TC
Istanbul
REGIONAL COURT OF JUSTICE
Law Office
CASE NO: 2017/1399
DECISION NO: 2018/878
DATE OF DECISION: 4.7.2018
MEN OF MUARAZAN VOLUNTARY-MUVAZAA-LIABILITY-UPON REQUEST
6100/m.190,353/1-b-2
SUMMARY: The case concerns a male client’s request.
According to the expert report, the plaintiff cannot be held liable for the debt of the previous subscriber, therefore, the fact that the subscription contract was not established is contrary to the provisions of the regulation, and the court should hear the fraud case.
Consequently, it was argued that it could not be proven that the plaintiff and the deceased subscriber had insisted on saving money in order to avoid paying compensation due to the death of the deceased subscriber, that the plaintiff could not prove that there was an organic link between them, such as the previous tenant of the restaurant business, and that there was no relationship or document showing the transfer of the business between them. and it was argued that the final decision regarding the resolution of the dispute between the plaintiff and the defendants was correct.
Due to the fact that the previous Subscription Agreement and its terms were included in the contract in a manner that exceeded the plaintiff’s request for a decision on these matters, pursuant to HMK-B-2 md. 353/1 of the Code of Civil Procedure, the court’s decision should be amended to “accept the claim and order the plaintiff to sign the subscription agreement subject to the dispute at the address of the property that is the subject of the claim.”
CASE: Following the appeal review and written proceedings against the decision issued by the court of first instance regarding the aforementioned parties, and as a result of the review of the case file;
IT IS DEEMED NECESSARY:
DECISION: The plaintiff’s attorney summarized his petition as follows: his client, Fatih, applied to the relevant institutions in order to obtain a business tax registration for the premises he rented for the purpose of operating in the food and beverage sector in Istanbul and to benefit from services such as electricity, water, natural gas, and internet when the rented premises opened.
However, the electricity connection was not made. If the previous subscription is canceled, the defendant company is obligated to refrain from entering into a contract with the client if the applications in question are rejected. Therefore, the plaintiff requests that a contract be made with the client regarding the use of electrical energy and that the electricity be connected as a precautionary measure until the outcome of the lawsuit.
The defendant’s attorney summarized the response as follows: The plaintiff’s previous claim that the subscriber did not do business with him and that the debts arising from the contract could not be accepted, that the plaintiff had no legal or actual connection with the previous subscriber, that the claim of an entrepreneur trying to open a new shop had no basis in reality, that the subscriber had engaged in a commercial transaction to enable him to continue his business without paying the bills arising from the previous lawsuit, and that the lawsuit should be dismissed because the subscriber, who operated in the same sector as previously notified, had moved his place of business.
In summary, the defendant’s representative stated in the plaintiff’s response that the business premises had started operating in the past and that the client had paid their taxes at the relevant address on November 20, 2015, started a new business on November 30, 2015, changed the license plate, made the necessary applications to benefit from electricity services, and started the subscription. Th attorney argued that if the client’s dispute with the company was misdirected, it would be unfair and unreasonable for separate legal entities to only keep beef, and therefore, the plaintiff’s case should be dismissed. Th defendant institution was authorized by the court of first instance to enter into contracts with the defendant’s consumers.
The defendant institution requested that the electricity fraud investigation agency determine whether there was fraud before determining whether the subscription was made in front of the defendant’s consumers. The defendant institution stated that the plaintiff had no grievance against it, that the plaintiff continued to work at the same location as the previous tenants, that the plaintiff applied to the defendant to be released from the electricity debt, that the claims on behalf of the plaintiff belonged to the defendant,
that the allegation of fraud was not presented as evidence, that the plaintiff’s tax debt, presented as evidence in the lease agreement, showed that it was not related to the previous tenant, that the plaintiff, who is not engaged in commercial activity between the parties with expenses between a subscriber operating in the same workplace with the previous collusion and the plaintiff’s acceptance, … muaraza Fatih/ISTANBUL business address, if the electricity connection with the defendant is made in accordance with the contract made with other subscribers, the defendant’s attorneys appealed the decision within the time limit.
In summary, the defendant’s attorney stated in the appeal that there was no collusive relationship between the plaintiff and the previous subscriber aimed at enabling the previous subscriber to continue its commercial activities by paying its bills, that the burden of proof lay with the plaintiff, that the plaintiff could not prove this matter with all the evidence to be presented by the party, that it was always possible to draw up a lease agreement, therefore, it is impossible to determine whether a fraudulent situation exists, and that the plaintiff’s operation of the facility in question in accordance with the previous subscriber’s facility, despite using the same facility, and that it is contrary to law to base the ruling on a report prepared fraudulently, disregarding this fact, and requested that the court decision, which is contrary to procedure and law, be overturned.
In summary, the defendant’s representative filed an appeal; however, the local court
Although the court imposed the burden of proof of the contract on itself, the actual burden of proof lies with the plaintiff, who brought this case and claimed that he had no connection with the former debtor, since HMK m. 190: “Unless otherwise specified by law, the burden of proof lies with the party who benefits from the legal consequences of the alleged event.”
The ruling has been included here because the plaintiff, as the party claiming a concrete inconsistency in its favor, had to prove that there was any connection between it and the former tenant, The documents that the plaintiff had to submit were insufficient to prove the claim, and the evidence gathered was also insufficient to reach a decision due to the lack of discretion. Therefore, upon acceptance of the ruling, the plaintiff stated that the decision was contrary to the law and procedure and requested that the case be dismissed after a retrial.
The manufacturer and seller/distributor company holding a retail sales license is obliged to enter into connection agreements and subscription agreements with consumers connected to the distribution system and with free consumers in accordance with the principles set out in the Electricity Market Law. If the seller/distributor company refuses to establish a subscription agreement, a lawsuit may be filed to remove the obstacle.
As explained in the General Assembly Decision dated 29.09.2004 and numbered 2004/13-417 E, and in the ruling numbered 2004/442 K. 1, lawsuits for the prevention of conflicts are not final and binding in the sense of procedural law, but are performance lawsuits. This is because in such cases, both the existence of the conflict and its prevention are sought.
Furthermore, the General Assembly of the Law planned for March 17, 2010, and 2010/3-119 E. 2010/159 K. conflict, during the continuation of a contract, the removal of the judgment (dispute) by one of the parties,
If this situation is of such a nature that it could cause harm to the other party, it is accepted that there is a legal interest in filing a lawsuit to ensure that the legal situation is resolved in a manner that leaves no room for doubt.
In the specific case, the plaintiff … was charged with using electricity illegally without a subscription based on the minutes dated July 28, 2010, regarding 2010/7, and a subscription was established due to the accrued lawsuit. After the debt of TL 551.76 for the period was paid, a subscription contract was concluded between the plaintiff … and BEDAŞ on August 25, 2010.
Subsequently, according to the lease agreement submitted as evidence by the plaintiff, the plaintiff leased the address as a workplace on March 22, 2011, but did not apply to the electricity authority to establish a subscription contract. Furthermore, according to the decision of the Istanbul 12th Heavy Penal Court dated 17.02.2015 and numbered 2014/970 E, 2015/183 K; … In the case at the Istanbul 35 address, an eviction order was issued against the plaintiff on the grounds that he had not paid his rent. It is understood from the Enforcement Directorate’s follow-up file numbered 2014/11874 E. that the restaurant’s property has been seized.
According to the expert report obtained by the court, the plaintiff cannot be held liable for the debt of the previous subscriber, therefore, the fact that the subscription contract was not established is contrary to the provisions of the regulation, and the court must evaluate the fraud case.
The court, having examined all the evidence, found that there was no kinship, closeness, or commercial partnership between the plaintiff seeking to enter into a subscription agreement and the previous tenant. As a result, it was proven through fraudulent conveyance by the plaintiff and defendant in the previous lawsuit that the subscriber sought to avoid paying the subscriber’s savings. Finally, the plaintiff, like the previous tenant, failed to prove that there was a relationship or transfer relationship between them by showing that the organic restaurant business and the business registration did not exist, the land registry established to resolve the dispute between the plaintiff and the defendant was evaluated as evidence, and based on the evaluations made, no unlawful direction was found.
As a result of the appeal review conducted by the defendants, the appeal request made on the grounds of the appeal reasons understood was dismissed on the merits by the defendant in accordance with the grounds numbered HMK 353/1-B-1; However, the court’s decision on these matters, based on the Subscription Agreement and its terms previously made, which exceeded the plaintiff’s request, was examined ex officio in accordance with Article 353/1-B-2 of the Code of Civil Procedure (HMK-B-2) 353/1 of the Code of Civil Procedure, the court’s decision must be based on a decision to “accept the case and prohibit the defendant from signing the subscription agreement that is the subject of the plaintiff’s claim at the address of the dispute.”
CONCLUSION:
For the reasons explained above;
With the partial acceptance of the defendants’ appeals; as a result of the personal examination conducted for the purpose of ensuring public order, the court’s decision is revoked pursuant to Article 353/1-b-2 of the Code of Civil Procedure, and a new decision is rendered on the merits;
1-) Upon acceptance of the case, the defendants shall be entitled to the movable property they acquired by not signing a subscription agreement with the plaintiff at the address of … Fatih/ISTANBUL, which is the subject of the case.
2-) The provisional measure decision issued during the continuation of the case shall remain in effect until the judgment becomes final.
3-) From the advance fee of TL 29.20, the fee of TL 31.40 to be collected shall be deducted, and the fee of TL 2.20 shall be collected from the plaintiff and recorded in the cashier.
4-) The proportional attorney’s fee of 1,980.00 TL, calculated based on the portion stipulated in the minimum attorney’s fee schedule in effect on the date of the decision, shall be collected jointly and severally from the defendants and paid to the plaintiff,
5-) Collections made by the plaintiff
In case No. 1.308, to ensure the joint and several collection of the plaintiff’s litigation costs in the amount of 20 TL from the defendants,
6-) The advance payment made by the parties and the remaining balance shall be paid after the decision becomes final and, upon request, shall be refunded to them.
Rejection of the appeal request by the defendants on other grounds,
The advance fee collected for the objection decision shall be refunded to the applicant upon request,
The defendant is entitled to recover the appeal hearing costs of 5.80 TL incurred due to the defendant’s claim from the plaintiff and pay them to the defendant.
If an advance payment has been made due to the objection, this advance must be refunded to the applicant by the court of first instance.
Upon review of the file, it was unanimously decided that the appeal to the Court of Cassation shall be opened within two weeks from the notification of the reasoned decision to the parties. 07.04.2018