THE RIGHT TO CLAIM INTEREST CAN BE DEMANDED ANY TIME WITHIN THE TIMELINESS

General Assembly of Law

Principal Number: 2017/1704

Decision Number: 2020/534

Court: Civil Court of First Instance

“Justice Text”

1. At the end of the trial due to the “receivable” lawsuit between the parties, the decision to reject the case given by the Ankara 15th Civil Court of First Instance was overturned at the end of the examination made by the 13th Civil Chamber of the Court of Cassation upon the appeal of the plaintiff’s attorney, and the Court resisted the decision to reverse the Special Chamber.
2. The decision to resist was appealed by the plaintiff’s attorney.
   After the documents in the file were examined by the General Assembly of Law, the necessity was discussed:

I. TRIAL PROCESS
Plaintiff’s Claim:

4. Plaintiff’s attorney in his petition dated 09.04.2013; In accordance with the medical drug purchase and sale agreements signed between his client and the defendant university, dated 30.06.2011 and 20.12.2011, his client delivered the drugs by fulfilling his obligations, but in the enforcement proceedings initiated after the non-payment of the drug costs, the defendant accepted the actual portion of the claim, but the amount of interest and the right to demand are reserved. objecting to the commercial advance interest rate, claiming that he made the payments at 9% legal interest, and demanded the collection of 30.000,00 TL interest receivable from the defendant.
   Respondent Response:
5. In the reply petition dated 30.04.2013 by the defendant’s attorney; They objected to the commercial interest on the grounds that the university was not in default, and that they objected to the commercial interest, which is not more than 9%, after the enforcement date, and to the interest that was operated before the enforcement date, accepting that after the stamp tax deduction was made by objecting to the enforcement proceedings in due time, In line with the objection, the file was executed by paying the debt of the file, the plaintiff did not file an action for the annulment of the objection in terms of the contested parts, therefore, he tacitly accepted the debt as opposed, he did not reserve his rights regarding the surplus when withdrawing the money, since there is no default, the interest can only be requested from the date of follow-up, arguing that commercial interest cannot be demanded due to spending on behalf of his own benefit, and requested that the case be dismissed.
   Court order:
6. With the decision of Ankara 15th Civil Court of First Instance dated 06.03.2014 and numbered 2013/174 E., 2014/164 K.; “…The plaintiff sold drugs to the defendant, enforcement proceedings were made on 10/09/2012 to pay the price of the drug sold, the debtor objected to the amount of interest accrued and the interest rate to be charged, there was no proof that the debtor was in default before the proceedings, the creditor requested legal interest for the original claim in the follow-up request. also reserves the right to demand commercial advance interest and rate, the right of preference is used in the direction of legal interest while the follow-up is carried out, therefore, since the interest rate that can be requested during the follow-up is clear, the interest rate cannot be changed later on; For this reason, it was decided to reject the lawsuit on the grounds that the claimant’s claim of receivable regarding the accrued interest and interest rate is not in place …”.
   Special Chamber Ruling Decision:
7. Against the above-mentioned decision of the Ankara 15th Civil Court of First Instance, the plaintiff’s attorney filed an appeal within time.
8. With the decision of the 13th Civil Chamber of the Supreme Court dated 17.02.2015 and numbered 2014/23773 E., 2015/4607 K.;
   “1-According to the writings in the file, the evidence on which the decision is based and the legally compelling reasons, and especially if there is no inaccuracy in the discretion of the evidence, the plaintiff’s other appeal objections that fall outside the scope of the paragraph below should be rejected.
   2-The plaintiff claimed that he will receive interest difference arising from the fact that he reserved his right to commercial interest in the payment order in the execution proceeding and that the payments are made over legal interest, during the collection of the price that the defendant has to pay, pursuant to the contract between the defendant and the defendant. In the court’s request, the creditor requests legal interest for the original receivable and reserves the right to demand commercial advance interest and rate, the right of preference is used in the direction of legal interest while the follow-up is carried out, therefore, since the interest rate that can be requested during the proceedings is clear, the interest rate cannot be changed later, For this reason, it was decided to reject the lawsuit on the grounds that the claimant’s claim for receivables regarding the accrued interest and interest rate was not appropriate. Considering that the plaintiff is a trader due to a commercial company, and the medical drug purchase and sale business between the parties is of a commercial nature, it is obvious that the plaintiff company may request an advance interest rate interest on its receivables and that it reserves its right. In that case, while the court should decide to accept the case in line with the expert report received, it is against the procedure and the law to make a decision in writing, and it is a reason for annulment.” the decision was overturned.
   Decision to Resist:
9. With the decision of Ankara 15th Civil Court of First Instance dated 22.12.2015 and numbered 2015/353 E., 2015/559 K.; In addition to the reasons for the previous decision, “…The plaintiff sold the drug to the defendant, paying the price of the drug sold.

The execution proceedings were made on 10/09/2012, the debtor objected to the amount of interest accrued and the interest rate to be charged, the debtor was not proven to be in default before the follow-up, the creditor requested legal interest for the original claim in the follow-up request, and reserves the right to demand commercial advance interest and rate. , while the follow-up is done, the right of preference is used in the direction of legal interest, therefore, since the interest rate that can be claimed during the follow-up is clear, the interest rate cannot be changed later on; For this reason, the claimant’s claim for commercial advance interest, which is reserved until the full payment of the debt, is completed, as of 22/01/2013, in the execution proceedings where the claimant’s claim for receivables regarding the accrued interest and interest rate is not in place, and in any case, the plaintiff continues with the legal interest demand. No action is taken to exercise the right, the right to demand commercial interest in the follow-up is reserved after the debt is fully collected, it is not possible to demand the remaining commercial interest, there is no right reserved as of the date the debt subject to the follow-up is fully paid, the debt is terminated in any case, the entire receivable is collected The debt is deemed to have been fulfilled because no statement regarding the interest rate was made while the decision was made, there was no annulment regarding the refusal of the lawsuit regarding the accrued interest, this part of the decision became final, the decision to reject the lawsuit regarding the interest rate to be processed was reversed, the insistence was given for this part, the decision was made in the decision to reverse Since the approved and annulled parts of the article were not determined separately, it was understood in the scope of the whole file that it would be appropriate to write the whole sentence in the insistence decision, and the decision to resist was given on the grounds that “The decision to make a decision as follows…”.
Appeal of the Decision to Resist:

10. The decision of resistance was appealed by the plaintiff’s attorney within the time limit.

II. DISPUTE

11. Dispute brought before the General Assembly of Law through resistance; In the concrete case, the balance is collected at the point of whether it is possible to demand commercial interest, with the mention that the plaintiff’s right to demand commercial interest in terms of interest accruing to the receivables subject to enforcement proceedings is reserved.

III. REASON

12. It is useful to mention the concepts of “interest” and “commercial interest” related to the subject in terms of resolution of the dispute.
13. Although the subject matter of the lawsuit was born in the period of the Code of Obligations (UK) numbered 818, which was in force at the date of the issuance of the relevant contracts, in the 7th article of the Law No. 6101 on the Enforcement and Implementation of the Turkish Code of Obligations, the “rules of the Turkish Code of Obligations regarding public order and Article 76 on payments, Article 88 on interest, Article 120 on default interest, and Article 138 on excessive hardship are also applicable in pending lawsuits” in the Turkish Code of Obligations (TBK) No. 6098, which should be applied to the concrete case. Article 88;
    “If the annual interest rate to be applied in the interest payment debt is not agreed in the contract, it is determined according to the provisions of the legislation in force at the date of the interest debt.
    The annual interest rate to be determined by the contract cannot exceed fifty percent of the annual interest rate determined in accordance with the first paragraph.
14. Article 120 of the TCO, titled “Default Interest”;
    “…If the annual default interest rate to be applied is not determined in the contract, it is determined according to the provisions of the legislation in force at the date the interest debt arises.
    The annual default interest rate to be determined by the contract cannot exceed one hundred percent of the annual interest rate determined in accordance with the first paragraph.
    If the contractual interest rate is determined but the default interest is not determined in the contract and the annual contractual interest rate is higher than the interest rate specified in the first paragraph, the contractual interest rate will be valid for the default interest rate.
15. Interest, in terms of its legal nature, is a side act and a fringe right that expands the main claim. Therefore, the existence and continuation of the interest debt depends, first of all, on the existence and continuation of the original right to claim. If the principal right of receivable has not arisen, the interest debt will not arise. Likewise, the interest debt continues as long as the original receivable continues. Since interest is a fringe right attached to the principal receivable, if the principal receivable ends, the interest also ends (Eren, F.: Law of Obligations General Provisions, 21st Edition, Ankara 2017, p. 1001).
16. This is Article 131/1 of the TCO. in the article:
    “If the main debt is terminated for performance or any other reason, the rights and debts related to it, such as pledge, surety, interest and penalty condition, also expire.
    If the right to demand the performance of the accrued interest and penalty condition is reserved by the contract or a notice to be made until the moment of performance, or if it is understood that it is reserved from the circumstances and conditions, these interest and penalty conditions may be requested.
    Special provisions regarding immovable pledge, negotiable instruments and concordat are reserved. formatted.
17. The creditor has to reserve this right in order to be able to claim the accrued interest receivables when the original receivable expires.

ir. Indeed, TBK m. According to 131/II, these interests cannot be claimed unless it is stated that the right to claim previously accrued interests is reserved or it is understood from the nature of the situation. Likewise, TBK m. According to Article 152, when the original receivable is time-barred, the accrued interest also becomes time-barred. Likewise, if the creditor transfers the original receivable, it is deemed to have transferred the interest receivables (TBK art. 189/I-II; Eren, p. 1001).

18. Article 1 of the Law No. 3095 on Legal Interest and Default Interest, which includes special regulations on interest, titled “Legal Interest”,
    “In cases where interest has to be paid according to the Code of Obligations and the Turkish Commercial Code, if the amount is not determined by contract, this payment is made at an annual rate of twelve percent.
    The President is authorized to set this rate on a monthly basis, to reduce it up to ten percent or to increase it up to one fold.” includes regulation.
19. Article 2 of the same Law, titled “Default Interest”;
    “The debtor who is in default in the payment of an amount of money is obliged to pay default interest according to the rate determined in Article 1 for the past days, unless otherwise agreed in the contract.
    If the interest rate applied by the Central Bank of the Republic of Turkey for short-term advances on 31 December of the previous year is higher than the amount explained above, the default interest may be requested at this rate in commercial transactions, even if there is no agreement in between. If the advance interest rate is five points or more different from the advance interest rate applied on 31 December of the previous year on 30 June, this rate will be valid in the second half of the year.
    In cases where the default interest amount is not determined in the contract, if the contractual interest amount is above the amount stipulated in the above paragraphs, the default interest cannot be less than the contractual interest amount.
20. In accordance with the aforementioned regulation, even if there is no agreement between the parties, it is possible to request the default interest rate applied by the Central Bank of the Republic of Turkey for short-term advances in commercial transactions.
21. In the dispute at hand, the claimant is a merchant, and as of the effective date, Article 3 of the abrogated Turkish Commercial Code (TTK) No. 6762 states, “All transactions, acts and transactions concerning a business house or factory or any other commercially operated establishment with the matters regulated in this law. It’s commercial business.” Although it has not been determined by the legislator precisely which matters will be considered as “commercial business” according to the provisions of the article, it is possible to understand from the wording of the article that some works related to businesses that are considered commercial and matters regulated in the TCC as an exception, although they are excluded from commercial business, are considered commercial business.
22. On the other hand, Article 21/2 of the TCC numbered 6762. In the article, it is regulated that contracts that are in the nature of commercial business for only one of the parties will be considered as commercial business for the other unless there is a contrary provision in the law. Accordingly, 21/2 of the TCC. In order for the commercial default interest to be applied, the dispute must be a commercial business within the scope of Article 3 of the TCC for one of the parties and this commercial business must arise from the existing “contractual relationship-contract” between the trader and the non-merchant. In case the dispute between the two parties arises, for example, from a tortious act, Article 21/2 of the Law. (Doğanay, İ.: Commentary on the Turkish Commercial Code, Volume 1, Istanbul 2004, p. 202 et al.).
23. As a matter of fact, the General Assembly of the Law dated 27.06.2019, 2017/13-608 E., 2019/810 K.; The same principles were adopted in the decisions dated 19.09.2019 and numbered 2017/13-620 E., 2019/914 K.
24. Default interest is regulated in Article 2 of Law No. 3095, and the interest rate is determined at the same rate as the legal interest in paragraph 1, even for commercial transactions. In the second paragraph, the creditor is entitled to demand the advance interest rate. For this reason, the creditor may demand the default interest at the legal interest rate specified in the 1st article, or he has the right to demand the advance interest rate based on the authority granted to him by the 2nd paragraph.
25. In article 87 of the TCO No. 6098, under the title of “Elective Debt”, “In elective debts, the choice of one of the acts belongs to the debtor, unless the legal relationship and the nature of the business indicate otherwise.” provision is available.
26. As can be seen, in elective debts, the choice of one of the acts belongs to the debtor, unless otherwise understood from the legal relationship and the nature of the business. Regarding the interest type to be chosen, since the right to choose is granted to the creditor by the provision of law, the right to choose does not belong to the debtor, as in the general rule, as a result of the law governing this legal relationship, but belongs to the creditor.
27. The right to choose, in terms of its legal nature, is an innovative right that is used unilaterally and with the necessary declaration of will. The declaration of will has its own consequences by reaching the other party; The subject of the debt becomes clear in a single act. Thus, the act takes the form of a definite and definite act, as if it were indebted from the beginning. Election declaration has retroactive consequences. With this nature and feature, the right to choose,

It is a right that creates innovation and falls under the group of rights that create a changer innovation. As a result, the existing legal (situation) relationship with the exercise of the right to vote changes. The right to choose ends when it is used because it is a right that creates innovation. Therefore, the election declaration cannot be reversed (Eren, pp. 986-987).

28. For example, if the plaintiff, in the petition filed for a commercial receivable, only states “interest”, “legal interest” or “regular interest” (that is, if he has not explicitly requested interest “at the rate applied by the Central Bank for short-term advances”). Even if the company reserves its right to the surplus, the court decides the rediscount interest applied by the Central Bank for short-term loans. Because, with this behavior, the plaintiff is deemed to have waived the difference between the “interest rate applied for short-term advances” by the Central Bank and “the rediscount rate applied for short-term loan transactions” (Kuru, B.: Civil Procedure, Vol. II, Istanbul). 2001, p.1754).
29. When the concrete event is evaluated in the light of all these explanations; Although it is clear that the plaintiff, who is a merchant, has stated that he reserves the right to demand commercial interest, although he wants legal interest to be charged on his receivable when he puts the subject of the lawsuit regarding his commercial business into execution proceedings for the purpose of collection from the defendant university; Since the right of interest is an elective and innovative right, the right to choose is exhausted by the use of it, although the requested and the reserved one must arise from the same right in order for a right to be reserved, it should be noted that commercial and legal interest do not arise from the same right, therefore no legal consequences can be attached to the reservation of the right to commercial interest. Considering this, it cannot be mentioned that the plaintiff can now claim the remaining commercial interest.
30. As such, the decision of resistance, which dismisses the case on the grounds that the right of preference is exercised in the direction of legal interest during the proceedings, and therefore the interest rate that can be claimed during the proceedings is clear, cannot be changed later, is appropriate.
31. However; Although it was stated in the resisting decision that the right to demand commercial advance interest was reserved during the collection of the price, it was not possible to agree with this justification since the payment was made through the enforcement office and since the reservation could not be registered during the collection, the aforementioned issue was not considered effective on the merits, as the decision was in place.
    During the discussions held at the 32nd General Assembly of Law, Article 131/2 of the TCO. In accordance with the article, it is clear that the right to demand interest can be requested at any time during the statute of limitations, provided that it is reserved with a notification until the moment of performance, and in the concrete case, although legal interest is requested during execution proceedings, it is clear that the right to demand commercial interest is clearly and distinctly reserved. Considering that there are no independent rights and that both arise from the right to interest, which is the main title, this right can always be demanded within the statute of limitations, however, by going into the merits of the matter, it should be investigated whether the plaintiff has the right to demand commercial interest, and if it is concluded that he has the right to demand commercial interest, it is decided to accept the case. Although it has been argued that the decision to resist should be reversed on different grounds, this view was not adopted by the majority of the Board for the reasons explained.
32. As a result; It was necessary to decide to uphold the decision to resist, which was in accordance with the procedure and law, for various reasons and reasons explained above.

IV. CONCLUSION:
For the reasons explained;
The rejection of the objections of the plaintiff’s attorney and the decision of resistance to be APPROVED with the different reason explained above,
Since the fee is paid in advance, there is no room for it to be taken again,
In accordance with Article 440 of the Code of Civil Procedure No. 1086, which is being implemented in accordance with the provisional article 3 of the Code of Civil Procedure No. 6100, it was decided by a majority of votes on 07.07.2020 that the way of rectification is open within fifteen days from the notification of the decision.