on the grounds that 18. 11.2014 dated seizure and dismissal of the third party’s claim of appropriation, and with the partial acceptance of the combined case, it was decided to dismiss the third party’s claim of appropriation with respect to the seizure dated 30.07.2015, except for 1 wool washing machine with 5 pools and 8 drums, and since the legal conditions in Article 97/13 of the EBL did not occur, it was decided that there was no place to award compensation in favor of the creditor.
The judgment was appealed by the counsel of the plaintiff creditor and the counsel of the defendant third party.
The main and the combined lawsuit are related to the creditor’s request for the rejection of the third party’s claim of appropriation based on Article 99 of the EBL.
1- In terms of the main lawsuit;
According to Article 363 of the Execution and Bankruptcy Law No. 2004 amended by Article 101 of the Law No. 4949; in order to appeal the decisions to be made by the execution courts after 30.07.2003, when the Law entered into force, the value of the case subject to appeal must exceed 2.000,00 TL.
Pursuant to the Additional Article 1 added to the EBL by Article 102 of the Law No. 4949; this monetary limit is applied by increasing the monetary limits applied in the previous year by the revaluation rate determined and announced annually by the Ministry of … in accordance with the repeated Article 298 of the Tax Procedure Law No. 213, effective from the beginning of each calendar year. The parts of the limits determined in this way that do not exceed Ten million TL (10,00 TL) are not taken into account.
When the calculation is made accordingly, in order to appeal the decisions to be rendered by the execution courts in 2016, the subject of the appeal must be over 6.310,00 TL.
According to the special regulation in the last sentence of the same paragraph, the value of the property or right to which the decision of the execution court relates must exceed this amount in order to be able to make an appellate review in the appropriation cases listed among the decisions that can be appealed in sub-paragraph (7) of Article 363/1 of the EBL and in the decisions to suspend the proceedings regarding the appropriation cases.
In the concrete case, the value of the seized goods subject to appeal is below 6.310,00 TL.
In this case, since the judgment is final, the appeal petition of the 3rd defendant should be rejected in terms of the main case.
2- In terms of the merged case; according to the information and documents in the case file, the discussion and evaluation of the evidence based on the reasoning of the court decision, there is nothing contrary to the procedure and the law, the appeal objections of the defendant 3rd party attorney are rejected,
B- The appellate objections of the plaintiff creditor’s attorney regarding the compensation are rejected since the lawsuit was filed according to Article 99 of the EBL and there is no compensation regulation in the said article,
C- In the examination of the other appellate objections of the creditor’s attorney;
In the examination of the detailed trade registry records of the debtor company and the defendant 3rd party company, which were brought to the case file through reversal, it is seen that the partners of the debtor company are …., it operates in …Mahallesi 430. street No:10/1 …”, the partners of the defendant 3rd party company are … and …, considering the share ratios, … is the controlling shareholder in the company, the company was established on 22.06.2010, in the trade registry records, the residence address of the controlling shareholder … is ”Y…. 430. street No: 10/1 …”, this address is the address of the debtor company, …. is the address of the debtor company, …. is the husband and wife, and … and … are the children of the aforementioned persons, it should be accepted that there is a close organic bond between the defendant 3rd party company and the debtor company and that they evade property from the creditors by making collusive transactions. As stated above, the 3rd party company was established on 22.06.2010, and this date corresponds to the date after the birth of the debt that is the subject of the proceeding based on the lawsuit.
Therefore, it was not correct for the court, taking into account these material and legal facts, to render a judgment for partial acceptance of the combined lawsuit instead of accepting it, on grounds that are not in accordance with the facts and file content.
CONCLUSION: For the reasons explained in subparagraph (1) above, the appeal petition of the 3rd person’s attorney is rejected; for the reasons explained in subparagraph (2-A), the appeal objections of the 3rd person’s attorney are rejected; for the reasons explained in subparagraph (2-B), the appeal objections of the plaintiff creditor’s attorney regarding compensation are rejected; for the reasons explained in subparagraph (2-C), the appeal request of the plaintiff creditor’s attorney is accepted and the judgment is reversed in accordance with Article 366 of the EBL and Provisional Article 3 of the CCP No. 6100. It was unanimously decided on 03.07.2018 that the parties may request for correction of the judgment within 10 days from the notification of the Supreme Court of Appeals Chamber judgment in accordance with Article 366/3 of the EBL, and the advance fee shall be refunded to the appellants separately upon request.