In The Provision Clause, It Is Decided To Partially Accept The Case, But The Proxy fee is Not Appreciated In Favor Of The Defendant

23 May In The Provision Clause, It Is Decided To Partially Accept The Case, But The Proxy fee is Not Appreciated In Favor Of The Defendant

T.C SUPREME COURT 20.Legal Department Basis: 2019 / 3523 Decision: 2019 / 6673 Decision Date: 18.11.2019

Abstract: the case requirement is one of the exceptions to the Prohibition of breaking aleyhe, and must be observed by the court at every stage of the trial. It is not right that payments made before the case after follow-up should not be clarified and taken into account. It is also wrong to establish a written provision without regard to the fact that these payments will be taken into account in execution if the defendant’s debtor payments are filed in the case. Balance receivables, actual receivables and fer’iler must also be determined and the provision must be established by clearly writing down the actual receivables and processed interest amounts accepted by the court in the provision paragraph accordingly. Although the court decided to partially accept the case in the provision paragraph according to the acceptance, the failure to appreciate the power of attorney in favor of the defendant also required the violation. For the reasons described above, it was decided to overturn the provision by accepting the appeals of the plaintiff and defendant’s attorneys.

(634 P. K. m. 20)

At the end of the hearing of the case between the parties, the decision of the Supreme Court of Appeal was requested by the plaintiff and the defendant’s attorneys, and after the decision was made to accept the appeal petition, which is understood to be in duration, the file was reviewed, considered necessary:

DECISION

In the petition of the lawsuit, the defendant

thermal insulation on the site where the floor is maliki, etc. an extraordinary meeting with the announcement dated 14.01.2015 repair work to be done where the call was made, according to the list announced through notices hand and signature, at its meeting on 01.02.2015, thermal insulation and other work to be done by a vote of 99 people has been accepted, the contractor of work to be done with your business with contract dated 02.04.2015 described 945.000 including VAT.- TL made and ” the amount of repair fees to be paid for each independent section divided into 177 independent sections on the site 5.338,98.- Calculated as TL, because some floor owners, including the defendant, did not pay the repair fees in advance, as well as did not pay them using a loan, enforcement was followed up against the defendant…. 5. 2015/14699 E. Of The Executive Directorate 5.338, 00.- Original TL and 329.18.- TL must pay the processed interest with a monthly delay interest of 5%, which will be processed from the date of follow-up, and the cancellation of the appeal and 20% compensation for denial of execution were requested.

The court decided to partially accept the case, on the appeal of the defendant’s attorney, the Court of Cassation 20. Legal department dated 31.10.2018 and 2017/2284 E. – 2018/6954 K. “…although the court has decided to partially accept the case, the established provision is based on the expert report received, but the expert report is not suitable for making a decision.

20 Of The Condominium Act. according to the provision of the second paragraph of the article, the starting day of delay compensation, which the independent department owner who does not pay his share of the common expense, is obliged to pay for the days when the payment is delayed, must be clearly determined. The regulation that constitutes the basis of the common expense subject to the lawsuit; the date of notification to the defendant of the business project business project, property owners if the respondent participated in the decision of the board the board has the date of the decision, the decision not to attend the meeting of the receipt of the decision or otherwise learned of the debt which has been communicated to him the date of this order or about the date of notification of enforcement proceedings opened due to the payment should be based on. Then; first of all, documents belonging to the decisions of the board of flat owners taken in relation to the periods when the dues debt was born (meeting minutes, June schedule, agenda, etc.) by subpoena to the file, it is determined whether these decisions were canceled, whether they were notified to the defendant, and delay compensation can be applied from the date of notification, and the default date is not determined in such a way as not to pause, it is not considered correct to operate delay compensation before the follow-up date. All the evidence the parties, bank records, cash receipts, the receipts celbedile by the defendant to pay a sum to be taken precisely identify whether there is an expert financial advisor and expert, according to the report are evaluated with the provisions of Law No. 634 condominium should be decided according to the result that will occur after a while, incomplete and inadequate to control all appropriate examinations have been decided by Towards has been seen.”it is broken by saying.

As a result of the trial conducted by the court in accordance with the violation, with the partial acceptance of the case …… 5. The Executive Directorate in the file numbered 2015/14699 4.438,56 TL 4.505 principal receivables in total,56 TL appeal for the cancellation of the defendant, the defendant paid by the executive to be considered a denial of the request on the surplus, you will get to govern executive compensation because it is a subject of contention that place decided it wasn’t deny that the judgment was appealed by the plaintiff and defendant attorneys.

The case relates to the request for the cancellation of the appeal against the enforcement proceedings initiated for the joint expense.

From the examination of the information and documents in the file; the plaintiff’s management is caused by joint expenses against the defendant ….. 5. In the 2015/4699 main file of the Executive Directorate,it is understood that the defendant has initiated enforcement follow-up over the actual receivables of TL 5.338.00, and that the defendant has paid a part after the execution follow-up date and the date of the lawsuit. In the expert reports received during the trial by the court, a calculation was made by stating that the defendant also made payments after the follow-up and before the case. In this case, if there are payments made after follow-up, before the case, these payments should be deducted and the case should be opened. In terms of these payments, the plaintiff has no legal benefit in filing a lawsuit. Legal benefit is a condition of litigation. The case requirement is one of the exceptions to the Prohibition of breaking aleyhe, and must be observed by the court at every stage of the trial. It is not right that payments made before the case after follow-up should not be clarified and taken into account. It is also wrong to establish a written provision without regard to the fact that these payments will be taken into account in execution if the defendant’s debtor payments are filed in the case. Balance receivables, actual receivables and fer’iler must also be determined and the provision must be established by clearly writing down the actual receivables and processed interest amounts accepted by the court in the provision paragraph accordingly. Although the court decided to partially accept the case in the provision paragraph according to the acceptance, the failure to appreciate the power of attorney in favor of the defendant also required the violation.

Conclusion: for the reasons described above, it was decided unanimously on 18/11/2019 to overturn the provision with the acceptance of the appeals of the plaintiff and defendant’s attorneys and to return the appeal fee on request. (