It Is Necessary To Decide On A Precautionary Attachment In Compliance With The Principle Of “Proportionality In Measures” Proportionate To The Claimant’s Claim For Compensation And Not Affecting The Commercial Life Of The Defendant Company
21st Civil Chamber of the Court of Cassation Main No: 2015/13677, Decision No: 2015/16643
COURT : Ermenek Civil Court of First Instance
DATED : 11/02/2015
NUMBER : 2014/510
The defendants, in the material and non-pecuniary damages lawsuit filed by the plaintiffs, requested a decision on the acceptance of their objections to the interim injunction decisions issued pursuant to the local court’s decision of settlement and the lifting of the injunction imposed on all their rights and receivables.
The court decided to partially accept the claim as stated in the judgment.
Upon the appeal of the judgment with hearing by the attorney of Ermenek Cenne Linyit Kömür İşletmeleri Ltd. Şti., one of the defendants, after it was understood that the request for appeal was in due time and after the report prepared by the Examining Judge and the papers in the file were read and after it was decided to reject the request for the Court of Cassation examination to be made with a hearing since the case regarding the judgment subject to appeal does not comply with any of the cases listed and limited in Article 438 of the Code of Civil Procedure, the matter was considered and the following decision was determined.
DECISION
1. The decision subject to appeal is an interim injunction decision of the local court dated 15.12.2014.
According to Article 389 of the CCP No. 6100, it is possible to issue an interim injunction decision on the subject of the dispute, and in the concrete case, the court decided “…to accept the request for interim injunction in the form of interim attachment, provided that it is limited to the movable and immovable properties of the defendant companies and all of the progress payments arising within the framework of Articles 40 and 41 of the Law No. 3213 and 75% of the progress payments to be born, and to accept the request for interim injunction in the form of interim attachment, provided that it is limited to 555. 000,00-TL, and that 555.000,00-TL be deposited into a three-month time deposit account to be opened at Ermenek Ziraat Bank Branch through the case file, …” and the written decision is a precautionary attachment decision in nature.
Upon the objection of the defendants against the precautionary attachment decision, the court decided in the hearing dated 11/02/2015; “…To partially accept the objections of the defendant against the precautionary injunction decisions,
To lift the preliminary injunctions in the nature of precautionary attachment placed on the letter of guarantee of the defendants due to the lawsuit, and to continue the preliminary injunction on the movable and immovable properties of the defendants, limited to the value of the lawsuit, except for the letters of guarantee,
3rd parties, private persons, companies, institutions, as of the date of the lawsuit, to continue the interim injunctions on the rights accrued and to be accrued by the defendants, limited to 50% of the value of the lawsuit,
It was decided to reject the request for the excess,…”, upon the appeal of the aforementioned decision regarding the examination of the appeal request by the attorney of the defendant Ermenek Cenne Coal Enterprises, the court decided to reject the appeal request with the additional decision dated 05.03.2015 on the grounds that the appeal cannot be appealed regarding the request for interim injunction with the decision of the Supreme Court of Appeals Unification of Jurisprudence General Assembly dated 21/02/2014 and numbered 2013/1 E. 2014/1 K.
The court’s decision to reject the appeal request as a result of characterizing the decision dated 15.12.2014 as a precautionary measure by giving the wrong meaning to the decision dated 15.12.2014 “precautionary attachment in nature” is contrary to the procedure and the law, and the additional decision of the court dated 05.03.2015 should be removed and the matter should be entered into the merits.
2. According to the writings in the file, the evidence on which the decision is based and the legal grounds, the other appellate objections of the defendant Ermenek Cenne Linyit Kömür İşletmeleri Ltd. Şti. other than the scope of the following paragraph are rejected,
3. The plaintiffs’ murisi was born to the defendants Ermenek Cenne Linyit Kömür İşletmeleri Ltd. Şti. and Has Şekerler Madencilik Enerji Nak. İnş. San. Tic. Ltd. Şti. as a result of an occupational accident that occurred on 28.10.2014.
While Article 257/1 of the EBL explains that a precautionary attachment can be requested due to a money debt that is not secured by a pledge and is due, subparagraph 2 explains in which cases a precautionary attachment can be requested due to a debt that is not due.
In the concrete case, it is clear that a damage has occurred based on a wrongful act. Only the rate of disability and fault are in dispute. In compensation lawsuits arising from tort, the obligation to compensate becomes due and payable as of the date of the event. In this case, the condition of close proof in precautionary attachment, which is one of the temporary legal protection methods, has been realized, and after the court has explained concretely which receivables and immovable or immovables the plaintiff’s request for precautionary attachment is related to, it is necessary to decide on a precautionary attachment in accordance with the principle of “proportionality in the measure” in a way that is proportional to the plaintiff’s claim for compensation and does not affect the commercial life of the defendant company, while the decision should be made in a way that does not comply with these principles is contrary to the procedure and the law and is a reason for reversal.
In that case, the appeal objections of the attorney of the defendants Ermenek Cenne Linyit Kömür İşletmeleri Ltd. Şti. aiming at these aspects should be accepted and the judgment should be reversed.
CONCLUSION: For the reasons explained above,
1-To lift the additional decision of the Court dated 05.03.2015 and enter the merits of the matter,
2- It was unanimously decided on 15.09.2015 that the decision of the local court shall be reversed and the appeal fee shall be returned to the defendants Ermenek Cenne Linyit Kömür İşletmeleri Ltd. upon request.