T.C. SUPREME
13.Legal Department

Principal: 2015/2853
Decision: 2016/7239
Decision Date: 08.03.2016

CLAIM OF RECEIVABLES-THE COURT MUST OBTAIN A REPORT FROM AN EXPERT, CONSIDERING THAT THE PLAINTIFF HAS BEEN UNFAIRLY DISMISSED – THE REFUSAL OF THE CASE IN TERMS OF THE ATTORNEY’S FEE RELATED TO THE FILE OF THE EXECUTIVE DIRECTORATE IS CONTRARY TO THE PROCEDURE AND LAW – VIOLATION OF THE PROVISION

Abstract: the court, considering that the plaintiff has been unfairly dismissed, if necessary, also reports from an expert expert; the plaintiff represents the defendant as his attorney … given that the Executive Directorate is justified in demanding the attorney fee it deserves in the 2013/1744 file, while the case … the refusal of the Executive Directorate in terms of the attorney fee in relation to the 2013/1744 file is contrary to the procedure and law and requires violation.

(1136 P. K. m. 174) (6098 P. K. m. 389, 390)

Case and decision: at the end of the trial of the claim case between the parties, the case was examined and considered by the plaintiff’s lawyer and the defendant upon appeal within the period of the provision given for partial acceptance and partial rejection of the case for reasons written in the declaration.

The plaintiff, in accordance with the power of attorney dated 03.09.2008, represents the defendant … as his attorney in the file 2008/649 of the Court of First Instance, in this context, the case was decided to accept as a result of the non-expropriation hand-throwing case filed against the General Directorate of DSI with the capacity of attorney of the plaintiff, in accordance with the decision….Enforcement Directorate 2013/1744 with the dossier started to follow, while there is no fault in this time 20.11.2013 with the azilname dismissed, Azlin is unfair, …. Due to the surrogacy service carried out by the Court of First Instance in the file 2008/649, the contract and the counterparty fee, again …. Due to the 2013/1744 file of the Executive Directorate,the executive power of attorney fee born should be paid to him, claiming that a total of $ 40,108,25,including $ 21,786, $ 25, $ 9,021, $ 60 legal power of attorney fee and $ 9,300, $ 40 executive power of attorney fee, along with interest to be processed from the date of dismissal, he asked the defendant to decide on collection.

The defendant pleaded not guilty.

Court of First Instance Court 2010/449Esas 2012/473 decision due to file no. 30.807, 85 TL of attorney fee will be received, … Executive Directorate 2013/1744 file with the requested attorney fee will be denied due to the partial acceptance of the case, 30.807,85 TL of legal interest will be processed from the date of the case from the defendant to the plaintiff, it was decided that the request for excess was rejected, and the provision was appealed by the parties.

1-the Defendant dated 04.11.2014 the case of partial transfer dated 16.12.2014 on the adoption decision of the court of Appeal with an appeal if waiver a waiver by petitioning the court of Appeal that had 21.10.2015 dated from reporting due to the respondent the petition for appeal is dismissed.

2-in the examination of the appeals of the plaintiff; the case relates to the request for collection of surrogacy fees that are not paid due to unfair dismissal. The debts of the lawyer as a proxy are shown in articles 389 and continuation of the BC, primarily the BC of the proxy.according to Article 390 of the nun, he is obliged to perform power of attorney against his client with loyalty and care. As a requirement of the debt of surrogate loyalty, it is necessary to engage in behavior that will benefit your client and avoid behavior that will harm him. If the deputy has not shown the necessary care and attention in performing his duty and has not faithfully performed the power of attorney, the deputy of the surrogate is right to be dismissed. 174 Of The Law. according to the provision of the article, if the suspension is justified, the attorney’s fee does not have to be paid, and if the unfair dismissal is justified, the lawyer is entitled to the entire fee. After these statements, looking at the concrete event; the priority dispute between the parties is gathered at the point of whether azlin is right. The plaintiff asserts that it is unfair to request to be relieved of, while the case with attorney of the Defendant dated 01.09.2008 from the’I representative authorized by proxy, this person on 03.09.2008 by the plaintiff on behalf of himself, the attorney of the registered parcels move only in the dark forest 5/412 cite the authority given in the nature of the field, and after that, despite the lack of jurisdiction of the plaintiff … in the Magistrates ‘ Court to represent himself as trustee in the case of the main numbered 2010/882, sales process, suddenly the other side to deal with if you go, he argued that he was forced to agree to the agreement, so azlin was right. Available within the file and signed by the defendant, apparently dated 01.11.2013 “share” and dated 01.03.2012 “Fee is a contract titled” The content of the document, according to the authority to represent himself gave as the reason for dismissal and pointed to the defendant, although the plaintiff claims that are represented by proxy by …. In the 2010/882 main file of the magistrate’s Court, it is understood that the plaintiff has given her consent to act by proxy, because of the documents in question…. It is seen that the magistrate’s court has an agreement on fees related to the 2010/882 main file and an agreement on the authorization of the plaintiff and a lawyer out of the case to transfer his share in the real estate related to the case to US $ 200,000.00. In this case, since it can no longer be mentioned that the plaintiff represents the defendant without his consent, and therefore the defendant has lost confidence in the plaintiff, it is necessary to accept that the dismissal is unfair. In this case, the court, in light of the above explanations, considering that the plaintiff was unfairly dismissed, if necessary, taking a report from an expert expert; the plaintiff represents the defendant as his attorney … considering that the Executive Directorate is justified in demanding the attorney fee it deserves in the 2013/1744 file, while the case … the refusal of the Executive Directorate in terms of the attorney fee in relation to the 2013/1744 file is contrary to the procedure and law and requires violation.

Conclusion: it was decided unanimously on 08.03.2016 that the defendant’s appeal petition was rejected due to the waiver of the appeal for the reason described in Paragraph (1) above, the provision was broken for the benefit of the plaintiff for the reasons described in Paragraph (2), the advance fee was returned to the parties upon request.