1. INTRODUCTION
The procedure of proceedings regarding the enforcement and bankruptcy is regulated in the 21st and 57th article of the Enforcement and Bankruptcy Law (Icra ve Iflas Kanunu- hereafter will be referred to as IIK). Both articles refer to the Notification Law no. 7021 and the guideline of that law. Since, these law and guideline are implemented to notification proceedings.
Notification is crucial in the IIK, as almost all proceedings results in legally after notification. In principle, the notification should be made to addressee, according to the 10th article of the Notification Law. However, exceptionally it is possible to make notification to someone else other than the addressee. Thus, in this journal, considering its importance we will examine the governing main rules of notification along with the exceptions and consequences of an inadequacy of notice.
According to the 10th article of the Notification Law, a notice should be made to the addressee as a principle. However, in order to make a notification easier and accelerating the proceedings, there are some exceptions of that rule. Hereunder, the notification could be made to people or servants of the addressee who lives with him/her, if he is not at home at the time of the notification according to the 16th article of the Notification Law. However, if a notification is made according to the 16th article, a sentence of “the notice has made to who resides under the same roof with the addressee” must be noted on the notification paper.
Moreover, in that case if there is a due of notification, the notification is considered as it made to addressee on the same notification date. According to the various Courts of Appeal decisions, in order to a person, to whom a notification was made, does not reside with addressee to be proved before an enforcement court, that claim can be proved with all types of evidences, then the notification becomes inadequacy notice.
If someone performs a profession or a trade in a single place permanently, a notice could be made to a permanent agent or employee who works in there, in the absence of an addressee.
In that direction, if one performs his/her profession or trade at home and they are not present at the time of notification, then notification can be made to a permanent agent or employee who works permanently at the place or if the said persons are not present then the notification can be made to persons who resides with him/her at the place.
If any proceeding is pursued by an attorney, a notification should be made to that attorney. As, in kind of situations, an attorney becomes an addressee. Thus, a notification, made to a client is null and void. If there is more than one attorney then notification can be made to one of attorneys which will be enough for a valid notification. If a notification is made to more than one attorney with various dates then the notification date would be the date of the fist notification. However, in specific cases or according to the law- like an arraignment and a promissory oath- a notification must be made to a client himself even he has an attorney or a representative.
An order of payment or enforcement order can be made to commercial agents or agents of a merchant on the condition that if it is related to the establishment. If these conditions are fulfilled the notice is deemed as duly executed.
In the case of bankruptcy, notification should be made to a trustee of the bankrupt’s assets. In a similar way, in the case of an official liquidation, a notification should be made to official liquidator.
A notification about a partition of inheritance should be made to a representative of inheritance. In the absence of that kind of representative, a notification has to be made to inheritors.
If a person subject to military law, except ranks, the notification should be made in person. In such cases, an addressee should be immediately found by a duty superior or a duty officer. In absence of an addressee or an addressee declines to accept the notice, then it is accepted that a notification can be made to the said people.
A notification to an en route military personal should be made through the related Ground, Naval or Air Forces Command.
As a principle, a notification should made to an addressee personally, even he/she is in place which is not easy to get in or find that person in there, such as a hotel, hospital, factory or school. However, if a manager of that place cannot find an addressee or an addressee decline to accept a notice, than a manager or a chief of an addressee is entitled to receive that notice.
Notifications for arrested or imprisoned persons are made them through a governor or an official of the institution where they are being held.
If an addressee is temporarily in another place , a notice should be made according to the 20th article of the Notification Law. Therefore, the people indicated in the 13th, 14th, 16th, 17th, and 18th articles of the law, could declare that an addressee is temporarily in another place. In that case, a situation and a name and surname of a declarer should be noted on a notification paper. A notification paper is also signed by that person. After that, notice could give to that person. These people have to accept that notification.
However, if a declarer declines to sign a notice paper includes his/her declaration regarding to that an addressee is temporarily in another place, the notifying person annotates that fact and signs it. In such a case, a notice is made according to the 21st article of the law.
If a notification is made according to this article, the notification date is accepted as the date when a notice is delivered to the persons determined in articles 13th, 14th, 16th, 17th and 18th or if the declaration is made by way of sticking the notification on the door, the notification date would be accepted after 15 days of the sticking.
If an addressee is a kind of person who needs a legal representative to be appointed for himself but there is no kind of appointment yet, a dept enforcement officer should ask for a representative to be appointed from court of peace as soon as possible. If a notice is not made to a legal representative, it could be revoked upon complaint about it.
Persons under guardianship could only perform their profession or trade by getting permission from court of peace. In such situation, in the enforcement proceedings where debts arises from their profession or trade, the related notifications should be made to themselves directly, not his/her legal representative.
A notice, made to a legal person or business firm, should be made to its authorised agent. If there is more than one authorised agent, then a notice could be made to the one of them.
According to the 22nd article of the Notification Law, a person to whom a notice is made shall not be under 18 by all appearances. Moreover, he/she shall not be explicitly incompetent. If it is not possible to communicate with him/her, since he/she has mental illness, or mental defect; or he is deaf, blind or dumb, then he/she is accepted as incompetent person.
A notice is accepted as unexecuted if a person to whom a notice is made is an opponent of addressee or in case the impossibility of the notification or avoiding to receive a notice.
2. THE INADEQUACY NOTIFICATION
According to Moroglu and Musul a judicial notification is the notification which duly made to litigants in order to inform them about legal proceedings and it is also a document which proves that the notice was made.
During the notification process the procedural rules of the law and regulation has to be followed. Otherwise, the notice was made will be an inadequacy notification.
In other words, a notice should be made to people who are indicated in the law and a notice paper should be prepared in accordance with the law.
Despite there is an inadequacy notice and the addressee learns the notice, it is accepted as a valid notification and the addressee’s declaration about the notification date will be accepted as notification date.
Also it should be noted that the periods related to the notification will start from the date when the addressee declares the inadequacy of notice has learned by him. However, in order to an inadequacy notice becomes a valid notice firstly there should be an existing notification procedure and an inadequacy notice.
An inadequacy of notice can be proved with all kind of evidences.
Thus, it possible to be made an expert examination or an expert examination on records and documents related to those notices which are being held in the Post Office Department (PTT). It is also possible to call witness.
According to the 12th Civil Chamber of the Courts of Appeal decision dated 24.04.2002 “It is not possible for the enforcement court take into account that a notice is irregular, as there is no claim from a person in relation to that notice” (2002/7291 E. 2002/8355 K.).
Despite the fact that an addressee does not declare that he received the notice but if he starts to do some proceedings which shows that he has learned the notice, than a notice is accepted as a valid notice. In this direction, a person performs in such a way cannot claim that he has not heard of a notice according to the 32nd article of the Notice Law. The Courts of Appeal has indicated in its some decisions that there is a conflict between such a manner and a principle of bona fides therefore the court cannot give legal protection to the addressee in this regard.
According to the Courts of Appeal, even though an addressee starts to perform some proceedings which show that he has learned the notice but he declares a different notification date, the date of notification would be the date of first proceeding not the addressee declaration on the notice day. As a consequence the decisions in this direction comply with the principle of bona fide.
According to the 51st article of the Notification Law, the date declared as a hearing of a notice by an addressee is accepted as a notification date. This declaration should be made by the addressee in person. In other words, no one –other than an addressee- could claim or prove that an addressee has heard of a notice; or the date is different than the date, declares by an addressee.
A claim regarding to an inadequacy claim could be made to an authority, indicated on a notification document. According to Uyar, if an enforcement office, made a notice ascertains that there is an inadequacy notice, then it should make notification again by fixing an undue. However, since the Courts of Appeal is opponent to that opinion, they maintain that in the case of inadequacy notice, the date of notification should be changed to a date, a notice heard by an addressee through getting order from an enforcement court.
If someone claims the existence of an inadequacy notice before the enforcement courts, he/she should have a legal interest to do it.
Even though the existence of inadequacy notice was made as a delayed objection, the application’s legal characteristic is determined by the enforcement court’s judge. In that case the dispute should be considered as a complaint and it should be settled in accordance with the provisions of the complaints in the IIK.
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Resources:
1. Erkan ERTÜRK. Kanunlar Açıklamalar ve İçtihatlarla Uygulamada Kira Tespiti ve Uyarlama Davaları 2005 – Adil Yayınevi
2. Nihat Yavuz. Türk Kira Hukuku 1 Uygulamada ve Öğretide Kira Parasının Tespiti Davasının Esasları – Ankara 2003 – Yetkin Hukuk Yayınları
