T.C.
JUDGMENT
GENERAL ASSEMBLY OF LAW
E. 2008/11-152
K. 2008/162
T. 27.2.2008
– CANCELLATION OF EVICTION UNDERTAKING ( THE CASE FILE RELATED TO THE EVICTION CASE SHOULD BE BROUGHT AND IT SHOULD BE EVALUATED WHETHER THE DECISION GIVEN IN THAT CASE WILL CONSTITUTE A FINAL JUDGEMENT OR CONCLUSIVE EVIDENCE OR STRONG DISCRETIONARY EVIDENCE FOR THE CASE AT HAND )
– EVICTION CASE (THE RELATED CASE FILE SHOULD BE RETRIEVED AND IT SHOULD BE EVALUATED WHETHER THE DECISION GIVEN IN THAT CASE CONSTITUTES A FINAL JUDGEMENT OR CONCLUSIVE EVIDENCE OR STRONG DISCRETIONARY EVIDENCE FOR THE CASE AT HAND – CANCELLATION OF THE EVICTION COMMITMENT)
– A NEW JUDGEMENT IN THE NATURE OF A DECISION TO RESIST (THE DECISION SUBJECT TO APPEAL IS NOT A DECISION TO RESIST IN REALITY, BUT A NEW JUDGEMENT FORMED BY TAKING INSPIRATION FROM THE REVERSAL AND MAKING AN EVALUATION IN LINE WITH THE REVERSAL) 6762/M.336, 337
SUMMARY : Since the plaintiff’s attorney, who did not appeal the previous decision of the Local Court in the same direction, has no legal interest in appealing the decision of resistance, the appeal petition should be rejected. In the decision of reversal, it was pointed out that the defendant Turkish Aeronautical Association’s attorney stated that an eviction case was filed against the plaintiff tenant by his client before the present case based on the eviction undertaking subject to the case at hand, that it was concluded with acceptance and the decision was finalised; it was pointed out that the case file related to the eviction case should be brought and the issue of whether the decision made in that case would constitute a final judgement or conclusive evidence or strong discretionary evidence in terms of the case at hand should be evaluated. In the justification of the decision of the Local Court subject to appeal, it is stated that the decision rendered in the eviction case will not constitute a final judgement for the case at hand, since the parties, subject matter and reasons of both cases are different. In this case, the decision subject to appeal is not a decision of resistance in reality; it is a new judgement formed by taking inspiration from the reversal and making an evaluation in line with the reversal. Therefore, the task of examining the judgement on appeal belongs to the Special Chamber, not the General Assembly of Civil Chambers.
CASE : At the end of the trial held due to the cancellation of the evacuation commitment and compensation case between the parties; Upon the request of the defendants’ attorneys for the examination of the decision dated 8.4.2004 and numbered 2003/900-2004/357 given by the Istanbul Commercial Court of First Instance 9th Commercial Court on the acceptance of the case, with the decision of the 11th Civil Chamber of the Court of Cassation dated 24.5.2005 and numbered 2004/11105-2005/5480;
( … The plaintiff’s attorney, in the original and consolidated lawsuit petitions, stated that the immovable property used under the name of M. Antique Hotel, owned by the defendant Turkish Aeronautical Association, was leased to his client company with a lease agreement dated 16.5.1985, but since there was a need for a company to be a partner for the repair of the abandoned and unusable building, the company named L. Laleli Otelcilik Yatırım Turizm ve Tic.A.Ş. was established. Laleli Otelcilik Yatırım Turizm ve Tic. A.Ş. was established, the client company also had shares in L. A.Ş., the hotel was converted into a five-star hotel by making expenses and opened for operation, the defendant Çetin S. was authorised to represent and bind the company individually at the extraordinary general assembly of the client company dated 07.06.2000, the said person signed the evacuation commitment dated 27.11.2000 based on this authorisation and transferred his shares in the company on 01.12.2000. 2000, and stated in the transfer agreement that he did not conceal anything in the company records and that he did not make any commitment, that the survival of the client company depends on the continuation of its rights in the hotel, that a general and board of directors decision must be taken on such an important issue, and that the eviction commitment given with the signature of the shareholder who is the sole representative in this matter is invalid, The defendant L. A.Ş., which is the actual tenant of the immovable property, was notified by the defendant THK that the lease period was extended from 2000 to 2020, and after the defendant THK notified L. A.Ş., which is the actual tenant of the immovable property, that the lease period was extended from 2000 to 2020, based on the eviction undertaking dated 27.11.2000, the eviction undertaking dated 27.11.2000 was not one of the duties of the company representative. A.Ş., the actual tenant of the immovable property, was notified by the defendant THK that the lease period was extended from the year 2000 until 2020 with the letter sent by the defendant THK, and based on the eviction commitment dated 27.11.2000, THK filed an eviction lawsuit by participating in facilitating the actions of the malicious partner Çetin S., the shareholders of the client plaintiff company changed completely on 01.12.2000 with the transfer of shares, 27.11. 2000, claiming that no one who was aware of the evacuation commitment dated 27.11.2000, four days before the former partner transferred his shares, would take over the shares, and requested and sued for the cancellation of the evacuation commitment dated 27.11.2000, and for the collection of (20.000.000.000) TL (20.000.000.000) from the defendant Çetin S. with interest within the scope of Articles 336-337 of the TCC, and waived the claim for compensation.
The defendant Çetin S.’s attorney stated that his client has personal liability in the lease agreement, that one of the conditions put forward by his client in the negotiations before the share transfer was to give an eviction commitment with a later date in order to prevent the liability arising from the lease agreement, that the share transfer price was kept low for this reason, that his client was authorised to represent and bind the company in the broadest sense in all matters, and requested the dismissal of the lawsuit.
The defendant Turkish Aeronautical Association’s attorney stated that the defendant could not be directed against his client, that all the claims put forward in the lawsuit petition were raised in the eviction case filed in Ankara 7 Civil Court of Peace due to the eviction commitment, and that the court rejected and decided to evacuate the immovable property, and requested the dismissal of the lawsuit.
The court, based on the allegations, defence and the evidence in the file, stated that L. Laleli Otelcilik Yatırım ve Turizm A.Ş. was established for the implementation of Article 12 of the lease agreement between the parties, that all the rents paid to the defendant THK were paid by L. A.Ş. and that THK had no objection to this, and that according to the determination made in the file numbered 1993/108 D.İş, the rented place was operated by L. A.Ş., it was determined that the touristic operation certificate was in the name of L. A.Ş., the THK responded to the application made by L. A.Ş. for the revision of the lease conditions by putting forward different conditions without objecting to L. A.Ş.’s tenancy title, and before the eviction commitment subject to the lawsuit, on 15. 5.2003 before the eviction commitment subject to the lawsuit, L. A.Ş. paid the 6-month rent to the THK, there was no objection to this payment, moreover, L. A.Ş. was in charge of the payments throughout the contract, the eviction commitment given by Çetin S. on behalf of the plaintiff company was not connected with L. A.Ş. and would not bind it, although the actual tenant was L. A.Ş., Çetin S. A.Ş., it was decided to cancel the eviction commitment dated 27.11.2000 and to reject the compensation claim due to waiver, on the grounds that the lawsuit filed against this defendant should be accepted due to the eviction decision of the defendant THK from the Civil Court of Peace based on the commitment given by Çetin S.
The decision was appealed separately by the attorneys of the defendants.
The dispute between the parties is about the cancellation of the commitment given by Çetin S., the former representative of the plaintiff company, on behalf of the plaintiff, regarding the eviction of the plaintiff from the immovable property where the company is the tenant.
Since it is defended by the defendant Turkish Aeronautical Association that before the filing of this case subject to appeal, the defendant lessor Turkish Aeronautical Association filed an eviction lawsuit against the plaintiff company based on the eviction commitment subject to the lawsuit, as a result of the trial, the eviction was decided and the aforementioned decision became final, the case file numbered 2003/549 Esas, 2004/150 K. of the Ankara 7th Civil Court of Peace regarding the eviction case is included in this case file. The case file numbered 2003/549 Main, 2004/150 K. of the Ankara 7th Civil Court of Peace regarding the eviction case should be brought into this case file and a decision should be made within the framework of the result that will be obtained by evaluating whether the decision made in line with the claim and defence put forward in that file will constitute a final judgement or conclusive evidence or strong discretionary evidence in terms of this case file subject to appeal, while it is necessary to make a decision within the framework of the result to be obtained, it has been erroneous to establish a written judgement with incomplete examination without making an evaluation on this issue and it has been necessary to decide to revoke the decision in favour of the defendants for the explained reason… ),
The case was reversed and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
The decision of the General Assembly of Civil Chambers was examined and after it was understood that the decision of resistance was appealed in due time and the papers in the file were read, the necessity was discussed:
DECISION : The main lawsuit and the consolidated lawsuit are related to the cancellation of the evacuation undertaking given by Çetin S., the defendant of the main lawsuit, to the defendant of the consolidated lawsuit, the Turkish Aeronautical Association, on behalf of the company, which is the plaintiff of both lawsuits.
The attorney of the plaintiff G. Denizcilik Ticaret A.Ş., in both the original and the consolidated lawsuit, stated that the defendant Çetin S., who has been a shareholder of the plaintiff company since its establishment, has given an eviction undertaking dated 27.11.2000 to the other defendant, who is the lessor, without authorisation and by concealing it from the company, in violation of the rules of good faith. 2000 dated evacuation undertaking, and shortly afterwards he transferred his shares and left the partnership; and demanded and sued for the cancellation of the legally invalid evacuation undertaking and for the collection of 10.000.000.000 TL financial compensation from the defendant Çetin S.; during the trial, with the petition dated 29.3.2004, he postponed the claim for compensation; and repeated this statement in the session held on 8.4.2004.
The attorneys of both defendants requested the dismissal of the lawsuit; the attorney of the defendant Turkish Aeronautical Association stated that an eviction lawsuit was filed by his client based on the commitment letter subject to the lawsuit and that it resulted in acceptance and the decision was finalised.
Local Court; ( … The defendant Çetin S., who gave the letter of undertaking subject to the lawsuit, was authorised to represent and bind the plaintiff company in the broadest sense with the circular dated 27.11.2000, and gave the letter of undertaking based on this authorisation. As a result of the lawsuit filed based on the eviction undertaking, it is understood that the Ankara 7th Civil Court of Peace ruled for the eviction of the immovable property and the decision has not been finalised. The defendant Çetin Saraç transferred his share in the company with the share transfer agreement on 1.12.2000 after giving the letter of undertaking. Although the plaintiff company appears as the tenant in the lease agreement, according to the scope of the file, it is understood that the tenancy of L. A.Ş. was accepted by the defendant Turkish Aeronautical Association, the defendant Çetin Saraç gave the eviction undertaking on behalf of the plaintiff company and that L. A.Ş., which actually uses the immovable, is not related to this eviction undertaking, the tenancy title actually and legally belongs to L. A.Ş., and the eviction undertaking does not bind the tenant. The defendant Çetin S. caused an eviction decision to be taken against the plaintiff company by giving the eviction undertaking, thus causing damage. The defendant THK., on the other hand, although L. A.Ş. is actually a tenant in the immovable property, based on the commitment letter, Çetin S. has taken an eviction decision to the detriment of the plaintiff company by abusing his authority with Çetin S. … ), on the grounds that the case is accepted, 27.11. 2000 dated 27.11.2000, and the compensation claim was rejected due to waiver; upon the appeal of the attorneys of the defendants, the judgement was reversed by the Special Chamber with the above-mentioned decision; the Local Court decided to resist and this decision was appealed by the attorneys of the parties.
1- Since the plaintiff’s attorney, who did not appeal the previous decision of the Local Court in the same direction, has no legal interest in appealing the decision of resistance, the appeal petition should be rejected.
2- In the decision of reversal, it is pointed out that the defendant Turkish Aeronautical Association’s attorney stated that an eviction case was filed against the plaintiff tenant by his client before the present case based on the eviction undertaking subject to the case at hand, and that the decision was finalised; the case file related to the eviction case was brought and it was pointed out that it was necessary to evaluate whether the decision made in that case would constitute a final judgement or conclusive evidence or strong discretionary evidence in terms of the case at hand.
In the justification of the decision of the Local Court subject to appeal, it is stated that the decision rendered in the eviction case will not constitute a final judgement for the case at hand, since the parties, subject matter and reasons of both cases are different.
In this case, the decision subject to appeal is not a decision of resistance in reality; it is a new judgement formed by taking inspiration from the reversal and making an evaluation in line with the reversal.
Therefore, the task of examining the judgement on appeal belongs to the Special Chamber, not the General Assembly of Civil Chambers.
CONCLUSION : 1- For the reason explained in subparagraph (1) above, the appeal petition of the plaintiff’s attorney is rejected;
2- For the reason explained in subparagraph (2) above, it was unanimously decided on 27.02.2008 to send the file to the 11th Civil Chamber for the examination of the appeal objections of the defendants’ attorneys against the new judgement.
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