Notification In The Absence Of The Addressee At The Addressee’s Address – Court Of Cassation Decision On Irregular Notification
T.C.
JUDICIARY
19TH CIVIL COURT
E. 2015/16385
K. 2016/287
T. 19.1.2016
– NOTIFICATION IN CASE THE RESPONDENT IS NOT AT HIS ADDRESS (Notification of the Notification to the Person to be Notified Should Be Notified to One of His Neighbors as Much as Possible, If Any, the Manager or the Doorman Should Be Notified of the Notification – The Notification Made Without Investigating To Whom It Was Given Is Irregular)
-Irregular Notification (In case the addressee is not present at his address, the notification should be notified to his neighbor, manager or doorman in order to notify him of the notification made – Since the notification made as if it was at the Mernis address is not at the address of the addressee, the notification made without investigating who was notified is irregular)
7201/m. 21
SUMMARY : In case of absence at the address, it is necessary to notify the person to be notified, and if possible, one of the nearest neighbors, if any, the manager or the doorman should also be notified, and it should be accepted that the notification made without concretizing who was notified was not duly made.
LAWSUIT : At the end of the trial of the negative assessment lawsuit between the parties, the file was examined, the judgment given for the acceptance of the lawsuit for the reasons written in the judgment was examined, the file was examined, the necessity was discussed and thought:
DECISION : The plaintiffs’ principals stated that one of the plaintiffs … bought a vehicle from the defendant externally, but sold it externally without taking over the transfer of this vehicle from the notary public, that the plaintiff … was the debtor and the other plaintiff … was the guarantor, and that a promissory note dated 20.08.2010 with a maturity date of 4. 000-TL dated 20.08.2010, before the note debt was paid, the plaintiff … outsourced the purchase of another … brand vehicle from the defendant …, agreed with the defendant in return for the note debt to the defendant …, and sold this vehicle, whose traffic registration was on …, to the defendant …. The plaintiffs stated that the defendant did not give the promissory note although the defendant requested the promissory note subject to the lawsuit at this time, and that the defendant then put the promissory note into enforcement proceedings in the enforcement file numbered 2011/566 of the Enforcement Directorate, and requested and sued for the determination that they are not debtors due to the promissory note, the cancellation of the proceedings, and the decision to decide on the compensation for bad faith against the defendant.
The defendant principal stated that he sold a 1998 model …brand minibus to the plaintiffs and received bonds worth 4.000-TL and 10.000-TL in return, that the bonds were not paid and that he learned that the vehicle he sold was sold to a gallery by the plaintiffs, that the plaintiffs said that they would give him another vehicle, and that he paid 10.000. 000-TL in return for his receivables, but the minibus he initially gave to the plaintiffs was worth 14.000-TL and he returned the 10.000-TL bond in return for the transfer of the … brand vehicle, because this is the value of this vehicle, and since the 4.000-TL receivable, which is the value of the bond subject to the lawsuit, was not paid, he put the bond in the proceedings, and requested the dismissal of the lawsuit and the judgment for compensation against the plaintiffs.
As a result of the trial conducted by the court, the case is related to the request for the determination of the lack of indebtedness due to the bill of exchange, and that the plaintiff party asserts that the debt has decreased due to the payment and that the burden of proof is on the plaintiff party, in this context, the plaintiffs claim that the plaintiffs are not liable for the 4. 000-TL dated November 3, 2010, dated at the notary public against the promissory note dated November 3, 2010, the seller is the defendant …, the buyer is the defendant …, the official vehicle sales contract was submitted, and since it was also based on the evidence of oath, the right to offer oath was reminded, although the oath text submitted in due time was notified on behalf of the defendant principal, the defendant did not come and take the oath, on the grounds that the defendant has acknowledged the facts subject to the oath, with the acceptance of the case, the Execution Directorate’s 2011/566 numbered follow-up file dated 25/08/2010 dated 4. 000-TL promissory note dated 25/08/2010 subject to the enforcement proceeding file numbered 2011/566 of the Enforcement Directorate, and it was decided to take 20% compensation from the defendant and pay it to the plaintiffs, and the judgment was appealed by the defendant’s attorney.
It is understood from the content of the notification document that the oath invitation issued to the defendant was not served in accordance with the procedure stipulated in Article 21 of the Notification Law. Because, according to the scope of the file, it has been seen that the court did not determine the mernis address of the defendant and did not annotate that it was the mernis address of the defendant, but the notification was made as if it was the mernis address of the defendant, and also, in case of absence at the address, it was seen that the notification was made without concretizing the issue of who was notified, without concretizing the issue of who was notified, without fulfilling the requirement of the provision that the person to be notified in case of absence at the address shall be notified to one of the nearest neighbors, if possible, to one of the nearest neighbors, if any, to the manager or doorman. For the reasons explained, while the court should duly issue an oath invitation to the defendant and make a decision according to the result, it required a reversal to make a decision in writing with incomplete examination.
CONCLUSION : For the reasons stated above, it was decided unanimously on 19.01.2016 that the judgment shall be VACATED in favor of the defendant, other appellate objections shall not be examined for the time being, and the advance fee shall be refunded upon request.