13. Legal Department 2015/24960 E. , 2017/12297 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
At the end of the trial of the receivable case between the parties, the case was reviewed and considered by the plaintiff’s lawyer after the decision to dismiss the case for the reasons written in the dec was appealed within the period of time.
decision
According to the power of attorney granted by the plaintiff to the defendant’s lawyer, enforcement proceedings have been initiated for seven promissory notes that he is a creditor, along with the costs of opening the files … 1. 2009/5215 E of the Executive Directorate. in accordance with the injunction decision taken for file No. 1,750.00, the security fee of TL 1,750.00, … 1. 2009/6906 E of the Executive Directorate. in accordance with the injunction decision taken for file No. 6,675.00, he has disposed of the security fee of 6,675.00 TL, the security fees have been refunded, but they have not been returned to him, … 1. 2008/981 E of the Executive Directorate. the amount of 500.00 TL collected from the numbered file on 13.02.2009 was also not given to him, he learned from the debtor that the file was closed, he wanted to sign it by preparing a Hebrew letter when he was told about this situation, but he did not accept it, then he complained to the defendant’s Bar Association and a disciplinary investigation was launched against him, after the complaint, the defendant requested that the defendant be decided to collect 8.925,00 TL, which is the sum of payments to the defendant’s lawyer and the non-refundable security fee, provided that the rights of the defendant are reserved, by claiming that the payment and collateral costs made despite the defendant’s withdrawal from all files were not given.
The defendant has made expenses on the follow-up files, collected one of the plaintiff’s enforcement files without his knowledge and waived it without notice, … 1. 2009/5215 E of the Executive Directorate. despite the fact that even sales transactions were made in his numbered file, he claimed that the proxy fee was not paid, that the right of imprisonment was used to secure receivables as a proxy due to the fact that the proxy fee was waived without his knowledge and the proxy fee was not paid in the file where the sale transaction was made, and he requested that the case be dismissed.
The court decided to dismiss the case; the judgment was appealed by the plaintiff.
1-The plaintiff has filed the lawsuit in order to return the collection and collateral fees that were not paid due to the defendant’s lawyer’s withdrawal from the files as a result of complaining to the bar association that the defendant lawyer was not accepted when the defendant was notified and requested to be signed in Hebrew when the collection fee and collateral fees were requested to be refunded to the defendant and the defendant lawyer was notified of the payment in the collected and closed follow-up file from the debtor of the file. The defendant, on the other hand, argued that the plaintiff used his right to jail on the grounds that he collected and waived one of the follow-up files without his knowledge, the costs incurred by him in the follow-up file and the power of attorney arising from another execution file that was sold, and the court decided to dismiss the case with a bet that the plaintiff had the right to jail over the price that needed to be refunded. It is understood that the plaintiff implicitly dismissed the defendant by complaining to the bar association. Although the court decided on the basis of the expert report on the basis of the judgment, the expert report was not conducive to audit and the report was prepared on an abstract basis. In this case, a new expert report is received by the court and a decision should be made on the basis of the expert report prepared without justification, while it is also necessary to evaluate whether the defendant has duly used his right to imprisonment, and the decision to dismiss the case with a bet that the plaintiff has used his right to imprisonment requires a reversal.
2-According to the reason for the violation, there is no need to examine the plaintiff’s other appeals for the time being.
CONCLUSION: It was decided unanimously on 11/12/2017 that the decision appealed for the reasons described in paragraph (1) above was OVERTURNED, for the reason described in paragraph (2) there was no room to examine the plaintiff’s other appeals, the refund of the fee received in advance on request, the way to correct the decision was closed in accordance with Article 440 /III-1 of the CMB, on 11/12/2017.
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