T.R.
Supreme Court
11th Civil Chamber
Docket No:2014/10626
Decision No: 2014/19177
K. Date: 8.12.2014
The plaintiff’s attorney stated that his client owned 80% of the shares of the defendant company, that he made his wife and children partners of the company free of charge, that he was tried as a detainee for the murder of one of the plaintiff’s children, F..A.., that while the plaintiff was in prison, an extraordinary general assembly meeting of the defendant company was held in order to eliminate him, and that the plaintiff’s son, B..A.., was elected chairman of the board of directors and was given full authority to represent the company. Although the defendant company had no commercial activities and collected rental income, the plaintiff’s family faked the name of the company. Claiming that they issued a promissory note in the amount of 960,000 TL and gave it to the other defendant, S.. M.., that the said document was put under follow-up, and that upon the finalization of the proceedings, they deposited the rents of the tenants in the enforcement file due to the payment order and seizure notice being sent to the tenants of the defendant company, and that his client suffered a loss due to the contractual debt relationship between the parties, he requested and sued for the determination that the defendant company was not indebted to the other defendant, S.. M…
Defendants’ attorneys requested the dismissal of the case, arguing that the plaintiff did not have active litigation capacity.
According to the scope of the claim, defense and file, the plaintiff is not authorized to represent the defendant company, therefore, since his name and signature are not on the promissory note worth 960,000 TL, which is subject to enforcement proceedings, he is not a party to the promissory note, there is no enforcement proceeding against him, moreover, the damage to the defendant company, of which he is 80% partner, has not yet occurred, and if the company’s damage occurs, he has the right to file a lawsuit against those responsible, but at this stage, the plaintiff does not have active litigation capacity to file a negative declaratory action. It was decided to reject it on the grounds of active hostility.
The plaintiff’s attorney appealed the decision.
The case is a negative declaratory suit filed by the company partner against the promissory note debtor joint stock company and the promissory note holder.
The plaintiff filed this lawsuit alleging that the defendant company was a family company and that he was arrested and imprisoned while he was the company partner and chairman of the board with 80% shares, that the other partners, who were family members, held an extraordinary general assembly meeting while he was in prison and appointed his son as the chairman of the board of directors authorized to represent and bind the defendant company, and that the defendants arranged the promissory note in question in order to indebt the company by agreement and evade money, and that the promissory note drawn by the defendant company and given to the other defendant was forged.
Although the court decided to reject the case on the grounds of active hostility, stating that the plaintiff did not have active litigation capacity, with a written justification; While the parties may claim the invalidity of the pretended contract, third parties may also claim the existence of collusion and the invalidity of the contract and file a lawsuit. In other words, third parties who have a direct or indirect interest and benefit and who are not parties to the collusive contract may also file a negative declaratory action to determine the invalidity due to collusion. It is widely accepted both in practice and in doctrine that third parties have the right to file a negative declaratory action and have the contract declared invalid by proving collusion if they have direct or indirect legal benefits (E.. Ö.. Fiduciary Transaction and Collusion Cases, p. 200-201). In this case, while it is accepted that the plaintiff, who is not a party to the promissory note in question in the concrete case but is a third party but has an interest and benefit in determining that the defendant company is not indebted due to the promissory note, has active litigation capacity, the merits of the case should be examined and a decision should be made according to the outcome, making a decision in writing was inappropriate and required reversal.
RESULT: For the reasons explained above, it was unanimously decided on 08.12.2014 to accept the appeal objections of the plaintiff’s attorney and REVERSE the decision in favor of the plaintiff, and to return the paid appeal fee to the appellant upon request.