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, in the face of the fact that the defendant Turkish Aeronautical Association’s attorney stated that an eviction case was filed by his client against the plaintiff tenant before the present case based on the eviction undertaking subject to the case at hand, and that the decision was finalized; it was pointed out that the case file related to the eviction case should be brought and it was necessary to evaluate whether the decision made in that case would constitute a final judgment 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 judgment 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 judgment inspired by the reversal and evaluated in line with the reversal. Therefore, the task of examining the judgment 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 lawsuit 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 9th Commercial Court of First Instance of Istanbul regarding the acceptance of the lawsuit, the 11th Civil Chamber of the Court of Cassation issued a decision dated 24.5.2005 and numbered 2004/11105-2005/5480;
( … The plaintiff’s attorney, in the original and amalgamated 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 turned into a five-star hotel and opened for operation, the defendant Çetin S. was authorized 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 authorization 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 commitments, that the survival of his client company depends on the continuation of its rights in the hotel, that a general and board of directors decision on such an important issue is a must, and that the eviction commitment given with the signature of the shareholder who is the sole representative in this matter is invalid, The authority of representation given to the defendant is for ordinary daily transactions, since the lease agreement was signed by four decisions on behalf of the plaintiff company, at least the signatories of the lease agreement should also have their signatures on the eviction commitment, after the defendant THK notified L. A.Ş., the actual tenant of the immovable property, that the lease period was extended from 2000 to 2020, based on the eviction commitment dated 27.11.2000. 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, and that THK filed an eviction case by participating in facilitating the actions of the malicious partner Çetin S. based on the eviction commitment dated 27.11.2000, that the shareholders of the client plaintiff company changed completely on 01.12.2000 with the transfer of shares, that on 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 demanded 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) with interest from the defendant Çetin S. within the scope of Articles 336-337 of the TCC, and waived the claim for compensation.
DECISION : The main lawsuit and the consolidated lawsuit are related to the request for the cancellation of the eviction undertaking given by Çetin S., the defendant of the main lawsuit, to the Turkish Air Association, the defendant of the consolidated lawsuit, 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 commitment letter dated 27.11.2000 to the other defendant, who is the lessor, without authorization 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 annulment 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, he postponed his claim for compensation with a petition dated 29.3.2004 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 that the decision was finalized.
The Local Court stated; (… The defendant Çetin S., who gave the letter of undertaking subject to the lawsuit, was authorized 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 authority. 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 finalized. The defendant Çetin Saraç transferred his share in the company with the share transfer agreement on 1.12.2000, after he gave the commitment letter. 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 this eviction undertaking is not related to L. A.Ş., which actually uses the immovable, 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 commitment letter, thus causing damage. The defendant THK., on the other hand, although L. A.Ş. was actually a tenant in the immovable property, based on the commitment letter, Çetin S. abused his authority with Çetin S. and took an eviction decision to the detriment of the plaintiff company… ), on the grounds that the lawsuit is accepted, the eviction commitment dated 27.11. 2000 dated 27.11.2000, and dismissal of the claim for compensation due to waiver; upon the appeal of the attorneys of the defendants, the judgment 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 the Local Court, his appeal petition should be rejected.
2- In the decision of reversal, in the face of the fact that the defendant Turkish Aeronautical Association’s attorney stated that an eviction lawsuit was filed by his client against the plaintiff tenant before the case at hand based on the eviction undertaking subject to the case at hand, which resulted in acceptance and the decision was finalized; 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 judgment or conclusive evidence or strong discretionary evidence in terms of the case at hand should be evaluated.
In the reasoning 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 judgment 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 judgment inspired by the reversal and evaluated in line with the reversal.
Therefore, the task of examining the judgment 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 attorneys of the defendants against the new judgment.
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