6.Legal Department 2015/4311 E. , 2016/2084 K.
“text of jurisprudence”
COURT : Magistrate’s Court
TYPE OF CASE : Cancellation of appeal-Eviction
The decision on the cancellation and eviction of the appeal written above, the date and number of which were issued from the local court, was appealed by the plaintiff within the time limit, but all the papers in the file were read and discussed as necessary and considered.
The case is related to the cancellation of the appeal against the enforcement proceedings initiated for the collection of the lease receivable and the request for the eviction of the lessor due to default. After the court decided to partially accept the request for cancellation of the appeal, to compensate for the denial of execution and to reject the request for eviction, the decision was appealed by the deputy plaintiff.
There is no dispute between the parties regarding the one-year lease agreement with a monthly fee of TL 1000 with a start date of 22.05.2011. There is no dispute about the Decency of the lease agreement between the parties for a one-year period of TL 1000 per month. In the contract it is agreed that the monthly rent will be paid Dec one to five of each month. In the enforcement proceedings initiated by the plaintiff on 13.03.2013; Monthly lease receivable balance 1.100 TL 30,99 TL 2012 September 2012 October, November, December 2013 and January, February and March 6.600 TL TL total principal receivables and lease receivables interest receivable 396,08 the months of committed 6.996,08 TL loans, debt collection and were asked to evacuation. An example 13 pay order containing the legal pay period and a warning for eviction was notified to the defendant on 27.03.2013. The defendant informed the debtor that he accepted the debt except for interest and proxy fees with his petition dated 01.04.2013 and that he would pay the rent debts during the period. With the bank pay statement dated 07.08.2013 and the collection receipt of the execution file dated the same date contained in the execution file, it was understood that the defendant borrower paid a total of TL 7,245.25.
In the case filed by the deputy plaintiff on 12.06.2013, the defendant stated that the debtor had not paid within 30 days from the date of the notification of the sample 13 pay order and requested that the defendant be evicted from the leased one due to default and the defendant’s enforcement action be decided on the cancellation of the appeal and the enforcement denial compensation. If the rent is paid within 30 days of the defendant is that, enforcement proceedings prior to the delivery of loans agreed by the parties incurred due to exorbitant rent to be deducted from the amount of interest that is of interest to the rejection of the right of appeal to the case defended his decision by stating that. As a result of the trial conducted by the court, it was stated that there is no case for cancellation of the appeal filed against the actual receivable, in which the defendant debtor objects only to interest, the amount of the receivable is paid during the term, and the requested interest will not be the basis for default on the defendant’s 365.09.-Upon the decision to cancel the appeal made by TL regarding interest and other receivables, to reject the plaintiff’s claims for executive denial compensation and eviction, the judgment was appealed by the plaintiff’s deputy.
1-) In terms of the plaintiff’s appeals against the decision on the receivable; The actual lease requested in the enforcement proceedings has been accepted by the defendant debtor and the enforcement proceedings have been finalized in terms of this part. In the lawsuit filed, the cancellation of the appeal was requested from the point of view of the pharisees of the actual receivable and HMK No. 6100.or temporary 3, which was added by Law No. 6217.according to the provisions of the article, HUMK.427 as amended by law No. 5219 of 14.7.2004.in accordance with the article and the decree of the General Assembly of the Supreme Court of Law dated 2.3.2005 and numbered 9-82 on the basis and 126 decisions, the amount of the receivable subject to appeal was less than 2.080-TL at the time of the judgment, so the decision to REJECT the appeal request was required due to the certainty of the judgment.
2-) As for the plaintiff’s appeals against the provision on eviction;
315 of the Turkish Code of Obligations.in order for the eviction to be decided due to default in accordance with the provision of article, it is necessary to clearly state that the requested rental money or ancillary expenses must be muaccel (desirable) and the rental price and ancillary expenses must be paid within the specified time, if the rental money is not paid within the time specified in the notice, the agreement will be terminated. The period to be given to the tenant is at least thirty days for residential and roofed workplace rents, at least sixty days for product rents, and at least ten days for other rental relationships. Since the rent money is one of the debts that must be taken away and paid, it must be taken to the lessor and paid by hand or sent via PTT to be paid at the residence, provided that the expense belongs to the tenant. In addition, this issue should be taken into account if a special condition has been adopted in the contract. Payments that are not made in the manner described cannot be considered legal payouts. However, if there is a paid form that has become a practice, it is valid for paying in this way.
Paying pay pay paid within a 30-day period and warning that an eviction lawsuit will be filed in the enforcement proceedings initiated by the plaintiff, the defendant was notified on 27.03.2013 and the defendant paid the requested rent money in the enforcement proceedings to the enforcement file on 07.08.2013 after the expiration of the period given by the payment order expired. It is not correct to decide on the rejection of the case on written grounds, while it is necessary to decide on the acceptance of the eviction case due to default due to the formation of default conditions in the face of non-paying the debt within the legal thirty-day pay period.
The provision must therefore be overturned.
CONCLUSION: The REJECTION of the plaintiff’s attorney’s appeals against the provision on the receivable for the reasons described in paragraph (1) above by the amount of the reasons described in paragraph (2) above, the acceptance of the plaintiff’s attorney’s appeals against the provision on the release for the reasons described in paragraph (6100 of the HMC No. 2100.or temporary 3, which was added by Law No. 6217.according to the provisions of the article, HUMK.of 428.in accordance with the article, it was unanimously decided on 16.03.2016 that this part of the provision would be OVERTURNED and that the appeal fee, which was received in advance upon request, would be returned to the appellant.
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