Republic of Turkey YARGITAY 15th Law Office Principle: 2019/2119 Decision: 2020 / 662 Decision Date: 19.02.2020
SUMMARY: Although the plaintiff-defendant of the consolidation file has declared that he was dismissed from attorneyship by the land owners during the continuation of the construction, and therefore there was a delay, it is understood that the court did not conduct an investigation on this issue. While the court should take an additional report from the experts on the effect of the construction area growth and the effect of the dismissal from the attorney’s office on the duration, it is not correct to make a decision with an incomplete examination. As it was understood by the examination that it was erroneously approved, this time it should have been reversed for these reasons, and the decision of the plaintiff-consolidated file defendant was accepted and the 23rd Civil Chamber of the Court of Cassation’s decision of approval no.
(492 S. K. Art. 42)
The plaintiff … and the defendants … His heirs 1-… 2-… 3-… 4-… 5-… 6-…, in the case numbered 2013/780 combined, the plaintiffs … Heirs 1-… 2-… 3-… 4-… 5-… 6- Due to the lawsuit between … and the defendant … … of the 23rd Civil Chamber, which approved the judgment dated 24.11.2015 and numbered 2010/134 E.-2015/561 K. given by the 3rd Civil Court of First Instance, dated 26.02.2019 and 2016/1932 E. .-2019/706 K. No., a request for correction of the decision was made by the attorney of the plaintiff-defendant of the consolidation file and it was understood that the petition for the correction of the decision was given in due time, and the papers in the file were read and considered as necessary:
DECISION
Main and combined case construction in return for flat
The title deed cancellation and registration arising from the contract are related to the claims for receivables, and the decision given by the court regarding the partial acceptance of the original lawsuit and the rejection of the combined lawsuit by the plaintiff-the plaintiff of the merged file was given by the 23rd Civil Chamber of the Court of Cassation on 26.02.2019 dated 2016/1932. Against the ratification decision numbered 706, a request for correction of the decision was made by the plaintiff-plaintiff of the conjoined file. Although the request for correction of the decision should be examined by the Court of Cassation Law Department, which conducts the appeal examination as a rule; With the division of labor decision numbered 2018/1 of the Grand General Assembly of the Supreme Court of Appeals, dated 09.02.2018, construction construction in return for land share
Since the task of examining the appeal or decision correction requests in the files, arising from the contract and after 01.07.2016, with appeal or decision correction request, is given to the 15th Civil Chamber of the Supreme Court of Appeals, the request for correction of the decision has been examined by our Department.
1-According to the articles in the file, the compelling reasons specified in the court decision and adopted in the Supreme Court decision, and especially between the parties.
In the 14th article of the contract, where there is a provision that “the parties will receive flats in proportion to the zoning situation to be given by the municipality” in the 5th article of the contract, “in case of any change in the m2 of construction that can be made in case of a zoning change…. landlord has flats
It will remain as in the contract. The number of flats falling to the contractor’s share will be increased or decreased.” there is a provision, these provisions are in the nature of conflicting provisions.
In the case of conflicting provisions in the contract, since there is no separate provision regarding which one will be given priority, the court is based on Article 5, which has priority in the ranking.
According to the share ratio in the contract, there was no misconduct in giving the title deed cancellation and registration decision, and it was natural that an additional lawsuit could be filed in relation to the 2 flats left as collateral, so it was necessary to reject the plaintiff’s other decision correction requests, which are outside the scope of the following paragraph.
2- In the plaintiff-contractor case, the construction in return for the flat arranged between the defendant and the land owner.
According to the contract, the deed of the 22 independent sections, the numbers of which were stated in the petition, be cancelled, and the title deed be registered in his name.
stated that it was not completed within the time agreed in the contract and requested a decision to collect the delay compensation from the plaintiff-defendant of the consolidation file. The court decided to partially accept the original case and to accept the combined case. arranged between the parties.
construction of the contract
It has been decided that the construction permit will be obtained within 3 months from the contract date and it will be completed within 18 months, that is, on 06.11.2009. According to the scope of the file, it is understood that the construction area was enlarged by obtaining the modification license after the construction started. For this reason, it is imperative to consider the effect of the expansion of the construction area on the duration. On the other hand, the plaintiff-defendant of the consolidation file, the contractor stated that he was dismissed from the attorneyship by the land owners during the continuation of the construction.
therefore, although he declared that there was a delay, it is understood that no examination was made by the court on this issue. While the court should decide on the effect of the construction area growth and the effect of the dismissal from the attorney’s office on the duration, it is not correct to make a decision with an incomplete examination, and it is not clear in the lawsuit petition that the number of the independent sections requested and the number of the independent section under the jurisdiction are different. Since it was understood that it was erroneously approved while it should have been reversed for these reasons, this time, it was found that the approving order of the plaintiff-the defendant of the conjoined file was accepted, and the decision of approval of the 23rd Civil Chamber of the Court of Cassation, no.
CONCLUSION: For the reasons explained in the 1st paragraph above, the other decision correction requests of the plaintiff-joining file defendant were rejected, the decision correction requests were accepted for the reasons explained in the 2nd paragraph, and the approving order of the 23rd Civil Chamber of the Court of Cassation dated 26.02.2019 and numbered 2016/1932, Article 2019/706 was annulled. the decision to be quashed, the 143.50 TL Supreme Court application fee to be charged pursuant to Article 42/2-d of the Fees Law in accordance with the amendment made with Article 11 of the Law No. 5766 from the amount paid, and the return of the appeal fee, if any, to the appellant-defendant of the consolidation file. On 19.02.2020, it was unanimously decided to return the decision correction advance fee paid to the plaintiff-defendant who requested correction of the decision upon request. (¤¤)</b
