SUMMARY: It is not possible for the pensioner, who has accepted the garnishment on his salary in the loan agreement, to object to the garnishment applied on his salary.

13th Civil Chamber of the Court of Cassation

E.2018/3308 K.2020/4964 T.22.06.2020

The plaintiff claimed that the salary he received from the defendant bank was blocked and deductions were made due to the loan he used, and that the bank's practice was unfair; and requested a decision for the cancellation of the blockage and the refund of the deductions made. The plaintiff's attorney amended the lawsuit on 30/01/2013 and increased the claim to 11.921,27 TL.

The defendant requested the dismissal of the lawsuit.

The court decided to partially accept the lawsuit; the judgment was appealed by the defendant.

1- The dispute between the parties relates to whether the outstanding loan installments used by the plaintiff from the defendant bank can be taken from his pension and whether the paid amounts can be requested back. As it is known, Article 93 of the Law No. 5510 amended by Article 56 of the Law No. 5754 dated 17.04.2008 and amended by Article 56 of the Law No. 5754 dated 17.04.2008 states that “Pursuant to this law, the income, pensions and allowances of the insured and their beneficiaries, ... service providers' receivables arising before the institution as a result of the implementation of the provisions of the General ... Insurance cannot be transferred and assigned. Income, pensions and allowances cannot be seized except for receivables that need to be pursued and collected according to Article 88 and alimony debts.”

Despite the provision in Article 83/a of the BEC stating that “Agreements made in advance regarding the attachment of the goods and rights written in Articles 82 and 83 of the BEC are not valid.”, Article 93/1 of the SSI No. 5510 amended by Article 32 of the Law No. 5838, which entered into force on 28.02.2009, stipulates that “requests for the attachment of income, pensions and allowances, which are prohibited from attachment according to this paragraph, will be rejected by the executive director if the debtor does not consent”. This provision contains a more special arrangement than Article 83/a of the EBL, and the consent given during or after the seizure regarding the seizure of the income, pension and allowances within the scope of Article 93 of the Law No. 5510 shall be valid, provided that the enforcement proceedings are finalized according to the enforcement law. In this case, it is understood that the debtor may waive this right regarding the goods and rights that cannot be seized during the seizure or in the period after the seizure is realized, and that this prohibition is not definitive according to the contract law, and that the law provides the opportunity to block the pensions through consent by giving weight to the will of the parties and to pay the debt without resorting to other collaterals, thus not eliminating the provision determined by the parties in the contract.

On the other hand, Article 2 of the Turkish Civil Code No. 4721 stipulates that everyone is obliged to comply with the rule of honesty when exercising their rights and fulfilling their obligations, and that the abuse of a right will not be protected by the legal order. Due to the salary deductions accepted with the contract and confirmed with the letter of undertaking, it is not possible to evaluate the relevant articles of the contract within the scope of unfair terms.

In the concrete case, while the court should resolve the dispute within the scope of the aforementioned established practice of the Chamber and the principles and principles mentioned above, within the framework of the principle of adherence to the contract, the principle of fidelity and the provisions of the contract binding the parties, the written decision is contrary to the procedure and the law and requires reversal.

2-According to the reason for the reversal, it has been decided that it is not necessary to examine the other appellate objections of the defendant at this stage.

CONCLUSION

For the reasons explained in subparagraph (1) above, it was decided unanimously on 22/06/2020 that the judgment shall be DISMISSED in favor of the defendant, and according to the reason for reversal in subparagraph (2), it is not necessary to examine the other appellate objections of the defendant at this stage, the prepaid fee shall be refunded upon request, and the way of decision correction shall be closed in accordance with Article 440/III-1 of the HUMK.