23. Department of Law 2016/33 E. , 2018/4970 K.
“text of jurisprudence”
COURT : Court of First Instance
At the end of the trial of the receivable case between the parties, the case was deemed to have not been opened for the reasons written in the decision, the case was examined, discussed and considered Decisively by the representatives of the parties upon the appeal of the decision regarding partial acceptance in terms of loss of income.
– K A R A R –
January Dec Decider 2008 between the plaintiff and the defendant’s muri … in the form of the arrangement of the Promise of the Sale of Real Estate and the Construction Contract for the Land Share was arranged, his client fulfilled all the actions, the end of the construction period in the contract, the construction permit was determined as the month after receipt from the municipality … and for the party that does not comply with the contract ….000,00 TL penalty condition has been determined, the construction permit was obtained on … / … / 2008, although the construction was completed on 02/06/2010, the permission to use the building was obtained on … / … / 2010, for the time being for rental income, claiming that the plaintiff has lost rental income during the delay period due to the delay in construction ….000,00 TL with commercial default interest from the date of the case, the defendant requested and sued to decide whether he is obliged to pay the penalty condition, to determine what the amount of the penalty condition is.
The defendants’ attorney requested the dismissal of the case by arguing that the contractor had no fault in the late delivery of the apartment subject to the contract, that the completion certificate and the settlement were received late, that the project change was due to the special wishes of the plaintiff, because it was made out of the contract and caused a change in the project.
The court’s claim, defense, the expert report was adopted, and all file according to the scope, the duplex apartment has been done in accordance with the project belongs to the plaintiff when the defendant in order to satisfy each case by the parties, if he chooses whether or not it has been delivered within the period of the loft, also approved the terms and conditions and within the time required from outside the project manufacturing is obligated to deliver to the plaintiff by making the monthly due to renovations, the delay is taken into account, however if for any renovation project, since the time delay should be added to the time, 650,00 TL designated as rent, according to the unit price TL m2, the downstairs 92,75 m2 M2 M2 total area 130,35 37,60 part of the roof, the apartment is a duplex apartment for rent round 900,00 TL as may be the case, according to the project of the apartment in case the lease is subject to the amount of payment that can bring adequate …/08/2009-…/…/2011 for the period between the dates ….TL 096,42, considering the statement that the defendant paid the rent until the third floor was removed, the rental price of the missing attic is from 250,00 TL per month …/08/2009-…/…/2011 for the period up to its date ….In the current situation, it is not possible to register as an independent department due to the inconsistency with the project, the plaintiff’s attorney’s request for a criminal condition in terms of the plaintiff
due to the failure to deposit and renew the fees within the exact period given to the deputy of the Fees Law …. in accordance with the article, it was decided to consider the case unopened, and in terms of loss of income, it was decided to partially accept the case.
The decision was appealed by the deputies of the parties.
…-The plaintiff’s attorney, in the petition of the case, clearly stated that the case is 107 of the CCP. he stated that there is an indefinite receivable case based on the article.
107 of the Code of Civil Procedure No. 6100. according to the article, the plaintiff will be able to file an indefinite receivable lawsuit in cases where it is impossible or impossible for him to fully and accurately determine the amount or value of the receivable at the time the lawsuit is filed. The impossibility of determining the result of the claim may be due to various reasons. This impossibility can be caused by biological, legal or subjective reasons, since the determination of harm is based on subjective elements. (Civil Procedural Law Vol. …. Edition Prof. Dr . Hakan Pekcanitez, page 1028 et seq.)
The second situation regarding the opening of an indefinite receivable lawsuit is that it cannot be expected from the plaintiff to determine the outcome of the claim. The plaintiff may not be able to fully determine the outcome of the claim due to the expertise he lacks. Vague claims in the plaintiff’s petition or the request could not determine if it is impossible to determine the outcome of a case that can be opened and it offers the use of the information given in the plaintiff’s petition and the amount of the receivable can be determined from the evidence that should have dismissed the case due to a lack of benefit in establishing legal claims ambiguous.
After these explanations, when the concrete event is evaluated; the plaintiff determines how long the construction was carried out according to the contract in the lawsuit petition, that this period is the month from the receipt of the construction permit, the construction permit ……..despite the fact that the permission to use the building was obtained in 2008 ……..he stated that it was purchased in 2010 and that due to the delay in construction, the monthly rental loss that can be obtained if the real estate is rented out due to the delay during this period has occurred. By considering the rates and local plaintiff’s immovable properties that may want to provide the price of monthly rent, in other words to identify the nature of the subject of the request accordingly it can be divided by request or because the case only a portion of the 109 th HMK in other words, according to the article ”a partial case” it is possible to open.
Therefore, since the delayed period is certain from the content and explanations of the petition, it is possible to determine the total receivable that can be requested by the plaintiff by collecting the monthly rental prices for the delayed period, and as described above, it is not possible to determine the receivable based on objective or subjective reasons or it requires expertise.
On the other hand, between the parties Dec ….the contract dated 01.2008 …. if the contract is not complied with in the article, from the non-complying party ….According to the decision that a criminal condition of 000 TL will be requested, the value of the case ….There is no legal benefit in filing a lawsuit for the purpose of determining the 000 TL indefinite receivable and the criminal condition that may be requested.
Because it is a condition of the case that the plaintiff has a legal benefit in opening a detection case. On the other hand, there is no legal benefit in opening a determination case in cases where an EDA case may be filed. During the EDA case, it will be possible to determine whether the birth of the receivable is desirable or not, and the amount will be determined. In other words, the EDA case also covers the request for determination.
In the concrete dispute, the criminal condition has been decided as the victim in the contract, and undoubtedly, whether the conditions for requesting the criminal condition have been formed and the sentencing of the criminal condition is a matter that can be discussed in the EDA case.
Due to the reasons described above, the plaintiff has no legal benefit in filing an indefinite receivable lawsuit and a determination lawsuit, while the decision on the merits should have been decided to dismiss the case in accordance with paragraph HMK 114 / …-h, the fact that a decision on the merits was made required an annulment.
…-According to the reason for the annulment, the appeals of the plaintiff’s attorney and the other appeals of the defendant’s attorney have not been considered necessary to be examined for the time being.
CONCLUSION: According to the reasons explained in the paragraph (…) above, the decision was overturned for the benefit of the defendants, the reasons described in the paragraph (…) are that there is no place to examine the plaintiff’s attorney’s appeals and other appeals of the defendants’ attorney for now, the fee received in advance is returned to the appellants on request, starting from the notification of the decision … the way to correct the decision is open during the day, ……..on 2018, it was decided unanimously.
By clicking here, you can access our other articles, sample decisions and petitions.