13TH CIVIL CHAMBER OF THE COURT OF CASSATION
T. 09.02.2009 E. 2008/9694 K. 2009/1327
ANNULMENT OF OBJECTION
CAN BE CONVERTED TO A “RECEIVABLE” CASE WITH AMENDMENT
SUMMARY : The plaintiff requested the “annulment of the objection” in the petition of the lawsuit; later on, with the “amendment” petition, the plaintiff requested the lawsuit to be considered as a “debt case”. In this case, it is mandatory to finalize the case as a claimant.
DECISION: The plaintiff claimed that he lent money to the defendant, received a bill in return, the defendant delayed him and caused the bill to expire, the debt was not paid and the execution proceeding was objected, and requested the cancellation of the objection and the collection of the execution denial compensation.
The defendant defended that he had paid the price of the bond given in exchange for the poplar trees purchased from the plaintiff, but the bond was not returned and requested the dismissal of the lawsuit.
In the trial held as a result of the reversal of the first decision of the court regarding the dismissal of the lawsuit by our department upon the appeal of the plaintiff, it was decided to accept the lawsuit, to cancel the objection, to continue the proceedings, to collect the execution denial compensation of 40% of the principal receivable from the defendant; the judgment was appealed by the defendant.
The plaintiff requested the annulment of the objection in the petition of lawsuit, but requested that the lawsuit be considered as a debt case with the petition of amendment dated 12.05.2006. The plaintiff is bound by the request in the amendment petition, and therefore, the case must be heard and concluded as a debt claim. It is contrary to the procedure and the law that the court should decide the case as a debt case and make a decision in accordance with the result to be obtained, but the decision to cancel the objection as written is contrary to the procedure and the law. It requires reversal.
CONCLUSION: For the reasons explained above, it was unanimously decided on 09.02.2009 that the appealed decision shall be reversed in favor of the plaintiff.
11TH CIVIL CHAMBER OF THE COURT OF CASSATION
T. 16.01.2006 E. 2005/159 K. 2006/87
BOTH CANCELLATION OF OBJECTION AND COLLECTION OF DEBT
REQUESTING AND FAILING TO MAKE A DECISION AT THE SAME TIME
SUMMARY : Cancellation of objection and debt claim are different types of lawsuits in terms of their qualifications and results. Although only the cancellation of the objection is requested in the petition, both the collection of the receivable and the cancellation of the objection cannot be decided in a way that will cause hesitation in execution.
DECISION: The plaintiff attorney claimed that the defendant, who is a member of his client cooperative, has not paid his debts to the cooperative, and that he has wrongfully objected to the enforcement proceeding initiated for the collection of the receivable with interest, and requested a decision to cancel the objection and to collect the execution denial compensation from the defendant. The defendant’s counsel requested the dismissal of the lawsuit.
According to the evidence collected and the expert reports adopted by the court, it was decided to partially accept the lawsuit on the grounds that the plaintiff owes the defendant cooperative late interest, to continue the proceeding by collecting the calculated receivable from the defendant together with the legal interest to be processed from the date of the proceeding, to cancel the defendant’s objection over this amount, and to reject the claim for execution-denial compensation since the receivable subject to the objection is in the nature of an interest receivable. The decision was appealed by the defendant’s attorney.
1- In the enforcement proceeding, the plaintiff cooperative requested the collection of the original receivable together with the interest to be accrued from the date of the proceeding, and with the expert report received during the trial, it was determined that the plaintiff cooperative did not have any original receivables, and that the defendant only owed the defendant cooperative a past period delay fee, that is, interest. Since the interest receivable cannot be collected by continuing this proceeding, it was not deemed correct to decide to partially accept the lawsuit as written, while it should be decided to reject the proceeding.
2- According to the way of acceptance;
Cancellation of objection and receivable lawsuits are different types of lawsuits in terms of their qualifications and results. Although only the cancellation of the objection was requested in the lawsuit petition, it was necessary to decide both the collection of the receivable and the cancellation of the objection in a way that would cause hesitation in the execution, and to make a judgment by charging interest on interest in violation of Article 104 of the Code of Civil Procedure.
CONCLUSION : For the reasons explained in subparagraphs 1 and 2 above, it was unanimously decided on 16.01.2006 that the appeal objections of the defendant’s counsel be accepted and the judgment be VACATED in favor of the defendant.
23RD CIVIL CHAMBER OF THE COURT OF CASSATION
T.06.04.2012, E.2012/1156 K.2012/2677
ANNULMENT OF OBJECTION CASE AS A DEBT CASE
CAN BE REHABILITATED
SUMMARY : Since the plaintiff amended the lawsuit filed as a cancellation of the objection as a claim for receivables and the decision of the local court is appropriate, the decision should be upheld.
(6100/m.176, 2004/m.67)
DECISION: The plaintiff’s attorney claimed that while his client was a member of the defendant cooperative, he left the membership on 01.07.2003, that he had paid 6.443,00 TL dues, that the defendant paid 4.100,00 TL against the exit share, that it was agreed that the remaining 2.333,00 TL would be paid later, and that despite this, the proceedings they made for their unpaid receivables were unfairly objected, and requested the removal of the objection and the award of 40% execution denial compensation and the collection of this receivable with the petition of amendment.
The defendant attorney argued that according to the general assembly decision of the client cooperative, it was decided to pay the debt owed to the plaintiff within three years, the receivable was not due, the lawsuit they filed for their receivables from the plaintiff and this lawsuit should be merged and a settlement and offset should be made, and requested the dismissal of the lawsuit.
The court’s decision on the acceptance of the claim was reversed upon the appeal of the defendant’s counsel with the decision of our Chamber dated 30.11.2011 and numbered 2011/4045-2011/2197 E-K.
This time, the plaintiff’s attorney has requested a correction of the decision.
Since the plaintiff amended the lawsuit filed by the plaintiff as a cancellation of the objection as a receivable lawsuit and the decision of the local court was appropriate, the decision should be approved, but it was reversed as a result of a material error, and the decision should be approved by accepting the request for correction of the decision of the plaintiff’s attorney in the examination made this time.
CONCLUSION: For the reasons explained above, it was unanimously decided on 06.04.2012 to accept the request for correction of decision of the plaintiff’s attorney, to lift our decision of reversal dated 30.11.2011 and numbered 2011/4045 Main 2011/2197 Decision of our Chamber and to APPROVE the decision of the local court with the reasoning explained above.
