TC
YÜCE
Law Office
CASE NO: 2016/661
DECISION NO: 2016/1136
DATE OF DECISION: 25.1.2016
COMPANY ASSETS CANNOT BE SEIZED DUE TO A COMPANY PARTNER’S PERSONAL CHILD SUPPORT DEBT – THIRD PARTY’S COUNTERCLAIM
6102/m.133
2004/m.96
SUMMARY: The case concerns a third party’s claim for alimony.
The case was filed due to an alimony debt, which is the personal debt of the debtor who is a company partner. In the case under Article 133 of the 6102 Pp.K., one of the personal creditors, a partner, requested that the company balance sheet and the company’s profit share be liquidated upon the preparation of the liquidation balance sheet, and as a result of the liquidation balance sheet, the debtor or the debtor’s liquidation will result in a profit, and the shares belonging to the partners, whether affiliated or not,
may be seized or attached in accordance with the provisions of the Enforcement and Bankruptcy Law No. 2004, and other claims from partner companies may be collected and seized. Furthermore, since the attachment of the company’s assets due to the personal debt of the debtor company partner is contrary to procedure and law, it is not appropriate to dismiss the case when it should be accepted.
STATUS: Upon the plaintiff’s request for review within the time limit of the above-mentioned Court decision, the file related to this case was sent from the location of the incident to the Department Presidency with its date and number. After the report prepared by the Review Judge regarding the file was heard and all documents in the file were read and examined, the necessity of the work was discussed and a decision was made:
decision
The plaintiff’s third-party representative filed a lawsuit on June 4, 2013, requesting that a seizure order be issued upon acceptance of the provisional seizure requests, stating that the securities belonging to the company had been seized by the client, that the debtor was a partner in the company, and that the company’s assets could not be seized due to the personal debt of the company partner.
The defendant, the creditor’s representative, requested the initiation of enforcement proceedings for the collection of alimony determined on behalf of their client and their joint children, stating that the plaintiff company knowingly filed an alimony claim after the seizure and therefore requested that the case be dismissed.
At the end of the trial, the court dismissed the alimony case, and the decision was appealed by the plaintiff’s third-party company attorney.
According to Article 33 of the Code of Civil Procedure No. 6100, it is incumbent upon the parties to present the material facts, and it is incumbent upon the judge to make the legal assessment and determine the applicable legal provisions. Depending on the form in which the claim is presented, the case is classified as a “reciprocal alimony” case filed in accordance with Article 96 et seq. of the Enforcement and Bankruptcy Code. The court also conducts the trial and renders its decision based on this classification.
The lawsuit was initiated due to alimony debt, which is the personal debt of the debtor company partner. According to Article 133 of the Turkish Commercial Code No. 6102, the personal creditors of one of the partners are subject to liquidation according to the company balance sheet and the portion of the company’s profit share per partner in the event that a liquidation balance sheet is prepared, as a result of the preparation of the liquidation balance sheet, the debtor or the liquidation of the debtor will result in a profit, and the shares belonging to the partners, whether affiliated or unaffiliated,
may be seized in accordance with the provisions of the Enforcement and Bankruptcy Law No. 2004, or the company may be authorized to collect or seize other receivables from partner companies. Furthermore, since the attachment of the company’s assets due to the personal debt of the debtor company partner is contrary to procedure and law, it is not correct to decide to reject the case in writing in cases where acceptance is required.
CONCLUSION:
For the reasons explained above, the decision to accept the appeal filed by the plaintiff’s attorney is REVERSED by the parties pursuant to Article 366 of the Enforcement and Bankruptcy Law, Article 3 of the Transitional Provisions of the Civil Procedure Law No. 6100, Article 428 of the Civil Procedure Code No. 1086, and Article 366/3 of the Enforcement and Bankruptcy Law. The Court of Cassation unanimously decided on January 25, 2016, that a request for correction of the decision should be made within 10 days from the date of notification and that the advance fee of TL 24.30 should be refunded to the appellant.