REPUBLIC OF TÜRKİYE COURT OF CASSATION 19th Civil Chamber
Basis No: 2016/3384
Decision No: 2016/13901
Date: 24.10.2016
COURT OF CASSATION JUDGMENT
COURT: Civil Court of First Instance
DEFENDANTS: 1- … (Attorney: Atty. …) 2- …
Upon the appeal by the plaintiff’s counsel against the judgment rendered for the dismissal of the negative declaratory action (menfi tespit davası) between the parties for the reasons stated in the decision; the file was examined and the requirements were considered.
– D E C I S I O N –
The plaintiff’s counsel claimed that the plaintiff company delivered a cheque with a value of 35,000 TL to the defendant … for the purchase of a “Transporter” commercial vehicle, but the vehicle was never delivered or transferred. It was further asserted that the aforementioned defendant transferred the cheque to the other defendant via endorsement through a collusive transaction (muvazaalı devir), and that execution proceedings were initiated via the file No. 2015/1744 of the … Execution Office, forcing the plaintiff to pay 41,549.74 TL. Consequently, the counsel requested a determination that the plaintiff is not indebted.
The counsel for the defendant … requested the dismissal of the case, stating that the plaintiff had previously filed a negative declaratory action against the payee … regarding the subject cheque (File No. 2015/255 E. of the … 2nd Civil Court of First Instance) but waived the lawsuit, and that the previous lawsuit against the payee concerning this cheque would produce the same results as a final judgment (kesin hüküm).
The local court decided to dismiss the case on the grounds of lack of jurisdiction, reasoning that since the plaintiff requested a determination of non-indebtedness due to the execution file No. 2015/1744, the competent court should be the Civil Court of First Instance in …, which is the defendant’s place of residence and the place where the execution proceedings were conducted, and that the defendant’s counsel had raised an objection to jurisdiction within the statutory period. The judgment was appealed by the plaintiff’s counsel.
Pursuant to Article 19/2 of the Code of Civil Procedure (CCP) No. 6100, which stipulates that “In cases where jurisdiction is not definitive, the objection to jurisdiction must be raised in the petition of response… Otherwise, the objection to jurisdiction shall not be considered,” and pursuant to Article 113 of the same Code, which states that “Preliminary objections cannot be raised after the submission of the petition of response, even if the response period has not expired,” the objection to jurisdiction raised by the defendant’s counsel in the second petition of response (ikinci cevap dilekçesi) must be deemed as not having been made, and the merits of the case should have been examined. Therefore, the local court’s decision of non-jurisdiction, based on an objection it accepted as a timely and valid preliminary objection, was improper and required a reversal.
CONCLUSION: For the reasons explained above, it was UNANIMOUSLY DECIDED on 24/10/2016 to REVERSE the judgment in favor of the plaintiff and to return the advance fee to the applicant upon request.