In Turkish Enforcement Law, injunction request is a temporary confiscation of the debtor's property in advance by a court decision to guarantee that the creditor will receive money on time. (B.Kuru, İcra ve İflas Hukuku, C.3, S.2495-İcra ve İflas Hukuku El Kitabı, S.1033) In another words, injunction is a temporary legal protection that allows the debtor's assets to be confiscated by court order to secure the outcome of an existing or future pursuit of money receivables. (Muhammet Özekes,İcra İflas Hukukunda ihtiyati haciz, P.12) The terms of the injunction additional order to be issued by the court are Enforcement and Bankruptcy Act 257 in the article are arranged.
Conditions of injunction;
Article 257 - The creditor of a money debt that has not been pledged and has matured may have the debtor's movable and immovable properties and her receivables and other rights in the hands of a third party cautiously seized.
Due to overdue debt, an injunction may be requested only in the following cases:
1- If the debtor does not have a specific settlement;
2- If the debtor prepares to hide his assets or escape himself in order to get rid of his debts, or if he runs away or commits fraudulent transactions that violate the rights of the creditor for this purpose;
Thus, if an injunction is placed, the debt falls due only on the debtor.
The conditions of the injunction order in accordance with Article 257 of the enforcement and bankruptcy law :
a) Conditions regarding the creditor
- A person who requests an injunction must bear the adjective creditor.
- The creditor, who requests for injunction on the basis of the bills of exchange, must be the rightful and legitimate bearer in terms of commercial law, or the endorser who pays the bill, except the last bearer, the avalist, the person who has the payment by intervening. (T. Uyar, İcra Hukukunda Kambiyo Senetleri,3. Bası, C.1, S.555 vd.- İİK şerhi C.8, S.13421 vd.)
The High Court stated that it was necessary and sufficient for the bond to be due in order for the bearer to seek an injunction against the drawer who issued the bond and the aval giver in his favor, and that there was no need to be a protest. (Supreme Court 11th Civil Chamber, 15292/14571, dated 10.07.2013; 14930/223, 17.01.2011) In order to request a precautionary attachment decision from the court based on the bills of exchange, the original bill, if the bill is lost, the annulment decision taken from the court must be submitted to the court. The court is required to examine personally whether the claimants have the title of creditor and make a decision.
- The creditor must be a person capable of exercising civil rights. Children under guardianship and persons under guardianship who are permitted for the performance of a profession and art have the right to request injunction for the receivables arising from the performance of this profession and art. It is also possible that the injunction is requested by proxy. If a guarantee is shown in haste, it can be satisfied with the proxy's declaration that the creditor has the power of attorney, even if the power of attorney is not shown.
Foreign creditors may request the injunction.
- The creditor must have the authority to demand enforcement action against the debtor. The injunction cannot be requested for contingent receivables. (S.Onsun, Vadesiz Senetler İçin İhtiyati Haciz Kararı Verilebilir Mi?, İ.H.1948/33,S.508)
- The provisions of the law numbered 6183, which is a special law, are applied on the injunction requests of the public administrations regarding public claims.
- As a result of the amendment made in the law numbered 6103, the provisions of the provisions of the clause 257 / 4-5 of the ship and cargo creditors regarding the injunction requests were abolished.
The basic principles of Maritime Tracking Law are regulated in the articles no 1464-1400 of the new Turkish Commercial Code. In this section, there are special provisions on the injunction of ships, the conversion of the ship's pledge to cash and the manner in which ships will be subject to enforcement proceedings. In cases where there are no provisions in this section, the general provisions of Enforcement Law will find application.
b) Conditions for receivables;
- The receivable about which the injunction is requested should be money (debt) receivable. For foreign currency receivables, the injunction decision may be requested. In this case, the subject of the request is to convert the foreign currency receivable into Turkish Lira and to give the injunction decision for the Turkish currency.
- The receivable should not be pledged. As a rule, the creditor who has been secured with a pledge cannot make a request for the injunction (Supreme Court, 11.H.D. 09.10.2006 T., 8054/9887).The term unpaid debt mentioned in article 257/1 of the enforcement and bankruptcy law should be understood as unpaid receivables. In this way, it will be legally possible to take a precautionary decision for the part of the receivable exceeding the pledge. Even if the original debt has been pledged, a precautionary attachment decision can be made about the guarantors. However, in case the surety grants a mortgage, no injunction decision can be made about the surety. (A.Değnekli-M.Saldırım,S.26, Ayrıca bkz. Yargıtay, 19. H.D., 26.10.2007 T., 9019/9288)
The word pledge in this article should be interpreted by considering article 23 of the Enforcement and Bankruptcy Law. For this reason, the term pledge in Enforcement and Bankruptcy Law 257/1 covers movable and immovable pledges and other rights covered by this term in accordance with the same article. In this case, if the creditor has the right of imprisonment on the property of the debtor, since this right is considered a right of pledge, he cannot request for injunction on the debtor.
As a rule; although the injunction cannot be requested for pledged receivables, in some cases, the injunction is allowed despite the pledge.
In cases where there is no obligation to pursue by first converting the pledge into money, the creditor may request the injunction on the debtor. For example;
- In cases where it is certain that the pledge will not be able to cover the receivable, the injunction may be requested for the amount remaining open,
- In cases where the pledge cannot meet the receivable,
- Receivables based on bills of exchange,
- In interest and annual installment receivables provided by mortgage,
- Where the hostage is in a foreign country,
- In cases where the creditor has been given the choice between converting the pledge into money through ordinary pursuit,
- In cases where it is decided that the creditor will apply for the pledge of second degree,
- In cases where a temporary pledge deficit document was given to the creditor during the proceeding by converting the pledge into money,
- In cases where the right of pledge is contested, the creditor may request the injunction, although he insists on the claim that the pledge is available and valid.
- The business enterprise pledge creditor may seek the injunction of the business enterprise or its individual elements for the pledged receivables.
- The receivable is due
As a rule, the injunction may be requested for overdue receivables. There are exceptions to this rule:
Maturity of the debt refers to the moment when the debt can be requested, that is, it can be performed. Since a certain maturity is stipulated in bonds, which are generally subject to the injunction request, it is sufficient for the court to check whether the bond is due or not. If no maturity is set for the debt, then the creditor's notice is required. Due records on the bills stating that "if this bill is not paid on time, it will become due in the next bills" is invalid. Therefore, no the injunction decision should be made on undue bonds. If the parties have decided in a separate contract between them that one of the issued bills is not paid, the others will be due as well, in our opinion, the injunction decision may be requested for undue bills in accordance with this contract.
The injunction on debt that is due is a separate way. However, in some cases, the injunction may be requested for an outstanding debt:
- The borrower does not have a specific settlement
It should be understood that the borrower does not have a specific settlement, not in the sense that there is no settlement, but as a frequent change of settlement and not a fixed settlement. The debtor is located in a foreign country, a particular place undue placement for a settlement of the debt that is put forth that certain lien shall not be required in Turkey.
- Purpose of getting rid of the debtor's obligations
a) Hiding its goods,
b) Preparing to smuggle their property,
c) Preparing to escape,
e) The creditor's committing fraudulent transactions violating her/his rights (Supreme Court 11. HD. 14.05.2012 T. 5437/7665; Supreme Court 15. HD. 19.11.2007 T. 6565/7260 - M. Özekes p: 155 et al.)
In the Injunction Decision Based on the Invoice;
In the Injunction Decision Based on the Invoice; In our opinion, the acceptance of the injunction request should be made in accordance with the approximate proof rule regarding the existence and due date of the receivables for the invoices (or the conditions in the article 257/2 of İİK.). The decisions of the high court on this issue are contradictory.
- "... since it is based only on unilateral invoices and the existence of receivables cannot be mentioned according to these invoices. That the conditions in Article 257/1 are not fulfilled .. "(Supreme Court 19 HD. 03.06.2015 T. 17502/8213)
- ".. The court should decide on the rejection of the request for the injunction, taking into account that the invoice is not suitable for proving the existence of a pending receivable alone, and that the party requesting foreclosure does not present any other evidence that will make an opinion about the existence of the receivable .." (Supreme Court 19. HD. 23.01.2014 T. M: 2013/18723, K: 1804)
- ".. According to the statement of the debtor employee, it is understood that the debtor has attempted to kidnap property, the invoices, delivery notes, the notifications regarding the debtor's evacuation of his official address and the lien minutes are taken into consideration, there are conditions for giving a precautionary attachment decision for the undue debt ..." (Supreme Court 19. HD. 25.03.2014 T. 1917/5739
- ".. Since the checks and invoices submitted in the request for precautionary attachment do not show that the debtor of the debtor of the receivable subject to assignment is indebted, and a signed document indicating that this company is indebted has not been submitted, the request for precautionary attachment should be rejected." (Supreme Court 19 HD. 07.01.2014 T. 18170/660)
In general, when we look at many decisions of the Supreme Court, the invoice alone did not find it sufficient to demand the injunction decision. However, to give an example, the existence of a document such as a signed account agreement with the invoice, in which the parties explicitly acknowledge the relationship, made it possible to request the injunction decision. Again, in another example, it has made it possible to request the injunction decision in the event that the debtor is deemed to have attempted to kidnap property together with the invoice. Therefore, it is seen that the submission of only the invoice is not sufficient in demanding the injunction, but when the invoice is presented with other supporting elements, the injunction decision can be made.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.