3. Legal Department 2020/5487 E. , 2021/6882 K.
“Text Of Jurisprudence”
COURT :Consumer Court
As a result of the court’s decisionand compensation case between the parties, the decision to partially accept the case was appealed by the party’s deputies within the period; After the decision was made to accept the appeal petition, all the papers in the file were read and considered as necessary:
The Decision Of Supreme Court
The plaintiff bought the defendant a turnkey flats, after a while of taking delivery, heating and elevator broke down, there has been a crash on the balcony that were not made according to the technique of balconies and windows, counter tops, ceramic tile and cabinets problem is that it includes a shame about this and similar problems experienced in the management of the site is the warning shot, despite a warning, the situation has improved, if not also of the building 1. stating that it is located in an extremely risky area, while the building should be strengthened in a system called jet graute, this operation was not performed; in order to reserve the rights to the surplus, it has requested the defendant to collect the 10.000 TL together with the advance interest for now by determining the damage, including the late delivery, the repair cost of the defects in the independent section and common areas, the depreciation incurred in the apartment due to the inability to repair some missing and defective manufacturing, and the costs paid for title fees and expenses.
The defendant, arguing that the plaintiff bought the apartment subject to litigation from an out-of-court housing buyer, that there is no possibility to satisfy two different requests on the same basis, that the case was filed as a partial receivable case, reserving the rights to determination and surplus, the provisions of the HMK prevent this, the case was rejected primarily from the point of view of hostility, if this is not accepted.
According to the expert reports received by the court; incomplete and defective works that the plaintiff can request in the independent section and common areas subject to litigation, with partial acceptance of the request for determination
the decision to determine that the cost is 14.506,96 TL, reject the request for an excess determination, collect the missing and defective works cost of 10.000 TL with advance interest that will be processed from 12/03/2012, the requested warning costs from the defendant, including the rights of the plaintiff to the excess, the Court of Cassation on the appeal of the parties 13. By the decision dated 18/09/2018 and dated 2016/27006 and dated 2018/8038 issued by the Law Department; the plaintiff, who claims that the building in which the housing is located is built on a ground with a risk of earthquakes and liquefaction, claims that the jet graute system should be used in the entire building, not only pools and shelters, however, who expert committee issued a report to the court in these matters, the absence of the mentioned geological engineer in the building of the system should be applied to the report resolves the contradictions between the manner of the delegation reports on whether at least one receiving the report from the expert committee in geology expert muhendisin resides in the result to be achieved by the decision needs to be made an appropriate decision was quashed because of a bet.
According to the decision of the court; received according to the report, demand for partial acceptance of the case with the identified subject-The Independent section of the plaintiff may request incomplete and defective work and in common areas such as the cost of 15.501,64 TL determination, determination for more than the request for the denial of the claimant’s surplus without prejudice to the rights of the cost of defective work is incomplete and which was reduced by 10.000 12/03/2012 will operate in default with interest from the date of the requested advance, the costs of collection from the defendant the costs of the protest taken into account in, a proxy fee of TL 3,825.25 determined according to the AAUT in force over the amount accepted for the claimant’s benefit and determination cases and TL 28,364.89 determined according to the AAUT in force over the rejected determination request for the defendant’s benefit has been decided; the provision has been appealed by the party’s attorneys.
1-According to the articles in the file, the decision is suitable for overturning, and there is no inaccuracy in the discretion of the evidence, other appeals of the party’s deputies must be rejected.
2- The dispute is related to the claimant’s claim for compensation with the detection of damage due to the claim that there are incomplete and defective works in the apartment purchased from the defendant. In Civil Procedure Law, the plaintiff must have a rightful right to file this lawsuit or seek legal protection in order for a lawsuit to be filed with a request for legal protection from the court. This legal benefit must be “legal and legitimate”, “direct and personal”, “born and current”. The legal benefit of filing a lawsuit; there must be a legitimate benefit accepted by the legal order, this benefit must be related to the right holder who filed the lawsuit and must still be present at the time of filing the lawsuit. In addition, the case to be opened must be of a nature that will eliminate the danger that will arise. It can be said that a person has a legal advantage if a court decision is necessary for that moment in order to achieve his right. If there is no need for a court decision, there can be no mention of legal benefit (Pekcanitez H./Atalay, O./Özekes, M.: Civil Procedural Law, … 2011, p.297).
As is known, according to the legal protection requested from the court, the cases are divided into eda cases, determination cases, indeterminate receivables and determination cases and civil cases.
The detection case is the forerunner of the eda case, the function of which consists in determining whether a legal relationship exists. The subject of the detection case should be a legal relationship, and the plaintiff should have a current interest that is legally worth protecting in immediately determining whether this legal relationship exists.
Immediate benefit to the acceptance that there is a legal relationship for the determination of legal rights or as legal status of the plaintiff’s ready to be threatened with a danger of this threat, due to the legal status of the plaintiff in the case of doubt detecting the presence of damage to the plaintiff from being stalled provision must be capable of Detect and eliminate this hazard.
Whether there is a legal benefit in a case is a condition of the case. In order for a detection case to be filed, the time for filing an eda case has not yet come, or it is not possible to file an eda case, and the plaintiff’s legal interest must be found in the opening of such a case. It is the duty of the judge to investigate this if you are a re.
In the Eda case, the plaintiff must also have a legal interest in filing a lawsuit. In order for the plaintiff to have a legal interest in the Eda case, it is not necessary that the defendant has denied the plaintiff’s right. If the defendant confesses the plaintiff’s right and but does not fulfill it, the plaintiff can also file a lawsuit against the defendant to obtain a provision that can be put into execution. The subject of the Eda case can be both personal and real rights. Here it is desirable that the defendant be sentenced to a positive (to do, to give) or negative (not to do, not to do) preposition (to act).
In cases where it is possible to open an Eda case, there is no legal benefit in opening a detection case. Because, with the decision made at the end of the eda case, it is also determined whether the legal relationship subject to the case exists, and then the eda provision is established based on this determination. According to the stable practice of the Supreme Court, if it is possible to open an eda case, a detection case cannot be opened.
If it is possible to open an eda case, in order for the rule that the detection case cannot be opened to be valid, the final dec between the section of the determination provision to be given at the end of the eda case and the determination provision to be taken at the end of the detection case (m. 237) there should be no difference in terms of effect. In other words, if the legal protection requested by the determination case can be fully obtained by the eda case, then the plaintiff has no legal interest in filing a separate determination case. ( Prof. Dr. Baki Kuru, Civil Procedure, C. II. 2001 edition p. 1409-1448 ).
When concrete is evaluated in the light of the above remarks the event; the first request in the hands of the plaintiff in the case, purchased the residence in late delivery, and the independent section in the common areas, a portion of the cost of the repair of defects and defective repair of possible missing because of the lack of manufacturing that occurred in the apartment with the loss in value, land registry fees and expenses, including damage to the price paid for the determination of the amount to be decided, the second request is without prejudice to the rights on the surplus, with interest from the defendant the collection for now 10.000 TL prompt. In the expert report based on the judgment, it was determined that the plaintiff could request TL 15,501.64 from the defendant due to defective and incomplete manufacturing in the independent section subject to the case. According to the expert reports received by the court, the decision was made to accept the case partially in terms of the determination request and the claim related to the claim in terms of the receivable request. The plaintiff has requested both the determination of the amount of damage and compensation for the damage based on the same shame and incomplete statement in this case, and while he can claim his right from the defendant with an eda lawsuit (compensation for damage), there is no legitimate and current legal benefit in requesting the determination of the amount of damage at the same time.
As a result, the court, the plaintiff, late delivery, incomplete performance, defective manufacturing, etc. Due to the fact that there is no legal benefit in determining the amount of damages, it is necessary to decide on the total rejection of the request, while entering into the essence of the work, it was not considered correct to make a decision in writing, it required a violation.
According to the acceptance by the court, the defendant denied the benefit of On-Demand detection retainer has been ordered, if the minimum wage law in force on the date of the decision according to Article 13/2 of the tariff, dominated fee, the amount of accepted or rejected in the direction that will get through the promotion of the provision, thus, exceed the amount accepted in favor of the plaintiff for the benefit of the defendant can be ordered also true that it is not a retainer.