T.C.
SUPREME
3. law office
Issue No:2015/18286
Decision No:2017/4904
Date of Decision : 06.04.2017
THE DECISION OF THE SUPREME COURT
COURT OF FIRST INSTANCE: COURT OF FIRST INSTANCE
As a result of the trial of the case for material and non-pecuniary compensation between the parties, the decision to dismiss the case was appealed by the Dectiff’s deputy within the period; After the decision was made to accept the appeal petition, the papers in the file were read and considered as necessary:
Y A R G I T A Y K A R A R I
The plaintiff’s deputy, with the petition of the case; the plaintiff met the defendant who worked in Germany through a friend in Cirali, then decided to get married and got engaged; the defendant had an old house owned by the treasury in the village of Ulupınar, the parties decided to demolish this house and build a hostel; since the defendant had to return to Germany, Kumluca to be submitted to the Finance
Although there is no hostel made between them at the notary’s office, a rental agreement was concluded, the plaintiff returned to Germany to send the costs to be made for the hostel from Germany; the plaintiff started working for the hostel, borrowed the necessary materials, but Dec sending money after the defendant sent money 1-2 times, the plaintiff, who could not understand what was happening, was suddenly left with debts; as a result of the research, it was found out that the defendant had married another lady, because the place where the real estate is located is a site, a record was kept about the plaintiff during construction, so he was tried and convicted in a criminal court; in addition, a fine of 7,000 TL, which was cut by the Kemer Special Administration, had to be paid, he also had to pay a 5,000 ecrimisil fine; since 2005, the plaintiff has built 3 bungalow-type wooden houses, a staff room, 3 concrete rooms and a wooden gazebo to be used as a cafeteria in the real estate, all expenses have been made by the plaintiff
the hostel was opened and started to operate; the defendant began to bother the plaintiff to leave the hostel in 2009, after which the lease agreement to be given to the Finance was activated and eviction was requested, the client’s hostel was operated for 6 months 3. stating that he transferred it to a person, but this person also agreed with the defendant and did not leave the hostel, the hostel was taken away; his client has incurred expenses of about 100,000 TL, for now he has financial compensation of 20,000 TL and
He demanded and sued that it be decided to collect the 10.000 TL non-pecuniary compensation together with the interest that will be processed since 2005.
The defendant’s deputy, in the petition for an answer; the defendant is abroad, his place of residence in Turkey is …, the competent courts are Kemer courts, the case is decided to be dismissed from the point of view of jurisdiction; BK m. according to article 60, the case should be filed within a 1-year period; moreover, since the receivables related to the money debt are subject to a 5-year statute of limitations, the case should be dismissed;
stating that the plaintiff’s demands are not in place in the main aspect, there are unfair money demands; he asked for the case to be dismissed.
By the court; by the defendant, on 26.10.2009, “monthly rent as of 01.11.2009
in order to pay the annual rental price of TL 15,000 with a cost of TL 1250, “an notice was sent to the plaintiff, and the plaintiff’s response dated 23.11.2009 stated in the notice that ”the costs incurred for the construction of the hostel were covered by him, the costs incurred for the hostel should be paid to his side”. As can be seen from the warning in this answer, the plaintiff knows that the defendant has become rich for no reason in terms of the construction of the hostel as of 23.11.2009. Since the one-year statute of limitations has expired on 23.11.2010 from this date, it was decided to reject the plaintiff’s claims for material and non-pecuniary damages due to the statute of limitations; it was appealed by the plaintiff’s deputy within the period of judgment. According to the established case law of the Supreme Court, if the plaintiff’s possession of real estate continues as of the date of the case (if he is still sitting), the statute of limitations does not begin to apply. Because the date when the statute of limitations will begin is the date when the real estate is removed from the plaintiff’s hands. It was not found by the court that the plaintiff’s state of ownership in the real estate subject to the case was not investigated properly.
The statute of limitations for receivables based on unjustified enrichment, which is the subject of the lawsuit, is BK.nun 66.according to its article, it is one and, probably, ten years. 22.2.1991 day and 1990/1-IBK of the Supreme Court of 1991/1. as emphasized in the da; In determining the scope of the repayment debt, it is necessary to determine the time of impoverishment and enrichment first. It is impossible to mention the acquisition of the defendant for no reason and, as a natural consequence, the right to sue for its recovery before the asset is given to the one who has already become rich. In cases where the right to sue has not arisen, BK.nun 66. the application of the statute of limitations provided for in the article is unthinkable.
In this context, the case of unjustified enrichment and the moment when the repayment debt is due in terms of the statute of limitations def (BK….126) therefore, it is important to determine the moment of unjustified enrichment and it should be determined first of all who is using the place of the lawsuit. 128 of the Code of Obligations.article; ” The announcement starts from the time when the payment you will receive is due, the payment you will receive is a notification
of course, the announcement always takes place from the day this news can be given. it has the form “. Accordingly, the statute of limitations does not start until the debt is due.
If the plaintiff has been evicted from the real estate subject to the lawsuit, if he has been evicted, the statute of limitations applies on the date of eviction of the real estate (from the date when the eviction decision is finalized, if there is an eviction decision). With an examination of the issues described by the court and a erroneous assessment without conducting research
failure to correct the refusal due to the statute of limitations of the case (with a bet without warning)
this is required.
CONCLUSION: For the reasons described above, the provision was made.nun 428.in accordance with the article, the plaintiff’s benefit will be IMPAIRED and the appeal fee received in advance will be returned to the appellant upon request,
according to the provisional article 3 of the HMK No. 6100, HUMK No. 1086.nun 440.in accordance with the article, the decision
within a 15-day period from the notification, the decision correction path will be open, 06.04.2017
in its history, it was decided unanimously.
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