General Assembly of the Law 2017/255 E. , 2019/83 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
At the end of the trial between the parties for the case of “cancellation of the appeal dec, Konya 4. The decision issued by the Court of First Instance on the rejection of the case due to the absence of adjectives dated 20.02.2014 and dated 2013/524 E., 2014/61 K. decision No. 15 of the Court of Cassation on the appeal of the plaintiff’s deputy. The Law Department has a certificate dated 03.11.2014 and dated 2014/4882 E., 2014/6247 K. by his numbered decision;
“…The case is related to the cancellation of the initial objection to the non-execution proceedings initiated by the request to collect the receivable of the work price arising from the work contract, the continuation of the proceedings and the request for compensation for the denial of execution.
The plaintiff in the case of the contractor, under the contract dated 28.062012 River had handed them do things and the wrapping of the apartment, the apartment manager and to do things out of the contract upon the requests of the residents of the contract, the balance 10.000,00 TL, due to things out of contract 9.420,00 TL a total of 19.420,00 TL creditor that is, Dunning, although small, when your receivables are paid Konya 12. Executive Directorate of enforcement proceedings with the file numbered 2013/4643 had been over, and the defendant objected to the withdrawal of appeal by claiming that wrongful and malicious as the chase continued to follow up with the decision to deny executive compensation and wanted to give the respondent by the court does not have the locus standi of the case by stating the denial passive by a procedural decision, the decision was appealed by the plaintiff’s attorney.
The adjective of the party, in other words, the decency of the dispute, refers to the relationship between the right subject to litigation and the persons. The adjective means determining whether the parties are related to this right in a material legal relationship. The title of plaintiff determines the owner of the right subject to litigation, and the title of defendant determines the obligation of the right subject to litigation. In practice, the adjective of the plaintiff is evaluated in such a way as to meet the active animosity, and the adjective of the defendant is considered to meet the passive animosity. If someone or anyone has a right to something that is being sued, that person or people should open the case, and if legal protection is being sought against that person or people, the case should be directed to that person or people. Whether a person has the title of plaintiff or defendant is determined according to material law, just as in determining whether the right exists. An important feature of the adjective party in this sense is that it can always be put forward by the parties regardless of the duration and stage of the case, because it is an appeal, not a def, and even if the parties have not put it forward, the court will take it into account if you want.
In a concrete case from the scope of the file; 20.05.2012 the river of the site, made at the General Assembly meeting of the building and paint the exterior insulation, gutters, to the change of hair and the balcony door, iron main of the doorway where it was decided to aluminium coating, this grandpa to get things done and sign the contract Baysal Yusuf Basri Bayrakci AKs and where authorized, the authorized persons of information collected on evaluating the bids and orders 06.06.2012 Build (…)’s proposal to sign a contract with this company decided appropriate by finding, it is understood that on 28.06.2012, a contract was signed between manager Basri Bayrakçı and Emir Yapı (…) on behalf of the owners of the Nehir Apartment deckhouses. It cannot be accepted that Basri Bayrakçı, who is a party to the contract, does not have a passive hostility driver’s license in accordance with the authority granted by the deckholders, as the contracts will entail rights and debts between the parties to the contract. While the existence of animosity should be accepted by the court and the merits of the case should be examined and the evidence collected and the conclusion should be decided accordingly, ignoring that there is a written contract between the parties, the rejection of the case was not correct due to the absence of adjectives, and the decision should therefore be overturned. dec. …”
at the end of the retrial, the court resisted the previous decision by overturning the grounds and turning the file back to its place.
DECISION OF THE GENERAL ASSEMBLY OF JURISPRUDENCE
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the documents in the file were read, the requirement was discussed:
The case concerns the request for cancellation of the appeal.
The plaintiff’s attorney with his client about the job the river condominium management between wrapping 60.000,00 TL 28.06.2012 worth of the convention that was signed, however, one of the owners of shares falling to the floor 10.000,00 TL paid the price, that is also out of contract due to work and my client 9.420,00 TL is the creditor, despite a pink slip that is sent to the defendant upon failure to pay the executive the tracking that is done, the chase with the withdrawal of the appeal on the grounds that it has been challenged as unfair and 20% in executive compensation and the decision to deny the defendant has prosecuted demand from the collection.
The defendant has not responded to the lawsuit.
The court decided to dismiss the case due to lack of adjectives on the grounds that both in the case file and in the enforcement follow-up file, the plaintiff creditor referred the case to the party and the apartment management who did not have the license of the case, the defendant apartment management was not a natural person, as well as a legal entity, so the case management could not be directed to the apartment management.
Upon the appeal of the plaintiff’s attorney, the decision was overturned by the Special Department on the grounds described in the title section above.
The Local Court, the plaintiff signed the agreement on behalf of the management of River apartment with the key Basri, made on behalf of the homeowners of the work agreed in the contract, where the plaintiff in this case the creditor enforcement proceedings on behalf of the management and against the demand in River apartment should initiate the withdrawal of the appeal in the case of the administrator, the administrator also as a defendant in the lawsuit on behalf of property owners in River apartment case you should speak with Joseph, A. K., While the real debtor and the defendant who do not have legal personality and apartment management, follow as shown, does not have the legal personality of the building committee, follow the way that has locus standi to claim and the case where it is not possible orienting furthermore, in the following request and petition, in a case where the defendant as to warrant reversal Basri key name is not used in “…the absence of the driver’s license of passive hostility Basri Bayrakci are unacceptablez” the statement of reasons has been given to decision-shaped understood.
The decision to resist was appealed by the deputy plaintiff.
The dispute that comes before the General Assembly of Law through resistance; In a concrete case, whether the plaintiff can ask the apartment management, which is a party to the contract, whether the apartment management has the title of defendant, is collected at the point where the apartment management has the title of defendant.
The dispute arises from the contract dated 28.06.2012 concluded between the plaintiff and the River Apartment Management, and it is useful to explain the relevant provisions of the Condominium Law No. 634 (DEC) for resolving the dispute.
32 of KMK No. 634. article 34 in which the main real estate will be managed in accordance with the decisions to be made by the floor owners board in accordance with the provisions of the contract, management plan and the law. in the article, it is stated that the deckholders can give the management of the main real estate to a person (manager) or a three-person board (board of directors) whom they will choose from themselves or from outside.
According to this article, the duties of the elected manager are determined by Article 35 of KMK No. 634. it is listed separately in article and in paragraph (a) of article “execution of decisions made by the deci-sions of floor owners” is indicated as one of the duties of the manager. 38 Of the aforementioned Law. in the article, it is also regulated that the manager is responsible for floor owners just like a proxy.
Since apartment managers do not have a legal entity, as a rule, the apartment manager or the board of directors does not have a lawsuit and party driver’s license. The manager or the apartment building management can use the right to file a lawsuit only within the powers recognized by KMK No. 634. If the manager is authorized by the floor owners’ board, it is obvious that the manager or the board of directors may be sued in disputes arising from the work that falls under the authority of floor owners’ representation. In such a situation, the manager is not like a deputy appointed by proxy. A representative is a representative who derives his/her representation authority from the special law article described above (HGK. it is dated 01.06.2011 and is dated 2011/298 E., 2011/377 K.; dated 05.04.2017 and dated 2017/1282 E., 2017/604 K., dated 27.09.2018 and dated 2017-15/423 E., 2018/1364 K.).
When it comes to concrete cases in the light of all these interpretations, the river at the Ordinary General Assembly meeting dated for the year 2012-2013 20.05.2012 of the building, the building exterior insulation and paint, made of gutters, roof, door and balcony to the change of iron, the aluminum coating of the main doorway at the same meeting where it was decided to obtain bids for the work in question, and to sign the contract to do Market Research Grandpa Baysal Yusuf Basri with AKs and are authorised to be suspended.
It is understood that these authorized persons evaluated the proposals given in the minutes dated 06.06.2012 and decided to sign a contract by considering the plaintiff’s proposal appropriate, a contract was signed between the plaintiff and Basri Bayrakci, the manager on behalf of the River Apartment deckholders, on 28.06.2012, and the case was also filed against the apartment management in accordance with the signed contract.
As mentioned above, the manager may enter into contracts that will create a debt and receivable relationship with third parties based on his authority arising from the law and the management plan. Since he is the deputy of the floor owners, such contracts have legal consequences on their behalf and on their account. The manager also has an active and passive litigation license in accordance with the contract he has signed.
On the other hand, although it was mentioned that Basri Bayrakçı did not have a passive hostility driver’s license in the decision to demolish a Private Apartment, it is clear that this issue was based on a material error, Basri Bayrakçı signed the contract on behalf of the River Apartment Management because he was the manager of the River Apartment on the date of signing the contract.
As such, according to the mutual claims and defenses of the parties, the minutes and evidence in the file, the necessary reasons explained in the decision to overturn, it is against the procedure and the law to resist the previous decision, while the decision to overturn the Special Chamber adopted by the General Assembly of Law must be complied with.
The decision to resist for the reasons described must be overturned.
CONCLUSION: For the reasons described above, the decision of the plaintiff’s attorney to resist the acceptance of appeals is temporary 3 of the Code of Civil Procedure No. 6100 for the reasons shown in the decision to disrupt the Special Chamber of the decision of the plaintiff’s attorney. 429 of the Code of Civil Procedure No. 1086, which is being implemented in accordance with its article. according to Article 440-III /1 of the same Law, if requested, the advance fee of the appeal will be returned to the depositor. in accordance with the article, the decision was finally decided unanimously on 07.02.2019, with the correction path closed.
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