23. Legal Department 2016/33 E. , 2018/4970 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
At the end of the trial of the receivable case between the parties, the file was examined, the file was discussed and considered as necessary after the decision to consider the case not opened for written reasons in the dec, and partially accept it in terms of loss of income was appealed by the party’s attorneys within the period.
– Decision–
Dec Dec January 2008, a Construction Contract was concluded between the plaintiff and the muris of the defendants in the form of an agreement dated January 2008 for the Promise of Real Estate Sales and a Share of the Land, his client fulfilled all the actions, the expiration date of construction in the contract, after the construction permit was obtained from the municipalityA penalty-i condition of 000.00 TL has been established, the construction permit was obtained on … /… / 2008, but the construction was completed on 02/06/2010, the building use permit, for the time being, for the rental income, the plaintiff claims that there is a loss of rental income during the delay period due to the delay in construction….He requested and sued to determine whether he was obliged to pay the penalty-i requirement for the collection of TL 000.00 from the defendant with commercial default interest from the date of the lawsuit, and what the amount of the penalty-i requirement is.
The deputy defendants requested the rejection of the case, arguing that the contractor did not have a defect in the late delivery of the apartment subject to the contract, that the completion certificate and settlement were received late because it was made out of the contract and caused a change in the project, and that the change in the project was caused by the plaintiff’s special requests.
Although the defendant stated that the penthouse was not delivered within the time limit to please the plaintiff, according to the terms of the contract and the approved project, he is obliged to deliver the necessary manufacturing to the plaintiff within the time limit, taking into account the delay due to the monthly renovation, but since there are no renovation projects, this period should also be added to the delay period, 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 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 less than 250.00 TL per month …/08/20099…-…/2011 the period up to the dateSince it is 526.78 TL, in the current situation, registration as an independent department is not possible due to the inconsistency with the project, the plaintiff’s attorney’s request for criminal conditions in terms of the plaintiff
due to the fact that the fee has not been deposited and has not been renewed within the exact period given to the deputy, the Fees Code …. in accordance with the article, it was decided that the case should be considered unsolved, 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 deputy plaintiff stated in the petition that the case was clearly in HMK’s 107. he stated that he has an indefinite receivable case based on his article.
Article 107 of the Code of Civil Procedure No. 6100. according to the article, the plaintiff may file an indefinite receivable claim if it is impossible or impossible for him to determine the exact and precise amount or value of the receivable at the time of the lawsuit’s opening. The fact that it is impossible to determine the result of the claim may be due to various reasons. This impossibility can be caused by subjective reasons, since the determination of biological, legal or damage is based on subjective elements. (Civil Procedure Law Vol… Prof. Dr. Hakan Pekcanitez, page 1028 and more)
The second situation regarding the possibility of filing an indefinite receivable claim is that the determination of the result of the claim cannot be expected from the plaintiff. The plaintiff may not be able to determine the exact result of the claim due to the expertise lacking in him. If it is understood that the amount of receivables is determinable from the information provided by the plaintiff in the lawsuit petition and the evidence provided, the case should be dismissed due to the lack of legal benefit in filing an indefinite receivables lawsuit.
After these statements, when the concrete event is evaluated; the plaintiff determines in the lawsuit petition how long the construction was carried out according to the contract, this period is … months from the receipt of the construction permit, the construction permit.permission to use the structure despite the fact that it was obtained in 2008 ……..he stated that it was received in 2010 and that due to the delay in construction, there was a monthly rent loss that could be received if the real estate was rented due to the delay during this period. 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 contents of the petition and descriptions of certain delay time, delay until the time of collection that may be requested by the plaintiff the total of the monthly rent receivable as described above, it is possible to be determined by the parties based on objective or subjective reasons or that it is impossible for you to determine where you get a situation that requires expertise is not.
On the other hand, between the parties .dec..conclusion of the contract dated 01.2008…. from the side that does not comply with the article if the contract is not complied with ….Since it has been decided that a criminal requirement of TL 000 will be requested, the value of the case ….There is no legal benefit in filing a lawsuit in order to determine the indeterminate amount of TL 000 and the criminal requirement that may be requested.
Because it is a condition of the lawsuit that the plaintiff has a legal interest in filing a determination lawsuit. On the other hand, there is no legal benefit in opening a detection case in cases where an EDA case can be filed. During the Eda case, it will be possible to determine whether the receivable has been born or not, whether it is desirable and its amount. In other words, the eda case also includes the detection request.
In a concrete dispute, the criminal condition in the contract has been decided as the victim and, undoubtedly, whether the conditions for requesting a criminal condition have been formed and the provision of a criminal condition is a matter that can be discussed in the eda case.
For the reasons described above, the plaintiff had no legal interest in filing an indefinite receivable case and a determination case, while the case should be decided on a procedural refusal in accordance with paragraph HMK 114 /…-h, the fact that a decision was made on the merits required a reversal.
…-According to the reason for the violation, the appeals of the plaintiff’s attorney and other appeals of the defendant’s attorney have not been considered necessary to be examined for now.
CONCLUSION: VIOLATION of the provision for the benefit of the defendants for the reasons described in paragraph (…) above,.it was decided by unanimous decision on 2018.
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