There Must Be A Valid Foreclosure In The Forfeiture Case – The Case Should Be Dismissed For Lack Of Prerequisite Due To The Foreclosure Being Dismissed
T.C. 8th Civil Chamber of the Court of Cassation E: 2018/11261, K: 2018/16502, K.T.: 01.10.2018
At the end of the trial held in the above-mentioned case between the parties, the Court decided to accept the case and upon the appeal of the judgment by the defendant creditor’s attorney, the file was examined and considered by the Chamber.
DECISION :
The plaintiff 3rd party attorney stated that an agreement was reached between the debtor and the 3rd party for the construction and operation of the filling facilities between the debtor and the 3rd party who requested permission for the construction of the filling facility etc. within the boundaries of the …… Operation Chief, and that the spring water was rented by the creditor …… on 22.6.2007. 2007, …… Regional Directorate’s writings dated 02/09/2010 and numbered 11433, it was decided to cancel the permits due to the debtor company’s failure to submit the notarized commitment letter within one month following the permission approvals and to pay the fees to be paid, the ownership of the factory …… and facilities belonging to the debtor in accordance with the provisions of the commitment letter with the cancellation of the permission, the ownership of the factory …… and facilities belonging to the debtor passed to his client, and since the encumbrances are an integral part of the facility, he requested the removal of the attachments with the acceptance of the lawsuit.
The defendant creditor’s attorney argued that it was agreed in Article 9 of the … agreement between the debtor and the 3rd party that at the end of the permit period, the …… and facilities built within the scope of the project subject to the permit would be transferred to the possession of the General Directorate of …, but that the encumbrances were not included in the concept and scope of the facility and that the lawsuit should be dismissed.
The Court ruled that the plaintiff 3rd person agreed with the debtor company on the construction and operation of the relevant water filling facility by organizing …,…… With the letters of the Regional Directorate of ……, the defendant company’s permits were canceled due to the fact that the defendant company did not submit the notarized commitment letter within one month and did not pay the fees to be paid, in the aforementioned contract, “…… “ and “Facility” are written together, therefore, at the end of the operating period, the parties agreed that …… and all other equipment (including machines) in the enterprise will be transferred to the disposal of the General Directorate of …, and the word “facility” covers the encumbered goods, it was decided to accept the lawsuit and to remove the attachments, and the decision was appealed by the defendant creditor.
The lawsuit is related to the third party’s claim of appropriation based on articles 96 et seq. of the EBL.
The existence of a valid attachment is a condition of the lawsuit and must be observed ex officio at every stage of the proceedings until the judgment is finalized.
According to Articles 106-110 of the EBL in force as of the date of the attachments dated 29.06.2010, if the seized property is movable, the creditor may request its sale within 1 year from the date of seizure. According to Article 110 of the EBL, if the sale of a property is not requested within the legal period, the attachment on that property is released. Accordingly, considering that the seizures dated 29.06.2010 on the seized goods subject to the lawsuit were dropped as of 26.6.2012, which is the date of the lawsuit, it was not correct to decide to accept the seizure lawsuit as written, while the seizure lawsuit should be rejected due to the lack of prerequisites, and it was necessary to decide to revoke the judgment for this reason.
CONCLUSION: For the reasons explained above, the appeal objections of the defendant creditor’s attorney are accepted and the judgment is reversed pursuant to Article 428 of the Code of Civil Procedure No. 1086 with reference to Article 366 of the EBL and Provisional Article 3 of the CCP No. 6100, and the parties may request a correction of the judgment within 10 days as of the notification of the Court of Cassation Chamber’s decision pursuant to Article 366/3 of the EBL, and the advance fee shall be returned to the appellant upon request, it was unanimously decided on 01.10.2018.