Due To The Difference Between The Value Of The Immovables And The Actual Value, The Plaintiff Is Unjustified And Does Not Require The Award Of Attorney’s Fees
T.C. JUDICIARY
1st Civil Chamber
Basis: 2014/200
Decision: 2014/12761
Date of Decision: 02.07.2014
DEED CANCELLATION, REGISTRATION AND COMPENSATION CASE – THE PLAINTIFF IS UNFAIR DUE TO THE DIFFERENCE BETWEEN THE VALUE OF THE IMMOVABLES AND THE ACTUAL VALUE OF THE IMMOVABLES AND DOES NOT REQUIRE THE AWARD OF ATTORNEY’S FEES – INAPPROPRIATENESS OF THE DEFICIENT ATTORNEY’S FEE IN FAVOR OF THE DEFENDANT
SUMMARY: Due to the difference between the shown value and the actual value of the immovables subject to the lawsuit, on the grounds that the plaintiff is unfair in his lawsuit and that it does not require the award of an attorney fee in favor of the defendant, it is not correct to accept the value of the lawsuit as ………….. TL, and it is not correct that the defendant M. was awarded an incomplete attorney fee in favor of the defendant M. over the remaining ………… TL by deducting the ………… TL included in the scope of acceptance.
(1136 S. K. art. 166)
Case and Decision: At the end of the deed cancellation, registration and compensation lawsuit between the parties, the decision of the local court regarding the partial acceptance of the case was appealed by the defendant M.’s attorney and the defendants K. and F.’s attorneys within the legal period, the file was examined, the report of the Examining Judge was read, the explanations were listened to, and the necessity was discussed and considered;
The lawsuit is related to the request for cancellation and registration of the deed based on the legal reason of abuse of attorney duty, and if not, compensation, and as a result of the research and examination made by the court, the lawsuit filed by the plaintiff against K. B. and against F. B. due to their claims from K. B. was dismissed due to abandonment due to the payment made during the trial and therefore, no attorney fee was awarded in favor of K. B. There is no inconsistency in the dismissal of the lawsuit filed against F. and M. for the price of 1/3 flats in respect of their claims against the defendant M., as it was not fixed, and the partial acceptance of the cancellation and registration of the deed in respect of the other flats requested from the defendant M.. All appellate objections of the defendant K. and other appellate objections of the defendant M. are not relevant and are rejected.
Since it is understood that the defendant F. has waived his appeal request, the appeal request of F. is rejected due to waiver.
However, since the plaintiff’s attorney declared a value of 1.000.000.-TL as the sum of the value of the apartments and the compensation amount requested from the defendants with the petition for clarification, and the fee was completed over this value, the total value of the independent sections numbered A Block 25, A Block 98, B Block 37 and the 53/71 share of the independent section numbered B Block 32 in the immovable property numbered 292 block 20 parcel included in the scope of acceptance is 409. 000.00.-TL and the sum of 1 apartment price and 67.500.00.-TL compensation amount demanded from the defendant K., which was rejected due to renunciation due to the payment made during the trial, was deducted from the case value of 1.000.000,00,00. -TL, which is the value of the lawsuit, should be decided in favor of the defendant M. over the value to be determined by proportioning the claims against the defendants K. and M., whereas if the value is shown higher in the lawsuit petition, the value of the lawsuit should be accepted as 494.500,00.-TL on the grounds that the plaintiff is unjustified in his lawsuit due to the difference between the value shown and the actual value of the immovables subject to the lawsuit and that it will not require the award of an attorney fee in favor of the defendant. 500.00.-TL, and it is not correct to award an incomplete attorney’s fee in favor of the defendant M. over the remaining 85.000.00.TL by deducting 409.000.-TL which is included in the scope of acceptance.
The appeal objection of the defendant M.’s attorney regarding this aspect is appropriate. It was unanimously decided on 02.07.2014 that the judgment shall be reversed in accordance with Article 428 of the Code of Civil Procedure No. 1086 (with reference to the provisional Article 3 of the Law No. 6100) for the reason explained, and the advance fee shall be returned to the appellant.
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