Inappropriateness Of Establishing A Judgment With An Unclear And Unintelligible Expression As Collecting Jointly From The Defendants And Giving To The Plaintiff Based On The Amounts Specified For Each Defendant
T.C. JUDICIARY
11th Civil Chamber
Main: 2016/4219
Decision: 2016/6890
Date of Decision: 22.06.2016
REQUEST FOR THE COLLECTION OF INSTITUTIONAL DAMAGES – INCONSISTENCY OF ESTABLISHING A JUDGMENT WITH A STATEMENT THAT IS NOT CLEAR AND UNDERSTANDABLE IN THE FORM OF JOINTLY TAKING FROM THE DEFENDANTS AND GIVING TO THE PLAINTIFF BASED ON THE AMOUNTS SPECIFIED FOR EACH DEFENDANT – THE JUDGMENT WAS REVERSED
SUMMARY: The court, by taking into account the principles regarding the scope of the judgment stated in Article 297 of the CCP. Taking into account the principles regarding the scope of the judgment stated in Article 297 of the CCP, after discussing the evidence about all the defendants and determining their responsibilities, it is necessary to establish a judgment about each defendant individually, reasoned and in a way that will not cause hesitation in execution, while it is not correct to establish a judgment with a clear and incomprehensible statement as “…to be jointly taken from the defendants and given to the plaintiff based on the amounts specified for each defendant specified in the expert report” and even not to establish a judgment about some defendants, and the decision of the local court had to be reversed for this reason.
(6100 S. Code Art. 297)
Case and Decision: In the case between the parties,,,. The Supreme Court of Appeal review of the decision dated 28.05.2014 and numbered 2012/391-2014/383 given by the Civil Court of First Instance in compliance with the reversal was requested by the plaintiffs’ attorney, the defendant,,,, Bank attorney and some of the defendants’ attorneys and it was understood that the petition for appeal was submitted within the time limit, and after the report prepared by the Examining Judge,,, for the case file was listened to and again after the petitions, pleadings, hearing minutes and all documents in the file were read and examined, the necessity of the matter was discussed and considered:
Plaintiffs’ attorney stated that the defendant ,, who works as a fiduciary at the ,,,, Center Directorate, performed recruitment procedures on behalf of fictitious persons by issuing forged documents, included them in the payroll and accrued salary, salary difference, additional course fee, training allowance, etc. on their behalf. The defendant ,,,, is responsible for the damage arising, the protocol signed with the institution was violated, although the protocol was signed to make payments to the civil servants individually, the defendant ,,,, was paid collectively, and the other defendants did not supervise the actions of the defendant,,,,,,. . in their capacities as the director of the institution, the chief executive officer, the accrual officer, and the other defendants, and claimed and sued for the collection of the institutional damage with interest.
The defendant . ,,, defended that the payment of pensions to ,,,, was notified with a letter dated 11.01.1993, the protocol was no longer in effect after this letter, and that the defendant bank had no fault or responsibility.
Defendant,,,,’s attorney argued that the case cannot be directed against his client and requested the dismissal of the lawsuit.
The other defendants and their attorneys defended the dismissal of the lawsuit.
According to the trial conducted by the court in accordance with the reversal order of our Chamber; ,,,,…… the defendant ,,,,…, who works as a clerk, performs recruitment procedures by issuing documents on behalf of fictitious persons, includes these fictitious persons in the payroll and on their behalf on their own account, salary, salary difference, additional course fee, education allowance, etc. accrued their rations, deposited them in the bank and then withdrew them and used them on their own behalf and caused damage to the institution, the defendant ,,. The defendant ,, is responsible for the damage to the institution because he did not show the necessary attention and care in his capacity as accrual clerk and supervisor, and the defendant ,, is also responsible for the damage incurred because he did not request the submission of the necessary identity documents and wet signatures when opening accounts on behalf of fictitious persons. 684,51 TL from the defendant ,,,with legal interest to be accrued from 16/02/1999, the date of the lawsuit (provided that interest is accrued on this amount of 7.762,14 TL), to be given to the plaintiff, with the partial acceptance of the lawsuit in the merged 2013/617 Esada, 20,67 TL from 16/02/1999, the date of the lawsuit (provided that interest is accrued on this amount of 6,45 TL), with legal interest to be accrued from the defendant ,,. A.Ş. and to give it to the plaintiff, and 4.517,06 TL to be given to the plaintiff with legal interest to be accrued as of 05/10/2001, the date of the lawsuit (provided that interest is accrued on this amount of 3.436,38 TL), jointly from the defendants based on the amounts specified for each defendant specified in the expert report.
The decision was appealed by the plaintiffs’ counsel, the defendant, its counsel and some of the defendants and their counsel.
1- The lawsuit relates to the claim for compensation with the allegation that the defendant ,,,,,,,, caused damage to the institution by drawing these payments from the defendant bank by accruing salary, salary difference, additional course fee, education allowance, etc. rations after issuing false documents on behalf of fictitious persons during the period he was in charge as a fiduciary. The other persons shown as the defendant ,,,, are persons who worked in certain periods and signed the forged documents subject to the lawsuit with the title of accrual officer or chief executive officer. It was also stated in the reversal decision of our Chamber dated 07.06.2012 that these defendants may also be responsible for the institutional damage due to lack of supervision and that an evaluation should be made in this regard. The court continued the trial by complying with the reversal order of our Chamber, and although the expert report received for the determination of the responsibility of the defendants was relied upon, a judgment was established in violation of Article 297/2 of the CCP No. 6100. Pursuant to Article 297/2 of the CCP, “In the conclusion part of the judgment, without repeating any words belonging to the reasoning, the judgment given on each of the claims, the obligations imposed on the parties and the rights granted, under the sequence number; It is necessary to show clearly, without doubt and hesitation”. The court shall determine the scope of the judgment as stated in Article 297 of the CCP. Taking into account the principles regarding the scope of the judgment stated in Article 297 of the CCP, after discussing the evidence about all the defendants and determining their responsibilities, it is necessary to make a judgment about each defendant individually, reasoned and in a way that will not cause hesitation in execution, while it is not correct to make a judgment with a clear and incomprehensible statement as “…to be jointly taken from the defendants and given to the plaintiff on the basis of the amounts specified in the expert report for each defendant” and even not to make a judgment about some defendants, and the decision of the local court had to be reversed for this reason.
2- According to the reason and manner of reversal, it is not deemed necessary to examine the appellate objections of the plaintiffs’ counsel and some of the appellants and defendants’ counsel at this stage.
Conclusion For the reasons explained in subparagraph (1) above, the judgment shall be reversed ex officio; for the reasons explained in subparagraph (2) above, it is not necessary to examine the appeals of the plaintiffs’ attorneys and the defendant, the defendant, the defendant’s attorney, the defendant, the defendant’s heirs for the time being; it was unanimously decided on 22/06/2016 to return the prepaid appeal fee to the appellants upon request.
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