It Is Possible To Send A 89/1 Attachment Notice To The Company Partner.
T.C. COURT OF CASSATION 12th CIVIL CHAMBER, Case No. 2016/1954, Decision No. 2016/15638, Date: 02.06.2016
- 89/1 Seizure Notice Can Be Sent to Company Partners / Change in Jurisprudence by the Court of Cassation (Cancellation of Seizure Notices – Previously, the Court did not consider company partners as third parties in terms of Article 89 of the Enforcement and Bankruptcy Code (EBC); however, after a change in jurisprudence, it was accepted that the company partner can be notified about the seizure of the company’s rights and receivables under Article 89 of the EBC when enforcement proceedings are initiated against the company as a debtor).
- The Company Partner Will Be Considered a Third Party in Terms of the Debtor Company (Cancellation of Seizure Notices – Previously, the Court did not consider the company partner a third party in terms of the debtor company, thus a seizure notice could not be sent to the company partner under Article 89. However, in accordance with the decision dated 11.05.2016 and case number HGK.2014/12-1078, the Court of Cassation changed its jurisprudence and accepted that the company partner is considered a third party in terms of the debtor company, and therefore sending a seizure notice to the company partner under Article 89 of the EBC is lawful).
- Seizure of Company’s Rights and Receivables (In terms of the debtor company, the companny partner can be notified with a seizure notice under Article 89 of the EBC when enforcement proceedings are initiated against the company as a debtor for the seizure of the company’s rights and receivables).
- Application of Article 89 of the Enforcement and Bankruptcy Code to Company Partners (The company partner will be considered a third party in terms of the debtor company – it is lawful to send a seizure notice to the company partner for the company’s rights and receivables under Article 89 of the EBC when enforcement proceedings are initiated against the debtor company).
Summary: According to the decision of the Court of Cassation’s General Assembly dated 11.05.2016, case number 2014/12-1078, it was accepted that in terms of Article 89 of the Enforcement and Bankruptcy Code, the company partner is considered a third party, and therefore, a seizure notice can be sent to the company partner when enforcement proceedings are initiated against the debtor company for the seizure of the company’s rights and receivables.
The Court of Cassation had previously held that the company partner was not considered a third party for the purposes of Article 89 of the EBC, but this changed with the General Assembly’s decision, and this new principle was adopted.
Therefore, since there is no violation of the law in sending a seizure notice under Article 89 to the company partner in relation to the enforcement proceedings initiated against the company, the court’s decision to accept the complaint instead of rejecting it was incorrect.
Case: After the creditor requested the review of the court decision, the file was sent to the chamber for further examination. After the review of the report prepared by the examination judge and the documents in the case file, the necessary steps were taken to evaluate the matter.
Decision: The creditor initiated an enforcement proceeding based on an unpaid rent claim and eviction request regarding the debtor company. The attorneys of the complainants argued that a seizure notice was sent to the complainants under Article 89 of the EBC regarding the debtor company, even though company partners could not be considered third parties for the debtor company, and requested the cancellation of the decision sending the seizure notice. The court accepted the complaint.
According to Article 89 of the Enforcement and Bankruptcy Code, if an asset or claim not evidenced by a negotiable instrument or if the debtor’s third party holds movable property, the enforcement officer sends a seizure notice stating that payments made to the debtor will no longer be valid and that the third party must deliver the property to the enforcement office.
Article 124 of the Turkish Commercial Code (TCC) states that limited companies are capital companies, while Article 125 states that commercial companies have legal personality. In this context, the company partners are liable to the company for the capital they have pledged, and this liability extends to the enforcement of the company’s rights and receivables.
When reviewing the seizure notice sent on 02.03.2015, it was found that the seizure was related to the rights and receivables of the company held by the complainants. Under the law, there are no restrictions on the seizure of a company partner’s receivables, and since there is no legal provision preventing the seizure of the capital debt owed by the company partner to the debtor company, such a seizure is permissible.
The Court had previously held that the company partner could not be considered a third party for the purposes of sending a seizure notice. However, after the General Assembly’s decision, the Court has changed its jurisprudence and now accepts that the company partnerr is a third party for the purposes of Article 89 of the EBC. Therefore, sending a seizure notice to the companyy partner in this case is in compliance with the law, and the court’s decision to accept the complaint was incorrect.
Conclusion: The creditor’s appeal is accepted, and the court decision is overturned in accordance with Articles 366 of the Enforcement and Bankruptcy Code and 428 of the Civil Procedure Code. The advance fee is refunded upon request. The decision is final after the expiry of 10 days from the delivery of the ruling.
This ruling was made unanimously on 02.06.2016.