Filing a Counterclaim and the Statute of Limitations
A counterclaim is defined as a lawsuit filed by the defendant of an ongoing lawsuit against the plaintiff in the same court. According to the definition, it is necessary to have a best case in order for a counterclaim to be filed. The other condition is that there is a clearing or Decoup Decoupling relationship between the claim put forward in the main case and the subject of the counterclaim, or that there is a link between these cases.
When evaluating the connection between the cases, it is necessary to look at Article 166/4 of the CM Dec. According to this provision, if the cases arise from the same or similar reasons or if the decision to be made about one of them affects the other, the connection is considered to exist. The legislator has also assumed the existence of a link in the offset or offset relationship. Barter is the request of the defendant who filed a counterclaim to Decipher the legal dispute between them by declaring that the plaintiff of the main case is the creditor. On the other hand, the exchange includes the request of the defendant who filed the counterclaim from the plaintiff of the main case to Decrement the debt and debt relationship between them by reviewing it. However, there is a point to be noted here.
The defendant who filed the counterclaim should have more to receive than the plaintiff who filed the original lawsuit. If the defendant defends the defense in the counterclaim, which he should do if the amount of litigation in the main case is small, in my opinion, the judge will appreciate that there is no legal interest.
In the absence of any offset or offset or other connection between the main case and the counterclaim, the judge will decide to Decouple the counterclaim from the case upon the plaintiff’s request or ex officio review. the main case and, if necessary, to send the file to the competent court. CMK’s 132. in the last paragraph of the article, “A lawsuit cannot be filed against a counterclaim.” There is such an arrangement. It is not possible to file a counterclaim against the counterclaim under this provision. Main reason for the legislator to introduce this paragraph is that there is no legal benefit of the situation in question.
THE MANNER AND DURATION OF SUBMITTING A COUNTERCLAIM
The legislator is the 133rd of the CMK. it has regulated the manner and duration of filing a counterclaim within the scope of the article. According to the provisions of the law, a counterclaim may be filed with an answer petition or with a separate petition within the period of responding to the merits. Accordingly, the period for responding to the merits is, as a rule, two weeks after the written and simple procedure notification of the lawsuit petition to the defendant.
In cases where the response period is extended by the court, it is possible to file a counterclaim within an additional period Oct. The second paragraph of the same article regulates the consequences of missing the deadlines specified in the first paragraph of the Law. According to the regulation, if a counterclaim is filed after the expiration of the period, the court decides to separate the cases. Supreme court 3. The Office of Law (3. HD., E . 2016/1440 K. 2016/5213 T. 5.4.2016) has a decision. The above-mentioned decision states that:
“The counterclaim shall be filed in the court of the place where the main case is being heard with a separate petition together with the response petition submitted in the main case or within the response period.(CMK md. 133/1) Although the counterclaim was filed in the same case, the court related to the main case is an independent (separate) case. Therefore, counterclaims are subject to fees just like separate (independent) lawsuits. (Article 6/1 of the Wage Law) A counterclaim shall not be deemed to have been filed unless the wage has been paid and the provisions of the counterclaim have been applied.
If the counterclaim is filed after the deadline for responding to the merits has passed, the court decides to separate the cases on request or spontaneously.
In the concrete case, it has been understood that the lawsuit petition was filed by the defendant counter-defendant upon notification on 22.09.2015, the response and counter-lawsuit petition were filed after the expiration date on 13.10.2015, and it is understood that the request for child support increase was essentially rejected. the lawsuit; cancellation of participation alimony in the counterclaim, otherwise reduction and removal of poverty alimony was requested, and as a result of the trial conducted by the court, it was decided to partially accept the main case and dismiss the case.
It has been decided to dismiss the counterclaim on the grounds that it was not opened within the time limit. However, according to the regulation in Article 133/2 of the CMK, while it should have been decided to separate the counterclaim from the main case and register it in a new case, it was not correct to decide to dismiss the counterclaim. On the grounds that it was not applied for within the time limit.”
FEES FOR COUNTERCLAIM
Another thing that should be known about the counterclaim is that it is subject to a fee. 6 Of the Law on Fees. according to the article, counterclaims are subject to fees just like individual lawsuits. When the defendant applies to file a counterclaim, he must pay the fee. What happens if the wage is not paid is regulated in the Wage Law. 32 Of the Law on Fees. in the article, it is stated that if the fee is not paid, no further actions can be taken. The counterclaim is referred to by the number of the relevant case file in the court where the main case is being heard, and a separate case number is not given for the counterclaim.
The court examines the main case and the counterclaim together and conducts the preliminary examination and investigation stages together. In this regard, the procedural actions to be taken by the parties and the court are carried out for both cases. The court, which makes a decision by examining the main case and the counterclaim together, makes a single decision for both cases. Court decides separately on the main case and the counterclaim. The Supreme Court on this issue is 6. There is a decision of the Legal Department (6. HD., E . 2014/12504 K. 2015/1282 T. 12.02.2015). The aforementioned decision
“after the lawsuit was filed on 29/05/2014, the defendants filed a counterclaim with an answer petition. CMK 132. since the counterclaim filed in accordance with the article is an independent and separate case, the court must make a positive or negative decision about the counterclaim, and the decisions made about the main case and the counterclaim must be shown separately in the paragraph. judgement. It is contrary to the procedure and the law that the decision on each case is decided in writing without being shown in the decision.
Therefore, the decision must be overturned.”
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