The Starting Date Of The Statute Of Limitations Should Be Determined Based On The Date The Plaintiff’s Damage Occurred – Statute Of Limitations Has Passed
T.C. JUDICIARY
4th Civil Chamber
Main: 2016/3774
Decision: 2016/7793
Date of Decision: 13.06.2016
COMPENSATION LAWSUIT – IT IS NECESSARY TO DETERMINE THE STARTING DATE OF THE STATUTE OF LIMITATIONS BASED ON THE DATE OF THE PLAINTIFF’S DAMAGE – THE STATUTE OF LIMITATIONS HAS EXPIRED – THE LAWSUIT SHOULD BE DISMISSED DUE TO THE STATUTE OF LIMITATIONS IN TERMS OF THE REQUESTED PART
SUMMARY: The plaintiff’s damage occurred as of the date of …./…./…./…. and the starting date of the statute of limitations should be taken as this date, in this case, as of the date of ………. when the amendment petition was submitted, the 1 and 2-year statute of limitations regulated under Article 60 of the Code of Obligations and Article 72 of the TCO have passed. Since the defendant has filed a defence of statute of limitations in due time against the amendment, while it should be decided to reject the part requested by the amendment due to statute of limitations, its acceptance has not been deemed correct, and since it is understood that the decision should be reversed, the request for correction of the decision of the defendant’s attorney should be accepted, the approval decision of our Chamber should be removed and the decision should be reversed.
(6100 S. Code Art. 107, 109) (6098 S. Code Art. 72) (818 S. Code Art. 60)
Case and Decision: The decision given by the local court on the compensation case between the parties, the date and number of which is written above, has been approved by the decision of our Chamber numbered …. Since the correction of the decision was requested by the defendant’s attorney within the period of time, the report prepared by the examining judge in accordance with Articles 440-442 of the HUMK and the papers in the file were examined and the necessity was discussed.
1- The defendant’s request for correction of the decision, which does not comply with any of the reasons listed in the amended Article 440 of the Code of Civil Procedure in view of the reasons stated in the appeal, should be rejected.
2- As for the defendant’s other request for correction of judgment;
The lawsuit is related to the claim for the collection of pecuniary damages incurred due to wrongful attachment. The plaintiff party stated that due to the debt of his non-suit son, who is the debtor of the proceeding, the defendant, who is the creditor of the proceeding, was seized in his workplace, claimed for appropriation, the enforcement court gave the creditor defendant a period of time to file a lawsuit in the enforcement court, and the seizure was removed due to the failure of the defendant to file a lawsuit for appropriation, and demanded the collection of the expenses he incurred due to his inability to use the seized goods and to take the goods from the trustee from the defendant, and later increased his request with the amendment petition he submitted on 16/04/2013.
Amendment is one of the exceptions to the prohibition on the extension and amendment of claims and defenses, and is defined as a complete or partial correction of a procedural action taken by one of the parties. With the amendment, the parties may change the cause of action, the subject matter of the lawsuit or the result of the claim. It is possible to amend the lawsuit in whole or in part, provided that there is a duly filed lawsuit.
Changing the cause of action or the subject matter of the lawsuit are the cases of complete amendment (Baki Kuru Vol. 4 p. 3990). In the partial amendment of the lawsuit, there is an amendment of a procedural act after the statement of claim. As accepted both in the doctrine and in the practices of the Court of Cassation, partial amendment is in question in the case of increasing the value of the claim, and in partial amendment, unlike full amendment, all procedural acts performed until the date of amendment are not deemed to have been performed. Partial amendment shall be effective prospectively from the date of amendment.
Statute of limitations, on the other hand, is not a fact that eliminates the debt, but a defense tool that eliminates the claimability of a right that has arisen and exists. Therefore, the statute of limitations does not eliminate the existence of the receivable, but its claimability. Article 133 of the Code lists the reasons that interrupt the statute of limitations and one of them is the filing of a lawsuit. In the complete amendment of the lawsuit, since the lawsuit has been amended from the beginning (from the petition), the statute of limitations is interrupted for the amended part on the date the lawsuit is filed.
In a partial lawsuit, the statute of limitations shall be suspended only for the part sued. The statute of limitations continues to run for the part that has not yet been filed (reserved) and then increased by amendment.
As a matter of fact, in the indefinite receivable lawsuit and determination lawsuit regulated under Article 107 of the CCP No. 6100, which entered into force on 01/10/2011, it has been accepted that the claimant can increase the claim result without the prohibition of expansion of the claim and without the consent of the other party and without the need for amendment, and in the justification of the article, it is stated that the statute of limitations will be interrupted on the date of the first lawsuit. In the partial action under Article 109 of the same Law, there is no explanation that the statute of limitations will be interrupted.
On page 321 of the Book on Civil Procedural Law According to the Provisions of the Code of Civil Procedure published by …, who took part in the preparation of the Law No. 6100, it is stated that “In cases where it is possible to file an indefinite receivable lawsuit, filing a partial lawsuit will not be more favorable for the plaintiff for three reasons. First, the statute of limitations will not be interrupted for the remaining part of the claimant’s claim. On the other hand, in an indefinite claim, the statute of limitations will be deemed to have expired on the date of the lawsuit for the entire claim.
Secondly, if the plaintiff who filed a partial lawsuit wishes to claim the remaining part of the claim during the lawsuit, he/she will only be able to do so by amendment or with the express consent of the other party…”, it is understood that the new Code of Civil Procedure, like the previous jurisprudence of both our Chamber and the HGK, maintains the consistent practice that the statute of limitations will be interrupted only for the part sued in case of a partial lawsuit.
When the concrete case is examined in the light of these explanations; it is understood that the wrongful act occurred on 18/05/2010, and the goods seized by the defendant creditor due to the failure to file a claim for appropriation were delivered to the plaintiff on 01/10/2010.
In this case, the damage of the plaintiff has occurred as of 01/10/2010 and the starting date of the statute of limitations should be taken as this date, in which case, as of 16/04/2013, when the amendment petition was filed, the 1 and 2-year statute of limitations regulated under Article 60 of the Code of Obligations and Article 72 of the TCO have expired. Since the defendant has filed a defence of statute of limitations in due time against the amendment, while it should be decided to reject the part requested by the amendment due to statute of limitations, its acceptance was not deemed correct, and since it is understood that the decision should be reversed, the request for correction of the decision of the defendant’s attorney should be accepted, the approval decision of our Chamber should be removed and the decision should be reversed.
Conclusion Pursuant to Articles 440-442 of the Code of Civil Procedure. In accordance with the articles 440-442 of the Code of Civil Procedure, for the reasons shown in subparagraph (2) above, the decision of our Office dated 12/11/2015 and numbered 2014/14697 – 2015/12884 should be reversed; the decision should be reversed for the reasons shown above, the other decision correction requests of the defendant should be rejected for the reasons shown in subparagraph (1), and the fee received from the defendant requesting decision correction with our previous approval decision and the prepaid decision correction fee should be returned upon request.
DISSENTING VOTE
According to the Code of Civil Procedure No. 1086, amendment of pleading is the complete or partial correction of a procedural act made by one of the parties (Art. 83)
Since the principle of unification of the claim and defense is valid in our Civil Procedural Law, and this cannot be changed without the consent of the other party, the party who wants to change and expand its claim or defense can resort to the amendment of pleading.
The subject of the amendment is the procedural act, and the party who makes it may change the cause of action, the amount of the claim and the result of the claim. However, the amount of the claim cannot be increased and the party cannot be changed (Art. 87)
However, since the Constitutional Court annulled Article 87 of the Code of Civil Procedure with its decision dated 20/07/1999, it is now possible to increase the amount of the claim by way of amendment.
The amendment may be made until the end of the proceedings (Art. 84) The amendment is made by a unilateral and clear declaration of will in writing or orally if the other party is present. The amendment does not depend on the acceptance of the court or the other party.
In the lawsuit filed by the plaintiff, who does not know the exact amount or value of the claim-damage, reserving his/her right regarding the excess, if the value of the lawsuit turns out to be more than the amount stated in the petition during the trial, the plaintiff may file a lawsuit by amending this part until the end of the trial according to Article 84 of the HUMK. This part is not an additional lawsuit.
Statute of limitations is a defense in its legal nature, and it does not eliminate the debt itself, but it eliminates the right to sue based on the debt.
The lawsuit is subject to the statute of limitations at the date of the first filing of the lawsuit, and the statute of limitations will no longer be in question for the part requested by the amendment. These issues are for the cases where it is not possible or objectively impossible to determine the exact amount and value of the amount and value of the lawsuit to be filed by the creditor, and not for the cases where the amount of the lawsuit is known or can be determined.
In the lawsuit petition, the claim was made by reserving the rights related to the surplus; after the expert report, the result of the claim was increased by submitting a petition for amendment.
The claim asserted by the plaintiff in the amendment petition is not in the nature of a new lawsuit, but is in the form of an increase of the request result in the lawsuit petition. Therefore, the objection of statute of limitations, which can only be raised against the statement of claim, cannot be raised against the amendment. The amendment of pleading is regulated under Articles 176 and following of the Code of Civil Procedure No. 6100, which entered into force on 01/10/2011. Article 177/1 of the aforementioned Code clearly regulates that the amendment can be made until the end of the investigation. In this case, a statute of limitations defense cannot be filed against the amendment. This is because the amendment is not a new lawsuit, but only an amendment to the statement of claim.
In practice, in order to eliminate the situations contrary to procedural economy by filing new lawsuits in order to eliminate the situations contrary to procedural economy by filing new lawsuits, the legislator has brought the convenience of filing an “indefinite receivable and determination lawsuit” in Article 107 of the CCP No. 6100, which entered into force on 01/10/2011, within the prohibition of expanding the lawsuit.
The article states that “In cases where it is impossible or unlikely for the creditor to determine the exact amount or value of the claim at the time of filing the lawsuit, the creditor may file an indefinite claim 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, the plaintiff may increase the claim stated at the beginning of the lawsuit without being subject to the prohibition of expanding the claim.”
Accordingly, the plaintiff may increase the claim without the prohibition of extension of the claim, without the consent of the other party and without the need for amendment. It is accepted that there will no longer be a statute of limitations for this part to be increased, and the statute of limitations will cease on the date the lawsuit is filed.
For the reasons explained, since there will be no statute of limitations in the amendment, I do not agree with the opinion of the majority. 13/06/2016
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