Republic of Turkey
Court of Cassation
6th Civil Chamber
Case No: E. 2022/235
Decision No: K. 2022/4371
Date: 26.09.2022
Upon the request for appellate review of the decision rendered by the Regional Court of Appeal by the plaintiff's attorney, and considering that the appeal petition was filed within the prescribed time, the case file was examined and the following was discussed and decided:
The plaintiff's attorney requested the approval of the concordat for the client company. The court rejected the concordat request and decided on the bankruptcy of the plaintiff company. The Regional Court of Appeal dismissed the appeal on the merits. This decision was appealed by the plaintiff's attorney.
1- Legal Basis
Pursuant to Article 292 of the Enforcement and Bankruptcy Law (EBL), the company requesting a concordat had its request rejected and was declared bankrupt. According to Article 287/5, by reference to the last paragraph of Article 292 of the EBL, the law states: “Before rendering a decision under this article, the court shall summon the debtor and, if any, the creditor or creditors’ committee requesting the concordat to the hearing; other creditors may also be summoned if deemed necessary.”
In the present case, it is understood from the case file that the authorized representative of the debtor company requesting the concordat was not summoned to the court during the proceedings, and the mandatory provision of the law was not complied with. In this situation, as stated in the Court of Cassation General Assembly’s decision dated 18.05.2022, numbered 387-695, rendering a decision without summoning and hearing the company representative requesting the concordat is considered incorrect.
2- Other Objections
In light of the reason for reversal, it is deemed unnecessary at this stage to review the other objections raised by the plaintiff's attorney.
Conclusion
For the reasons explained in paragraph (1), the decision of the Regional Court of Appeal is REVERSED by annulling the First Instance Court’s decision ex officio; due to the reason explained in paragraph (2), the examination of the plaintiff's attorney’s other appeal objections is deferred; the advance fee shall be refunded to the appellant upon request; in accordance with Article 373/1 of the Code of Civil Procedure, the case file shall be sent back to the First Instance Court, and a copy of this decision shall be sent to the relevant Regional Court of Appeal. Unanimously decided on 26.09.2022.
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