T.C.
ISTANBUL
DISTRICT COURTHOUSE COURT
3. LEGAL DEPARTMENT
PRINCIPAL NO: 2017/1399
DECISION NO: 2018/878
DECISION DATE: 4.7.2018

> > MEN OF MUARAZA PROMPT–MUVAZAA–BURDEN OF PROOF–TO BE BOUND BY DEMAND

6100 / m.190,353 / 1-b-2

Summary: the case is related to muaraza’s request for men.

According to the expert report, it has been reported that the claimant cannot be held responsible for the debt of the former subscriber, therefore the failure to establish a subscription contract is contrary to the articles of regulation, and that the case of muvazaa should be evaluated by the court.

By stating that there is no kinship, close friendship, trade partnership between the plaintiff and the previous tenant who wants to make a subscription agreement, as a result of this, in order not to pay what the non-litigation subscriber will receive, the defendant has not proved that the plaintiff and the former non-litigation subscriber have made, the resolution of the dispute between the plaintiff and the defendants is correct.

The decision of the court to make the contract on the basis of the previous subscription agreements and conditions is in a way that exceeds the plaintiff’s request, and as a result of the re-examination due to the fact that this matter is intended for public order, the court decision has to be lifted in accordance with HMK 353/1-b-2 and a decision on the basis of

Case: due to the appeal of the decision given by the court of first instance regarding the above parties and the case whose subject is written, at the end of the examination on the case file;

DULY NOTED:

Verdict: plaintiff acting attorney briefed on lawsuit petition; in order for his client to operate in the food and beverage sector, he rented his business place at Fatih Istanbul, took the tax plate of his rented business place, made the necessary applications to the institutions in order to open the business place and to benefit from services such as electricity, water, natural gas and internet, started his subscriptions, but no connection to electrical energy was made, , he has demanded and sued his client for a contract on the use of electrical energy and for the decision to connect electrical energy to prevent the conclusion of the trial, declaring that it is completely lacking in legal basis and unfair.

Respondent’s attorney briefed on petition; the plaintiff himself and the previous subscriber’s claim that there is no contract due to the debt is unacceptable, the plaintiff has no legal or actual ties with the previous subscriber, the statements that he is an entrepreneur trying to open a new trades shop have nothing to do with the reality, the previous subscriber out of the case has made a serious transaction that allows him to continue

In the answer petition, the defendant’s attorney argued that the plaintiff rented the workplace at the relevant address on 20.11.2015, received the tax plate showing that he had started his new job on 30.11.2015, made the necessary applications to benefit from electricity services, started his subscription, that the hostility was directed to the client company was wrong, that the animosity should only be directed.

The court of first instance states that the defendant is the institution authorized to contract with consumers; that the defendant Bedaş is the institution that determines whether the defendant was a muvazaa who conducted the research before the subscription of electricity was made; that it is not unlawful for the plaintiff to direct the defendant Bedaş against the defendant Bedaş, which is requesting the determination that there is no muvazaa; that the plaintiff, evidence of the claim of muvazaa as evidence is not presented, the lease agreement presented by the plaintiff as evidence, the tax plate shows that the plaintiff does not have a connection with the previous tenant by stating that the plaintiff’s case is accepted by the plaintiff, the plaintiff and the previous subscriber operating in the same workplace in the absence of muvazaas between the parties by removing the, the defendants ‘ attorneys have appealed to the court of appeal within their term.

The defendant’s attorney summed up the petition for appeal; it is obvious that the previous subscriber and the previous subscriber have used this installation to operate in the same line of work, although it is clear that the previous subscriber and the previous subscriber have established a reasonable relationship to ensure that the previous subscriber can continue his business life without paying his debts, that the burden of proof belongs to the plaintiff, that the plaintiff, ignoring this issue of the expert, muvazaa prepared the report based on the provision of the law is illegal by declaring that the court decision against the procedure and the law has asked to be removed.

The defendant’s attorney summed up the petition for appeal; although local

although the court has imposed the burden of proof on them, the burden of proof of the merits is on the plaintiff who has filed this case and claims that he has no ties to the former debtor, because HMK m. 190: “the burden of proof belongs to the party who, unless there is a specific regulation in the law, has taken advantage of the legal outcome attached to the alleged case.” the plaintiff must prove his claim that there is no connection between him and the former tenant, that the documents presented by the plaintiff are not sufficient to prove his claim, so that the decision to accept the case without collecting the evidence, with incomplete evaluation, is against procedure and law, and the court decision is removed by declaring that, he asked that the case be dismissed as a result of a retrial.

Manufacturer and retail license holder seller / distributor company: must make connection agreement and subscription agreement with consumers connected to the distribution system and free consumers according to appropriate regulations under the Electricity Market Act. If the seller/distributor company does not approach the subscription contract facility, a lawsuit may be filed for removal of the muarazan.

29.09.2004 days of the General Assembly of law and 2004/13-417 E.- 2004/442 K. as explained in the Decree No.; Men of muaraza (prevention of contention) cases are not determined in the sense of procedural law, but are in the nature of eda cases. Because, in such cases, both the determination of the existence of a muaraza and its men are demanded.

The remaining days of the General Assembly of law are 17.03.2010 and 2010/3-119 E. 2010/159 K. in the case of a dispute by one of the parties during the continuation of a contract, the other party is considered to have the legal benefit of filing a determination suit in order to put an end to this situation which could harm him or her, and to save his or her legal situation from being in doubt.

In the concrete case, the subscription was established before the plaintiff, except for the case …accrued on the basis of the minutes dated 28.07.2010 held for the use of illegal electricity without subscribers in 2010/7. the subscription agreement was made between bedaş on 25.08.2010 after the payment of 551,76 TL debt for the period, and then, with the lease agreement presented as evidence by the plaintiff, Hakan Dalkiliç, who has rented the address in question as a place of business on 22/03/2011, but has not applied to the electricity administration to establish a subscription contract, The court of execution dated 17.02.2015 and 2014/1970 E, 2015/183 K. by numbered decisionsee also; out of Case … ‘ s rent arrears due to default on the address in question was decided to evict, Istanbul 35. Executive Directorate 2014/11874 E. it is understood that the commodity of the place of business, which is a restaurant, has been confiscated from the numbered follow-up file.

According to the expert report issued by the court, it has been reported that the claimant cannot be held responsible for the debt of the previous subscriber, and that the failure to establish a subscription contract for this reason is contrary to the articles of regulation, and that the case of muvazaa should be evaluated by the court. As a result of this, it is not proven by the defendant that the plaintiff and the previous non-litigation subscriber have made substantial savings with the intention of restitution in order not to pay the non-litigation subscriber’s receivables, as well as that there is no kinship, close friendship, trade partnership between the plaintiff and the previous tenant who wants to make a subscription contract; since it is understood that the plaintiff will not show organic relations between the restaurant business like the previous tenant, that there is no record of kinship or transfer of the business, there is no procedural or unlawful direction in discussing and evaluating the evidence based on the decision for the removal of the muarazaın between the plaintiff and the defendants, since it is understood that the; however, due to the fact that the decision of the court to make the contract on the basis of the previous subscription agreements and conditions was in a way that exceeded the plaintiff’s request, and because this matter was intended for public order, as a result of the re-examination, the decision of the court in accordance with HMK 353/1-b-2 was removed and the decision of the court

Conclusion: for the reasons described above;

With the partial acceptance of the defendants ‘ requests for appeal; as a result of the re-examination due to public order, the court’s decision was removed and re-issued in accordance with HMK 353/1-b-2.;

1 -) with the acceptance of the case, the defendants, the plaintiff and the subject of the lawsuit … Fatih / ISTANBUL address by not signing the subscription agreement created by muarazalar men’ine,

2 -) to the continuation of the injunction given in the proceeding of the case until the verdict is finalised,

3 -) with the deduction of 31.40 TL of fees from 29.20 TL of fees received in advance and 2.20 TL of fees collected from the claimant to the irat register to the Treasury,

4 -) to be given to the plaintiff party with the collection jointly and severally from the defendants of the equivalent power of attorney fee of TL 1,980.00 calculated over the portion of the law which was determined in accordance with the minimum wage tariff in force at the date of the decision in favor of the plaintiff attorney,

5 -) topl made by the plaintiff

am 1.308, 20 TL trial expense from the defendants jointly and severally to be paid to the plaintiff,

6 -) the expense advance deposited and remaining balance by the parties is finalised and returned to them upon request,

Denial of other grounds of appeal by defendants,

Refund of the decision fee received in advance if requested by the applicant,

The defendant …’s reason for the appeal of 5,80 TL appeal trial expense taken from the plaintiff to be given to this defendant,

If there is an advance balance of expenses deposited due to appeal, it shall be returned to the claimant by the court of First Instance.,

At the end of the examination on the file, a unanimous decision was made within 2 weeks from the notification of the reasoned decision to the parties in the Supreme Court to be open to appeal. 04.07.2018