Decision On The Absence Of A Legal Relationship And Reason Arising From The Contract Or Law Providing For Joint And Several Liability
T.C. JUDICIARY
23rd Civil Chamber
Basis: 2014/539
Decision: 2014/4650
Date of Decision: 17.06.2014
ACTION FOR ANNULMENT OF OBJECTION – LACK OF LEGAL RELATIONSHIP AND CAUSE ARISING FROM THE CONTRACT OR THE LAW ENVISAGING JOINT AND SEVERAL LIABILITY – HOLDING THE NATURAL PERSON RESPONSIBLE – THE NECESSITY TO DECIDE TO DISMISS THE CASE RELATED TO THE COMPANY
SUMMARY: Considering that there is no legal relationship and reason arising from a contract or law stipulating joint and several liability, the court should be contented with holding the defendant real person liable, and the lawsuit against the defendant company should be dismissed due to lack of passive hostility.
(Article 67 of Law No. 2004) (Article 141 of Law No. 818) (Article 162 of Law No. 6098)
Case: At the end of the trial of the cancellation of the objection case between the parties, the file was examined, upon the appeal of the judgment given for the partial acceptance of the case for the reasons written in the judgment by the attorneys of the defendants within the period, the file was examined, the necessity was discussed and thought:
Decision: The plaintiff’s attorney stated that the defendant M. Ş. K. stayed at his client’s hotel several times in October-December 2010 due to the other defendant company’s business, and although some of the invoices for these accommodation service fees invoiced to the defendant company were paid by the defendant company, the defendant company paid the invoices for 17. 5 invoices amounting to TL 799.89 were not paid, and claiming that the objection of the defendants to the enforcement proceeding initiated for the collection of the invoice receivable together with the interest accrued was unjustified, he demanded and sued for the cancellation of the objection and the collection of 40% execution denial compensation from the defendants.
The attorney for the defendants defended the dismissal of the lawsuit on the basis of lack of hostility in respect of his client company and on the basis of the merits in respect of his client M. Ş. K.
The court, according to the claim, defense, expert report and the scope of the file; the other defendant M. Ş. K., who is the manager of the defendant company, occasionally stayed at the hotel belonging to the plaintiff as the manager of the defendant company, this issue is accepted by both parties, some of the accommodations made by the defendant Meltem were paid by the other defendant company (09.02.2009 and 02. 03.2009), but some of the payments were not made, in this respect, it was determined that the defendant M. Ş. K. is indebted in the amount of 17.799,89 TL, although the defendant company’s attorney defended that the accommodation was made by the defendant M. Ş. K. and that the other defendant company does not have the capacity of hostility, the statements of the parties submitted to the file, the statements of the defendant M. Ş. K. Ş. K. was an authorized officer of the defendant company, the invoices of the same defendant during the periods when the same defendant stayed at the same hotel were paid by the other defendant company even though the defendant M. Ş. K. stayed there, this issue was repeated more than once, in this respect, this issue has become a common practice between the parties and the defendant M. Ş. K. ‘s stay at the hotel in the capacity of the defendant company official, therefore, it was concluded that the defendant company was also responsible for the debt in question, the default before the proceeding did not occur, and the receivable was liquid, it was decided to partially accept the case and to cancel the objection for the principal receivable of 17.799,89 TL and to collect the 40% execution denial compensation from the defendants.
The decision was appealed by the counsel of the defendants.
1- According to the writings in the file, the evidence on which the decision is based, the reasons for the decision, and the appreciation of the evidence, the appeal objections of the defendant M. Ş. K. attorney are not deemed appropriate.
2- As for the appeal objections of the defendant company’s attorney;
a) The lawsuit is related to the request for cancellation of the objection to the execution proceeding initiated for the collection of the accommodation service fee. The court, in the justification part of the judgment, stated that the defendant M. Ş. K. stayed at the hotel belonging to the plaintiff on the invoice dates that constitute the basis of the receivable subject to the proceeding, and this defendant was also held liable. The attorney of the aforementioned defendant defended that this client stayed at the hotel, that this client paid the debt of the period he stayed, and that his client company cannot be held responsible. Article 141 of the Code No. 818 (162 of the TCO) in force as of the date of the lawsuit; “If each of the multiple debtors declares that he accepts to be responsible for the entire debt against the creditor, joint and several indebtedness arises. If there is no such notification, joint and several indebtedness arises only in cases stipulated by law.” In this case, the court should be satisfied with holding the defendant M. Ş. K. liable, considering that there is no legal relationship and reason arising from a contract or law stipulating joint and several liability, and should decide to dismiss the lawsuit against the defendant company due to lack of passive hostility, while the defendant M. Ş. K. K. is the authorized officer of the defendant company, the invoices for the previous stays at the same hotel were paid by the defendant company, this issue has become a practice between the parties, therefore, on the grounds that the defendant company is also responsible for the debt, it was not correct to hold the defendant company responsible for the debt subject to the follow-up by taking the practice regarding the stays that are not the subject of dispute between the defendants as a basis for the debt subject to the follow-up, which is in dispute this time.
b) According to the reason for reversal, it was not deemed necessary to examine the other appellate objections of the defendant company’s attorney.
Conclusion For the reasons explained in subparagraph (1) above, the appeal objections of the defendant M. Ş. K.’s attorney are rejected, for the reasons explained in subparagraph (2a) above, the appeal objections of the defendant company’s attorney are accepted and the judgment is VACATED in favor of the defendant company, for the reasons explained in subparagraph (2b) above, it is not necessary to examine the other appellate objections of the defendant company’s attorney, the approval fee written below shall be collected from the appellant defendant M. Ş. K. Ş. K., and it was unanimously decided on 17.06.2014, with the decision correction path being open within 15 days as of the notification of the decision.