T.R. YARGITAY 20th Law Office Principle: 2019/ 3523 Decision: 2019 / 6673 Decision Date: 18.11.2019
SUMMARY: The condition of litigation is one of the exceptions to the prohibition of reversing and should be observed ex officio by the court at every stage of the proceedings. It is not correct that the payments made before the lawsuit after the follow-up are not clarified and not taken into account. Likewise, if the defendant debtor’s payments are made after the lawsuit is filed, it is also wrong to make a written judgment without considering that these payments will be taken into account in the execution. The balance receivable, the principal receivable and its accessories must be determined and a judgment must be established by clearly writing the principal receivables and accrued interest amounts accepted by the court accordingly in the clause. In the reversal decision of the court and without paying attention to the above-mentioned issues, it was not considered correct to establish a verdict, and according to the acceptance, although it was decided to accept the case partially in the judgment paragraph, the fact that the attorney’s fee was not appreciated in favor of the defendant necessitated reversing. For the reasons explained above; With the acceptance of the appeal objections of the plaintiff and the defendant’s attorneys, it was decided that the judgment be OVERFINED.
(634 S. K. Art. 20)
At the end of the hearing of the case between the parties, the Court of Cassation requested that the verdict be examined by the plaintiff and the defendant’s attorneys.
DECISION
In the petition, the defendant
floor> thermal insulation etc. on the site he owns. repair
An extraordinary meeting was called with the announcement dated 14.01.2015 for the construction of the workplace, it was announced by hand and by announcement according to the signature list, in the meeting dated 01.02.2015, the thermal insulation and other works were accepted by the votes of 99 people, and the works to be done were announced with the contractor company 02.04. With the contract dated 2015, the works were made 945.000.-TL including VAT and “the repair fee to be paid for each independent section by dividing into 177 independent sections on the site was calculated as 5.338.98.-TL, and some parts including the defendant.
floor
As the owners did not pay the repair fee in advance or by using credit, enforcement proceedings were filed against the defendant. 5. The follow-up is made from the file numbered 2015/14699 E. of the Enforcement Directorate, the objection is made, the objection has no legal basis, the defendant’s actual interest of 5,338.00-TL and 329.18.-TL accrued interest, which is the subject of the proceedings, is 5% per month from the date of follow-up. It was stated that the objection should be paid with interest and the objection was canceled and 20% execution denial indemnity was requested.
The court decided to accept the case partially, upon the appeal of the defendant’s attorney, with the decision of the 20th Civil Chamber of the Court of Cassation dated 31.10.2018 and numbered 2017/2284 E. – 2018/6954 K. “…The Court; Although it was decided to accept the case partially; the judgment established is based on the expert report, but the expert report is not suitable for making a judgment.
According to the second paragraph of Article 20 of the Condominium Ownership Law, the starting date of the delay compensation, which the owner of the independent section, who does not pay his share of the common expense, is obliged to pay for the days of delay in payment, must be clearly determined. The arrangement forming the basis of the common expense subject to the lawsuit; if it is an operating project, the date on which the operating project is notified to the defendant,
floor
owners
the decision of the board is the defendant to this board.
the date of the decision, if the decision was taken,
If he did not participate, the date on which this decision was notified to him or he learned about his debt in another way, or if this is not the case, the date on which the payment order was served due to the enforcement proceedings brought against him should be taken as basis. In that case; First of all, the debts taken regarding the periods in which the dues debt arises.
floor
owners
The documents (meeting minutes, list of attendees, agenda, etc.) of the decisions of the board of directors (meeting minutes, list of attendees, agenda, etc.) are sent to the file, and it can be determined whether these decisions have been canceled and notified to the defendant, delay compensation can be applied as of the notification date, and the default date cannot be determined from the follow-up date without any hesitation. It is not considered correct to run delay compensation beforehand. All the evidences of the parties, bank records, payment documents, collection receipts are summoned, and it is determined whether the defendant has an amount to be paid, and in line with the expert financial advisor expert report to be obtained,
While the decision should be made according to the result that will occur after the provisions of the Condominium Ownership Law are evaluated together, it is not considered correct to make a decision with an incomplete and insufficient examination that is not suitable for inspection.” said to be corrupted.
With the partial acceptance of the case as a result of the trial made in compliance with the reversal by the court, …… 5. Annulment of the objection of the defendant against a total of 4,505,56 TL, of which 4,438,56 TL in the file numbered 2015/14699 of the Enforcement Directorate, is taken into account by the execution office, It has been decided that there is no need to reject the request for the surplus, and to decide on the execution denial indemnity since the receivable is the subject of contention.
appealed by the plaintiff and defendant’s attorneys.
The case is related to the request for annulment of the objection to the enforcement proceedings initiated against the common expense receivable.
Examining the information and documents in the file; It is understood that the plaintiff management initiated the enforcement proceedings against the defendant due to the common expense ….. 5. The Enforcement Directorate started enforcement proceedings over the principal receivable of 5,338.00 TL in the file numbered 2015/4699, and the defendant made some payments after the enforcement proceedings and the date of the lawsuit. In the expert reports received during the trial made by the court, a calculation was made by stating that the defendant’s side also included the payments made after the follow-up and before the trial. In this case, if there are payments made before the lawsuit, after the follow-up, these payments should be deducted and the lawsuit should be filed. With regard to these payments, the plaintiff’s case
There is no legal benefit in opening it. Legal benefit is one of the conditions of the lawsuit. The condition of litigation is one of the exceptions to the prohibition of reversing and must be observed ex officio by the court at every stage of the proceedings. It is not correct that the payments made before the lawsuit after the follow-up are not clarified and not taken into account. Likewise, if the defendant debtor’s payments are made after the lawsuit is filed, it is also wrong to make a written judgment without considering that these payments will be taken into account in the execution. The balance receivable, the principal receivable and its accessories must be determined and a judgment must be established by clearly writing the principal receivables and accrued interest amounts accepted by the court accordingly in the clause. In the reversal decision of the court and without paying attention to the above-mentioned issues, it was not considered correct to establish a verdict, and according to the acceptance, although it was decided to accept the case partially in the judgment paragraph, the fact that the attorney’s fee was not appreciated in favor of the defendant necessitated reversing.
Conclusion: For the reasons explained above; It was unanimously decided on 18/11/2019 that the appeals of the plaintiff and defendant’s attorneys be accepted and the judgment be OVERFINED, and the return of the appeal fee upon request. (¤¤)</b
