Lawsuit Arising From The Contract Of Work – Failure To Observe That The Lawsuit Should Be Dismissed Due To Lack Of Legal Interest In Filing A Lawsuit
T.C. JUDICIARY
15th Civil Chamber
Main: 2015/4817
Decision: 2016/3721
Date of Decision: 28.06.2016
LAWSUIT ARISING FROM THE CONTRACT OF WORK – FAILURE TO OBSERVE THAT THE LAWSUIT SHOULD BE DISMISSED DUE TO LACK OF LEGAL INTEREST IN FILING A LAWSUIT – JUDGMENT REVERSED
SUMMARY: While it should be decided to dismiss the lawsuit against the defendants … due to the lack of hostility, and the lawsuit against the defendants … due to the lack of legal interest in filing a lawsuit, it was not correct to make a judgment for acceptance, and the decision should be reversed for the reasons explained.
(6100 S. Code Art. 114)
Case and Decision: The appeal of the judgment dated and numbered above was requested by the attorney of the defendants and it was understood that the petition for appeal was submitted within the time limit, the papers in the file were read, discussed and considered:
The lawsuit is related to the claim for the collection of the unpaid work price arising from the work contract, and the decision of the court to accept the lawsuit and to collect the receivable of 18.000,00 TL from the defendants jointly and severally has been appealed by the attorney of the defendants.
The plaintiff contractor’s attorney, in the petition of lawsuit, claimed that they agreed with the defendants for the natural gas installation of eight independent sections and the construction of the natural gas main column, that the price of the work was 23.000,00 TL, that the payments were divided into installments and bonds were issued for these payments, that the work price was not paid despite the complete and defect-free performance of the work, and that the enforcement proceedings for the collection of the receivable were objected, and requested the collection of the receivable of 18.000,00 TL with commercial interest as of 06.08.2007. The defendant … claimed that there was no contractual relationship between the plaintiff and the defendants and requested the dismissal of the lawsuit due to antagonism. Defendant …, on the other hand, argued that the execution proceedings against the plaintiff were finalized and therefore the plaintiff had no legal interest in filing the present lawsuit. The court decided to accept the lawsuit in line with the expert report.
1- In the examination made in terms of the appellate objections of the defendants …;
Pursuant to the rule of proportionality of contracts, which is one of the most fundamental principles of the law of contracts, the contract binds the parties to that contract as a rule. Therefore, in disputes arising from the contract, the parties to the lawsuit are also the parties to the contract. This situation is referred to as party status in the case law and doctrine of the Court of Cassation. Party status, in other words, the capacity to be hostile, refers to the relationship between the right subject to the lawsuit and the persons. Adjective means determining whether the parties have a relationship with that right in a substantive law relationship. The title of plaintiff refers to the owner of the right subject to the lawsuit, and the title of defendant refers to the obligor of the right subject to the lawsuit. In practice, the title of plaintiff is used to refer to active hostility, while the title of defendant is used to refer to passive hostility. Whoever or whoever is entitled to the value subject to the lawsuit, the lawsuit must be filed by such person or persons and against whom legal protection is sought. Whether a person has the title of plaintiff or defendant is determined according to substantive law, just like the determination of whether a right exists or not. The important feature of party status is that it is not a defense, but an objection, and can be asserted by the parties at any time, regardless of the duration and stage of the case, and this issue is taken into consideration by the court ex officio, even if the parties have not asserted it. These issues were clearly emphasized in the decision of our Chamber dated 12.06.2014 and numbered 2013/ Main and 2014/ Decision.
As for the concrete case; it is understood that all three separate contracts submitted to the file and dated 30.03.2007 were concluded between the plaintiff contractor company and the defendants …. It has not been proven that there is a contractual relationship between the defendant … and the plaintiff or that this defendant undertook the act of the other defendant. As such, while it should be decided to dismiss the lawsuit filed by the plaintiff against the defendant … due to the lack of passive hostility, it was not correct to decide to accept the lawsuit for this defendant by examining the merits of the case.
2- In the examination made in terms of the appellate objections of the defendants …;
From the examination of the follow-up files of the Enforcement Office numbered 2013/ Esas and 2013/ Esas, it is understood that the plaintiff has been pursued against the defendants … by way of attachment specific to bills of exchange due to the non-payment of the bonds issued and given to the plaintiff in accordance with the contracts subject to the lawsuit, these proceedings have become final, and attachment proceedings have been initiated for the collection of the finalized receivables. The plaintiff also stated in the petition that the foreclosure proceedings in these execution files were ineffective due to the defendant’s lack of property to be seized, and that he filed the lawsuit for this reason.
Pursuant to Article 114/1-h of the CCP No. 6100 in force on the date of the lawsuit, the plaintiff’s legal interest in filing a lawsuit is considered among the conditions of the lawsuit. The parties may assert the lack of the condition of action at any stage of the proceedings, and the court must ex officio consider whether the condition of action exists at every stage of the case (CCP 115/1). In the absence of a cause of action, the lawsuit must be dismissed procedurally (CCP 115/2). The plaintiff has no legal interest in filing a new lawsuit for the same receivable after a finalized enforcement proceeding. This is because the plaintiff can collect its receivable through the finalized enforcement proceedings. In the concrete case, since the plaintiff contractor has no legal interest in filing a separate lawsuit for the same receivable this time, even though two separate enforcement proceedings for the same receivable have been finalized and he can collect his receivable in these enforcement proceedings, it is not correct to rule for the acceptance of the lawsuit filed against the defendants … while it should be decided to dismiss the lawsuit due to lack of legal interest.
For the reasons explained above, it was not correct to rule for the acceptance of the lawsuit against the defendants … due to the lack of hostility, while the lawsuit against the defendants … should be dismissed due to the lack of legal interest in filing a lawsuit, and the decision should be reversed for the reasons explained.
Conclusion: For the reasons explained in paragraph 1 above, the decision should be reversed in favor of …, and for the reasons explained in paragraph 2 above, the decision should be reversed in favor of the defendant …, the prepaid appeal fee should be returned to the appellant defendants upon request, and it was unanimously decided on 28.06.2016 that a request for correction of the decision can be made within 15 days from the date of notification.
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