HOW TO REFUND REGISTERED CAPITAL PAYMENT ON SHARE TRANSFER OF THE LIMITED COMPANY?

Transfer of capital share in Limited Companies (transfer of shares) complates rely on  article 595 of the Turkish Commercial Code. The elements contained in this article are from the validity requirements of the share transfer. In addition, if even any of the compulsory elements are missing, the share transfer will become invalid. For example, the existence of one of the transactions that form the basis of the share transfer process is not written, the signatures in the Share Transfer Agreement are not approved by the notary, or if the decision taken does not pass the approval of the General Assembly, resulting in the invalidity of the transfer. The problems encountered occur when an operation has been made even though the share transfer is invalid or cancelled.

During the transfer of shares in the Limited Company, the transfer of the shares is paid to the transfer by the inheriter. In other words, the partner who inherits shares from the company must pay the share payment to the other. There may be some amount of money to be executed in exchange for the transfer of shares, or there may be other than money such as deed of title, cheque etc . The Share Transfer Agreement may be deducted from the contract for the payment of share fees. However, the Transfer of Shares can also be done by a General Assembly decision. As a result, in the written agreements that gave birth to the transfer; the names of the transferees and inheritees, the number of shares transferred, and the edime to be executed in return. The transfer can be done by the transferer and the inheriter in person, or it can be done through the proxy such as power of attorney. 

The important point is that after the transfer of shares is registered, the argue arises that the transfer of shares is not duly or void. Indeed, the share transfer may have been made and it may have been signed that the corresponding work had been carried out. However, for a reason that may occur later; a lawsuit may be filed against the cancellation of the share transfer due to allegations that the terms of the form were not dagged, the transfer invalidity, the share fees were not paid or the performance was invalid. If a number of processes were performed in return during the transfer of shares; In the case of cancellation of the transfer of shares, two separate cases arise if both the cancellation of the transfer and the return of the deeds have not been requested in a discerning way. In other words, for this reason, in the case of the cancellation of the transfer of shares, no refund of the work can be requested.

If it is claimed that the transfer of shares was not done in accordance with the procedure, the case of cancellation of the share transfer is to be filed. If it is claimed that the share transfer fee has not been paid, a case should be filed regarding the collection of it. In our opinion, it is not acceptable that this includes the return of the share transfer fee if only the cancellation of the share transfer is requested in the request section of the case filed. Because the matter of the case is clearly about the cancellation of the share transfer. In this case, the party requesting the cancellation of the transfer of shares, if a transfer has been made, will be able to request the return of it with a separate case. Otherwise, it violates the prohibition on expanding the claim.

a-) In the Case of Cancellation of The Transfer of Shares, the matter that should be examined by the court; It should be about whether mandatory procedures contained in Article 595 of the Turkish Commercial Code are carried out. In short; the transactions that gave birth to the transfer must be written, the notary approval of the signatures and the decision (approval) of the general assembly. If the person requesting the cancellation of the share transfer in the petition has not also made a claim, he or she may not request a refund of the performance or a provision for the return of the fee. For example, if the terms set out in Article 595 of the Turkish Commercial Code are not ed in accordance with the petition, the court cannot establish a provision in this way if the cancellation of the share transfer is requested and the refund is not requested, and the claimer cannot prosecute it. In other words, in this case, the principle of the existence of a few in most of them does not apply. Because the cancellation of the share transfer case is not about whether the price is paid. Again, the case filed with this request is not a credit claim in terms of its nature. 

b-) As a result of the trial made by the court, if the invalidity of the transfer of shares is detected or if the cancellation of the transfer of shares is decided, the return of the decisions given by a separate case may be requested. It can be suggested that the Share Transfer Agreement was invalid from the beginning or invalid on the grounds that a later occurs. 

If the Transfer of Shares is cancelled by a decision made by the court, a refund of the performance may be requested. 

If the Share Transfer Agreement is invalid from the out of the beginning and the inheriter has done something based on this agreement, he may ask for his refund. In such a case, there is no need to ask the court to cancel the transfer of shares. Because the terms of the share transfer did not have legal consequences. For example, the parties agreed to transfer shares between them, but when the Trade Registry Directorate was reached, article 595 of the Turkish Commercial Code was passed. Due to the lack of one of the elements in the article, the transfer is stated to be invalid and may request a refund if it has followed an inheriting e-operation until this invalidity is detected.

”If the transfer agreement is not done as prescribed by law, in this case, the so-called share inheriter who has done anything can claim back his shares based on unrea-reason enriched. ” (1)

If the transfer is not carried out in accordance with the shape, the transaction will not be valid. In this case, if the parties have given each other something for performance purposes, for example, especially if some payments have been made believing that they have inherited the share, then what they have given can be withdrawn according to the principles of undue enrichments (TBK 77 et al). As a matter of fact, the Supreme Court has pointed to this issue in some of its decisions. These decisions will continue to apply in terms of the New TTK. (2)

The case is related to the request for the cancellation of the appeal due to the enforcement follow-up entered into for the purpose of collecting the retible arising from the limited liability company share transfer agreement. In accordance with Article 520/last of the Article 520/last, the contracts on the transfer of shares are made in writing and do not even express provisions among those related unless the signature is notarized. In this case, the parties can only ask each other to return what they have given each other according to the provisions of uninjuded enrichation. In the concrete case, the protocol dated 6.6.2001, notarized by the court, even among those involved in this protocol does not express a provision on the grounds that the dismissal of the case should be decided on the grounds that, on written grounds, the dismissal of the case is not correct, as a result of the correct decision, the reason should be changed and decided to be up to date. (3)

b-)The obligation to prove that a fee has been paid in exchange for the transfer of shares in Limited Companies is on the person claiming to have made the payment. It is not necessary to have money in return for the transfer of shares. Other than money, the money can also be made in exchange for the transfer of shares. For example, even if it is signed that a money or other share transfer fee is paid in the contract, the payer is obliged to prove that the payment has been made. This is the opinion of the Supreme Court.

The dispute between the parties is whether the money and commodities committed to be given to the plaintiff in exchange for the transfer of shares to the limited liability company are given to the plaintiff. Although the plaintiff has released the defendants in the contracts signed between the parties before the notary, it is understood from the documents in the file that this release is only for the nominal value of the shares and also from the documents in the file in which the defendants agreed to pay the plaintiff a number of items and money in exchange for the transfer of shares, and from the statements that the defendants took the oath offered. As a matter of fact, the defendant, Kenan Ilker, agreed that the signature on the photocopy, called “Evidence No. 4”, on which the plaintiff is based, was his own. In that case, it is up to the defendants to give or pay the plaintiff the money and commodities they are obliged to perform. In this case, the court granted the defendants the right to prove that they had fulfilled their performance obligations to the plaintiff, and a decision should be made within the framework of the outcome, while the burden of evidence was reversed, leaving the plaintiff under the obligation of evidence and unable to prove the case, the dismissal of the case could not be seen correctly. (4)

Result:

In our opinion; In the event of an invalidity of the share transfer, it is the right way for the party that has made a move for the transfer of shares to request the return of this action through an unsympled enrichation case. The other party’s defect is not sought in order to request a refund. However, in the case of the transfer of shares being voided from the beginning or subsequently by court order, there is no difference in the return of the edims. In both cases, the return of the edims can be requested based on unintended enrichance.

Source

  • Sener, Prof. Dr. Oruc Hami, Evaluation of Supreme Court Precedent Decisions on Joint Stock and Limited Partnerships under  the New TTK Period, 140-141 syf. 
  • Sener, Prof. Dr. Oruc Hami, Limited Partnerships Law in light of Supreme Court Decisions, 292-293 syf. 
  • T.C. Supreme Court 11. Law Office 2002/12809 E, 2003/5328 K. 
  • The 11th Circuit Court of Appeals ruled in favor of The New Law Office 2002/7353 E, 2002/10021. . 

Bibliography

1. Şener, Prof. Dr. Oruc Hami. Evaluation of Supreme Court Precedent Decisions on Joint Stock and Limited Partnerships under the New TTK Period, 140-141 syf.

2. Şener, Prof. Dr. Oruc Hami. Limited Partnerships Law in light of Supreme Court Decisions, 292-293 syf.

3. T.C. Supreme Court 11. Law Office 2002/12809 E, 2003/5328 K. 

The 4th Circuit Court of Appeals ruled in favor of the 11th Circuit Court of Appeals. Law Office 2002/7353 E, 2002/10021. . 

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