The Case For The Collection Of The Delay Penalty Receivable Arising From The Work Contract Relationship – It Is Legally Possible For The Plaintiff Party To Request Interest With The Amendment – Injustice Of Rejecting The Interest Request With Contrary Considerations
T.C. JUDICIARY
15th Civil Chamber
Main article: 2016/1046
Decision: 2016/3719
Date of Decision: 28.06.2016
LAWSUIT FOR THE COLLECTION OF DELAY PENALTY RECEIVABLE ARISING FROM THE WORK CONTRACT RELATIONSHIP – IT IS LEGALLY POSSIBLE FOR THE PLAINTIFF TO REQUEST INTEREST WITH THE AMENDMENT – INCONSISTENCY OF THE REJECTION OF THE INTEREST REQUEST WITH CONTRARY CONSIDERATIONS – AFFIRMING THE JUDGMENT WITH CORRECTION
SUMMARY: As for the concrete case, the plaintiff party, who did not demand interest at the beginning of the case, may demand interest at the later stages, provided that he/she applies this way once until the investigation is completed. Therefore, it should be considered legally possible for the plaintiff to claim interest by amendment and should be accepted. It was not correct to reject the claim for interest with contrary considerations. Although the decision should be reversed for this reason, since the correction of this mistake does not require a retrial, it is deemed appropriate to approve the judgment by correcting it in accordance with Article 438/VII of the HUMK by referring to the provisional Article 3 of the CCP.
(6100 S. Code Art. 176, 181, 182)
Case and Decision: The appeal of the judgment dated and numbered above has been requested by the attorneys of the parties and it has been understood that the appeal petitions have been submitted within the time limit, the papers in the file have been read, discussed and considered:
The lawsuit is a lawsuit for the collection of the delay penalty receivable arising from the work contract relationship. The plaintiff … is the owner and the defendant company is the contractor. The plaintiff business owner municipality’s attorney, the defendant company and the plaintiff … The defendant contractor company’s attorney stated that the defendant did not fulfill its commitments and that the delay was in question and that a delay penalty should be paid in accordance with the contract signed between them, and the defendant contractor company’s attorney demanded a receivable, The plaintiff defended the dismissal of the lawsuit by stating that the building belonging to the municipality was leased for the arrangement of the building as a business center, that the contract covers the entire building and that the lawsuit filed is unwarranted, and the court decided to accept the lawsuit as a result of the trial, and the decision was appealed by the defendant’s attorney within the legal period.
1- According to the writings in the case, the evidence on which the decision is based and the reasons in accordance with the law and especially the appreciation of the evidence, the other appellate objections of the parties other than the scope of the following paragraph are not deemed appropriate and should be rejected.
2- The plaintiff increased his claim from 1.000,00 TL to 88.150,00 TL with the amendment petition dated 19.09.2012, and at the same time, he requested interest on the entire amount from the date of the lawsuit.
The amendment procedure is regulated between Articles 176 and 182 of the CCP No. 6100. Amendment is the complete or partial correction of a procedural action taken by one of the parties (CCP 176/1). The lawsuit may be fully amended by the plaintiff pursuant to Article 180 of the CCP or partially amended by the parties pursuant to Article 181 of the CCP. The complete amendment of the lawsuit is applied in order to deem all procedural actions from the petition of the lawsuit as not filed. Changing the part of the claim in the lawsuit also constitutes a complete amendment of the lawsuit. In partial amendment, the party amends a certain procedural act. Increasing the part of the claim in the lawsuit is a partial amendment of the lawsuit. Both full amendment and partial amendment of the lawsuit can be made until the end of the investigation (CCP 177/1) and once (CCP 176/2).
In the light of these explanations, as for the concrete case, the plaintiff party, who did not demand interest at the beginning of the case, will be able to demand interest in the following stages, provided that he/she applies this way once until the end of the investigation. Therefore, it should be considered legally possible for the plaintiff to claim interest through amendment and should be accepted. It was not correct to reject the claim for interest with contrary considerations.
Although the decision had to be reversed for this reason, since the correction of this mistake does not require a retrial, it was deemed appropriate to approve the decision by correcting it in accordance with Article 438/VII of the HUMK by referring to the provisional Article 3 of the CCP.
Conclusion For the reasons explained in subparagraph 1 above, the other appellate objections of the defendant are rejected, and for the reasons explained in subparagraph 2 above, the sentence in subparagraph 1 “…the demand in the petition for lawsuit is 1.000,00 TL, the demand with the petition for amendment is 87. 150,00 TL, totaling 88.150,00 TL, to be collected from the defendant and given to the plaintiff” sentence should be removed from the judgment, and the sentence “1.000,00 TL demanded in the lawsuit petition and 87.150,00 TL demanded with the petition of amendment, totaling 88. 150,00 TL penal clause receivable from the defendant with the legal interest to be accrued from the date of the lawsuit and to be given to the plaintiff” to be added to the decision, the decision to be approved as amended, the prepaid appeal fees paid to be returned to the appellants upon request, and it was unanimously decided on 28.06.2016 that the parties may request for correction of the decision within 15 days from the date of notification against the decision.
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