T.C. COURT OF CASSATION 12th CIVIL CHAMBER
Basis No: 2016/9533 Decision No: 2016/19526 Date: 22.9.2016
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ABSENCE OF THE CONDITION OF THE LAWSUIT DUE TO NON-PAYMENT OF THE ADVANCE ON EXPENSES (The Composition of the Advance on Expenses Must Be Clearly Determined Along with the Two-Week Peremptory Period to Be Granted for Completion, and the Party Must Be Warned About the Legal Consequences of Non-Payment of the Advance / The Lawsuit May Be Dismissed on Procedural Grounds Due to the Absence of the Condition of the Lawsuit Only if the Deficiency Is Not Rectified Within This Period)
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ANNULMENT OF TENDER (It Is Incorrect for the Court to Reach a Conclusion by Conducting an Examination over the File Without Holding a Hearing, Summoning the Parties, Taking Their Statements, and Collecting Evidence Pursuant to Article 134/2 of the EBL)
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DEFICIENCY IN THE ADVANCE ON EXPENSES (The Composition of the Advance on Expenses Must Be Clearly Determined Along with the Two-Week Peremptory Period to Be Granted for Completion, and the Party Must Be Warned About the Legal Consequences of Non-Payment of the Advance / The Lawsuit May Be Dismissed on Procedural Grounds Due to the Absence of the Condition of the Lawsuit Only if the Deficiency Is Not Rectified Within This Period)
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GRANTING A PEREMPTORY PERIOD FOR THE COMPLETION OF THE ADVANCE ON EXPENSES (It Was Inaccurate to Decide on the Procedural Dismissal of the Case Due to the Absence of the Condition of the Lawsuit Without Granting a Duly Formed Peremptory Period to the Debtor)
Relevant Articles: Enforcement and Bankruptcy Law (EBL) Art. 134; Code of Civil Procedure (CCP) Art. 114/g, 115/2, 120.
SUMMARY: The lawsuit concerns a request for the annulment of a tender.
1- It is incorrect and requires a reversal for the Court to reach a conclusion by conducting an examination over the file without holding a hearing, summoning the parties, taking their statements, and collecting the evidence they may present, pursuant to Article 134/2 of the EBL.
2- If it is understood by the Court that the advance on expenses is deficient, the composition of the advance on expenses must be clearly determined along with the two-week peremptory period to be granted for its completion pursuant to Article 120/2 of the CCP, and the party must be warned about the legal consequences of non-payment of the advance. Only if the deficiency in the condition of the lawsuit is not rectified within this period should the lawsuit be dismissed on procedural grounds. It was inaccurate for the Court to decide on the procedural dismissal of the case due to the absence of the condition of the lawsuit without fulfilling the requirements of the aforementioned legal regulations and without granting a duly formed peremptory period to the debtor; the decision required reversal in this regard as well.
LAWSUIT: Upon the debtor’s request for an appeal of the court decision indicated above within the legal time limit; the file regarding this matter was sent to the Chamber from the local office, and after listening to the report prepared by the Rapporteur Judge for the case file and examining all the documents within the file:
DECISION: It is understood that the debtor applied to the execution court with a request for the annulment of the tender, alleging that it was not conducted duly, and the court decided to reject the complaint based on the absence of the condition of the lawsuit due to the non-payment of the advance on expenses, without holding a hearing.
1-) Article 134/2 of the EBL provides: “Upon the request for the annulment of the tender, the execution court shall hold a hearing within 20 days from the date of the request and render the necessary decision even if the parties do not appear.” It is incorrect for the Court to reach a conclusion as written by conducting an examination over the file without holding a hearing, summoning the parties, taking their statements, and collecting the evidence they may present, pursuant to Article 134/2 of the EBL; this requires a reversal.
2-) In Article 114/g of the Code of Civil Procedure No. 6100, the advance on expenses is regulated as a condition of the lawsuit. According to Article 115/2 of the same Law: “If the Court detects a deficiency in the condition of the lawsuit, it shall decide to dismiss the case on procedural grounds. However, if the deficiency in the condition of the lawsuit is remediable, the court shall grant a peremptory period for its completion. If the deficiency is not rectified within this period, the court shall dismiss the lawsuit on procedural grounds due to the absence of the condition of the lawsuit.” In Article 120 of the same law, it is regulated that: “The plaintiff must deposit the litigation fees and the amount determined in the advance on expenses tariff to be issued annually by the Ministry of Justice into the court registry while filing the lawsuit. If it is understood during the trial that the advance is insufficient, the court shall grant a two-week peremptory period to the plaintiff for the completion of this deficiency.”
If it is understood by the Court that the advance on expenses is deficient, the composition of the advance on expenses must be clearly determined along with the two-week peremptory period to be granted for its completion pursuant to Article 120/2 of the CCP, and the party must be warned about the legal consequences of non-payment. Only if the deficiency is not rectified within this period should the lawsuit be dismissed on procedural grounds. It was inaccurate for the Court to decide on the procedural dismissal of the case without fulfilling these legal requirements and without granting a duly formed peremptory period; the decision required reversal on this point as well.
CONCLUSION: It was unanimously decided on 22.09.2016 to REVERSE the court decision pursuant to Article 366 of the EBL and Article 428 of the HUMK (Code of Civil Procedure) for the reasons written in points (1) and (2) above, to return the advance appeal fee upon request, with the path for correction of the decision remaining open for 10 days from the notification of the decree.