Partial Claim Cannot Be Converted Into An Indefinite Claim Through Amendment
4th Civil Chamber 2015/15405 E. , 2017/8645 K.
“Case Law Text”
COURT :Civil Court of First Instance
At the end of the trial held by the court upon the request for financial compensation arising from the wrongful seizure with the petition given on 26/04/2013 against the defendant … by the plaintiff … attorney …, at the end of the trial held by the court; the Supreme Court of Appeals examination of the decision dated 20/10/2015, which was partially accepted, was requested by the attorneys of the parties in due time, and after the acceptance of the petitions of appeal was decided, the report prepared by the examining judge and the papers in the file were examined and discussed as required.
1-According to the writings in the file, the evidence on which the decision is based and the reasons that are in accordance with the law, especially since there is no inconsistency in the evaluation of the evidence, all of the plaintiff’s and the defendant’s appellate objections other than the scope of the following paragraph should be rejected.
2-As for the other appellate objections of the defendant;
The lawsuit is related to the claim for compensation for damages arising from wrongful seizure. The court decided to partially accept the lawsuit; the judgement was appealed by the attorneys of the parties.
Plaintiff’s attorney stated that the commercial taxi with … number plate belonging to his client was seized on 09/09/2002 with the allegation that it was used in the crime of human trafficking, a criminal case was filed against the driver of the vehicle, the vehicle was delivered to the plaintiff as a trustee while the criminal proceedings were continuing, and as a result of the trial, it was decided to return the commercial taxi to the plaintiff, which was seized but no evidence could be obtained that it was used in crime with the consent of the owner, and requested compensation for the damage incurred during this period.
Defendant administration’s attorney stated that there was no fault and responsibility attributable to the administration due to the seizure of the plaintiff’s vehicle and defended that the lawsuit, which lacked legal basis, should be rejected.
The court rejected the plaintiff’s claim for the car parking fee, and in terms of the damage item that the plaintiff claimed to have suffered due to the fact that he could not operate his vehicle during the time it was under custody and could not change it due to the continuation of the cautionary annotation on its registration despite the return, the plaintiff completely amended his case with the petition dated 13/01/2014, and with the second amendment petition he submitted afterwards,
he increased his claim to 86. 026,18 TL, and on the grounds that the parties can only apply for amendment once in the same case, it was decided to collect 12.000,00 TL for the loss of earnings arising from the inability to operate the vehicle and 2.000,00 TL for the loss arising from the inability to renew the vehicle from the defendant, adhering to the request in the petition dated 13/01/2014.
a- From the information and documents in the file; it is understood that the plaintiff requested 15.000,00 TL pecuniary compensation in the petition dated 08/04/2013, reserving the rights regarding the surplus, and then, in the petition dated 13/01/2014, he converted the lawsuit he filed as a partial lawsuit into an indefinite receivable lawsuit by completely reforming the petition, and after the expert report, he requested an increase in the price with the petition dated 21/07/2015 and increased his request to 86.026,18 TL, without reserving his rights regarding the surplus.
According to Article 107 of the Law No. 6100, in cases where it cannot be expected from the creditor to be able to determine the amount or value of the receivable fully and precisely at the time the lawsuit is filed or it is impossible to do so, the creditor may file an indefinite receivable lawsuit by specifying the legal relationship and a minimum amount or value.
As soon as it is possible to determine the exact amount or value of the claim as a result of the information provided by the other party or the investigation, the claimant may increase the claim stated at the beginning of the lawsuit without being subject to the prohibition of expansion of the claim. In order for the lawsuit to be filed as an indefinite receivable lawsuit, it is necessary that the amount or value of the receivable subject to the dispute cannot be determined by the plaintiff as of the date the lawsuit is filed.
The inability to determine the amount or value of the receivable must be based on the fact that the plaintiff cannot be expected to determine the amount or value despite due care and diligence, or it must be objectively impossible. In the preamble of the Article, it is stated that “In order for the creditor to file such a lawsuit, it must be impossible or objectively impossible for the creditor to actually determine the amount or value to be sued. If the amount of the lawsuit to be filed is known or can be determined, such a lawsuit cannot be filed. Because, as it is sought in every lawsuit, legal interest will be sought here, and in such a case, it cannot be said that there is legal interest.
In particular, when the new provisions regarding the partial lawsuit are taken into consideration and evaluated together, it is unacceptable to resort to this method in cases where it is possible to determine from the beginning.” With this explanation, it is pointed out that it is not possible to benefit from the opportunities provided by this lawsuit by filing an indefinite receivable lawsuit if the receivable is certain or determinable.
The fact that there is a dispute between the parties regarding the amount of the claim does not mean that the claimant cannot be expected to determine the result of the claim. What is important is that the claimant cannot be expected to objectively determine the result of the claim (H. Pekcanıtez, Indefinite Claim Litigation, Ankara 2011, p. 45; H. Pekcanıtez/O. Atalay/M. Özekes, Medeni Usul Hukuku, 14th Edition, Ankara 2013, p. 448). If only the amount of the receivable is disputed between the parties or the amount is considered sufficient for filing an indefinite receivable lawsuit, almost all lawsuits should be accepted as indefinite receivable lawsuits, which is contrary to the purpose of the law.
Because, a lawsuit is filed because there is already a dispute and the dispute comes before the court. What is important is whether the plaintiff has the opportunity to make the claim certain. Here, it should not be forgotten that the determinability and provability of the claim should be evaluated separately. If it is objectively possible for the plaintiff to determine the receivable, but it is not possible to prove the receivable in the manner stipulated by the law (with the evidence at hand), it cannot be said that an indefinite receivable lawsuit will be filed here. Because, determining a receivable and proving it are two different things.
The claimant may determine the receivable very clearly, but may not always be in a position to prove it. Accepting the contrary may lead to a situation contrary to both the purpose of the law and the general principles, such as converting every receivable that is difficult to prove into an uncertain receivable. The determination of the amount of the receivable at the investigation stage
It should be accepted that an indefinite receivable lawsuit may also be filed in cases where it is dependent on other procedures such as examination of evidence, expert examination or discovery. However, expert examination is not sufficient for filing an indefinite receivable lawsuit. If the plaintiff can determine the amount of the receivable when filing a lawsuit despite the application of an expert in a lawsuit, an indefinite receivable lawsuit cannot be filed, (Decree of the Court of Cassation General Assembly of Civil Chambers dated 02/11/2016, numbered 2015/22-1078 main and 2016/1010 decision)
It cannot be said that a certain type of lawsuit or the lawsuits filed by certain persons are certain or indefinite receivable lawsuits from the beginning. In terms of the receivable subject to each lawsuit, it is necessary to make a determination by applying the criteria regarding the indefinite receivable lawsuit to the concrete case. With the Code of Civil Procedure No. 6100, it is frequently observed that the boundary between the indefinite receivable lawsuit and the partial lawsuit in the new regulation is not fully determined, and one is often used instead of the other. However, the purpose and nature of these two actions are different. If the receivable is certain or determinable, an indefinite claim cannot be filed; however, if there are conditions, it is possible to file a partial lawsuit.
In the examination of the concrete case; it is understood that the plaintiff based the damage items arising from the wrongful seizure of the vehicle on the loss of earnings arising from the inability to operate the vehicle used as a commercial taxi and the financial damage arising from the inability to replace the vehicle, and the car parking fee that he claimed to have paid for the period until the vehicle was delivered to him.
At the time the lawsuit was filed, these receivable items were determinable for the plaintiff, and in fact they were determined and the lawsuit was initially filed as a partial lawsuit. In that case, there is no legal interest in the conversion of the case at hand, which was filed as a partial lawsuit, into an indefinite receivable lawsuit by amendment, and in fact, it is not possible to file the lawsuit as an indefinite receivable lawsuit due to the nature of the lawsuit, and the partial lawsuit cannot be converted into an indefinite receivable lawsuit by amendment. Therefore, the decision should be reversed.
b- The compensation item claimed by the plaintiff claiming that the damage arising from the inability to change the vehicle, which is a commercial taxi, is based on assumption, and the acceptance of this item compensation request based on the expert report calculating the probable damage was not deemed correct, and this required the decision to be reversed.
c- Regarding the claimant’s claim for the deprived earnings due to the inability to operate the vehicle during the period the vehicle was under custody; In the expert report available in the file and taken as a basis for the decision, it was not in accordance with equity to calculate compensation based on the assumption that the vehicle would work every day of the year during the period the vehicle was seized. For this reason, taking into account the days when the vehicle cannot operate, an appropriate discount should be made from the compensation to be awarded pursuant to Article 43 of the Code of Obligations (Article 51 of the TCO) and a decision should be made accordingly, while the written decision based on the expert report, which is not suitable for making a judgement, has also required a reversal.
CONCLUSION:
It was unanimously decided on 25/12/2017 to DISMISS the appealed decision in favour of the defendant for the reasons shown in subparagraphs 2(a-b-c) above, and to reject all of the plaintiff’s and the defendant’s other appellate objections for the reasons shown in the first subparagraph.
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