Counterclaim
Counterclaim is defined as a lawsuit filed by the defendant of a pending lawsuit against the plaintiff in the same court. In practice and doctrine, counterclaims are referred to by various names such as counterclaims, counterclaims, counterclaims, and counterclaims.
Counterclaim is regulated in Articles 132-135 of the Code of Civil Procedure.
Procedural conditions of the counterclaim
1-) The main lawsuit is pending,
The pendency of the main action means that no judgement has been rendered on the main action. In the event that any judgement has been rendered, the possibility of filing a counterclaim will disappear and the applicant will have to file an independent lawsuit if he/she wishes.
2-) The two cases are subject to the same procedure,
The regulation stipulates that both the main action and the counterclaim must fall within the jurisdiction of the same court. Accordingly, for example, it is not possible to assert a case subject that falls within the jurisdiction of administrative jurisdiction in the courts of judicial jurisdiction with a counterclaim.
3-) The counterclaim must be filed within the reply period.
In the written procedure and in the simple procedure, as a rule, the reply period is two weeks from the notification of the lawsuit petition to the defendant. In cases where the reply period is extended by the court, it is possible to file a counterclaim within the additional period (Article 127 of the CCP).
The conditions of the counterclaim on the merits;
1-) There is a relationship between the main lawsuit and the counterclaim,
There must be a set-off or set-off relationship between the claim to be asserted in the counterclaim and the claim asserted in the main action, or there must be a connection between these actions (Article 132 of the CCP).
2-) There is a set-off or set-off relationship between the main case and the counterclaim,
While barter means settlement by way of exchange, set-off means settlement by way of deduction. The main difference between these two concepts, which are close to each other and are even used interchangeably in practice, is that they provide an opportunity to settle accounts by way of exchange in barter and by way of deduction in set-off. The dictionary definition of “barter” is “getting even, settling accounts, offsetting, counting”, while “offset” means “calculated, included in the account, advance settlement”. The fact that even in encyclopaedic dictionaries, the meanings of these concepts are given in such a way that they can be considered very close to each other reveals how susceptible they are to confusion.
Set-off is regulated in Articles 139 to 145 of the Turkish Code of Obligations. Although there is no explanatory legal regulation on set-off, there are legal regulations in which the concept of set-off is mentioned.
However, as rightly stated in the doctrine and in the case law of the Court of Cassation, there is no need to file a separate lawsuit for set-off or set-off claims. If there is a request for set-off or set-off in the defendant’s reply petition, this should be understood and interpreted as a counterclaim.
If it is necessary to give examples from the decisions of the Court of Cassation;
“…It is not necessary to file a separate lawsuit or counterclaim in order for the defence of set-off to produce results, and it should be accepted that it will produce legal results when the set-off notification reaches the other party.”
(Court of Cassation 15th HD, E. 2011/7034, K. 2012/5961, T. 2.10.2012)
“…Settlement may be asserted as a counterclaim or as a defence, and in cases where it is asserted as a defence, it shall be subject to the provisions of the law governing other defences. The provision of the Code of Procedure mentioned in the court’s judgement, which concerns the counterclaim, is a provision enacted to declare one of the conditions for the acceptance of the counterclaim, and it is not enacted to declare that the claim of set-off can only be asserted by the defendant as a counterclaim…”
(Court of Cassation 4th HD., E. 1975/9242, K. 1976/8717, T.14.10.1976)
3-) There must be a legal and factual connection between the main lawsuit and the counterclaim.
Article 132,1/b of the CCP stipulates that ”…There must be a set-off or set-off relationship between the claim to be asserted in the counterclaim and the claim asserted in the main lawsuit, or there must be a connection between these lawsuits…”. The regulation of the existence of a connection between the lawsuits in the CPL 132,1/b regulation is stated as follows: “If the lawsuits arise from the same or similar reasons, or if the judgement to be rendered about one of them is of a nature to affect the other, the connection is deemed to exist.”.
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