Law Office
Case Number: 2016/1136
Decision Number: 2016/1136
“Text of Justice”
COURT: Enforcement Court
CASE TYPE: Compensation
Upon the applicant’s request, the file related to this matter was sent to the Chamber within the time limit specified in the Court decision dated and numbered above.
DECISION
On 04/06/2013, the attorney for the third-party plaintiff stated that movable property belonging to the client company had been seized, that the debtor was a partner in the company, and that the company’s property could not be seized due to the personal debt of the company partner. He requested that the seizure be lifted on the condition that the fee claims be accepted and filed a lawsuit.
The defendant, the attorney, and the client claimed that enforcement proceedings had been initiated to collect alimony determined for the parties’ children, that the plaintiff company had deliberately claimed fees after the seizure, and that it intended to prolong the lawsuit, requesting that the lawsuit be dismissed.
At the end of the trial, the court decided to dismiss the fee lawsuit, and this decision was appealed by the plaintiff’s third-party attorney.
Pursuant to Article 33 of HMK No. 6100, it is incumbent upon the parties to present the material facts, and it is incumbent upon the judge to make legal determinations and determine the applicable laws. According to the nature of the case, the lawsuit is based on the principles set forth in Article 96 and was filed by a third party. It is a “wage” lawsuit filed in accordance with the company’s articles of association, and the court has tried and decided the case based on this characterization.
The transactions in question were initiated due to alimony debt and constitute the personal debt of the debtor company partner. Pursuant to Article 133 of the Turkish Commercial Code No. 6102, a personal creditor of one of the partners is entitled to dividends allocated to that partner according to the company’s balance sheet and, if the company has been dissolved, to the liquidation share; if the balance sheet has not yet been prepared, the creditor is entitled to the profit and liquidation share that will be allocated to the debtor as a result of the preparation of the balance sheet.
Furthermore, pursuant to the provisions of the Enforcement and Bankruptcy Law dated 2004 regarding movable property, the creditor has the right to seize unregistered shares or attach the partner’s other receivables from the company and establish a pledge for this purpose. Furthermore, since the seizure of the company’s assets due to the personal debt of the partner-debtor is contrary to procedure and law, it is not correct to reject in writing a claim that should be accepted.
CONCLUSION:
For the reasons explained above, the judgment has been CANCELLED in accordance with Article 428 of the Supreme Court Chamber decision, with the acceptance of the objections of the plaintiff’s third-party attorney. On 25.01.2016, it was unanimously decided that an appeal may be filed against the decision within 10 days of notification of the High Court of Justice decision and that the cash fee of TL 24.30 shall be refunded to the plaintiff.