T.C
SUPREME
- law office
MAINLY NO:2017/3553
DECISION NO:1561
DATE OF DECISION:06.03.2018
TERMINATION OF THE TENDER, DECISION ON THE ARRANGEMENT OF DAMAGE CAUSED BY THE LATE DELIVERY OF REAL ESTATE DUE TO THE WRONGFUL DECOMMISSIONING OF THE TENDER CASE.
The plaintiff… Tic.Ltd.Şti. her attorney by the defendant with the petition against unfair termination case 20/09/2011 for the day of the auction of the estate of late delivery due to compensation as a result of the trial made available upon request; provided for the rejection of the case by the court 12/06/2012-time decision at the Supreme Court in a hearing within the time requested by the plaintiff’s attorney to be examined, although it pre-determined for the plaintiff on notice that appeals hearing with Attorney … Selime M 06/03/2018 company officials came from the opposite side came on behalf of the defendant. An open hearing has been opened. After the acceptance of the appeal petition, which is understood to be in due course, was decided and the oral statement of the person present was listened to, the party was informed that the hearing was over. The case has been discussed. The report prepared by the audit judge and the papers in the file were examined and discussed as necessary.
The case concerns a claim for compensation arising from the late delivery of real estate due to an unfair tender termination case.
The court decided to dismiss the case; the decision was appealed by the deputy plaintiff.
The plaintiff’s attorney, Enforcement Directorate, based on the highest numbered with the following file 2008/330 for sale real estate auctions on the grounds of the plaintiff’s Pey after purchase, open the case of the termination of the tender by the defendant acting in bad faith, the main executive file the complaint in the court of law 2009/1056 numbered with the denial of the tender price by 10% of the penalty at a rate of collection of money from the defendant decide on, it also demonstrated the defendant’s bad faith, noting that compensation from the defendant for the loss arising from the late delivery of the immovable was found to prompt.
The defendant’s attorney; participate in the auction due to open the case of the termination of the tender, the plaintiff’s claim is unjustified; due to deficiencies in the procurement process by using the legal right to open the case, and rejected the case on top of the tender price of 10% have been sentenced to fines, noting that the right argued that it must dismiss the popup.
The court decided to dismiss the case on the grounds that the sanctions that will be applied to the wrongful party in the case of termination of the tender filed by the defendant are specified in the law, as a matter of fact, it was decided to collect a fine from the defendant whose case for termination of the tender he filed was rejected.
There are rights defined in the Constitution as Freedom to Seek Rights and including the freedom to seek rights, decriminalize and decriminalize complaints and lawsuits before judicial authorities. There is no doubt that all these rights and freedoms mentioned are never unlimited. In other words, society, peace and the realization of a fair balance to be established if it is not constitutional rights, according to its features and its relationship with the rights and interests of others as shrinking and must be expanded. Decoupling of rights and interests, that is, the boundary between conflicting interests in the event of a conflict of legal interests (benefits), MK.No. 1. according to the main rule in its article, it must be drawn with great care by the judge. When determining this boundary between conflicting interests by creating a law in accordance with the aforementioned article of the DEC, the judge must also use the criteria adopted and generalized in teaching and practice to reach a conclusion that is consistent with Justice. There is no doubt that decency, honor and freedom to seek rights as legally protected assets are considered abstract concepts, so one does not have superiority over the other. The existence of a superior right and interest protected by law is also never sufficient by itself; it must also be that this right and interest have not been abused. Everyone in our Constitution in Article 36 of the courts through lawful means and procedures in front of the prosecution and defense as plaintiff or defendant and the right to sue a constitutional right to a fair trial, he is entitled edited within the limit of this right must be used.
In the event that is the subject of the lawsuit; The reason for the late delivery of the property received by the plaintiff through the tender and the damage caused by this reason is the termination of the tender that the defendant has filed and the limits of the right to file a legal claim have been exceeded. Due to the termination of the tender, the plaintiff received the real estate late. There is also an appropriate link of decency between the damage caused and the defendant’s action, and while the scope of the plaintiff’s damage caused by late delivery of his real estate should be determined and decided according to the result, it was not correct to decide to dismiss the case with incomplete examination and erroneous assessment, and this required a reversal of the decision.
CONCLUSION: It was unanimously decided on 06/03/2018 that the appealed decision should be OVERTURNED for the benefit of the plaintiff for the reasons described above and that the trial attorney’s fee of TL 1,630.00, which was assessed for the benefit of the plaintiff company, should be charged to the defendant and that the fee received in advance should be refunded upon request.
