If The Defendant Has Not Been Duly Defaulted In The Construction Contract, Delay Interest Cannot Be Claimed
General Assembly of Civil Chambers 2014/740 E. , 2016/283 K.
“Case Law Text”
COURT :Civil Court of First Instance
At the end of the trial held due to the “compensation” lawsuit between the parties; Istanbul 16th Civil Court of First Instance (Closed Kadıköy 3rd Civil Court of First Instance), the decision dated 21.03.2012 and numbered 2010/498 E., 2012/176 K. dated 21.03.2012 and numbered 2010/498 E., 2012/176 K. Upon the request of the defendant’s attorney for examination of the decision, it was decided to be reversed by the decision of the 23rd Civil Chamber of the Court of Cassation dated 18.10.2012 and numbered 2012/3392 E., 2012/6156 K.; upon the request of the plaintiff’s attorney for correction of the decision, by the decision of the same Chamber dated 10.05.2013 and numbered 2013/6908 E., 2013/3113 K;
(…The plaintiff’s attorney claimed that the defendant contractor did not obtain the occupancy permit in due time in accordance with the construction contract between the parties in return for land share, and demanded and sued for the collection of the penalty clause to be paid in accordance with the contract.
Defendant requested the dismissal of the lawsuit.
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The court’s decision on the acceptance of the lawsuit was reversed upon the appeal of the defendant’s attorney with the decision of our Chamber dated 18.10.2012, numbered 3392 main and 6156 decision.
This time, the plaintiff’s attorney requested for correction of the decision.
In Article 3 of the section titled “commencement of construction and transfer of title deeds to independent sections” of the construction contract between the parties dated 15.02.2006, it was agreed that when the construction reaches the stage of obtaining a residence permit, the landowner will give the last two independent sections belonging to the contractor, and if the request for a residence permit is made within three months and occupancy is not obtained within six months, the contractor will pay 400.00 TL rent to the landowners every month and for each independent section. Accordingly, the plaintiff requested the payment of the rent calculated until the date the notice was issued with the notice dated 30.03.2009, and demanded the collection of 10.000.00 TL based on the notice mentioned in the petition and reserving its excess rights.
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During the trial, it was determined that the landowner transferred the title deeds, but the contractor did not obtain the occupancy permit as of 08.01.2008 according to the contract. In this case, the acceptance of the case on written grounds was erroneous, while the rent should be calculated for the period between 08.01.2008 and 30.03.2009, the date of the notice sent by the plaintiff to the defendant.
It was not appropriate for our Chamber to overturn the court decision on other grounds by giving a wrong interpretation to the request subject to the lawsuit, and for the reasons explained above, it was necessary to accept the plaintiff’s request for correction of the decision and to overturn the decision with different grounds…)
The case was reversed and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
DECISION OF THE GENERAL ASSEMBLY OF LAW
After it was understood that the decision of the General Assembly of Civil Chambers was appealed in due time and the papers in the file were read, the necessity was discussed:
The lawsuit is related to the claim for the collection of the delay penalty receivable arising from the non-performance of the performance obligation arising from the construction contract in return for land share.
The court, according to the contract concluded between the parties, the occupancy permit must be obtained by the contractor defendant, the defendant did not apply for the occupancy permit on the date the lawsuit was filed, the defendant applied for the occupancy permit on 17.03.2011 while the lawsuit was pending, and it was understood that he acted contrary to the article numbered 3 in the section titled “commencement of construction and transfer of independent sections of the title deeds” of the contract,
and the contractor should pay a delay fee for 2 independent sections corresponding to the plaintiff in accordance with the contract, and the lawsuit was accepted and 39. 600,-TL of the receivable of TL 26.750,-TL from 26.06.2009, the date of default, and TL 12.850,00 from 07.02.2012, the date of amendment, together with the legal interest to be accrued from the defendant to the plaintiff, was reversed upon the appeal of the defendant’s attorney; this time, upon the request of the plaintiff’s attorney to correct the decision, the decision of the local court was reversed by the Special Chamber for the reasons written in the title section.
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Upon the reversal, the local court decided to charge interest to the claimant’s receivables from 30.03. 2009 default date, the Special Chamber misjudged the request of the plaintiff’s attorney for the execution of interest on the receivables from the default date of 30.03.2009, and the decision was reversed by evaluating the decision as if the receivable was requested until this date, whereas the penal clause was requested by reserving the rights related to the surplus with the petition, interest was requested from the default date on the amount requested in the petition, and the court decision was in accordance with the scope of the file and the request, but the reversal decision was not appropriate; the decision to resist was appealed by the defendant’s attorney.
The dispute between the local court and the Special Chamber centres on the point between which dates the rent compensation should be awarded within the framework of the claimant’s request.
Construction contracts in return for land shares are among the contracts that impose mutual obligations on both parties, and with this contract, the land owner undertakes to realise the transfer of the determined land share as performance, while the contractor undertakes to build a building on this immovable in accordance with the qualifications and zoning legislation agreed between the parties.
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Due to its structure, this type of contract is “lump sum” and while the landowner does not have any obligations other than the transfer of the land share, it is undisputed that the contractor is liable for the damages arising from the delay in addition to other debts arising from the performance of the contract – even if no penal clause is foreseen – within the framework of Articles 124 and 125 of the Turkish Code of Obligations (TCO) No. 6098 (Article 106/II of the Code of Obligations No. 818 in force at the time the contract was concluded and the lawsuit was filed).
Article 3 of the contract titled “commencement of construction and transfer of independent sections of title deeds”
“1- When the construction licence is obtained and the 2nd floor concrete slab is poured, the title deed and sale of 2 independent sections are given.
2- After all concrete is poured, walls are built and plastered, 2 independent section title deeds are given.
3- When the construction reaches the stage of obtaining a residence permit, 2 independent section title deeds are given. When the request for obtaining a residence permit (settlement) is not made within 3 months after this stage; If settlement is not obtained within 6 months, the contractor undertakes to pay 400 YTL rent to the land owners for each independent section for each month”.
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As a matter of fact, with the notice sent by the plaintiff side to the defendant (Boyabat Notary Public dated 30.03.2009 and numbered 1710), referring to the 3rd article of the contract, the deed transfer of the last two independent sections was made on 20.12.2006 due to the construction reaching the occupancy permit stage, but the occupancy permit request should have been made until 20.03.2007, but this was not done, and if the application had been made, the permit would have been obtained as of 21. 06.06.2007, the permission would have been obtained as of 21.06.2007, and within the scope of the commitment to pay rent of 400,-TL for each month due to not obtaining the certificate of occupancy permit until this date, it was requested to pay the principal receivable of 25.200,-TL over three independent sections and 1.575,-TL interest accrued on it, totalling 26.750,-TL within 30 days.
In subparagraph 3 of the notice issued by the plaintiff, it was requested to pay 25.200,-TL rent compensation and 1.575,-TL interest for the period between 21.06.2007 and 30.03.2009 when the notice was issued, within 30 days from the date of notification of the notice. Since the notice was served on 26.05.2009, the period given to the debtor expired on 26.06.2009. As a matter of fact, the court decided to charge interest on the 26.750,-TL compensation as of this date.
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However, according to the provisions of the contract between the parties, the delivery is conditional upon obtaining the occupancy licence, and it is clear that the defendant contractor has not fulfilled this obligation as of the date of the lawsuit. The date of delivery of the work is 08.01.2008. In this case, as of 30.03.2009, the date of the notice, the delay period is 1 year, 2 months and 22 days. Therefore, the amount that the defendant has defaulted with the said notice is the amount of rent compensation corresponding to this period.
As such, since the defendant has not defaulted in accordance with Article 101 of the Code of Obligations numbered 818 (6098 s.TBK.art.117) for the part other than this amount, it is not possible to obligate the defendant with default interest before the dates of lawsuit and amendment.
For these different reasons explained above, the decision of resistance should be reversed.
During the discussion at the General Assembly of Civil Chambers, it was stated by some members that since the reversal made by the Special Chamber at the appeal and decision correction stage was not sufficient and accurate, the decision to resist was appropriate and the file should be sent to the Chamber for the calculation of the compensation amount, but this opinion was not adopted by the majority of the Board.
CONCLUSION:
It was decided by majority of votes on 09.03.2016 that the appeal objections of the defendant’s attorney are accepted and the decision to resist is DISMISSED due to the different reasons shown above, and the pre-appeal fee shall be returned to the depositor, if requested.
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