A counterclaim is defined as a lawsuit filed against the plaintiff by the defendant of an ongoing lawsuit in the same court. A counterclaim is a lawsuit filed by defendant against the plaintiff in same court.
Counterclaims are regulated under Articles 132-135 of the Code of Civil Procedure.
Procedural conditions of the counterclaim;
1-) The main case is ongoing.
Continuation of the main proceedings means that the main proceedings have not yet been decided. In case of a decision, the possibility to file a counterclaim will disappear and the applicant will have to file a separate case if he/she wishes to do so.
2-) Both cases are subject to the same procedure.
Regulation stipulates that both main action and the counterclaim must fall within jurisdiction of same court. Accordingly, for example, it is not possible to assert a case subject to administrative jurisdiction with a counterclaim in the courts of judicial jurisdiction.
3-) The counterclaim must be filed within the response period.
In the written procedure and in the simple procedure, the reply period is, as a rule, two weeks from the notification of the lawsuit petition to the defendant. If the reply period is extended by the court, it is possible to file a counterclaim within the additional period (Article 127 of the Code of Criminal Procedure).
Conditions for a counterclaim on the merits;
1-) There must be a relationship between the main case and the counterclaim.
There must be an exchange or set-off relationship between the claim asserted in the counterclaim and the claim asserted in the main case, or there must be a connection between these cases (Article 132 of the Criminal Procedure Code).
2-) There must be an exchange or set-off relationship between the main case and the counterclaim.
While barter means reconciliation by way of exchange, set-off means reconciliation by way of deduction. The main difference between these two concepts, which are close to each other and even used interchangeably in practice, is that barter allows for settlement by way of exchange, while set-off allows for settlement by way of deduction. The dictionary meaning of “barter” is “to get even, to settle accounts, to offset, to count”. “offset” means “to settle accounts, to take into account, to advance”. The fact that even encyclopedic dictionaries give these concepts very close meanings reveals how open they are to confusion.
Settlement is regulated under Articles 139 to 145 of the Turkish Code of Obligations. There is no explanatory legal regulation on set-off. However, there are legal regulations that mention the concept of set-off.
However, as rightly stated in the doctrine and the case law of the Court of Cassation, there is no need to file a separate lawsuit for set-off or set-off claims. If there is a request for set-off or set-off in the defendant’s reply petition, this should be understood and interpreted as a counterclaim.
To give an example from the decisions of the Court of Cassation;
“…There is no need to file a separate lawsuit or counterclaim for the taxi defense to be effective. It must be accepted that the legal consequences will be realized if the exchange notification reaches the other party.”
(Court of Cassation 15th HD, E. 2011/7034, K. 2012/5961, T. 2.10.2012)
“…Settlement may be asserted as a counterclaim or as a defense and, where asserted as a defense, shall be subject to the provisions of law relating to other defenses. The procedural provision on counterclaim referred to in the court decision is a provision enacted to declare one of the conditions for the acceptance of the counterclaim, and the claim for settlement was only asserted as a counterclaim by the defendant…”
(Court of Cassation 4th HD., E. 1975/9242, K. 1976/8717, T.14.10.1976)
3-) There must be a legal and factual link between the main case and the counterclaim.
Article 132/1/b of the CPC states that “…there must be an exchange or set-off relationship between the claim asserted in the counterclaim and the claim asserted in the main action, or there must be a connection between these actions …”. In Article 132.1/b of the Code of Criminal Procedure, the regulation on the existence of a connection between the cases is stated as follows “If the cases arise out of the same or similar causes or if the judgment to be rendered on one of them is of a nature to affect the other case, a connection shall be deemed to exist in the other case.”
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