Electricity Subscription Debt, Fraudulent Conveyance, Collusion, Burden Of Proof
Republic of Turkey
ISTANBUL
REGIONAL COURT OF APPEAL
3rd CIVIL CHAMBER
CASE NO: 2017/1399
DECISION NO: 2018/878
DATE OF DECISION: 4.7.2018
>>REQUEST FOR PREVENTION OF INTERFERENCE – CONFLICT OF INTEREST – BURDEN OF PROOF – RELATED TO THE CLAIM
6100/m.190,353/1-b-2
SUMMARY: The case concerns a request for prevention of interference.
According to the expert report, the plaintiff cannot be held liable for the debt of the previous subscriber, therefore, the refusal to establish a subscription contract is contrary to the provisions of the regulation, and the fact of collusion must be evaluated by the court.
The court found that there was no kinship, close friendship, or business partnership between the plaintiff, who wanted to enter into a subscription agreement, and the previous tenant. Consequently, the defendant failed to prove that the plaintiff and the previous subscriber, who was not a party to the lawsuit, acted fraudulently with the intent to cause harm in order to avoid paying the claim of the subscriber who was not a party to the lawsuit. It was stated that the plaintiff could not prove that there was an organic relationship between them, such as the restaurant business, as there was no record of kinship or transfer of the business between them. Therefore, the decision to resolve the dispute between the plaintiff and the defendants was appropriate.
Considering that the court’s decision to conclude a contract based on the previous subscription contract and terms exceeds the plaintiff’s request, and that this matter concerns public order, as a result of the ex officio examination, pursuant to Article 353/1-b-2 of the Code of Civil Procedure, the court decision was overturned, and a new decision on the merits was required, stating that “the defendants’ disputes with the plaintiff, created by not signing a subscription agreement at the address subject to the lawsuit, are prohibited.”
CASE: Regarding the case described above, after reviewing the case file due to the appeal of the decision issued by the court of first instance,
IT IS DECIDED:
DECISION: The plaintiff’s attorney summarized in the petition that his client rented a workplace in the food and beverage sector at the address in Fatih, Istanbul, obtained a tax registration certificate for the rented workplace, and was able to open the workplace and benefit from services such as electricity, water, natural gas, and internet. at the business premises located at Fatih, Istanbul, that he obtained a tax certificate for the leased premises, that he made the necessary applications to the relevant institutions and initiated subscriptions in order to open the business premises and benefit from services such as electricity, water, natural gas, and internet, but that the electricity connection was not made, that the subscription applications were rejected on the grounds that the previous subscriber had debts, The plaintiff claims that the defendant companies’ refusal to enter into a contract with his client is completely unfounded and unjust, and requests that a contract be made with his client for the use of electricity and that a provisional decision be made to connect the electricity until the trial is concluded.
In its response, the defendant’s attorney stated, in summary, that the plaintiff’s claim that a contract was not entered into due to the previous subscriber’s debt was unacceptable, that the plaintiff had no legal or factual connection with the previous subscriber, that his statements about being an entrepreneur trying to open a new shop had no connection whatsoever with reality, that the plaintiff had carried out a fraudulent transaction that allowed the previous subscriber, who was not a party to the lawsuit, to continue his commercial life without paying his debts, and that the previous subscriber was also operating in the same sector in the same immovable property, and requested that the lawsuit be dismissed.
The defendant’s attorney summarized in the response petition that the plaintiff rented the workplace at the relevant address on November 20, 2015, obtained a tax certificate showing that he started his new job on November 30, 2015, that it made the necessary applications to benefit from electricity services, that its subscription was initiated, that it was wrong to direct the dispute to its client company, and that the dispute should only be directed to … which has separate legal personality, and argued that the plaintiff’s unjustified and unfounded lawsuit should be dismissed.
The court of first instance ruled that the defendant was an institution authorized to enter into contracts with consumers, and that the defendant Bedaş was the institution responsible for determining whether there was any collusion prior to the establishment of the electricity subscription. It further ruled that the plaintiff’s claim against the defendant Bedaş, seeking a determination that no collusion existed, was not contrary to law. The defendants based their case on the plaintiff’s claim that the previous tenant continued to work at the same location and applied for electricity in the plaintiff’s name to avoid paying the electricity bill. In this case, the burden of proof lies with the defendant, and no evidence was presented to prove the claim of collusion. The plaintiff’s claim is accepted, as the lease agreement presented as evidence by the plaintiff shows that the plaintiff has no connection with the previous tenant on the tax certificate, and the dispute between the parties regarding the absence of collusion between the plaintiff and the previous subscriber operating in the same workplace is resolved, and the plaintiff’s commercial activity is accepted. It was decided to connect electricity to the workplace located at Fatih/ISTANBUL in accordance with the contract and conditions made between the defendant and other subscribers, and the defendants’ attorneys appealed the ruling within the prescribed time limit.
The defendant’s attorney summarized in the appeal petition that they determined that there was a fraudulent relationship between the previous subscriber and the plaintiff, aimed at ensuring that the previous subscriber could continue their commercial life without paying their debts, that the burden of proof lies with the plaintiff, that the plaintiff failed to prove this with the evidence they presented, that it is always possible to draw up a lease agreement, and therefore it is not possible to use this as a basis for determining whether there was a fraudulent situation. Despite the fact that the plaintiff and the previous subscriber used the facility in question to operate in the same industry, the court stated that it was contrary to law to base the ruling on the expert’s report, which ignored this fact and did not address the sham, and requested that the court decision, which was contrary to procedure and law, be overturned.
The defendant’s representative summarized in the appeal petition that although the local
court had imposed the burden of proof of collusion on them, the burden of proof essentially lay with the plaintiff, who had filed this lawsuit claiming to have no connection with the former debtor, since HMK Article 190 states: “Unless otherwise provided by law, the burden of proof lies with the party who derives a right in their favor from the legal consequences attached to the alleged facts.” Since the plaintiff is the party deriving a right in their favor from the specific dispute, they must prove their claim that they have no connection with the former tenant. The documents submitted by the plaintiff are insufficient to prove his claim. Therefore, it is contrary to procedure and law to decide to accept the case without gathering evidence and based on an incomplete assessment. The plaintiff requested that the court decision be overturned and that the case be dismissed as a result of a new trial.
The producer and retailer/distributor company holding a retail sales license: Under the Electricity Market Law, it is required to enter into connection agreements and subscription contracts with consumers connected to the distribution system and with free consumers in accordance with the relevant Regulations. If the retailer/distributor company refuses to establish a subscription contract, a lawsuit may be filed to resolve the dispute.
As stated in the ruling of the General Assembly of the Supreme Court dated 29.09.2004 and numbered 2004/13-417 E.- 2004/442 K., lawsuits for the prevention of conflict are, in terms of procedural law, not declaratory but rather performance lawsuits. This is because in such lawsuits, both the determination of the existence of a dispute and its prevention are requested.
Moreover, as stated in the ruling of the General Assembly of the Court of Appeals dated March 17, 2010, numbered 2010/3-119 E. 2010/159 K. it is accepted that if one of the parties to a contract causes a dispute during the term of the contract, the other party has a legal interest in filing a declaratory judgment action to put an end to this situation, which could cause them harm, and to remove the uncertainty surrounding their legal position.
In the present case, based on the minutes dated July 28, 2010, issued for the unauthorized use of electricity without a subscription by the non-party …, for whom a subscription had been established prior to the plaintiff, the payment of the debt of TL 551.76 for the 2010/7 period was made, and subsequently, a subscription agreement was concluded between the non-party … Subsequently, on 25.08.2010, a subscription contract was concluded between BEDAŞ and the third party. Afterwards, according to the lease agreement submitted as evidence by the plaintiff, the third party Hakan Dalkılıç leased the address in question as a workplace on 22/03/2011, but did not apply to the electricity authority to establish a subscription contract. and that he actually used the electricity for a long time under the subscription in his name. The decision of the Istanbul 12th Enforcement Court dated 17.02.2015 and numbered 2014/970 E, 2015/183 K also states that an eviction decision was issued against the non-party … from the address in question due to default on rent debts. The Istanbul 35th Enforcement Directorate’s follow-up file No. 2014/11874 E.
According to the expert report requested by the court, the plaintiff cannot be held liable for the debt of the previous subscriber, and therefore, the refusal to establish a subscription contract is contrary to the provisions of the regulation, and the fact of collusion must be evaluated by the court. The court also examined all the evidence in the file and found that there was no kinship, close friendship, or business partnership between the plaintiff, who wanted to enter into a subscription agreement, and the previous tenant. Consequently, the defendant failed to prove that the plaintiff and the previous subscriber, who was not a party to the lawsuit, acted fraudulently with the intent to cause harm in order to avoid paying the claim of the subscriber who was not a party to the lawsuit. Ultimately, it was stated that the plaintiff could not prove that there was an organic relationship between them, such as the restaurant business, as there was no record of kinship or business transfer between them. Therefore, in the decision to resolve the dispute between the plaintiff and the defendants, there was no procedural or legal violation in the discussion and evaluation of the evidence relied upon. As a result of the appeal review conducted based on the defendants’ grounds for appeal, the defendants’ grounds for appeal on the merits are rejected pursuant to Article 353/1-b-1 of the Code of Civil Procedure; however, the court’s decision to enter into a contract based on the previous subscription agreement and terms exceeds the plaintiff’s claim. and since this matter concerns public order, as a result of the ex officio review, pursuant to Article 353/1-b-2 of the Code of Civil Procedure, the court’s decision is overturned, and a new decision on the merits must be rendered as follows: “The defendants’ refusal to sign a subscription agreement with the plaintiff at the address in question, thereby creating obstacles, is prohibited.”
CONCLUSION: For the reasons explained above;
The defendants’ appeals are partially accepted; due to public order, as a result of the ex officio review, the court’s decision is revoked in accordance with Article 353/1-b-2 of the Code of Civil Procedure, and a new decision on the merits is made;
1-) Accepting the case, prohibiting the defendants from creating obstacles by not signing a subscription contract with the plaintiff at the address subject to the lawsuit… at the address of Fatih/ISTANBUL,
2-) The continuation of the precautionary measure issued during the lawsuit until the judgment becomes final,
3-) The 31.40 TL fee to be collected shall be deducted from the 29.20 TL fee already collected, and the remaining 2.20 TL shall be collected from the plaintiff and recorded as revenue for the treasury.
4-) The relative attorney’s fee of 1,980.00 TL, calculated based on the portion ruled upon in accordance with the minimum attorney’s fee schedule in effect on the date of the decision in favor of the plaintiff’s attorney, shall be collected jointly and severally from the defendants and given to the plaintiff,
5-) The total amount of 1,308.20 TL in litigation costs incurred by the plaintiff shall be collected jointly and severally from the defendants and given to the plaintiff,
1,308.20 TL in litigation expenses paid by the plaintiff shall be collected jointly and severally from the defendants and paid to the plaintiff,
6-) The remaining advance expenses deposited by the parties shall be returned to them upon finalization of the decision and upon request,
The defendants’ other grounds for appeal are rejected,
The advance appeal fee to be refunded to the appellant upon request,
The 5.80 TL appeal litigation expenses incurred by the defendant … due to the appeal to be collected from the plaintiff and awarded to this defendant,
Any remaining advance litigation expenses deposited due to the appeal to be refunded to the appellant by the court of first instance,
Following the review of the file, it was unanimously decided that the parties may appeal to the Court of Cassation within two weeks of the notification of the reasoned decision. 07.04.2018