What is countercase?

Provisions regarding counterclaim are included in Articles 132 to 135 of the Civil Code. According to the justification of Article 132; In the response petition of the defendant of a lawsuit that has been filed and is still being heard, it is called a counter-suit against the lawsuit filed against the plaintiff of the main lawsuit in the court where the main lawsuit is heard.

In fact, the party against whom a lawsuit is filed has the right to defend itself by replying to the lawsuit. But there is a difference between filing a countersuit and defending. As a matter of fact, the person who files a counterclaim has the right that he claims to exist against the plaintiff of the main lawsuit.

Counterclaim, also known as counterclaim, is encountered in practice mostly in divorce cases. Here, we would like to touch upon a misconception. In divorce cases, there is a belief among a significant part of the society that the person who first files the case will win or that a countersuit must be filed. This rumor is a legal superstition. It does not matter who filed the lawsuit and when, in terms of justice.

COUNTERCASE CONDITIONS

The defendant always has the right to file a lawsuit to obtain the rights he/she demands from the plaintiff. However, the defendant who wants to assert this right through a counterclaim must comply with the conditions set out in the Code of Civil Procedure. These conditions are:

1-The main case must be pending.

As stated in Article 132/1-a of the Code of Civil Procedure, in order for a counterclaim to be filed, the main lawsuit must have been filed and is still pending. This situation is called pendency. As stated in the justification of the article of the law, the main lawsuit has been filed and is still pending; Due to its nature, a counterclaim necessitates the existence of a lawsuit that has been filed and is still pending. Because, in the reply petition of the defendant of a lawsuit that has been filed and is still pending, only a counterclaim can be mentioned if the defendant files a lawsuit against the plaintiff of the main lawsuit in the court where the main lawsuit is heard.

There is another question to be answered here:

If the main lawsuit ends for any reason after the counterclaim is filed, will the counterclaim be affected by this situation?

The answer to the above question is given in Article 134 of the Civil Code. According to the article: Termination of the main lawsuit for any reason does not prevent the counterclaim from being heard and decided.

A BAM decision on the subject is as follows:

"In contrast to the rejection of the main case due to the absence of a lawsuit condition, it has been decided to reject the case due to the lack of a lawsuit condition. Since it is understood that the termination of the main case for any reason does not prevent the counterclaim from being heard and decided, on the other hand, since it is understood that there is no deficiency in the case conditions in terms of the counterclaim, it is against the procedure to decide to reject the countercase by making the fate of the countercase absolutely dependent on the outcome of the main case, even though the counterclaim should be separated and the essence of the matter should be entered into." İSTBAM 16HD. 2019/1962 K.

2-There Must Be a Close Relationship Between the Main Case and the Counterclaim.

There must be a clearing or offset relationship between the claim to be put forward in the countersuit and the claim put forward in the main lawsuit, or there must be another connection other than this. The purpose of the connection here is that the main request and the request that can be put forward in the countersuit are arising from the same or similar reasons, or the judgment to be given about one of them is of a nature that will affect the other.

As stated, either an exchange or offset relationship or another close relationship is required here. In other words, the absence of a clearing-offsetting relationship does not prevent the filing of a counterclaim. We will also touch on this issue after explaining the concepts of clearing and offset.

The concept of barter regulated between articles 139 and 145 of the Turkish Code of Obligations; It means the termination of two mutual, due and same-kind debts by the unilateral declaration of will of one of the debtors.

"Barter is regulated in Article 143 of the Turkish Code of Obligations. Since barter is a defense, a defense of barter can be made with a response petition within the response period to the lawsuit. If the amounts receivable are equal or the defendant's receivable is less, it should be taken into consideration that there will be a lack of legal benefit, which is one of the conditions of the case, and a countersuit should not be filed. However, in cases where the defendant's receivable is more than the plaintiff's receivable, the defendant must file a countersuit in order to secure the excess receivable.

In this case, the defendant must clearly state in the reply petition or in a separate petition within due time that he has filed a countersuit for settlement, and must also pay the application fee, advance decision fee and judgment fee for the counterclaim. If the defendant does not clearly state that he has filed a counterclaim and requests the rejection of the case due to exchange, the defendant's request cannot be accepted as a counterclaim, even if the receivables are more than the receivables requested in the main case."

Some Supreme Court decisions on the subject are as follows:

"... It can be claimed as a barter-return lawsuit or as a defense, and in cases where it is put forward as a defense, it is subject to the provisions of the law to which other defenses are subject. The provision of the procedure, which is mentioned in the court decision and concerns the counterclaim, is a provision put into law to state one of the acceptance conditions of the counterclaim, and is not put into law to state that the exchange claim can only be put forward by the defendant in the form of a counterclaim.

"It is not compulsory to file a countersuit for barter, it can be sufficient to just file a barter defense. In this case, no litigation fee is required. However, if the amount of the counterclaim is more than the receivable requested in the main lawsuit and the defendant wants to have this excess settled, then he must pay a fee for the collection of the excess receivable." Y4HD. K. 1997/9059

Since clearing and offset are often used together, it may be mistaken that they mean the same thing. However, both institutions are quite different from each other. Offset is a type of objection that affects the scope of the receivable. Offsetting is not the exercise of a right that creates innovation, but is a transaction carried out only to determine the actual amount of the receivable. There are no two separate and independent receivables here. Anyone who has an interest in reducing the amount of the receivable can put forward the defense of offset, and since it is the situation that terminates the debt, it is taken into consideration by the judge ex officio. The most important difference between the two concepts is this:

While barter has its application in terms of different legal relationships, offset is only applied in terms of receivables arising from the same legal relationship. For example, while the plaintiff claims his work contract receivable, the opposing creditor may request an exchange for another receivable arising from the lease relationship. But in such cases, offset cannot be made.

Offset objection can also be raised without filing a countersuit. It is also taken into consideration by the judge ex officio. An example Supreme Court decision is shared below:

"Even if set-off is an objection and is not expressly put forward by the parties in a case, if the judge understands the existence of the set-off objection from the documents reflected in the case file, he must take them into consideration on his own. In the incident, the defendant contractor submitted the documents titled "Additional works contract" regarding the defense of excess manufacturing and material sales to the file, and even if these documents had not been submitted, the defendant had raised his objection to the set-off by stating that he had done other works apart from the main contract; the court also decided to call the combined lawsuit or counter-claim. "Without the need to open an investigation, an investigation and examination should be carried out in accordance with the method regarding the excess manufacturing and material sales claimed to have been made additionally by the defendant party." YHGK 2021/208 K.

As we stated in our explanations above, it is possible to file a counterclaim outside of the exchange and offset relationship. For this to happen, there must be a connection between the cases. The purpose of the connection here is that the main request and the request that can be put forward in the countersuit are arising from the same or similar reasons, or the judgment to be given about one of them is of a nature that will affect the other. For example, against a divorce case due to adultery filed by one of the parties, the other party can file a counter-suit on the grounds that the marriage union has been shaken from its foundation. The condition sought here is that the cases arise from the same or similar reasons. Again, if the decision to be made about one case will affect the other, the existence of the connection will come to the fore.

Finally, it should be noted that if the parties to the lawsuits are not the same, there can be no countersuit. Although a pending issue or a preliminary issue may come to the fore in cases where the decision to be made in one court will affect the other, the characterization of the counterclaim will be erroneous in cases where the parties are not the same. An example Supreme Court decision is as follows:

"In the light of the material and legal principles explained above, the court should separate the declaratory case filed by the company, keeping in mind that in order to file a counterclaim in the concrete case, the conditions specified in HMK 132 are not present, and that the parties to the recourse case and the case of determination of the absence of a work accident are not the same, this declaratory case should be made a pending matter and waited for it to be finalized, and a decision should be made about the recourse compensation case according to its result." Y10 HD. 2019/7285 K.

3- The Main Case and the Counterclaim Must Be Subject to the Same Trial Procedure.

If the lawsuit to be filed against a lawsuit heard in the administrative judiciary falls within the jurisdiction of the civil procedure, a countersuit cannot be mentioned here. In order to talk about a counterclaim, both cases must fall within the jurisdiction of the civil courts.

A distinction should also be made in terms of the duty of the courts. What happens if a lawsuit is filed against the lawsuit filed in a court of general jurisdiction and this new lawsuit falls within the jurisdiction of the courts of special jurisdiction? There is no legal answer to this question. According to the dominant view in doctrine; A counterclaim that falls within the jurisdiction of the specially competent court cannot be filed in the court of general jurisdiction. We do not agree with this view and argue that legal regulation should be made here. In our opinion, what is correct is that the specially authorized court should hear both cases.

PERIMENT TO FILE A COUNTERCAUSE

HMK's 133/1. According to the article:

The counterclaim is filed with a response petition or by submitting a separate petition within the response period to the merits.

As can be seen, there is a time requirement for filing a counterclaim. This period is determined as the response period to the merits. This case can be opened with a response petition or by submitting a separate petition during the response period. In cases where the two-week response period is extended, the period for filing a counterclaim will also be extended.

In the second paragraph of the same article, "In case a countersuit is filed after the due date, the court decides to separate the cases." The provision is included. The following statements are included in the justification of the article:

In the second paragraph of the article, it is stipulated that in case a countersuit is filed after the due date, the court will spontaneously decide to separate the main lawsuit from the lawsuit sought to be filed against it, even if the other conditions required by the Law for filing a countersuit are met in order to prevent the trial from being dragged out.

A Supreme Court decision on the subject is as follows:

"It should be decided that the counterclaim that is not filed within the prescribed period should be deemed not to have been filed. However, the court should either bind the main lawsuit together with the counterclaim, or separate the case from the main lawsuit and record it on a separate basis and decide that the counterclaim should be deemed not to have been filed." Y11HD. K. 1989/4269

WHERE AND HOW TO FILE A COUNTERCAUSE?

As we mentioned above, the counterclaim is filed in the court where the main lawsuit is heard. According to the main case, the court is also competent for this case. However, cases where the absolute authority rule exists are exceptions.

The countersuit is filed against the plaintiff of the main lawsuit by naming him as the defendant.

"In the counterclaim petition, if a lawsuit is filed against someone who is not the plaintiff of the main lawsuit, the lawsuit filed against this defendant will not be taken into consideration by the court." Y11HD. 2006/4751 K.

A counterclaim cannot be filed against a counterclaim. (132/3)

The defendant of the counterclaim may respond to the lawsuit.

General rules regarding the trial procedure apply here as well.

The counterclaim does not receive a new merit number. It is examined together with the main file. The evidence is examined together and a decision is made. Establishing a verdict without examining the requests in the counterclaim requires reversal. The court examines the case conditions separately in terms of the main case and counterclaim.

The termination of the main lawsuit does not affect the countersuit.

COUNTERCASE FEE, ATTORNEYS' FEES AND JUDGMENT

Counterclaims are subject to separate fees. Therefore, the fee must be paid when filing a lawsuit. If the fee is not paid, the case cannot be considered as a counterclaim. A Supreme Court decision on the subject is as follows:

"The defendant woman does not have an independent or counterclaim filed duly by paying an application fee. The fact that a relative fee has been paid later does not make this petition a countersuit. It would not be right to give a rejection decision in a way that would create a final judgment where it would be decided that there is no need to make a decision on these requests." Y2. HD. K. 2010/5104

The party that loses the counterclaim is sentenced to attorney fees. Attorney fees are assessed separately for both cases.

"Since the counterclaim is an independent lawsuit, the court must assess the attorney fee separately for the main lawsuit and the counterclaim. Accordingly, it is erroneous that the court did not award a separate attorney fee in favor of the plaintiff in accordance with the Attorney Minimum Fee Tariff in force due to the rejection of the counterclaim." Y9HD. 2007/9863 K.

The verdict is given on both cases together. However, the verdict of both cases is shown separately.

"Even if the court gives a single decision about the main case and the counter case, the decisions given about the main case and the counter case are shown separately in the verdict. As a result, in the verdict, a separate decision and judgment fee must be charged for the main case and a separate decision and judgment fee for the counter case, and a separate attorney's fee must be ordered for both cases." Y3HD. 2005/8154 K.