Lawsuit Arising From The Contract Of Work – Decision Should Be Made According To The Result Of Obtaining Additional Reports From The Experts On The Effect Of The Construction Area Growth And Dismissal From The Attorney – Reversal Of The Judgment
T.C Judiciary Court 15th Civil Chamber Esas: 2019/ 2119 Decision: 2020 / 662 Date of Decision: 19.02.2020
SUMMARY: Although the plaintiff-defendant contractor stated that he was dismissed from the attorneyship by the landowners during the continuation of the construction and therefore there was a delay, it is understood that the court did not make an examination on this issue. It is not correct to make a decision with incomplete examination while the court should take an additional report from the experts on the effect of the growth of the construction area and the effect of the dismissal from the attorneyship on the period of time, and since it is not clear on what grounds the numbers of the independent sections requested in the lawsuit petition and the independent section numbers taken under the judgment are different, it is understood that the decision was approved erroneously while it should be reversed on these grounds, with the examination made this time, the plaintiff-merging file defendant’s request for correction of the decision is accepted and the Supreme Court of Appeals 23. Civil Chamber of the Court of Cassation with the decision numbered … and the decision is reversed.
(492 S. K. Art. 42)
The lawsuit dated 24.11.2015 and numbered 2010/134 E.-2015 and decided by the … 3rd Civil Court of First Instance on the case between the plaintiff … and the defendants … Heirs 1-… 2-… 3-… 3-… 4-… 5-… 5-… 6-… and the defendant … in the case numbered 2013/780, and the case between the plaintiffs … Heirs 1-.. 2-… 3-… 4-… 5-… 6-…. and the defendant … /561 K. dated 26.02.2019 and numbered 2016/1932 E.-2019/706 K. of the 23rd Civil Chamber, which upheld the judgment numbered 2016/1932 E.-2019/706 K. It has been understood that the request for correction of the decision has been made by the attorney of the plaintiff-merging file defendant and the petition for correction of the decision has been submitted within the time limit, the papers in the file have been read and discussed and considered:
DECISION
The main and the combined case are related to the cancellation and registration of the title deed arising from the construction contract in return for flats, and the claim for receivables, and the plaintiff-merging file plaintiff filed a request for correction of the decision against the decision dated 26.02.2019 and numbered 2016/1932 Esas 2019/706 Decision issued by the 23rd Civil Chamber of the Court of Cassation upon the appeal of the decision given by the plaintiff-merging file plaintiff. Although the request for correction of decision should be examined by the Civil Chamber of the Court of Cassation, which conducts the appellate review as a rule; With the division of labor decision of the Grand General Assembly of the Court of Cassation dated 09.02.2018 and numbered 2018/1, the 15th Civil Chamber of the Court of Cassation was assigned the task of examining the appeals or correction of decision requests in the files arising from the construction contract in return for land share and coming to the Court of Cassation with an appeal or decision correction request after 01.07.2016, so the request for correction of decision was examined by our Chamber.
1-According to the writings in the file, the compelling reasons stated in the court decision and adopted in the Supreme Court of Appeals judgment, and especially in Article 5 of the contract between the parties, “the parties will receive apartments in proportion to their ratios according to the zoning status to be given by the municipality” and in Article 14, “in case of any change in the construction m2 that can be made in case of zoning change, the apartments of the land owner will remain as in the existing contract. The number of apartments falling to the contractor’s share will be reduced or increased.” Since these provisions are in the nature of conflicting provisions and there is no separate provision regarding which one will be given priority in the event of conflicting provisions in the contract, the court will take Article 5, which has priority in the ranking, as a basis. Since there is no inconsistency in the decision to cancel and register the title deed according to the sharing ratio in the contract based on Article 5, which has priority in the order, and since it is natural that a separate lawsuit can be filed regarding the 2 flats left as collateral when the occupancy is received, the plaintiff’s other requests for correction of the decision other than the scope of the following paragraph should be rejected.
2- In the plaintiff contractor’s lawsuit, the plaintiff requested a decision to cancel the title deed of 22 independent sections, the numbers of which he stated in his petition according to the construction contract in return for flats concluded between the defendant landowner and the defendant landowner, the defendant landowner stated in his defense that he would also have a share in the independent sections formed due to the increase in zoning and requested a decision to dismiss the lawsuit, and in the lawsuit filed in the merged file, he stated that the apartments to be delivered to him were not completed within the period agreed in the contract and requested a decision to collect the delay compensation from the plaintiff-merging file defendant contractor. The court decided to partially accept the main lawsuit and accept the combined lawsuit. In the contract between the parties, it was agreed that the construction to be built would be completed within 18 months, i.e. 06.11.2009, by obtaining the construction license within 3 months from the date of the contract. According to the scope of the file, it is understood that the construction area was enlarged by obtaining an amendment license after the construction started. Therefore, it is mandatory to consider the effect of the expansion of the construction area on the duration. On the other hand, although the plaintiff-defendant contractor stated that he was dismissed from the attorneyship by the landowners during the continuation of the construction and therefore there was a delay, it is understood that the court did not examine this issue. Since it is not correct to make a decision with incomplete examination while the court should take an additional report from the experts on the effect of the growth of the construction area and the effect of the dismissal from the attorneyship on the period of time, and since it is not clear on what grounds the numbers of the independent sections requested in the lawsuit petition and the numbers of the independent sections under the judgment are different, it is understood that the decision was erroneously approved while it should be reversed on these grounds, and since it is understood with the examination made this time, the plaintiff-merging file defendant’s request for correction of the decision is accepted and the Court of Cassation 23. It has been deemed appropriate to revoke the decision by removing the confirmation decision of the Civil Chamber numbered 2016/1932 Esas 2016/706 Karar.
CONCLUSION: For the reasons explained in subparagraph 1 above, the other requests for correction of decision of the plaintiff-merging file defendant are rejected, and for the reasons explained in subparagraph 2 above, with the acceptance of the requests for correction of decision, the decision is reversed by lifting the confirmation decision of the 23rd Civil Chamber of the Court of Cassation dated 26.02.2019 and numbered 2016/1932 Esas 2019/706 Decision, and the fees paid are reversed in accordance with Article 11 of the Law No. 5766. In accordance with the amendment made by Article 11 of Law No. 5766, it was decided unanimously on 19.02.2020 to deduct the 143.50 TL Supreme Court application fee required pursuant to Article 42/2-d of the Fees Law, to refund the excess appeal fee, if any, to the appellant-merging file defendant, and to return the paid advance decision correction fee to the plaintiff-merging file defendant requesting decision correction upon request.
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