Failure To Assess An Attorney Fee In Favor Of The Defendant Despite The Partial Acceptance Of The Case In The Judgment Clause
T.C Judiciary Court 20th Civil Chamber Esas: 2019/ 3523 Decision: 2019 / 6673 Date of Decision: 18.11.2019
SUMMARY: The cause of action is one of the exceptions to the prohibition of adverse reversal and should be considered by the court ex officio at every stage of the proceedings. It is not correct not to clarify and take into account the payments made after the proceedings and before the lawsuit. Likewise, if the defendant debtor’s payments are made after the lawsuit is filed, it is also erroneous to make a written judgment without considering that these payments will be taken into account in the execution. The balance receivable, the principal receivable and its accessories should also be determined and the court should make a judgment accordingly by clearly writing the accepted principal receivable and accrued interest amounts in the paragraph of judgment. It is not deemed correct for the court to make a judgment without paying attention to the issues stated in the reversal decision and the above-mentioned issues, and according to the acceptance, although it was decided to partially accept the case in the paragraph of the judgment, it required a reversal not to award an attorney fee in favor of the defendant. For the reasons explained above; it has been decided to accept the appeals of the plaintiff and defendant attorneys and to VACATE the judgment.
(634 S. K. art. 20)
The Supreme Court review of the judgment established at the end of the hearing of the lawsuit between the parties was requested by the attorneys of the plaintiff and the defendant, and after the acceptance of the petition of appeal, which was understood to be in due time, the file was examined and the necessity was considered:
DECISION
In the statement of claim, the defendant
floor> repair of thermal insulation etc. on the site where he is the owner
The call for an extraordinary meeting was made with the announcement dated 14.01.2015 for the construction of the workplace, it was announced by hand and by announcement according to the signature list, at the meeting dated 01.02.2015, the thermal insulation and other works were accepted with the votes of 99 people, with the contract dated 02.04.2015 with the contractor company where the works to be done were explained, the works were made for 945,000.-TL including VAT and “the amount of repair fee to be paid for each independent section by dividing it by 177 independent sections in the site was calculated as 5,338.98. -TL, some condominium owners, including the defendant, did not pay the repair fee in advance and did not pay the repair fee by using credit, enforcement proceedings were initiated against the defendant, the defendant was prosecuted from the file numbered 2015/14699 E. of the 5th Execution Directorate of ….. No. 2015/141499 E. of the 5th Execution Directorate of the , the objection was objected, the objection had no legal basis, it was stated that the defendant should pay 5.338,00.-TL principal and 329,18.-TL accrued interest, with 5% monthly delay interest to be processed from the date of the follow-up, and the cancellation of the objection and 20% execution denial compensation was requested.
The court decided to partially accept the lawsuit, and upon the appeal of the defendant’s attorney, with the decision of the 20th Civil Chamber of the Court of Cassation dated 31.10.2018 and numbered 2017/2284 E. – 2018/6954 K., “…Although the court decided to partially accept the lawsuit; the established judgment was based on the expert report, but the expert report is not suitable to establish a judgment.
According to the provision of the second paragraph of Article 20 of the Condominium Law, the starting day of the delay compensation, which the independent section owner who does not pay his share of the common expense, is obliged to pay for the days of delay in payment, must be clearly determined. The regulation that forms the basis of the common expense subject to the lawsuit; if it is the operation project, the date of notification of the operation project to the defendant, if it is the decision of the board of condominium owners, the date of the decision if the defendant participated in this board, the date of the meeting where the decision was taken
If he did not participate, the date on which he was notified of this decision or otherwise learned about his debt, or if this is not the case, the date on which the payment order was notified due to the enforcement proceedings filed against him should be taken as basis. In that case; first of all, the decisions of the condominium owners for the periods in which the dues debt arises
The documents pertaining to the decisions of the board (meeting minutes, list of attendees, agenda, etc.) are subpoenaed to the file, it is determined whether these decisions have been canceled, whether they have been notified to the defendant, and delay compensation can be applied from the date of notification, and it is not correct to apply delay compensation before the date of follow-up without determining the default date in a way that does not leave room for doubt.
While all the evidence of the parties, bank records, payment documents, collection receipts should be subpoenaed and it should be determined whether there is an amount that the defendant has to pay, and a decision should be made according to the result to be formed after the provisions of the Condominium Law No. 634 are evaluated together in line with the expert financial advisor expert report to be obtained, it is not deemed correct to have made a decision with an incomplete and insufficient examination that is not suitable for supervision.”
As a result of the trial conducted by the court in accordance with the reversal, it was decided to partially accept the case and to cancel the defendant’s objection to the total amount of 4.505,56 TL, including 4.438,56 TL principal receivable in the file numbered 2015/14699 of the 5th Execution Directorate of ……, to take into account the payments made by the defendant by the execution office, to reject the request regarding the surplus, and to decide that there is no place to award the execution denial compensation since the receivable is subject to dispute, and the judgment was appealed by the attorneys of the plaintiff and the defendant.
The lawsuit is related to the request for cancellation of the objection to the enforcement proceeding initiated for the common expense receivable.
From the examination of the information and documents in the file; the plaintiff management’s claim against the defendant for common expenses ….. 5. Execution Directorate’s file numbered 2015/4699 Esas, it is understood that the defendant made some payments after the date of the execution proceedings and the date of the lawsuit. In the expert reports received by the court during the trial, a calculation was made by stating that the defendant made payments after the enforcement proceeding and before the lawsuit. In this case, if there are payments made after the proceedings and before the lawsuit, the lawsuit should be filed by offsetting these payments. In terms of these payments, the plaintiff has no legal interest in filing a lawsuit.
Legal interest is one of the conditions of the lawsuit. The cause of action is one of the exceptions to the prohibition of adverse reversal and should be considered by the court ex officio at every stage of the proceedings. It is not correct not to clarify and take into consideration the payments made after the proceedings and before the lawsuit. Likewise, if the defendant debtor’s payments are made after the lawsuit is filed, it is also erroneous to make a written judgment without considering that these payments will be taken into account in the execution.
The balance receivable, the principal receivable and its accessories should also be determined and the court should make a judgment accordingly by clearly writing the accepted principal receivable and accrued interest amounts in the paragraph of judgment. It is not deemed correct for the court to make a judgment without paying attention to the reversal decision and the above-mentioned issues, and according to the acceptance, although it was decided to partially accept the case in the paragraph of the judgment, it required a reversal not to award an attorney fee in favor of the defendant.
Conclusion:
For the reasons explained above; it was unanimously decided on 18/11/2019 to accept the appeal objections of the plaintiff and defendant attorneys and to VACATE the judgment, and to refund the appeal fee upon request.
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