ISTANBUL ANATOLIAN 21ST ENFORCEMENT LAW COURT
FILE NO : ………E.
THE PLAINTIFF: ……….
ATTORNEYS : ………….
DEFENDANT :1- ………….
SUBJECT : It consists of submitting our responses to the lawsuit.
EXPLANATIONS :
In the petition of the plaintiff side, in summary, since the immovable has not been delivered to the lessor, the lease agreement has turned into an indefinite period, the lessee has the obligation to return the lessor at the end of the period, the possession of the immovable is in the possession of the defendants, the interests of the lessor have been violated due to a reason not arising from the lessor, the removal of the objection to the file ……… E. of the Istanbul Anatolia 24th Execution Directorate, the evacuation and delivery of the immovable has been requested and sued.
First of all, it should be noted that the immovable property is subject to the lawsuit filed by the plaintiff side at Istanbul Anatolia 3rd Execution Law Court………. E……….. K. The immovable was evacuated through the file numbered ………E. of Istanbul Anatolia 14th Execution Directorate upon the judgement numbered ………E. Therefore, the eviction request is unjustified and should be rejected.
The claim of the plaintiff that the lease agreement has turned into an indefinite period is also unfair and groundless.
Article 2 of the Lease Agreement concluded between the plaintiff and the client company is as follows;
“This agreement has been concluded to start from the date of annotation to the title deed and to be valid for 7 years.”
As it is clearly understood from this phrase, the lease agreement concluded is for a certain period of time and the starting date is ………, which is the date of annotation to the title deed. In this case, the lease agreement expired on ………. The plaintiff, on the other hand………. months, and since there was no valid lease agreement between the parties during these periods, no rent debt arose. All rent payments for the lease period were made to the plaintiff owner. Therefore, the client does not owe any rent to the plaintiff. For these reasons, we have objected to the execution proceeding subject to the lawsuit.
Although it is claimed by the plaintiff that the lease contract has turned into an indefinite term in accordance with Article 327/2 of the TCO, it is not possible to accept this issue. Article 327 of the TCO is as follows:
“If a period of time is determined explicitly or implicitly, the lease agreement shall automatically terminate at the end of this period.
In this case, if the parties continue the lease relationship without an explicit agreement, the lease agreement becomes an indefinite-term contract.”
As it is seen, if the parties continue to maintain the lease relationship at the end of the term, the contract turns into an indefinite term contract. In the present case, …….., which operates the petrol station subject to the lawsuit, did not evacuate the immovable property despite the expiry of the lease and dealership agreements and unlawfully occupied the petrol station. This matter cannot be interpreted as a lease relationship.
Although the plaintiff has stated that the immovable has not been delivered; In Article 4 of the Lease Agreement concluded between the parties titled ‘Purpose of Use and Conditions for the Actual Delivery of the Property’;
“The premises shall be operated as a fuel and autogas sales and service station under the brands and logos to be determined and determined by Lukoil or Lukoil individually.
Lessor has accepted and undertaken that the operation of the fuel oil and autogas sales and service station subject to this lease right shall be carried out by Lukoil itself or exclusively by real or legal persons to be appointed by Lukoil. The Lessor has accepted in advance that it has no right of discretion in this regard.
In the event that this agreement is not renewed at the end of its term and the parties agree on termination, the necessary coordination will be provided for the transfer of the Business Opening and Operation Licence for Second Class Businesses issued on behalf of the Operator / Dealer for the operation of the fuel and autogas sales station established on the premises to the Owner.”
is stated. Therefore, the owner has accepted in advance that the fuel station established on the immovable property will be operated by another company (in the concrete case……….), and in such a case, the client company has declared and undertaken that the responsibility of the client company is only to provide the necessary coordination for the transfer of the Business Opening and Operation Licence of the Second Class Workplaces issued on behalf of the Operator / Dealer to the Owner.
At this point, in the event of termination of the dealership agreement between the client company and ……… and ultimately at the end of the term of the lease agreement, the obligation to evacuate and deliver the property is ……….. The only obligation of the client company is to ensure the necessary coordination for the transfer of the GSM licence.
As a matter of fact, upon the termination of the dealership agreement, the Istanbul Anatolian 2nd Commercial Court of First Instance ………. E. ……….. E. numbered file of the Istanbul Anatolian Commercial Court of First Instance No. 2, the case was followed by the creditor side as an intervener, and as a result of the judgement of this case;
“With the acceptance of the lawsuit; to prevent the defendant’s interference with the immovable property ……………. and the fuel station on it, where the plaintiff company has the title of lessor”
and the defendant filed an appeal against the aforementioned decision. The decision has not yet been finalised.
At this stage, the client company has fulfilled all its obligations and the party that has not evacuated and delivered the immovable property is ……………….. The party to whom the proceeding should be directed is ………… The client company cannot be directed against.
Client company’s obligation to make payment has ended on the date of the lease agreement, which is the date of termination of the lease agreement.
The possession of the immovable property is not in the client company, but in ………..
It should be noted that there is no price paid by ……… to the client company after the termination of the dealership agreement. ………… continued to use the immovable property as an unjust occupier and without paying any compensation. At this point, ……….. is the party that uses the immovable property and has the obligation to pay the price.
In addition, considering the fact that there are ongoing cases between the parties, it is clear that the dispute should be resolved in the general courts.
In the decision of the Court of Cassation No. 4 HD 2004/6847 E. 2004/7974 K.; “…The dispute between the parties is whether the lease agreement between the defendant who purchased the mortgaged immovable and the other defendant who claims that he rented the same immovable by paying the 5-year rent in advance is valid. Such a dispute can be resolved according to the judgement to be reached as a result of the evaluation of the evidence to be collected in the proceedings to be held in accordance with the general provisions. Such a dispute cannot be expected to be resolved by the judge of the narrowly authorised execution examination authority, who will make a judgement according to the documents in the file.”
It is emphasised that the dispute must be resolved according to the judgement to be reached as a result of the evaluation of the evidence to be collected in the proceedings to be held in accordance with the general provisions. In this context, it is necessary to decide to dismiss the present case due to lack of jurisdiction.
LEGAL GROUNDS : CPL, EBL, TCC, CC and related legislation.
EVIDENCE : Without prejudice to our right to present all kinds of evidence and statements against the evidence that has not been notified to us and will be presented by the plaintiff,
CONCLUSION AND REQUEST :
For the reasons explained above;
The case is dismissed due to lack of jurisdiction,
The lawsuit is dismissed procedurally and substantively with respect to the client company,
Trial expenses and attorney’s fee to be left on the other party,
We respectfully request a judgement.
Defendant Attorneys
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