Late Delivery, Incomplete Performance, Defective Manufacturing, Etc. The Request For Determination Of The Amount Of Damage Due To Late Delivery, Incomplete Performance, Defective Manufacturing, Etc.
3rd Civil Chamber 2020/5487 E. , 2021/6882 K.
“Case Law Text”
COURT :CONSUMER COURT
As a result of the trial of the determination and compensation case between the parties, the judgement given for the partial acceptance of the case was appealed by the attorneys of the parties within the time limit; after the acceptance of the appeal petition was decided, all the papers in the file were read and considered accordingly:
DECISION
The plaintiff claims that he purchased a flat from the defendant on a turnkey basis, the heating and lift malfunctioned some time after the delivery, the balcony collapsed, the balcony and windows were not built in accordance with the technique, there were problems with the countertops, ceramics and cabinets, the site management, which includes defects related to these and similar problems, sent a warning, but despite the warning, the situation did not improve, in addition, the building is located in the 1st degree risky area, the building should be reinforced with the system called jet graute, but this process was not done.
degree risky area, while the building should be reinforced in the system called jet graute, this process has not been done; without prejudice to the rights regarding the excess, the late delivery, the repair cost of the defects in the independent section and common areas, the loss of value in the apartment due to the impossibility of repairing some missing and defective productions, and the determination of the damage including the amounts paid for the title deed fees and expenses, and for the time being, the defendant has requested the collection of 10.000 TL from the defendant together with the advance interest.
Defendant defended that the plaintiff purchased the flat subject to the lawsuit from the non-suiting house buyer, that it would not be possible to meet two different claims against the same basis, that the lawsuit was filed as a partial receivable lawsuit by reserving the rights regarding the determination and surplus, that the provisions of the CCP prevented this, and requested that the lawsuit be dismissed first in terms of hostility, and if this is not accepted, on the merits.
The court; according to the expert reports received, with the partial acceptance of the request for determination, the missing and defective works that the plaintiff can claim in the independent section and common areas subject to the lawsuit
TL 14.506,96, rejection of the request for the determination of the excess, collection of TL 10.000 deficient and defective works price from the defendant together with the advance interest to be accrued as of 12/03/2012, without prejudice to the plaintiff’s rights regarding the excess, and taking into account the cost of the requested notice in the costs of the proceedings, upon the appeal of the parties, the decision given by the 13th Civil Chamber of the Court of Cassation. With the decision dated 18/09/2018 and numbered 2016/27006 main 2018/8038 decision given by the Civil Chamber; the plaintiff, who claims that the building where the house subject to the lawsuit is located is built on a ground with earthquake and liquefaction risk, claims that the system called jet graute should be used in the whole building, not only the pool and shelters,
However, there is no geological engineer in the expert committee that issued a report to the court on this issue, and the decision was reversed by stating that a decision should be made in accordance with the result to be obtained by obtaining a report from the expert expert committee including at least one geological engineer in a way that eliminates the contradictions between the committee report and the determination reports on whether the system mentioned should be applied in the building.
The court complying with the reversal order; in line with the report received, with the partial acceptance of the request for determination, to determine that the cost of missing and defective works that the plaintiff can claim in the independent section and common areas subject to the lawsuit is 15.501,64 TL, to reject the request for determination regarding the surplus, to determine that the plaintiff’s rights regarding the surplus are reserved 10. 000 TL from the defendant together with the advance interest to be accrued as of 12/03/2012,
the cost of the defective and defective works, the cost of the requested notice to be taken into account in the costs of the proceedings, 3.825,25 TL determined according to the AAÜT in force over the accepted price for the claim and determination cases for the benefit of the plaintiff and 28.364,89 TL attorney’s fee determined according to the AAÜT in force over the rejected determination request for the benefit of the defendant; the judgement was appealed by the attorneys of the parties.
1- Since the writings in the file, the decision is in accordance with the reversal and there is no inaccuracy in the evaluation of the evidence, the other appellate objections of the attorneys of the parties should be rejected.
2- The dispute is related to the claim for compensation with the determination of the damage claiming that the plaintiff has defective and defective works in the apartment purchased from the defendant. In the Civil Procedural Law, the plaintiff must have a legitimate interest in filing this lawsuit or requesting legal protection in order to file a lawsuit with a request for legal protection from the court. This legal interest must be “legal and legitimate”, “direct and personal”, “arising and current”.
The legal interest in filing a lawsuit must be a legitimate interest recognised by the legal order, this interest must be related to the right holder who filed the lawsuit and must still exist at the time the lawsuit is filed. In addition, the lawsuit to be filed must be of a nature to eliminate the danger that will arise. If a court decision is necessary at that moment in order to achieve one’s right, it can be said that there is a legal interest. If there is no need for a court decision, legal interest cannot be mentioned (Pekcanıtez H./Atalay, O./Özekes, M.: Civil Procedural Law, … 2011, p.297).
As it is known, according to the legal protection requested from the court, the lawsuits are divided into actions for performance, actions for determination, actions for indefinite receivables and actions for determination, and construction actions.
The declaratory action is the precursor of the action for performance, and its function consists of determining whether a legal relationship exists or not. The subject of the action for determination must be a legal relationship and the plaintiff must have a current interest worthy of legal protection in the immediate determination of whether this legal relationship exists.
In order for it to be accepted that there is a legal interest in the immediate determination of a legal relationship; a right or legal status of the plaintiff must be threatened by an existing danger, the legal status of the plaintiff must be in doubt due to this threat, the delay of the determination case must harm the plaintiff and the determination judgement must be capable of eliminating this danger.
The existence of legal interest in a lawsuit is a condition of the lawsuit. In order to file a declaratory judgement action, it is necessary that the time for filing an action for performance has not yet come or that it is not possible to file an action for performance and that the plaintiff has legal interest in filing such an action. The judge is obliged to investigate this ex officio.
The plaintiff must also have a legal interest in filing a lawsuit. It is not necessary for the defendant to deny the plaintiff’s right in order for the plaintiff to have legal interest. If the defendant acknowledges the plaintiff’s right but does not fulfil it, the plaintiff may also file a lawsuit against the defendant in order to obtain an enforceable judgement. The subject matter of the enforcement action may be both personal and real rights. Here, it may be requested that the defendant be sentenced to a positive (to do, to give) or negative (not to do, not to do) performance.
In cases where it is possible to file an action for performance, there is no legal benefit in filing a declaratory action. Because, with the judgement given at the end of the action for performance, it is also determined whether the legal relationship subject to the lawsuit exists or not, and then the judgement for performance is established based on this determination. According to the Court of Cassation’s decided practice, if it is possible to file an action for performance, an action for declaratory judgement cannot be filed.
In order for the rule that a declaratory judgement cannot be filed if it is possible to file an action for performance to be valid, there should be no difference between the part of the judgement to be rendered at the end of the action for performance regarding the determination and the declaratory judgement to be rendered at the end of the declaratory judgement in terms of the effect of the final judgement (Art. 237). In other words, if the legal protection requested by the declaratory action can be fully obtained by the action for performance, then the plaintiff has no legal interest in filing a separate declaratory action. ( Prof. Dr. Baki Kuru, Civil Procedure Procedure, C. II. 2001 edition p. 1409-1448 ).
When the concrete case is evaluated in the light of the above explanations; the first request of the plaintiff in the case at hand is to determine the amount of damage, including the late delivery of the purchased house, the repair cost of the defects in the independent section and common areas, the loss of value in the apartment due to the impossibility of repairing some missing and defective productions, and the amounts paid for title deed fees and expenses, and the second request is; without prejudice to the rights regarding the excess, for the time being, the request for the collection of 10.000 TL from the defendant with interest. In the expert report taken as basis for the judgement, it was determined that the plaintiff could claim 15.501,64 TL from the defendant due to defective and incomplete manufacturing in the independent section subject to the case.
According to the expert reports, the court decided to accept the lawsuit partially in terms of the claim for determination and in terms of the claim for receivables. The plaintiff has requested both the determination of the amount of damage and the compensation of the damage based on the same defect and incomplete performance in this case, and there is no legitimate and current legal benefit in requesting the determination of the amount of damage at the same time, while it can claim its right from the defendant with the action for performance (compensation of the damage).
As such, the court should reject the plaintiff’s request for determination of the amount of damage due to late delivery, incomplete performance, defective manufacturing, etc., since there is no legal interest. While it should be decided to reject the request for determination of the amount of damage due to late delivery, incomplete performance, defective manufacturing, etc., since there is no legal benefit, it was not deemed correct to decide in writing by going into the merits of the matter, and it required a reversal.
According to the acceptance; although the court has awarded an attorney’s fee for the benefit of the defendant over the rejected determination request, according to Article 13/2 of the Attorney Minimum Fee Tariff in force on the date of the decision; it is also not correct to award an attorney’s fee in favour of the defendant in excess of the amount accepted in favour of the plaintiff, not considering the provision that the fee awarded cannot exceed the amount accepted or rejected.
CONCLUSION:
For the reasons explained in subparagraph 1 above, the other appellate objections of the parties are rejected, and for the reasons explained in subparagraph 2 above, the appellate objections are accepted and the judgement is reversed in favour of the defendant in accordance with Article 428 of the Code of Civil Procedure in accordance with the provision of the provisional Article 3 added to the Code of Civil Procedure No. 6100 with the Law No. 6217. It was unanimously decided on 21/06/2021, in accordance with the Provisional Article 3 of the Code of Civil Procedure No. 6100 and Article 440 of the Code of Civil Procedure No. 1086 with reference to the Provisional Article 3 of the Code of Civil Procedure No. 6100, to return the prepaid appeal fee to the appellant defendant upon request, with the decision correction path being open within a period of 15 days from the notification of the decision.
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