The COURT of CASSATION of the Republic of Turkey 15. Law Firm Principle: 2019/2119 Decision: 2020/662 Decision Date: 19.02.2020
SUMMARY: Although the plaintiff-defendant of the merger file declared that he was Decriminalized by the land owners during the continuation of the construction and that there was a delay for this reason, it is understood that the court did not conduct an examination on this issue. While the court should have received additional reports from experts on the impact of construction site growth and the impact of dismissal from the attorney on the duration, it is not correct to make a decision with an incomplete review. Oct. Since it was found to have been incorrectly approved by the review, it should have been overturned for these reasons this time, and the decision of the plaintiff-merger file defendant was accepted by the Supreme Court 23. The decision of the Law Office numbered approval has been overturned.
(492 SK Md. 42)
The plaintiff … and the defendants … Their Heirs 1-… 2-… 3-… 4-… 5-… 6-…, together in the file numbered 2013/780, the plaintiffs … Heirs 1-… 2-… 3-… 4-… 5-… 6- … due to a lawsuit filed between him and the defendant, Dec. 3. The Court of First Instance’s decision dated 26.02.2019 and dated 2016/1932 E. .-2019/706 K. numbered, dated 24.11.2015 and dated 2010/134 E.-2015/561 K. 23, which upheld the numbered decision. It has been understood that the Civil Chamber has requested a decision correction by the plaintiff-defendant attorney of the merger file, and the decision correction petition has been concluded in favor of the defendant. That the decision is made within the time limit and that the documents in the file are read and examined if deemed necessary;
decision
Construction of the main and combined Novices in exchange for flat
The decision of the court on the partial acceptance of the main case and the rejection of the combined case by the plaintiff-plaintiff of the merged file related to claims for title deed cancellation and registration arising from the contract, Court of Cassation 23. It was given by the decision of the Legal Department dated 26.02.2019 and numbered 2016/1932. a request for correction of the decision was filed by the plaintiff-plaintiff of the merged file against the approval decision No. 706. Although the request for correction of the decision, as a rule, must be examined by the Civil Department of the Supreme Court of Appeals, which conducts the examination of the appeal; With the Decrees of the Grand General Assembly of the Court of Cassation dated 09.02.2018 and numbered 2018/1 on the division of labor, construction for the land share
The task of examining the requests for appeal or decision correction arising from the contract and filed with the request for appeal or decision correction after 01.07.2016 is assigned to the Court of Cassation 15. Since it was submitted to the Legal Department, the request for correction of the decision was examined by our Department.
1-According to the articles contained in the file, the compelling reasons specified in the Decrees of the court and adopted in the decrees of the Court of Cassation, especially between the parties.
14 Of the contract. while the provision “the parties will buy apartments according to the zoning status to be given by the municipality” is included in the article 5 of the contract. in the article, “in case of any change in the m2 of the construction that can be made in the event of a zoning change…. the landlord is the owner of the apartment
It will remain as in the contract. The number of apartments falling to the contractor’s share will be increased or decreased.” if there is a provision, these provisions are contradictory provisions.
Since there is no separate provision regarding which shall be given priority in case of conflicting provisions in the contract, the court decided that 5 which has priority in the ranking. it is based on the substance.
Since there are no irregularities in the decision to cancel the title deed and register according to the share ratio in the contract, since it is natural that a lawsuit can be filed separately regarding the 2 apartments left as collateral, the plaintiff’s other decision correction requests that fall outside the scope of the following paragraph had to be rejected.
2- In the plaintiff-contractor case, the construction work for Dec Dec, which was concluded between the defendant and the land owner.
According to the agreement, it was decided to cancel the deeds of the 22 independent sections whose numbers were indicated in the petition and to register the deed on their behalf.
stating that it was not completed within the time agreed in the contract, he demanded that a decision be made on the collection of delay compensation from the plaintiff-defendant of the merger file. The court Decried the partial acceptance of the original case and the acceptance of the combined case arranged between the parties.
construction of the contract
It was decided to obtain the construction permit within 3 months from the date of the contract and to complete it within 18 months, that is, on 06.11.2009. According to the scope of the file, it is understood that the construction area was expanded by obtaining a renovation license after the construction started. For this reason, it is imperative to take into account the impact of expanding the construction area on the duration. On the other hand, the plaintiff-defendant contractor of the merger file stated that he was removed from the power of attorney by the land owners during the continuation of Deconstruction.
therefore, although he declared that there was a delay, it is understood that no examination was made by the court on this issue. It is not correct for the court to decide on the impact of construction site growth and the impact of dismissal from the lawyer on the duration, but it is not correct to decide with incomplete examination, and it is also not stated that the number of independent sections requested in the lawsuit petition and the number of independent sections around the judiciary are different. For these reasons, it was understood that the approval of the plaintiff-defendant attorney of the consolidated file was accepted this time, the Court of Cassation 23, as it was incorrectly approved when it should have been corrupted. It was understood that the approval decision of the Law Office should be approved by the decision dated 10.01.2018 and numbered 2002/10000.
RESULT:
1 above. for the reasons explained in the paragraph, to the rejection of other decision correction requests of the plaintiff-merger file defendant, 2. acceptance of decision correction requests for the reasons explained in the paragraph, Court of Cassation 23. Law Office dated 26.02.2019 and numbered 2016/1932, 2019/706 md.li cancellation of the approval decision; violation of the decision, Law No. 5766 11. pursuant to the amendment made by Article 42/2-d of the Fees Law, it was decided to reduce the Court of Cassation application fee of TL 143.50 from the amount paid and to refund the defendant-appellate fee of the consolidation file, if any. on 19.02.2020, it was unanimously decided to refund the advance fee for correcting the decision paid to the plaintiff-defendant requesting correction of the decision upon his request. (¤¤)</b