T.C.
JUDGMENT
GENERAL ASSEMBLY OF LAW
E. 2005/6-732
K. 2005/740
T. 21.12.2005
– TERMINATION OF THE LEASE AGREEMENT DUE TO DEFAULT (IN VIEW OF THE FACT THAT THE PAYMENT WAS MADE AFTER THE EXPIRY OF THE LEGAL PERIOD, THE EVICTION REQUEST MUST BE ACCEPTED SINCE THE DEFAULT HAS OCCURRED)
– EVACUATION REQUEST (IN THE FACE OF THE FACT THAT THE PAYMENT WAS MADE AFTER THE LEGAL PERIOD HAS ELAPSED, IT SHOULD BE ACCEPTED SINCE THE DEFAULT HAS OCCURRED)
– MAKING A PARTIAL PAYMENT COMMITMENT (THE DEFENDANT MADE A PARTIAL PAYMENT COMMITMENT BY OBJECTING TO THE AMOUNT OF DEBT – SINCE THE PAYMENT WAS MADE AFTER THE LEGAL PERIOD HAD PASSED, THE EVICTION REQUEST SHOULD BE ACCEPTED SINCE THE DEFAULT OCCURRED) 818/M.260
SUMMARY : The lawsuit is related to the request for termination of the lease agreement and evacuation of the leased property due to default.
In the defendant’s objection petition in the follow-up file, it is imperative to accept that the default has occurred in the face of the fact that the defendant has made the payment after the legal period has passed, although he has clearly accepted the lease relationship and objected to the amount of the debt by objecting to the amount of the debt; In the case at hand, since there is no request for the removal of the objection in the petition, it has been deemed appropriate to accept the case.
LAWSUIT : At the end of the trial held due to the “eviction” case between the parties; Upon the request of the defendant to examine the decision dated 08.09.2004 and numbered 2004/378-748 given by Gaziosmanpaşa Enforcement Court regarding the acceptance of the case, the 6th Civil Chamber of the Court of Cassation issued a decision dated 14.03.2005 and numbered 2005/255-2192;
( … The case is related to the removal of the objection to the enforcement proceedings due to the rent debt and the eviction of the leased property. The court ruled for eviction and the judgement was appealed by the defendant.
The plaintiff stated that the defendant was a tenant of 50 million TL per month in 2001, 75 million TL per month in 2002, 100 million TL per month in 2003, 150 million TL per month in 2004, and that the defendant filed an enforcement proceeding for a total rent debt of 6.340.125.000.TL between 2001/4 and 2004/3. months, and that although the defendant stated in his objection that the monthly rent was 40 million TL, he did not pay 1.480.000.000.TL, which he agreed to pay from this amount, and requested the removal of the objection and the eviction of the defendant. The defendant defended the rejection of the lawsuit by stating that he was not a tenant here.
There is no written lease agreement between the parties. The defendant objected to the verbal contract which is the basis of the proceeding. In this case, the settlement of the dispute requires judgement. Since it is not correct to make a decision in writing while the court should decide to dismiss the claim on the grounds that the resolution of the dispute requires a trial, the decision should be reversed… ),
The case was reversed and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
After it was understood that the decision of the General Assembly of Civil Chambers was appealed in due time and the papers in the file were read, the necessity was discussed:
DECISION : The lawsuit is related to the request for termination of the lease agreement and evacuation of the leased property due to default.
The plaintiff Saadettin Kılıç’s attorney stated that the defendant was a tenant in the immovable belonging to the plaintiff, that an enforcement proceeding was filed against him for the collection of unpaid rent, that the defendant objected to the monthly rent of 40.000.000 TL, the amount of rent, debt and interest, and that he stated that he would deposit a total of 1.480.000.000 TL over the monthly rent amount. Although the defendant’s objections to the amount of rent are not correct, the monthly rent of 40.000.000 TL. is accepted by the plaintiff in order not to prolong the case and to ensure evacuation, however, the defendant has defaulted by not paying even the amount he undertook to pay within the legal period, and requested a decision for the evacuation of the leased property by terminating the contract.
The defendant Ramazan Barmanbay did not submit a reply petition; later on, in his petition dated 08.09.2004, he defended that he purchased the property subject to the lawsuit from the plaintiff with the contract dated 06.08.2002, that the title deed was not given due to foreclosure and that he was not a tenant in the immovable and requested the dismissal of the lawsuit.
The Local Court ruled that the defendant did not deny the tenancy title and the lease relationship in the objection petition in the enforcement proceeding file, and in the case at hand, he made a defence that he purchased the immovable property with the contract dated 06.08.2002, which was not deemed effective since it was in the nature of an extension of the defence and was not consented by the plaintiff; in the enforcement proceeding made by the plaintiff against the defendant, the payment order numbered sample 51 with eviction notice was served to the defendant on 02. 04.04.2004, the amount accepted by the defendant was paid to the execution file on 06.05.2004 after the 30-day legal payment period passed, and in this case, the partial default was found to be fixed, and decided to accept the case, to terminate the lease agreement between the parties due to default, and to evacuate the leased property.
The decision, which was appealed by the defendant, was reversed by the Special Chamber with the above reasoning; the Local Court resisted its previous decision by repeating its reasoning; and the decision of resistance was appealed by the defendant’s attorney.
There is no written lease agreement between the parties. The execution proceeding was based on a verbal agreement.
The defendant admitted that he was a tenant in the immovable property in the objection petition submitted to the enforcement proceeding file, no reply petition was submitted in the case at hand, the defendant’s attorney did not attend the first session with an excuse, he submitted a petition stating that he withdrew from the representation before the second session, the defendant, who attended the third session in person, defended that he was not a tenant in the immovable property and that he lived in the immovable property based on the external sales contract between the plaintiff and himself, and the plaintiff’s attorney claimed that this statement was in the nature of expanding the defence and did not approve it.
Preliminary issue and its evaluation : During the discussion at the General Assembly of Civil Chambers, before proceeding to the merits of the case, the preliminary question of whether the file should be returned to the Local Court in order to be the basis for the evaluation to be made in terms of whether the defendant’s attorney, who appealed the judgement, will be deemed to have abandoned the appeal, was examined as a preliminary problem.
The reason for raising such a preliminary question is as follows:
The Local Court has ordered the defendant’s attorney, who appealed the decision to resist, to “…the defendant’s attorney, who appealed the judgement of our court numbered 2005/439 main-2005/563, has not deposited the appeal fee and appeal costs together with the appeal request, the appeal fee of YTL 11.20, which is the appeal fee, must be deposited within a period of 10 days as of 10.06.2005, the round-trip fee of the file to the Court of Cassation is YTL 15, the cost of serving the appeal petition to the other party and the cost of serving the Court of Cassation judgement to the parties is YTL 10.50, the cost of photocopying the execution file is 3.00 YTL. in total: 28.50 YTL. the cost of the appeal should be paid to the cashier of our Court within 7 (seven) days from the notification of the memorandum, otherwise they will be deemed to have waived the appeal…”.
The memorandum was served to the defendant’s attorney on 15.06.2005 and the appeal fee amounting to YTL 11,20 was deposited to the court cashier on 21.06.2005. However, there is no document or explanation in the file as to whether the appeal costs requested in the memorandum have been paid or not, and if so, the date of payment.
In this aspect of the file (in order to document or explain on the basis of the records whether the appeal costs have been paid or not within the period indicated in the memorandum) Regarding the preliminary question as to whether it should be returned to the Local Court or not, the following assessment has been made:
Upon the aforementioned memorandum, it is evident from the content of the receipt that the costs of appeal were paid within the legal period. It is also understood that the costs of the appeal subject to the memorandum have been paid, since the file has been sent for the examination of the Court of Cassation. Although there is no document and explanation in the file as to the date on which the said costs were paid, it has been accepted that they were paid on the same day together with the appeal fee, and therefore the legal period was not exceeded; after the preliminary problem was overcome unanimously in this way, the merits of the matter were examined.
Based on the mutual claims and defences of the parties, the minutes and evidence in the file, the compelling reasons explained in the court decision, the evaluation of the evidence, and especially the fact that the defendant clearly accepted the lease relationship in the objection petition dated 05.04.2004 in the follow-up file, but objected to the amount of the debt and made a partial payment commitment, but made the payment on 06.05.2004 after the legal period had passed. 2004 after the expiry of the statutory period, it is imperative to accept that the default has occurred; in the case at hand, according to the fact that a request for the removal of the objection was not included in the petition, the Local Court’s reason for resistance based on these facts was deemed appropriate; the fact that the date of the decision was written as 08.09.2004 instead of 10.06.2005 in the title of the decision of resistance was accepted as a material error that can be corrected at the scene.
However, since the other appellate objections of the defendant’s attorney regarding the merits have not been examined by the Special Chamber, it is necessary to send the file to the Special Chamber for examination in this respect.
CONCLUSION : It was unanimously decided on 21.12.2005 to send the file to the 6th Civil Chamber for the examination of the other appellate objections of the defendant’s counsel.