SEÇME İÇTİHATLAR

12. 12th Civil Chamber, 2016/706 E., 2016/14964 K.

"Case Text"

COURT: Enforcement Law Court

Upon the request of the creditor for an appellate review within the time limit of the court decision, the relevant file has been sent from the local court to the chamber. After the report prepared by the Examination Magistrate ... regarding the case and after examining and reviewing all the documents in the file, the matter has been discussed and deliberated upon:

In the enforcement proceeding initiated by the creditor through seizure specific to bills of exchange against the debtor, it is understood that the debtor requested the lifting of the seizure due to the removal of the seizure placed on the receivables from the Housing Development Administration of Turkey (TOKİ) after the finalization of the execution. It is also understood that the complaint was accepted by the court on the grounds that there was no request for sending the seized money to the file within the 6-month statutory limitation period specified in Article 106 of the Execution and Bankruptcy Law (İİK), and there was no request for the preparation of a priority schedule.

The articles starting with Article 106 under the title "Conversion into Cash" in the İİK regulate the sale procedure for movable and immovable properties. Since the seizure is imposed on the receivables from TOKİ, which are third-party rights of the debtor (i.e., money), it does not involve the obligation to sell and convert the property into cash. However, according to the last paragraph of Article 106 of the İİK, the debtor's receivables from third parties are considered movable property. Since there is no request for sale in the case of seizure of money receivables, the request for sending the seized money to the execution file replaces the request for sale. Since there is no clarity in the law regarding the duration of the seizure imposed on money receivables, the maximum period of 6 months prescribed for movable properties in Article 106 of the İİK should be comparatively applied as the necessary period for requesting the money from the date of seizure.

In the present case, it is observed that a seizure notification has been issued in accordance with Article 89/1 of the İİK for the seizure of the existing and future receivables for the debt, which arose after the finalization of the execution, and that TOKİ submitted a petition to the execution file within the specified period, stating, "The debtor is our contractor. The debt being pursued through your file has been included in the ranked debt table prepared by our administration, which will be paid from the receivables related to the contract of our administration, taking into account the date of transfer of the executory and non-executory documents pursued by our administration." Therefore, it should be accepted that since there is no existing receivable from TOKİ, as of the date of service of the seizure notification prepared in accordance with Article 89/1 of the İİK, the 6-month statutory period specified in Article 106 does not start to run.

Therefore, while the complaint should have been dismissed by the court, the decision to accept it is incorrect.

RESULT: With the acceptance of the creditor's appeals, the court decision is (REVERSED) based on the reasons stated above, and the prepaid fee shall be refunded upon request. A period of 10 days from the notification of the decision is granted for the correction of the decision, and the decision was rendered unanimously on 26/05/2016.

9th Civil Chamber 2014/1482 E. , 2015/14104 K.

"Case Law Text"

COURT : ... LABOR COURT
THE CASE : The plaintiff demanded payment of severance pay, notice pay, wage and week vacation receivables.
The local court decided to partially accept the lawsuit.
The judgment was appealed by the lawyer of ..., one of the defendants within the period of time, and the file was examined after listening to the report prepared by the Examining Judge ... for the case file, and the file was examined, and the necessity was discussed and considered:

A) Summary of the Claimant's Request:
The plaintiff claimed that he worked as a ship assembly foreman for the defendant employers and that his employment contract was terminated unfairly and demanded labor receivables.
B) Summary of the Defendant's Response:
The defendant ... defended that it was not the employer of the plaintiff and that there was no overtime work and week holiday work in the workplace, and requested the dismissal of the lawsuit.
Defendant ... and others argued that the plaintiff was paid all his rights when he left the workplace and requested the dismissal of the lawsuit.
C) Summary of the Local Court Decision:
The court, based on the evidence collected and the expert report, decided to partially accept the lawsuit on the grounds that the defendants were unjustified in terminating the employment contract, that there was an unpaid wage receivable, and that the claimant was not paid for his week holiday work.
D) Appeal:
The defendant ... appealed the decision.
E) Grounds:
1- According to the writings in the file, the evidence collected and the legal grounds on which the decision is based, the appellate objections of the defendant ... other than those covered by the following paragraph are not relevant.
2-There is a dispute between the parties regarding the validity of the release agreement.
In Turkish Law, the release agreement is regulated in the Turkish Code of Obligations No. 6098, which entered into force on 01.07.2012, and Article 132 of the adopted Law stipulates that "Even if the transaction giving rise to the debt is subject to a certain form by law or by the parties, the debt can be completely or partially eliminated by the release agreement that the parties will make without being bound by the form".
The termination of the debt in the labor relationship through release is stipulated in Article 420 of the Turkish Code of Obligations No. 6098. According to the aforementioned provision, the release agreement regarding the employee's receivables from the employer must be in writing, at least one month must have elapsed since the termination of the contract as of the date of the release, the type and amount of the receivable subject to the release must be clearly stated, and the payment must be made in full compared to the amount of the right and through a bank. Release agreements or releases that do not have these elements are absolutely null and void. Release agreements that do not contain the actual amount of the payment of the right or other payment documents containing the statement of release shall be deemed as receipts limited to the amount they contain. Even in this case, the payments must be made through a bank.
Article 420 of the Turkish Code of Obligations No. 6098 states that release agreements executed within one month following the termination of the employment contract shall not be recognized as valid. In the same article, a receivable

T.C. JUDICIARY

General Assembly of Civil Chambers

Basis: 2005/3-685

Decision: 2005/738

Date of Decision: 21.12.2005

(818 S. K. art. 61, 64)

Case: At the end of the trial held due to the lawsuit between the parties; Upon the review of the decision dated 01.06.2004 and numbered 2004/110-418, which was given by Pendik 3rd Civil Court of First Instance on the rejection of the lawsuit, upon the request of the Plaintiff's attorney,

With the decision of the 3rd Civil Chamber of the Court of Cassation dated 23.12.2004 and numbered 2004/14018-14264;

(....) The plaintiff, according to the provisions of the construction contract between the defendant land owner H.K. and the out-of-court contractor A.O.Ö., purchased one of the flats falling to the share of the contractor A.O.Ö. on 21.5.1995, but since the contractor did not fulfill his performance and did not finish the building, the lawsuit filed by H.K. for the retroactive cancellation of the contract with A.O.Ö. and the cancellation of the deeds given to third parties. O. with the lawsuit filed by H.K. since the contract with A. O. was canceled with retroactive effect and the deeds given to third parties were canceled, he requested a decision to collect 1.000.000.000 liras for the purchased apartment (reserving his right regarding the excess) and 1.000.000.000.000 liras for the useful expenses he made to the apartment.

It is understood that the court decided to cancel the construction contract between the landowner and the contractor in return for the flats with retroactive effect with the decision numbered 2000/619 E- 551 K. of the Pendik 2nd Civil Court of First Instance and also to cancel the title deed registration regarding the land shares of the flats sold by the contractor to the other defendants, which was approved by the 15th Civil Chamber of the Court of Cassation. It is not possible for the contractor to claim a right that cannot be claimed by itself due to the contractor's legal failure to fulfill its performance, by its successors to whom it has transferred its personal right arising from the contract. Without prejudice to the plaintiff's right to claim against the out-of-court contractor to whom the plaintiff paid for the sale price, it has been decided to dismiss the lawsuit for both the sale price and the improvement costs.

There is no doubt that the decision to cancel the title deed of the apartment together with the expenses incurred on the place subject to the lawsuit and to register it in the name of the defendant (land owner) caused an impoverishment in the assets of the plaintiff, while the defendant was enriched in proportion to the money paid for these expenses.

Pursuant to Article 64 of the Code of Civil Procedure, whether the debtor of restitution (unjustly enriched) is deemed to be in good faith or in bad faith, he may be asked to compensate for the compulsory expenses he incurred for the property he acquired.

In the concrete case; it was decided to cancel the deeds with the retroactive termination of the construction contract in return for flats because the non-suit contractor sold apartments to third parties, including the plaintiff, after completing the building by 45%, and the building was illegal and the license was not obtained, and the building was not completed in due time. Since the plaintiff claims that he has made some improvements in the house, a decision should be made after determining what these improvements are.

It was not deemed correct to decide to dismiss the case on written grounds and incomplete examination.

In this respect, without taking into account the principles explained above, a written judgment was rendered

1st Civil Chamber 2011/2387 E. , 2011/4974 K.

"Case Law Text"

COURT : ÜSKÜDAR 4TH CIVIL COURT OF FIRST INSTANCE
DATE : 27/05/2010
NUMBER : 2009/381-2010/165

In the case between the parties;
The plaintiffs claimed that a construction contract was made in return for flats on the immovable property numbered 2 parcels inherited from their heirs, that they were given 1+1 flats by fraudulent means, while they should have been given 3+1 flats in return for their inheritance share according to the contract, and that the defendant heirs received more than their shares, and requested the cancellation of the deeds of the flats corresponding to the heirs in accordance with the contract and the registration of the flats in the name of all heirs in proportion to their inheritance shares.
Defendants M. and N. defended the rejection of the lawsuit.
The defendant Aysel did not respond.
The court decided to dismiss the lawsuit on the grounds that the allegations could not be proved.
The decision was appealed by the plaintiffs' counsel with a request for a hearing in due time; Examining Judge. report was read and his opinion was taken. The file was examined, the request for a hearing was rejected, the necessity was discussed and considered.
The lawsuit is related to the request for cancellation of title deed and deferment.
The court decided to dismiss the case on the grounds that the claim could not be proven.
From the file content and the evidence gathered, it is clear from the file content and the evidence gathered that the parties entered into a construction contract with the non-suiting contractor on the immovable property numbered 2418 block 2 parcel belonging to their heir S.Ö., who died on 05.02.2001, according to which a construction will be built consisting of 1 office and 8 independent sections and the plaintiff and Samet, the minor under his custody, will be provided with the 1st floor, basement and 3rd independent section of the building as shown in the plan and project. Basement Floor 3 independent section of the building as shown in the plan and project, but while obtaining the building license from the municipality, the office was abandoned, a new plan was made to consist of 8 independent sections, and it is understood that the 1st Basement Floor 2 apartment was dedicated to the plaintiffs in the building built while passing to the floor easement, all owners signed the documents issued in this direction, and in this way, it is understood that the 1st Basement Floor 2 independent section with a land share of 63 / 320 was registered in the registry as a share in the name of the plaintiffs
The plaintiff H.himself as principal and S.e. as guardian, filed the present lawsuit claiming that the independent section numbered 2 was given to him by mistake and fraud instead of the independent section numbered 3 on the 1st basement floor as agreed in the construction contract in return for flats during the establishment of a condominium easement in the title deed.
As it is known; it is undoubted that the party who makes a fundamental mistake by making a statement that does not correspond to his real will as a result of his carelessness or ignorance in matters such as the subject, nature and amount to be paid, cannot be considered bound by the contract. It should be noted immediately that the Law of Obligations does not define fundamental mistake, and examples are given in Article 24, which is not limiting. In order for a mistake, which is briefly defined as an unintentional inconsistency between the internal will and the expressed will, to be considered fundamental, it must constitute the main reason for the undertaking entered into, as is commonly adopted in practice and in the scientific field, in other words, both the party who is mistaken, and the party who is mistaken, and

17th Civil Chamber 2015/8409 E. , 2015/8567 K.

"Case Law Text"

COURT :Civil Court of First Instance

At the end of the trial of the compensation lawsuit between the parties; upon the appeal of the judgment on the dismissal of the lawsuit for the reasons written in the decision by the plaintiffs' attorney within the time limit, the file was examined and considered accordingly:
-K A R A R-
The plaintiffs' attorney explained that their client's support died in the accident caused by the vehicle in which the defendants were the insurer and driver of the compulsory financial liability insurer, that his clients and ... were seriously injured, that their father ... was unable to work due to the death of his wife and that he had to take care of the children's health conditions and that he was unable to work due to the death of his wife, and requested the collection of 5. 000.00 TL pecuniary, 5.000.00 TL non-pecuniary, 3.000.00 TL treatment expenses and 2.000.00 TL non-pecuniary, and 1.500.00 TL non-pecuniary compensation for ....
The defendant's attorney defended the rejection of the lawsuit by claiming that they made payments to the plaintiffs.
The attorney for the other defendant claimed that they made payments to the plaintiffs and that they were released and requested the dismissal of the lawsuit.
The court decided to dismiss the lawsuit on the grounds that the material and moral damages of the plaintiffs were compensated according to the evidence collected and the expert report adopted; the judgment was appealed by the plaintiffs' counsel.
1- In the examination of the appeal objection of the plaintiffs' counsel in terms of the plaintiff ...;
Pursuant to the provisional article 3/2 of the CCP No. 6100 in force on the date of the judgment, the limit of finality of appeal for decisions rendered after 01.01.2014 has been increased to TL 1,890.00 pursuant to article 427 of the abrogated CCP No. 1086.
. The rejected part in the case of the plaintiff ... is 1.500,00 TL and the decision subject to appeal is final since it was issued after the said date. The court may make a decision on the appeal requests of final decisions, as well as the Court of Cassation may decide to reject the appeal request in accordance with the Unification of Case Law decision dated 01.06.1990 and numbered 3/4.
For the reasons explained above, it is necessary to decide to reject the appeal petition of the plaintiffs' attorney in respect of the plaintiff ... since the judgment is final.
2-According to the information and documents in the file, and the fact that there is nothing contrary to the procedure and the law in the discussion and evaluation of the evidence relied on in the reasoning of the court decision, it is necessary to decide to reject the other appellate objections of the plaintiffs' counsel, which are not covered by the following paragraph.
3- As for the appeal request of the plaintiffs' counsel for the other plaintiffs;
The plaintiffs' counsel claimed non-pecuniary damages from the defendant ..., the driver of the vehicle, due to the death of his client's support, and the defendant's counsel claimed that the plaintiffs were paid due to the death and that his client was released.
The court decided to dismiss all of the material and non-pecuniary damages of the plaintiffs on the grounds that the defendant insurance company made payment and the other defendant paid and released the plaintiffs.
Within the scope of the file, 28.09.20.20

8th Civil Chamber 2013/18798 E. , 2014/7455 K.

"Case Law Text"

COURT : Istanbul Anatolia 15th Execution Law Court
DATED : 15/04/2013
NUMBER : 2013/409-2013/418

Upon the request of the defendant to examine the above-dated and numbered Court decision on appeal within the due date, the file related to this matter was sent to the Department from the relevant file, and after the report prepared by the Examining Judge for the case file was listened to and all documents in the file were read and examined, the matter was discussed and considered:

DECISION

In his application to the enforcement court, the debtor's attorney stated that an enforcement proceeding with judgment was initiated based on the judgment of the Istanbul Anatolian 9th Civil Court of First Instance numbered 2011/35 Main and 2013/82 Decision, and that the creditor should request the payment of the receivable by making a written application to the representative Administration in accordance with paragraph 2 of Article 28 of the Law No. 2577 amended by Article 58 of the Law No. 6352, and initiate enforcement proceedings if the payment is not made after the 30-day legal waiting period. According to paragraph 2 of Article 28 of the Law No. 2577 amended by Article 58 of the Law No. 6352, the creditor requested a decision to cancel the proceeding and the execution order by making a written application to the representative Administration, requesting the payment of the receivable and initiating enforcement proceedings in case of non-payment after the 30-day legal waiting period, stating that this legal obligation was not fulfilled; the Court decided to cancel the proceeding with the acceptance of the complaint; the decision was appealed by the creditor's attorney.
Article 28/2 of the Administrative Procedure Law No. 2577 amended by Article 58 of the Law No. 6352, which reads as follows: "...The amount awarded in cases whose subject matter requires the payment of a certain amount of money, and the attorney's fee and trial expenses awarded in all kinds of cases, shall be deposited in the bank account number that the plaintiff or his/her attorney will notify the defendant administration in writing, within the framework of the procedures and principles specified in the first paragraph from the date of this notification. If the payment is not made within the periods specified in the first paragraph, it shall be executed and enforced in accordance with the general provisions... ".
However, pursuant to Article 1 of the Law No. 2577, the resolution of disputes falling within the jurisdiction of the Council of State, Regional Administrative Courts, Administrative Courts and Tax Courts are subject to the procedures set forth in this Law, and the aforementioned amendment to Article 28/2 of the Law cannot be applied to the execution of the judgments issued by the courts of judicial jurisdiction. The judgment on which the proceeding is based is a judicial judgment issued by the judicial jurisdiction and cannot be applied within the scope of the aforementioned Law. While the court should reject the complaint, it is inappropriate to decide to accept it as written.

CONCLUSION : With the acceptance of the appeal objections of the creditor's attorney, the court decision shall be DISMISSED for the reasons written above, pursuant to Article 366 of the EBL and Article 428 of the Code of Civil Procedure No. 1086 with the reference to the Provisional Article 3 of the Code of Civil Procedure No. 6100, and the parties shall be entitled to appeal under Article 388/4 of the Code of Civil Procedure (Article 297 of the Code of Civil Procedure). /ç) and Article 366/3 of the EBL, it was unanimously decided on 17.04.2014 that a request for correction of the decision can be made within 10 days as of the notification of the Supreme Court of Appeals Chamber decision.