23 Feb THE COURT’S DECISION THAT THE REFUSAL OF THE CASE IN TERMS OF THE POWER OF ATTORNEY FEE RELATED TO THE FILE OF THE ENFORCEMENT DIRECTORATE IS CONTRARY TO THE PROCEDURE AND THE LAW DUE TO THE NEED TO OBTAIN A REPORT FROM AN EXPERT WITNESS, TAKING INTO ACCOUNT THAT THE PLAINTIFF HAS BEEN UNFAIRLY DISMISSED
T.C. THE DECISION OF THE SUPREME COURT
13.law office
Base: 2015/2853
Decision: 2016/7239
Date of Decision: 08.03.2016
CASE OF RECEIVABLES – THE NEED TO OBTAIN A REPORT FROM AN EXPERT WITNESS CONSIDERING THAT THE PLAINTIFF HAS BEEN UNFAIRLY DISMISSED BY THE COURT – REFUSAL OF THE CASE IN TERMS OF THE POWER OF ATTORNEY FEE RELATED TO THE FILE OF THE ENFORCEMENT DIRECTORATE IS CONTRARY TO THE PROCEDURE AND LAW – VIOLATION OF THE PROVISION
Summary: the court, the plaintiff, considering that he has been unfairly dismissed, receiving a report from an expert by the expert, if necessary; the counsel for the defendant the plaintiff is represented as Enforcement Directorate is situated right in the file where it deserves to claim the retainer 2013/1744 numbered by the person, the conclusion should be made a proper decision in the case when the Enforcement Directorate for the file to be rejected in terms of 2013/1744 numbered procedures and Attorney’s fees is against the law, and requires you to break it.
(1136 P. K. m. 174) (6098 P. K. m. 389, 390)
Case and Decision: At the end of the trial of the receivable case between the parties, the case was reviewed by the plaintiff’s lawyer and the defendant upon appeal within the period of the decision made for the partial acceptance or rejection of the case for the reasons written in the application and the file was dec and considered as necessary.
The plaintiff, in accordance with the power of attorney dated 03.09.2008, represents the defendant … as a deputy in the case file No. 2008/649 of the Court of First Instance, in this context, as a deputy plaintiff, as a result of the expropriation-free confiscation case filed against the General Directorate of DSI, it was decided to accept the case in accordance with the decision ….The Enforcement Directorate’s file No. 2013/1744 has been followed up, while it has no defects, it has been dismissed with the dismissal dated 20.11.2013, the dismissal is unfair, …. Due to the proxy service carried out by the Court of First Instance in its case No. 2008/649, the contractual and counter side proxy fee, again …. Arising due to the enforcement of the Executive Directorate of the numbered file 2013/1744 attorneys ‘ fees should be paid to 21.786 arguing that, $ 25 contractual attorney’s fee, 9.021, $ 60 the statutory attorney’s fee, and here 9,300, $ 40 total 40.108 executive, including Attorney’s fee, £ 25, with interest from the date of dismissal of the respondent is asked to decide on the collection process.
The defendant has requested the dismissal of the case.
Without a power of attorney and the authority of the court by the defendant, the plaintiff lost the confidence of who filed the lawsuit on behalf of itself, the right to request to be relieved of it is before the date to make a final ruling of the court took an … Looks like azilname 2010/449Esas 2012/473 the file with the cause the plaintiff’s Decision No. 30.807,where you would get 85 TL attorney’s fee, Enforcement Directorate with the file Numbered 2013/1744 a denial of the requested Attorney’s fee is the work of the receivables upon the adoption of the case with the partial justification needed, 30.807,with legal interest from the date of the case you’re getting 85 TL is taken from the defendant to the plaintiff and granting process, it was decided to reject the request for an excess, and the decision was appealed by the parties.
1-If the defendant appealed the court decision dated 04.11.2014 regarding the partial acceptance of the case with an appeal petition dated 16.12.2014, but he informed the court dated 21.10.2015 that he had waived the appeal, the rejection of the defendant’s appeal petition was decided due to the waiver.
2-In the examination of the plaintiff’s appeals, the case is related to the request to collect the power of attorney fee receivables that were not paid due to unfair dismissal. The lawyer’s debts as a proxy are indicated in Articles 389 and continued of the BK, and first of all, the attorney’s BK.according to Article 390 of the nun, he is obliged to perform his power of attorney against his client with loyalty and care. As a requirement of proxy loyalty debt, it is mandatory to engage in behaviors that will benefit his client and to avoid behaviors that will harm him. If the deputy has not shown the necessary care and attention during the performance of his duties and has not faithfully performed the power of attorney, the deputy of the deputy is more or less justified. 174 of the Law on Advocacy. according to the provision of the article, if the dismissal is justified, the attorney’s fee does not have to be paid, and if the dismissal is unfair, the lawyer is entitled to the entire fee. After these statements, when looking at the concrete event; the priority dispute between the parties is collected at the point of whether the deceleration is justified. The plaintiff asserts that while it is unfair request to be relieved of the Defendant dated 01.09.2008 attorney from the case of the’I’s representative, this person authorised by the plaintiff on behalf of himself on 03.09.2008 by proxy, Attorney registered parcels only move in the dark forest 5/412 cite the authority given in the nature of the field, and after that, the plaintiff despite the lack of jurisdiction of the Magistrates ‘ Court to represent himself as trustee in the case of the main numbered 2010/882, sales process, suddenly deal with if you go to the other side, he argued that he was forced to agree to the agreement, so Azlin was right. The file available within and signed by the defendant, apparently dated 01.11.2013 “share” and dated 01.03.2012 “Fee is a contract titled” The contents of the document, according to the defendant to represent himself, and gave the authority pointed as the reason for the dismissal, although the plaintiff claims that are represented by proxy …. In the case file No. 2010/882 of the Magistrate’s Court, it is understood that the plaintiff has given his consent to act by proxy, because the documents in question …. It is seen that there is an agreement on the authorization of the plaintiff and an out-of-court lawyer regarding the fee agreement related to the case file No. 2010/882 of the Magistrate’s Court and the transfer of the stake in the real estate related to the aforementioned case to TL 200,000.00. In this case, since it can no longer be said that the plaintiff is representing the defendant without his consent, and therefore the defendant has lost confidence in the plaintiff, it is necessary to accept that the violation is unfair. In these circumstances, the court, by the plaintiff in the light of the above remarks that he has been unfairly dismissed, considering receiving a report from an expert by the expert, if necessary; the counsel for the defendant the plaintiff is represented as Enforcement Directorate is situated right in the file where it deserves to claim the retainer 2013/1744 numbered by the person, the conclusion should be made a proper decision in the case when the Enforcement Directorate for the file to be rejected in terms of 2013/1744 numbered procedures and Attorney’s fees is against the law, and requires you to break it.
Conclusion: It was decided unanimously on the day of 08.03.2016 to reject the defendant’s appeal petition for the reason described in paragraph (1) above, to OVERTURN the provision for the plaintiff’s benefit for the reasons described in paragraph (2), to return the fee received in advance to the parties on request, for the reason of waiving the appeal.
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