General Assembly of the Law 2014/740 E. , 2016/283 K.
“Text Of Jurisprudence”
COURT OF First Instance: Court of First Instance
At the end of the trial held for the “compensation” case between the parties; Istanbul 16. Dec. First Instance Law (Closed Kadikoy 3. 21.03.2012 days and 2010/498 E, which were issued by the Court of First Instance (Law of First Instance) on the acceptance of the case., 2012/176 K. upon request of the defendant’s deputy to examine the decision No. 23 of the Court of Cassation. 18.10.2012 days and 2012/3392 E of the Legal Department., 2012/6156 K. it was decided to be overturned by the numbered decision; 10.05.2013 days and 2013/6908 E of the same Department upon the request of the plaintiff’s deputy to correct the decision., 2013/3113 K. with Ref No.;
(…The Dec plaintiff requested and sued the collection of the criminal requirement that must be paid in accordance with the contract, claiming that the defendant contractor did not receive a residence permit during the period in accordance with the construction contract in exchange for the share of the land between the parties.
The defendant has asked for the case to be dismissed.
The court’s decision on the acceptance of the case was overturned by the decision of our Department dated 18.10.2012, No. 3392 and decision No. 6156 on the appeal of the defendant’s attorney.
This time, the deputy plaintiff requested a decision correction.
3 Of the part of the construction contract entitled “Commencement of construction and transfer of title deeds to independent sections” in exchange for the land share dated Dec5 Dec02.2006 between the parties. in the article, when the construction comes to the stage of obtaining a residence permit, it is Decis Dec that the landowner will give the last two independent sections belonging to the contractor, after which a request for a residence permit will be made within three months, and if the residence is not received within six months, the contractor will pay the landowners a rent of 400.00 TL every month and for each independent section. Accordingly, the plaintiff requested payment of the rent calculated by the notice dated 30.03.2009 and the date of discovery of the notice, and requested the collection of 10.000.00 TL based on the notice mentioned in the lawsuit petition and reserving its excess rights. During the trial, it was determined that the landowner made the land title transfers, but the contractor did not obtain the building use permit as of 08 Dec01.2008 according to the contract. In this case, the acceptance of the case was erroneous on written grounds, while it should be ruled out by making a rent account for the period up to 30.03.2009, which is the date of the notice sent by the plaintiff to the defendant, adhering to the request with the date of 08.01.2008.
The court decision was not overturned on other grounds by giving the wrong interpretation to the request subject to the lawsuit by our department, and for the reasons described above, the decision had to be overturned on different grounds by accepting the plaintiff’s request to correct the decision for the reasons described above…)
the grounds were overturned and the file was returned to its place, but at the end of the retrial, the court resisted the previous decision.
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 papers in the file were read, the requirement was discussed:
The case concerns a request to collect the Decedent penalty arising from the failure to fulfill the performance obligation arising from the construction construction contract in exchange for a share of the land plot within the period of time.
By the court, according to the agreement which had been concluded between the parties, the contractor permission to use the structure that should be taken by the defendant, the defendant’s case from the date of the opening of the occupancy permit to apply for has not 17.03.2011 while the case is pending on the day of the occupancy permit for the convention and where to apply the “start of construction, and the age of the independent parts of the deed” is located in the section titled, Number 3, violating Article understood, under the contract the contractor is required to pay the late fee that hit the plaintiff on the grounds that the independent Section 2 for the case of the adoption and 39.600,-receivable 26.750 TL,-TL 26.06.2009 the date of default to the date, 12.850,00 TL 07.02.2012 to date with legal interest from the date of the breeding process is taken from the defendant to the plaintiff and the decision on granting the defendant of counsel on appeal corrupt; this time, the decision of the plaintiff’s Attorney upon request the correction of the decision to the local court was quashed on the grounds that the decision of the special dairec written in the header section.
Break the Local Court, the plaintiff’s attorney 30.03.2009 default interest from the date of execution of the receivables is evaluated demand for Special dairec false, wanted to get to this date has been distorted decisions based on that assessment, however, retained the rights on the surplus was requested by a petition with the penalty, where the amount claimed in the petition default interest from the date of the court decision and the content of the file requested and are eligible to request, however, saying they were not in the place of decision made by the previous decision stand for; the decision to resist was appealed by the defendant’s deputy.
The dispute between the local court and the Private Department is being collected at the point between which the rental compensation should be Dec Decisively determined within the framework of the claimant’s request.
The two sides of the plot, full of mutual debt in return for a share of the contract for construction loads (synallagmatik) of the Contract Act, the land owner and the transfer of shares under this contract to perform designated as the plot took a while, the contractor also agreed between the parties in accordance with the regulations on zoning in a building immovable qualifications and undertake to do. Dec Dec October this type of contract is “lump sum” and while the land owners have no debts other than transferring a share of the land, in addition to other debts arising from the performance of the contract -even if there is no criminal requirement – the Turkish Code of Obligations No. 6098 (TBK) for damages arising from delay.) 124 and 125 th (818 p. in force at the time of conclusion of the contract and opening of the case. M of the Code of Obligations.It is indisputable that the contractor is responsible within the framework of articles 106/II).
19. The parties (and other non-Decedent land owners) in the concrete case are between Kadikoy and the other Decedent land owners. A construction contract was concluded between the notary Public of Turkey on 15.02.2006 Dec and the land share numbered 2773 evmiye, according to which the independent parts of the building numbered 1, 3 and 9 will belong to the plaintiff. There is no dispute between the parties regarding the construction of the building within the framework of the contract. Dec.
Article 3 of the contract entitled “Commencement of construction and transfer of independent parts of the deeds”:
“1- A construction permit has been obtained, 2. when the floor concrete slab is laid, the title deed and sale of 2 independent sections are issued.
2- After all the concretes are thrown out, the walls are covered and plastered, 2 independent section deeds are issued.
3- When the construction reaches the stage of obtaining a residence permit, 2 independent section deeds are issued. If a request for obtaining a residence permit (residence permit) is not made within 3 months of this stage; if no residence permit is received within 6 months, the contractor undertakes to pay 400 YTL of rent for the independent part for each month to the land owners,”the Dec is as follows.
As a matter of fact, the plaintiff received a notice sent to the defendant by yanca (dated 30.03.2009 and numbered 1710 of the Notary Public of Boyabat) and the construction permit stage on 20.12.2006 in accordance with Article 3 of the contract, but the last two independent parts of the title transfer was made, but a request for permission to use it by 20.03.2007, but this was not done, if the application was filed on 21.06.2007 as of the permission will have been obtained; due to the fact that the permission to use has not been obtained by this date, 400 for each month,-25,200 for three independent sections within the scope of the obligation to pay rent,-TL 1,575 for the principal receivable,-TL 26,750 for the amount of interest,-TL was requested to be paid within 30 days.
(Accumulated) 25.200,-TL for the period from Dec1.06.2007 to 30.03.2009, when the notice was discovered, in subparagraph 3 of the notice discovered by the plaintiff’s side. it was requested that the rental compensation and the interest processed in 1.575,-TL be paid within 30 days from the date of notification of the notice. Since the notice of warning was notified on 26.05.2009, the period granted to the debtor expired on 26.06.2009. As a matter of fact, the court has decided that the compensation of 26.750,-TL will be processed from this date.
However, according to the provisions of the contract between the parties, delivery is subject to the condition of obtaining a residence permit, and as of Dec date of the lawsuit, it is clear that the defendant contractor has not fulfilled this obligation. The date of delivery of the work is 08.01.2008. In this case, as of 30.03.2009, the date of the notice, the delay period is 1 year 2 months 22 days. Therefore, the amount of rent compensation corresponding to this period is the same as the amount that the defendant defaulted on the said notice.
As such, in terms of the part other than this amount, 101 of the Code of Obligations No. 818 (6098 p.TBK.m.since it has not been defaulted in accordance with Article 117), it is not possible for the defendant to be charged with late interest before the trial and reclamation dates.
The decision to resist for these various reasons described above should be overturned.
During the meeting at the General Assembly of the Law, it was stated by some members that it was appropriate to resist because the violation made by the Special Chamber at the appeal and decision correction stage was not sufficient and accurate, and the file should be sent to the Apartment to calculate the amount of compensation, but this opinion was not adopted by the majority of the Board.
S O N U Ç: It was decided by a majority vote on 09.03.2016 that the decision of the defendant’s attorney to resist the acceptance of the appeals would be OVERTURNED for various reasons shown above, and that the advance fee of the appeal would be returned to the depositor if requested.
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