Company Assets Cannot Be Seized Due To A Company Partner’s Personal Alimony Debt
Republic of Turkey
COURT OF CASSATION
8th CIVIL CHAMBER
CASE NO: 2016/661
DECISION NO: 2016/1136
DATE OF DECISION: 25.1.2016
>A COMPANY PARTNER’S PERSONAL ALIMONY DEBT DOES NOT JUSTIFY ATTACHMENT OF COMPANY ASSETS—THIRD PARTY’S CLAIM OF RIGHT OF RETENTION
6102/m.133
2004/m.96
SUMMARY: The case concerns a third party’s claim of entitlement.
The subject matter of the case is maintenance debt, and the debt of the company partner is of a personal nature. Pursuant to Article 133 of Law No. 6102, a personal creditor of one of the partners may claim their right from the profit share allocated to that partner according to the company’s balance sheet and, if the company has been dissolved, from the liquidation share. If the balance sheet has not yet been prepared, the creditor has the right to collect from the debtor’s share of the profit and liquidation proceeds resulting from the preparation of the balance sheet, or from the debtor’s shares, whether registered or unregistered, by means of seizure in accordance with the provisions of the Enforcement and Bankruptcy Law No. 2004 concerning movable property, or from the partner’s other receivables from the company, and to have the right to seize them for this purpose. Other than that, since the seizure of the company’s assets due to the debtor partner’s personal debt is contrary to procedure and law, it is inappropriate to dismiss the case when it should have been accepted.
CASE: Upon the appellant’s request for the review of the above-mentioned court decision within the prescribed period, the relevant file was sent from the local court to the Chamber. After hearing the report prepared by the Review Judge for the case file and reading and examining all the documents in the file, the matter was discussed and considered:
DECISION
On June 4, 2013, the plaintiff’s attorney claimed that the movable property belonging to his client’s company had been seized, that the debtor was a partner in the company, and that the company’s property could not be seized due to the personal debt of the company partner. He requested that the claim of ownership be accepted and that the seizure be lifted.
The defendant creditor’s representative stated that they had initiated enforcement proceedings to collect the alimony determined for their client and their joint children, that after the seizure, the plaintiff company deliberately made a claim of ownership, that this was intended to prolong the case, and therefore requested that the case be dismissed.
At the end of the trial, the court dismissed the claim for entitlement, and the decision was appealed by the attorney of the plaintiff third-party company.
Pursuant to Article 33 of the Code of Civil Procedure No. 6100, it is incumbent upon the parties to present the facts of the case, and it is incumbent upon the judge to make the legal assessment and determine the applicable provisions of law. Based on the manner in which the claim was presented, the case is in the nature of a “claim for entitlement” filed by the third party pursuant to Articles 96 et seq. of the Enforcement and Bankruptcy Code, and the Court has conducted the trial and rendered its decision based on this characterization.
The subject matter of the case is an enforcement proceeding initiated due to alimony debt, which is a personal debt of the debtor who is a partner in the company. Pursuant to Article 133 of the Turkish Commercial Code No. 6102, the personal creditor of one of the partners may claim his/her right from the profit share allocated to that partner according to the company’s balance sheet and, if the company has been dissolved, from the liquidation share. If the balance sheet has not yet been prepared, from the profit and liquidation share that will fall to the debtor as a result of the balance sheet being prepared, or from the debtor’s shares, whether registered or unregistered, in accordance with the provisions of the Enforcement and Bankruptcy Law No. 2004 regarding movable property, or from the partner’s other receivables from the company, and has the authority to seize them for this purpose. Other than that, since the seizure of the company’s assets due to the debtor partner’s personal debt is contrary to procedure and law, it is incorrect to decide to reject the case in writing when it should be accepted.
CONCLUSION: For the reasons explained above, the appeal objections of the plaintiff third party’s representative are accepted, and the judgment is REVERSED in accordance with Article 366 of the Enforcement and Bankruptcy Law and Article 428 of the Code of Civil Procedure No. 1086, as referred to in Provisional Article 3 of the Code of Civil Procedure No. 6100. Pursuant to Article 366/3 of the Enforcement and Bankruptcy Code, the parties may request a correction of the decision within 10 days of the notification of the Court of Cassation Chamber’s decision, and the advance fee of TL 24.30 shall be refunded to the appellant. The decision was made unanimously on January 25, 2016.