Unjustified Filing Of A Lawsuit For Cancellation Of The Tender, Late Delivery Of The Real Estate, Claim For Compensation
T.C.
COURT OF CASSATION
4th CIVIL CHAMBER
CASE NO: 2017/3553
DECISION NO: 1561
DATE OF DECISION: 06.03.2018
>>CANCELLATION OF THE TENDER, DECISION ON COMPENSATION FOR DAMAGES ARISING FROM THE LATE DELIVERY OF THE PROPERTY DUE TO THE CANCELLATION OF THE UNLAWFULLY OPENED TENDER.
Following the petition filed by the plaintiff … Tic.Ltd.Şti. representative Attorney … against the defendant … on 20/09/2011, seeking compensation for the late delivery of the real estate as a result of the lawsuit for the termination of the unjustly opened tender, the Court ruled to dismiss the case on 12/06/ 2012, was requested by the plaintiff’s representative within the prescribed time limit for examination by the Court of Cassation with a hearing. Upon notification of the previously determined hearing date of 06/03/2018, the appellant plaintiff company representative Selime M… and her representative Attorney … appeared, while no one appeared on behalf of the defendant. The open hearing commenced. After deciding to accept the appeal petition, which was found to be timely, and hearing the oral statements of those present, the parties were informed that the hearing was closed. The case file was reviewed. The report prepared by the examining judge and the documents in the file were examined, and the necessary deliberations were made.
The case concerns a claim for compensation arising from the late delivery of real estate due to the termination of an unfairly initiated tender.
The court decided to dismiss the case; the decision was appealed by the plaintiff’s attorney.
The plaintiff’s attorney… stated that the plaintiff purchased the immovable property put up for sale in the Enforcement Directorate’s follow-up file numbered 2008/330 by offering the highest bid at the auction, and that the defendant then acted in bad faith by filing a lawsuit for the cancellation of the auction… The plaintiff’s attorney stated that the Enforcement Court, in its case file numbered 2009/1056, dismissed the complaint and ordered the defendant to pay a fine equal to 10% of the auction price, which also demonstrated the defendant’s bad faith, and requested compensation from the defendant for the damage caused by the late delivery of the immovable property.
The defendant’s representative argued that he had filed a lawsuit to cancel the tender because he had participated in it, that the plaintiff’s claim was unjust, that he had exercised his legal right by filing a lawsuit due to the deficiencies he had observed in the tender process, that his lawsuit had been dismissed and he had also been sentenced to pay a fine of 10% of the tender price, and that the unjustly filed lawsuit should be dismissed.
The court ruled that the penalty to be imposed on the party found to be unjust in the defendant’s lawsuit for cancellation of the tender was specified in the laws, and that the defendant, whose lawsuit for cancellation of the tender was dismissed, was ordered to pay a fine, and therefore dismissed the lawsuit.
The Constitution defines the Freedom to Seek Justice, which includes the rights to seek justice, report, complain, and file lawsuits before the courts. There is no doubt that all these rights and freedoms are not unlimited. In other words, in order to achieve peace and harmony in society and establish a fair balance, these constitutional rights must be narrowed or broadened in relation to the rights and interests of others, given the nature of these constitutional rights. When rights and interests clash, i.e., when legal interests (benefits) conflict, the line between the conflicting interests must be drawn with great care by the judge in accordance with the main rule in Article 1 of the Civil Code. When determining this boundary between conflicting interests by creating law in accordance with the aforementioned article of the Civil Code, the judge must also make use of the criteria accepted and generalized in doctrine and practice in order to reach a just conclusion. There is no doubt that dignity, honor, and the freedom to seek justice, as legally protected entities, are abstract concepts and none is superior to the other. The existence of a superior right or interest protected by law is never sufficient on its own; it is also necessary that this right or interest has not been abused. Article 36 of our Constitution stipulates that everyone has the right to a fair trial before the courts as a plaintiff or defendant, using legitimate means and methods. Although the right to file a lawsuit is a constitutional right, it must be exercised within the limits of that right.
In the case in question, the reason for the plaintiff’s late delivery of the immovable property acquired through tender and the resulting damage is the defendant’s action for annulment of the tender, which exceeded the limits of the legal right to file a lawsuit. The plaintiff received the immovable property late due to the action for annulment of the tender. There is also an appropriate causal link between the damage incurred and the defendant’s action. The scope of the damage incurred by the plaintiff due to the late delivery of the immovable property should have been determined, and a decision should have been made accordingly. However, the decision to dismiss the case due to insufficient examination and erroneous assessment was incorrect and necessitated the reversal of the decision.
CONCLUSION: The appealed decision is REVERSED in favor of the plaintiff for the reasons explained above, and the court-appointed attorney’s fees of TL 1,630.00 in favor of the plaintiff company are to be borne by the defendant, in advance.
T.C.
COURT OF CASSATION
4th CIVIL CHAMBER
CASE NO: 2016/2269
DECISION NO: 2016/4601
DATE OF DECISION: 6.4.2016
6098/m.51,52
CASE: Upon the plaintiff’s attorney filing a petition on October 30, 2013, seeking material damages against the defendant, the court, after deliberation, The decision dated November 6, 2014, partially accepting the case was requested to be reviewed by the Court of Cassation within the time limit by the defendant’s representative … After the appeal petition was accepted, the report prepared by the examining judge and the documents in the file were reviewed, and the necessary deliberations were made:
DECISION
1- ) Based on the documents in the file, the evidence on which the decision is based, the compelling reasons required by law, and in particular the absence of any inaccuracy in the evaluation of the evidence, the defendant’s appeals outside the scope of the following paragraph should be rejected.
2- ) Regarding the defendant’s other appeals:
a- ) The case concerns a claim for compensation for material damage suffered due to an unlawful act. The court decided to partially accept the case; the defendant appealed the ruling.
The plaintiff stated that he purchased the truck with license plate number … in the tender held on February 11, 2009, with file number 2008/2029, that the defendant administration filed a lawsuit for the cancellation of the tender, that the decision to dismiss the case was confirmed on March 17, 2011, and became final, and that he received the truck he purchased 805 days late due to the defendant’s unjust and malicious lawsuit to cancel the tender, and therefore suffered damages, requesting compensation for the damages he suffered.
The court ruled to partially accept the claim, deducting the amount specified in the expert report and supplementary report, on the grounds that if the defendant had not filed the lawsuit to cancel the tender, the plaintiff would have received the truck purchased through the tender without delay and would not have incurred the expenses subject to compensation.
According to the information and documents in the file, the truck with license plate number … … was seized on May 17, 2007, by the defendant administration officials for its use in forest crimes. After a non-transferable note was placed on the traffic record in accordance with Article 84 of Law No. 6831, the truck was returned to the owner, an official of the non-party company, on the condition that it would be returned in the same condition if it was confiscated. and non-transferable note was placed on the vehicle’s registration record. It was then returned to the authorized representative of the non-party company on the condition that it would be returned in the same condition if confiscated. It is understood that the truck was sold in an enforcement proceeding due to the non-party company’s debt, and the plaintiff, who was the lien creditor, purchased the truck at the auction held on February 11, 2009, to offset the debt. The defendant administration’s auction for the enforcement of the decision in the ongoing criminal case concerning the truck and the confiscation decision was dismissed. Due to this lawsuit filed by the defendant, the plaintiff was able to take delivery of the truck purchased at auction on May 5, 2011, instead of February 20, 2009. The defendant’s lawsuit to cancel the tender caused the plaintiff to suffer a loss of earnings because he could not operate the truck during this period.
Although the court ruled on the loss of earnings calculated by the expert witness to be … TL, the loss of earnings calculated in accordance with the motor transporters’ cooperative letter was ruled on without considering that the purchased … brand truck was a 1997 model and could not be found work and operated throughout the year. On the other hand, since the plaintiff, the tender winner, entered the tender knowing that the defendant administration had placed a restriction on the truck’s traffic registration preventing its sale or transfer, part of the damage should be borne by the claimant. Considering the points explained by the court, it was necessary to rule on the loss of earnings with an appropriate equitable reduction in accordance with Articles 51 and 52 of Turkish Code of Obligations No. 6098. Failure to consider the points explained is contrary to procedure and law and requires reversal.
b- ) A person who purchases movable property at auction acquires ownership of it at the time of the auction. With the transfer of ownership, the benefits and damages of that property also pass to the purchaser. Since the plaintiff, who purchased the truck at auction, is liable to pay the motor vehicle tax on the truck, and since he is also liable for late payment interest if he fails to pay this tax on time, holding the defendant liable for interest without considering this is contrary to procedure and law, and therefore the decision must be reversed for this reason as well.
c- ) The auction notice for the truck in question stated that the vehicle had a cracked windshield, old paint, scratches on the damper sheet metal body and the truck itself, old spare tires, and no tape deck. Considering the condition of the vehicle and the fact that it is an old model, it is clear that it needed to be repaired. Indeed, the plaintiff had the truck repaired after taking delivery. Instead of rejecting the plaintiff’s claim for repair costs, the decision to hold the defendant liable for the repair costs was incorrect and required reversal.
d) It was deemed incorrect to hold the defendant liable for the entire storage fee without considering that the defendant’s lawsuit for the cancellation of the tender caused the truck to remain in storage from February 20, 2009, to May 5, 2011, and that the defendant was liable for the storage fee paid for this period. Therefore, the decision must also be overturned on this ground.
CONCLUSION: The appealed decision is REVERSED in favor of the defendant for the reasons stated in paragraphs (2/a-b-c-d) above. The defendant’s other appeals are rejected for the reason stated in the first paragraph. The decision was made unanimously on April 6, 2016.