Supreme Court of the Republic of Turkey
19. Law Office
Basis: 2016/2068
Decision: 2016/10869
Decision Date: 16.06.2016
CASE FOR CANCELLATION OF THE OBJECTION – THE COURT JURISDICTION TO THE AUTHORITY OBJECTION IS NOT HAZARDABLE – THE CASE HAS NOT AUTHORIZED OBJECTION FULLY MADE WITHIN TIME IN PHASE – JURISDICTION JURISDICTION TO REJECT THE AUTHORITY OBJECTION
SUMMARY: The court decides to reject the objection on the grounds that it is not hearable (HMK. m. 19/f.II). While it was necessary to reject the objection of authority, since there was no objection to authority duly filed in due time in the case at the stage, the decision of the court’s lack of jurisdiction necessitated the reversal of the judgment.
Litigation and Decision: At the end of the proceedings of the action for the annulment of the objection between the parties, the file was examined upon appeal by the attorney of the plaintiff within the time limit of the decision regarding the lack of jurisdiction of the court due to the reasons stated in the verdict.
The attorney of the plaintiff claimed that a sales contract was made between his client company and the defendant regarding the purchase and sale of iron, the price of the iron was paid in advance, but the iron was not delivered by the defendant party, and the defendant objected to the proceeding without a verdict for the collection of the iron prices given in advance, and the objection was canceled and the proceedings were terminated. demanded and sued for the continuation and the decision of 20% execution denial compensation.
The defendant’s attorney demanded the dismissal of the case, arguing that the claims of the plaintiff were not true.
The court dismissed the lawsuit due to the court’s incompetence on the ground that the defendant objected to the court’s jurisdiction within the time limit, stated that the competent court was Fethiye courts, that the place of performance of the contract in the present case and the court of residence of the defendant was Fethiye courts, and decided that the competent court was the Fethiye Civil Court of First Instance as a commercial court. and the decision was appealed by the plaintiff’s attorney.
The lawsuit petition was notified to the defendant on 16.09.2014, the defendant’s attorney requested that the response time be extended for two weeks with the referral dated 30.09.2014 (titled our first objections) and that the additional documents to the lawsuit petition were not served, so he made an objection to the authority, but filed an objection with the competent court. did not show. The request was rejected by the court on the grounds that it was not requested to extend the response time in due time due to mistake in the annotation on the notification document regarding the notification of the lawsuit petition. In the appeal petition against this interim decision, an objection to authority was made, but the competent court was not shown. With the interim decision dated 22.12.2012, the court decided to extend the response period for two weeks from the notification. The defendant’s attorney again appealed for authority with his petition dated 12.01.2015, and this time he showed the Fethiye Courts as the competent court.
In cases where the jurisdiction is not final, in order for the jurisdiction objection to be heard by the court, it is obligatory for the defendant to show the competent court according to his own opinion, or if there is more than one competent court, one of them. Otherwise, the court decides to reject the objection on the grounds that it cannot be heard (HMK. m. 19/f.II). In the above-mentioned stage, in the concrete case, it is against the procedure and the law to decide on the lack of jurisdiction of the court in written form, while it should be decided to reject the objection of authorization since there was no objection to authority duly filed in due time.
Conclusion: For the reasons explained above, it was unanimously decided on 16.06.2016 that the court’s decision be overturned and the cash fee be refunded upon request.
TAGS: COURT AUTHORITY OBJECTION IS NOT INSTALLED – NO JURISDICTION OBJECTION HAS BEEN FULLY MADE DURING THE CASE IN PURPOSE – THE AUTHORITY OBJECTION SHOULD BE DECIDED TO REJECT
