T.C SUPREME COURT 20.Legal Department Base: 2019/ 3523 Decision: 2019 / 6673 Decision Date: 18.11.2019
ABSTRACT: The case is one of the exceptions to the prohibition against violation of the charter and must be observed by the court personally at all stages of the trial. It is not right that payments made before the case after the follow-up should not be clarified and taken into account. In addition, if the defendant pays the debtor after the opening of the case, it is also incorrect to establish a provision in writing that these payments will be taken into account at the execution, without also taking into account. The balance receivable, principal receivables and fer’is should also be determined and a provision should be established by clearly writing down the amounts of principal receivables and interest processed accepted by the court in accordance with the paragraph of the provision accordingly. In the decision to overturn it by the court and without paying attention to the above-mentioned issues, the establishment of a provision was not considered correct, and according to the admission, although the partial acceptance of the case was decided in the paragraph of the provision, the lack of appreciation of the power of attorney fee in favor of the defendant also required the cancellation. For the reasons described above, it has been decided that the provision will be OVERTURNED by accepting the appeals of the plaintiff and the defendant’s attorneys.
(634 Pp. K. m. 20)
The Supreme Court’s examination of the provision established at the end of the hearing of the case between the parties was requested by the plaintiff and the defendant’s deputies, and after the decisionmission of the appeal petition, which is understood to be in due course, the file was examined and considered as necessary:
decision
In the case petition, the defendant
floor> thermal insulation, etc. on the site where the owner is. reparation
an extraordinary meeting with the announcement dated 14.01.2015 of work to be done where the call was made, according to the list announced through notices hand and signature, at its meeting on 01.02.2015, thermal insulation and other work to be done by a vote of 99 people has been accepted, the contractor of work to be done with your business with contract dated 02.04.2015 described 945.000 including VAT.-TL has been made and “the amount of repair dues that must be paid for each independent section divided into 177 independent sections located on the site is 5.338,98.-Where TL is calculated, including the defendant’s
floor
enforcement proceedings have been conducted against the defendant for not paying the repair fee of his owners in advance, as well as using a loan …. 5. 2015/14699 E of the Executive Directorate. from file No. 5.338,00, the defendant is the subject of follow-up, the appeal is contested, the appeal has no legal basis.-TL 1 and 329.18.-It was stated that he should pay the TL interest with a monthly delay interest of 5%, which will be processed from the date of follow-up, and the cancellation of the appeal and 20% execution denial compensation were requested.
The court decided to partially accept the case, the Court of Cassation on the appeal of the defendant’s deputy 20. The date of the Law Department is 31.10.2018 and is 2017/2284 E. – 2018/6954 K. by its numbered decision, “…Although the court has decided to partially accept the case, the established provision has been based on the expert report received, but the expert report is not conducive to establishing the provision.
20 of the Condominium Law. according to the provision of the second paragraph of the article, the starting day of the delay compensation that the independent department owner, who does not pay his share of the common expense, is obliged to pay for the days when he is late in payment, must be clearly determined. The regulation that constitutes the basis of the joint expense subject to litigation; if it is a business project, the date on which the business project is notified to the defendant,
floor
owners
the decision of the board is submitted to this board by the defendant
if he participated, the date of the decision, the meeting at which the decision was taken
if he did not participate, this decision should be based on the date on which he was notified or otherwise learned of the debt, as well as the date on which the payment order was notified due to the enforcement proceedings filed against him. In that case; first of all, the dues received in relation to the periods when the debt was born
floor
owners
documents related to the decisions of the board (minutes of meetings, preparation schedule, agenda, etc.) by summoning the file, it is determined whether these decisions have been canceled, whether the defendant has been notified, and delay compensation may be applied from the date of notification, and it was not considered correct to operate delay compensation before the follow-up date without determining the default date in a way that does not include a pause. All the evidence of the parties, bank records, payment documents, collection receipts are subpoenaed and it is determined in full whether the defendant has an amount to pay and in accordance with the expert report of the expert financial advisor to be received, No. 634
While the provisions of the Condominium Ownership Law should be decided according to the result that will occur after being evaluated together, it was not considered correct that it was decided by an incomplete and inadequate, non-audit review. it is broken down by saying “.
5……. With partial acceptance of the case as a result of the trial conducted in accordance with the court’s decision to overturn. The Executive Directorate in the file numbered 2015/14699 4.438,56 TL 4.505 principal receivables in total,56 TL appeal for the cancellation of the defendant, the defendant paid by the executive to be considered a denial of the request on the surplus, you will get to govern executive compensation because it is a subject of contention that place decided it wasn’t deny that the judgment was appealed by the plaintiff and defendant attorneys.
The lawsuit relates to the request to cancel the appeal against the enforcement proceedings initiated against the joint expense receivable.
From the examination of the information and documents in the file; from the joint expenses of the plaintiff’s management against the defendant ….. 5. It is understood that the Enforcement Directorate initiated enforcement proceedings over the principal receivable of TL 5,338.00 in the case file No. 2015/4699, and the defendant made a part payment after the execution follow-up date and the date of the lawsuit. In the expert reports received during the trial conducted by the court, a calculation was made stating that the defendant also had payments made after the follow-up and before the trial. In this case, if there are payments made after the follow-up, before the case, these payments must be deducted and the case must be opened. In respect of these payments, the plaintiff’s lawsuit
there is no legal benefit in opening it. Legal benefit is one of the conditions of the case. The case is one of the exceptions to the prohibition against violating the charter, and the court must observe it personally at all stages of the trial. It is not right that payments made before the case after the follow-up should not be clarified and taken into account. In addition, if the defendant pays the debtor after the opening of the case, it is also incorrect to establish a provision in writing that these payments will be taken into account at the execution, without also taking into account. The balance receivable, principal receivables and fer’is should also be determined and a provision should be established by clearly writing down the amounts of principal receivables and interest processed accepted by the court in accordance with the paragraph of the provision accordingly. In the decision to overturn it by the court and without paying attention to the above-mentioned issues, the establishment of a provision was not considered correct, and according to the admission, although the partial acceptance of the case was decided in the paragraph of the provision, the lack of appreciation of the power of attorney fee in favor of the defendant also required the cancellation.
Conclusion: For the reasons described above, it was unanimously decided on 18/11/2019 that the appeal fee would be refunded if requested, and the provision would be OVERTURNED by accepting the appeals of the plaintiff and the defendant’s attorneys. (¤¤)</b
