It Is Necessary To Decide To Dismiss The Claimant’s Request Since The Plaintiff Does Not Have An Active Capacity Of Hostility
T.C Judiciary Court of Appeal 8th Civil Chamber Esas: 2018/ 14999 Decision: 2018 / 18937 Date of Decision: 20.11.2018
SUMMARY: The lawsuit is related to the request for removal of the objection to the proceeding initiated for the collection of the rent receivable. There is no dispute between the parties regarding the lease agreement with a starting date of … and a term of five years, which is the basis of the lawsuit and the judgment. On the front side of the lease agreement, … Kim Amb. Tic. A.Ş. as the lessor and the signature section of the agreement was signed by the plaintiff … (147/200 representation) and … (53/200 shares) by stamping the company stamp. In the face of this arrangement of the lease agreement, it must be accepted that the lessor is a company. Since the capacity of hostility is a matter of public order, it is a matter that should be considered by the court automatically. For this reason, since the court should have decided to reject the claimant’s request since the plaintiff does not have an active capacity of hostility, the decision should be reversed since it is not correct to make a decision.
(6098 S. K. art. 136, 331) (6100 S. K. Geç. art. 3) (2004 S. K. art. 366)
At the end of the trial held in the case between the parties and explained above, the Court decided to dismiss the lawsuit and upon the appeal of the judgment by the plaintiff’s attorney, the file was examined and considered by the Chamber.
The plaintiff creditor has demanded the collection of a total of 36.890,00 TL rent receivable, including 5.270,00 TL for December 2015 and 31.620,00 TL for the next six months, with the enforcement proceeding initiated on 17.12.2015 based on the written lease agreement dated 01.09.2013, and the payment order was notified to the defendant debtor company on 22.12.2015. In the objection petition dated 28.12.2015, the defendant debtor company stated that it was a tenant at the current address until 17.11.2015, that all lease obligations were fulfilled as long as the leased property was used, and that even the client paid the rent for the 11th and 12th months when he did not use the leased property, and that on 17.11. 2015, the leased property became unusable, as a result of the fire, the raw materials and machinery equipment belonging to the client also became unusable, for this reason, the immovable property could not be used by the client company after 17.11.2015, since the immovable property was not made usable, the contract was terminated on 16.12.2015 in accordance with Article 331 of the TCO. 2015, the cause of the fire was due to the negligence of the property owner, the plaintiff has established a right of imprisonment on the movables of the client, this right of imprisonment is contrary to the procedure and the law, in order to remove the right of imprisonment, a letter of guarantee in the amount of 6 months’ rent that is not due and the rent for the month of December, which is not used by the client, has been deposited in the enforcement file, the client does not have any debt to the creditor, the lease agreement between them was terminated for just cause on 16. 12.2015 for just cause, therefore, he objected to the right of imprisonment and the proceeding initiated through the monetization of the movable pledge initiated within the 15-day period following the right of imprisonment, all receivables and its accessories. Upon the objection to the payment order by the defendant debtor company, the plaintiff creditor applied to the enforcement court and requested the removal of the objection.
In his statement during the hearing, the defendant attorney stated that the condition of the lawsuit was not fulfilled, that his client had a lease agreement with … Kim Amb. Tic. A.Ş., the plaintiffs are the partners of … company, the company is a legal entity, therefore the plaintiffs do not have the capacity of a party, and firstly, the lawsuit should be dismissed procedurally.
The court stated that the immovable subject to the lease burned down on 17/11/2015, it was understood that the immovable became unusable, the contract was terminated with the notice dated 16.12.2015, it lost the quality of being an immovable subject to lease, the contract was terminated according to Article 136 of the Code of Obligations. Article 136 of the Code of Obligations, at the same time, according to Article 331 of the Code of Obligations, it is understood that the conditions for termination have occurred and the tenant has terminated the contract, the legal conditions have been fulfilled, and the decision was rejected, and the decision was appealed by the plaintiff’s attorney.
The lawsuit is related to the request for removal of the objection to the proceeding initiated for the collection of the rent receivable.
There is no dispute between the parties regarding the 5-year lease agreement dated 01.09.2013, which is the basis of the lawsuit and the judgment. On the front side of the lease agreement, … Kim Amb. Tic. A.Ş. as the lessor and the signature section of the agreement was signed by the plaintiff … (147/200 representation) and … (53/200 shares) by stamping the company stamp. In the face of this arrangement of the lease agreement, it must be accepted that the lessor is a company. Since the capacity of hostility is a matter of public order, it is a matter that should be considered by the court automatically. For this reason, the court should decide to reject the claimant’s request since the plaintiff does not have an active capacity of hostility, but the decision should be reversed since it is not correct to make a decision as written.
Conclusion For the reasons explained above, it was unanimously decided on 20.11.2018 to accept the appeal objections and to revoke the decision pursuant to Article 428 of the HUMK, taking into account the provision of the provisional Article 3 added to the CCP No. 6100 with the Law No. 6217, and that the parties may request a correction of the decision within 10 days from the notification of the Supreme Court of Appeals Department decision in accordance with Article 366/3 of the EBL, and that the advance fee shall be returned to the appellant upon request.
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