Supreme Court Decision On The Necessity Of Ruling On The Request To Participate In The Sale Of The Company’s Real Estate Below Market Value, Taking Into Account The Shareholder Status Of The Intervening Party
Republic of Turkey
Supreme Court of Appeals
11th Civil Chamber
Case No.: 2014/12697
Decision No.: 2015/10020
Date: 6.10.2015
In the case between the parties, the decision dated 12/09/2013 and numbered 2012/483-2013/323 issued by the Malatya 4th Civil Court of First Instance was reviewed by the Supreme Court upon request by the plaintiff company’s representative and the intervening party Y.. S.. and S.. P.., and it was understood that the appeal petition was filed within the time limit. After hearing the report prepared by the Examining Judge for the case file and reading and examining the petition, pleadings, trial minutes, and all documents in the file, the matter was discussed and considered:
The plaintiff’s representative argued that the immovable property numbered 1270, which was the sole asset of the client company, was sold to the defendants, who were the board of directors and auditors at the time, and the defendant company at a price far below its value in a fraudulent manner contrary to the law, that no money was deposited into the company’s cash register in exchange for this sale, that the company was effectively emptied, that a lawsuit for cancellation of the title deed had been filed by the partners in relation to the same immovable property and was pending, that the defendants M.. K.. and Y.. S.. had signed a construction contract in exchange for apartments with the defendant company, that 111 apartments had been given to the defendant company, and that there was a possibility that the immovable properties subject to the lawsuit would be sold to bona fide third parties. and requested that the irregular real estate registrations made on behalf of the defendants be canceled, that the real estate be registered in the name of the plaintiff company, that a precautionary measure be imposed on the real estate in question without collateral, and that, based on the possibility of the real estate being sold, 224,000 TL be paid as compensation for the time being.
The defendants’ attorneys requested that the case be dismissed.
The court, based on the allegations, defenses, and the entire case file, pursuant to Article 341 of the Turkish Commercial Code, a decision must have been taken at the general meeting of the company to file a lawsuit on behalf of the company, and the lawsuit must be filed by the auditors. In the present case, there was no decision taken by the general meeting or request by shareholders holding 1/10 of the share capital. Furthermore, the lawsuit at hand was not filed by the company’s auditors. Therefore, the plaintiffs do not have the authority to file the pending lawsuit. Furthermore, on July 8, 2000, the 8th item on the agenda of the company’s general assembly meeting authorized the board of directors to perform the partition, consolidation, and abandonment of real estate registered in the name of the company, to sell the relevant real estate to whomever it wishes at the price and conditions it wishes, with or without shares, in bulk or in parts, to receive the sale price, to take possession, and to submit the relevant title deeds to the relevant land registry offices, and that on April 18, 2002, the board of directors granted the chairman of the board of directors, İ.. Ö.., and the sale transaction subject to the lawsuit became valid as a result of the acquittal of the company’s board of directors at the general assembly meeting dated 24.04.2003, item 6. On the other hand, the lawsuit was dismissed on the grounds that the statute of limitations period specified in Article 309 of the Turkish Commercial Code had expired.
The decision was appealed by the plaintiff company’s representative and the intervening parties Y.. S.. and S.. P..
1- The lawsuit is based on the claim that the real estate, which was the sole asset of the plaintiff company, was sold to the members of the board of directors and the supervisory board of the period and to third parties, but that this money did not enter the company’s coffers, that the defendants’ acquisition of the company’s immovable property was unlawful, and that the sale and transfer were void. During the trial, S.. P.., who wished to join the case as an intervener on the plaintiff’s side, had his request rejected. However, S.. P.., who wished to join the lawsuit on the plaintiff’s side, submitted a notarial record stating that he held a share coupon corresponding to 100 shares registered to the plaintiff company, and therefore, it was understood that he had a legal interest in this ongoing lawsuit. Consequently, a ruling in favor of his intervention should have been made, and the rejection of his request by the interim decision dated 11/09/2013 was incorrect.
2- Based on the grounds and manner of the reversal, it is not deemed necessary to examine the other appeals of the distinguishing party’s attorneys at this time.
CONCLUSION: For the reasons explained in paragraph (1) above, S.. P..’s appeal objections are accepted and the decision is REVERSED. For the reasons explained in paragraph (2), there is no need to examine the other appeal objections of the distinguishing party’s attorneys for the time being, and the appeal advance fee they paid shall be refunded to the appellants upon request. It was unanimously decided on 10/06/2015.