Since The Penalty Clause Is Determined As A Lump Sum, It Cannot Be Claimed In The Form Of An Indefinite Claim
23rd Civil Chamber 2016/33 E. , 2018/4970 K.
“Case Law Text”
COURT :Civil Court of First Instance
At the end of the trial of the receivable lawsuit between the parties, the file was examined and the necessity was discussed and thought upon the appeal of the judgement given for the deeming of the lawsuit as not filed for the reasons written in the judgement, and for the partial acceptance of the partial judgement in terms of loss of income, by the attorneys of the parties within the time period.
DECISION
The plaintiff’s attorney stated that a Contract of Promise for Sale of Real Estate and Construction in Return for Land Share dated … January 2008 was concluded between the plaintiff and the defendants’ murisi, that his client fulfilled all the obligations, that the construction completion period was set as … months after the construction licence was obtained from the municipality and that a penalty clause of …. 000,00 TL penalty clause was determined, although the construction licence was obtained on …/…/2008, the construction was completed on 02/06/2010,
the occupancy permit was obtained on …/…/2010, claiming that the plaintiff has lost rental income during the delay period due to the delay in construction, and for the rental income for the time being …. 000,00 TL from the defendant with commercial default interest from the date of the lawsuit, and to determine whether the defendant is obliged to pay the penalty clause and what the amount of the penalty clause is.
The defendant’s attorney argued that the contractor had no fault in the late delivery of the flat subject to the contract, the certificate of completion and the occupancy were received late because of the changes made outside the contract and caused a change in the project, and the project change was due to the special requests of the plaintiff and requested the dismissal of the lawsuit.
The court, according to the claim, defence, the adopted expert report and the entire file scope, the duplex apartment belonging to the plaintiff was not built in accordance with the project, although the defendant stated that the penthouse was not delivered within the time limit in order to satisfy the plaintiff, it is obliged to deliver the necessary productions to the plaintiff within the time limit without going beyond the terms of the contract and the approved project, … the delay due to the monthly renovation is taken into account, but since there is no renovation project, this period should be added to the delay period, according to the rental price determined as 650,00-TL, the m² unit price … TL, the lower floor is 92,75 m², the roof is 37,60 m², the total area is 130,35 m², the rental price of the apartment as a duplex apartment can be round 900,00 TL,
the amount of ecrimisil that can be brought if the apartment subject to the lawsuit is rented in accordance with the project …. for the period between …/08/2009-…/…/2011 096,42 TL for the period between …/08/2009-…/…/…/2011, considering the defendant’s declaration that he paid the rent until the third floor, the rent for the missing penthouse is ….526,78 TL for the period from 250,00 TL per month until …/08/2009-…/…/…/2011, in the current situation, it is not possible to register it as an independent section due to the contradiction to the project, in terms of the penal clause request of the plaintiff’s attorney, the plaintiff
It was decided to deem the lawsuit as not filed pursuant to Article …. of the Fees Law due to the failure to deposit and renew the fee within the definite period given to the attorney, and to partially accept the lawsuit in terms of loss of income.
The decision was appealed by the attorneys of the parties.
…-The plaintiff’s attorney clearly stated in the petition that the lawsuit is an indefinite receivable lawsuit based on Article 107 of the CCP.
According to Article 107 of the Code of Civil Procedure No. 6100, the plaintiff may file an indefinite receivable lawsuit in cases where it cannot be expected from him/her to be able to determine the amount or value of the claim fully and precisely at the time the lawsuit is filed, or in cases where this is impossible. The impossibility of determining the claim result may arise from various reasons. This impossibility may arise from subjective reasons, since the determination of biological, legal or damage is based on subjective elements. (Civil Procedural Law Volume … …. Edition Prof. Dr. Hakan Pekcanıtez, page 1028 et seq.)
The second situation regarding the filing of an indefinite claim lawsuit is that the claimant cannot be expected to determine the result of the claim. The claimant may not be able to determine the result of the claim due to his/her lack of expertise. Indefinite claim lawsuit is a lawsuit that can be filed in cases where the plaintiff cannot determine the result of the claim or it is impossible to determine the result of the claim, and if it is understood that the amount of the claim can be determined from the information and evidence provided by the plaintiff in the lawsuit petition, the lawsuit should be dismissed due to the lack of legal interest in filing an indefinite claim lawsuit.
After these explanations, when the concrete case is evaluated; the plaintiff stated in the petition of lawsuit that the construction period was determined according to the contract, that this period was … months from the date of obtaining the construction licence, that although the construction licence was obtained on ……..2008, the occupancy permit was obtained on ……..2010 and that due to the delay in construction, the monthly rent that could be obtained if the immovable was rented out due to the delay during this period was lost.
It is possible for the plaintiff to declare the monthly rent that he/she may request by taking into account the characteristics of the immovable and the local market, in other words, to determine the monthly rent, in other words, to make a request accordingly, or to sue only a part of it, since the subject of the request is divisible in nature, in other words, it is possible to file a “partial lawsuit” in accordance with Article 109 of the CCP.
Therefore, since the delayed period is clear from the content and explanations of the petition, it is possible for the plaintiff to determine the total receivable that can be requested by adding the monthly rental fees for the delayed period, and as explained above, there is no situation where it is impossible or requires expertise to determine the receivable based on objective or subjective reasons.
On the other hand, since it is agreed in the article …. of the contract dated ….01.2008 between the parties that if the contract is not complied with, a penalty clause of ….000 TL will be requested from the non-complying party, there is no legal benefit in filing a lawsuit to determine the indefinite receivable of ….000 TL and the penalty clause that may be requested.
Because it is a condition of the lawsuit that the plaintiff has legal interest in filing a lawsuit for determination. On the other hand, there is no legal interest in filing an action for determination in cases where an action for performance can be filed. During the enforcement action, it will be possible to determine whether the receivable has arisen, whether it is in a claimable status and its amount. In other words, the action for performance also includes the request for determination.
In the concrete dispute, the penalty clause in the contract has been agreed as a lump sum, and undoubtedly, whether the conditions for requesting the penalty clause have occurred and the award of the penalty clause is an issue that can be discussed within the action for performance.
For the reasons explained above, due to the fact that the plaintiff has no legal interest in filing an indefinite receivable lawsuit and a declaratory action, the case should be dismissed procedurally in accordance with subparagraph 114/…-h of the CCP, while the decision on the merits should be decided.
…-According to the reason for reversal, it is not necessary to examine the appellate objections of the plaintiff’s attorney and the other appellate objections of the defendant’s attorney for now.
CONCLUSION:
For the reasons explained in the subparagraph numbered (…) above, the judgement is DISMISSED in favour of the defendants, for the reasons explained in the subparagraph numbered (…) above, it is not necessary to examine the appellate objections of the plaintiff’s attorney and the other appellate objections of the defendants’ attorneys for the time being, the prepaid fee shall be refunded to the appellants upon request, and it was unanimously decided on ……..2018, with the way of decision correction open within … days from the notification of the decision.
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