SUMMARY: The compensation for denial of execution should be assessed at the rate of 40% in accordance with the provision of the law in force at the time the proceeding was initiated.

11th Civil Chamber of the Court of Cassation

E. 2019/4763 K. 2020/2987 T.17.06.2020

The plaintiff's attorney stated that the parties agreed on the sale of the plaintiff's shares in the out-of-court limited liability company to the defendant, the share transfer price was agreed to be 98.000 USD and the defendant issued two checks for the transfer price, the share transfer agreement was signed at the notary public on 31.10.2000, upon the defendant's request, the transfer price was shown as 125. 000.000 TL, the plaintiff did not see any inconvenience in this since he had already received the checks, but the check amounts were not paid and the defendant objected to the execution proceeding without judgment initiated for the collection of the receivable and stopped the proceeding, and requested a decision to cancel the objection, to continue the proceeding and to collect 40% execution denial compensation from the defendant.

The defendant's attorney argued that the checks subject to the lawsuit were not presented to the addressee, that the claim is not in accordance with the ordinary course of life, that the notary deed states that the transfer price was received externally in cash and in advance, that the company was insolvent at the time of the share transfer, and that the economic value of the plaintiff's shares did not coincide with the claim, and requested a decision to dismiss the lawsuit.

In the trial held by the court in accordance with the reversal order, according to the claim, defense, expert report and the scope of the file, it was determined that the value of the 5 shares transferred by the plaintiff to the defendant was 152. 813.63 TL, the claim that the transfer price written in the contract is not the real price is appropriate, the defendant's defenses that the checks were given in return for the land and factory and that the company was insolvent on the date of transfer could not be proven, it was decided to continue the proceeding by canceling the objection to the proceeding with the acceptance of the case, and to collect the execution denial compensation of 27.067,20 TL, which is 20% of the original receivable, from the defendant.

The decision was appealed by the attorneys of the parties.

 1-According to the writings in the case, the fact that the court has made a judgment in accordance with the reversal decision complied with, that there is no error in the appreciation of the evidence, and that the defendant's attorney has no objection to the interest, all the appellate objections of the defendant's attorney are not appropriate.

 2- As for the appeal request of the plaintiff's attorney; The case is related to the cancellation of the objection to the enforcement proceeding and the request for the collection of 40% foreclosure compensation.

The court accepted the case as written above and decided to cancel the objection in terms of the principal receivable and its accessories, and to collect the execution denial compensation at the rate of 20% of the principal receivable. The plaintiff's attorney initiated a proceeding without judgment over a total of 320.536,00 TL, 135.336,00 TL being the principal receivable and 185.200,00 TL being the interest accrued until the proceeding, and in the case before us, the claim was charged over the total amount of the proceeding. According to the manner of acceptance, it is not correct to make a written decision while the attorney fee should be assessed in favor of the plaintiff over the total amount of the proceedings and taking into account the AAÜT in force on the date of the decision.

In addition, the plaintiff initiated enforcement proceedings on 26.04.2004, and in accordance with the provisional Article 10 added to the EBL with Article 38 of the Law No. 6352, it is not correct to make a decision in written form, while the plaintiff should be awarded 40% of the principal receivable in favor of the plaintiff.

CONCLUSION

For the reasons explained in subparagraph (1) above, all the appellate objections of the defendant's attorney are rejected, for the reasons explained in subparagraph (2) above, the appellate objections of the plaintiff's attorney are accepted and the decision is DISMISSED in favor of the plaintiff, and the following balance of 1.386,72 TL appeal writ fee is to be collected from the defendant, and the prepaid appeal fee is to be returned to the appellant if requested, it was unanimously decided on 17/06/2020.