Unfair Opening of the Tender Termination Case, Late Delivery of the Immovable, Compensation Request Supreme Court Decision

T.C
SUPREME
4. law office
MAIN NUMBER: 2017/3553
DECISION NO:1561
DECISION DATE: 06.03.2018

>>TERMINATION OF THE TENDER, THE DECISION TO ARRANGE THE DAMAGE CAUSED BY THE LATE DELIVERY OF THE IMMOVABLE PROPERTY DUE TO THE TERMINATION OF THE UNFAIR Decommissioning CASE.

The plaintiff … Tic.Ltd.Şti. her attorney by the defendant with the petition against unfair termination case 20/09/2011 for the day of the auction of the estate of late delivery due to compensation as a result of the trial made available upon request; provided for the rejection of the case by the court 12/06/2012-time decision at the Supreme Court in a hearing within the time requested by the plaintiff’s attorney to be examined, although it pre-determined for the plaintiff on notice that appeals hearing with Attorney … Selime M 06/03/2018 company officials came from the opposite side came on behalf of the defendant. The open trial has begun. After the decision was made to accept the appeal petition, which is understood to be in due course, and the oral explanation of the person present was heard, the party was informed that the hearing was over. The file was discussed. The report prepared by the examination judge and the papers in the file were examined and discussed as necessary.

The case is related to the claim for compensation arising from the late delivery of the real estate due to the termination of the unfair tender.

The court decided to dismiss the case; the decision was appealed by the plaintiff’s attorney.

The plaintiff’s attorney, Enforcement Directorate, based on the highest numbered with the following file 2008/330 for sale real estate auctions on the grounds of the plaintiff’s Pey after purchase, open the case of the termination of the tender by the defendant acting in bad faith, the main executive file the complaint in the court of law 2009/1056 numbered with the denial of the tender price by 10% of the penalty at a rate of collection of money from the defendant decide on, it also demonstrated the defendant’s bad faith, noting that compensation from the defendant for the loss arising from the late delivery of the immovable was found to prompt.

The defendant’s attorney; participate in the auction due to open the case of the termination of the tender, the plaintiff’s claim is unjustified; due to deficiencies in the procurement process by using the legal right to open the case, and rejected the case on top of the tender price of 10% have been sentenced to fines, noting that the right argued that it must dismiss the popup.

The court decided to dismiss the case on the grounds that the sanction to be applied to the unfair party in the termination of the tender filed by the defendant is specified in the law, and in fact, it was decided to collect a fine from the defendant whose termination of the tender he filed was rejected.

There are rights defined in the Constitution as the Freedom to Seek Rights, which also include the freedoms to seek rights, Decriminalize and Decriminalize complaints and lawsuits before judicial authorities. There should be no doubt that all these rights and freedoms mentioned are never unlimited. In other words, society, peace and the realization of a fair balance to be established if it is not constitutional rights, according to its features and its relationship with the rights and interests of others as shrinking and must be expanded. In the event that rights and interests are opposed, that is, legal interests (benefits) conflict, the boundary between conflicting interests is Deciphered, MK.nun 1. according to the main rule in its article, it must be drawn up by the judge with great care. While determining this boundary between conflicting interests by creating law in accordance with the aforementioned article of the Dec, the judge should also use the criteria that have been accepted and generalized in teaching and practice in order to reach a conclusion in accordance with justice. There is no doubt that one has no superiority over the other, since Decency, honor and the freedom to seek rights as legally protected assets are treated as abstract concepts. The existence of a superior right and interest protected by law is never enough by itself; at the same time, this right and interest should not be abused. Everyone in our Constitution in Article 36 of the courts through lawful means and procedures in front of the prosecution and defense as plaintiff or defendant and the right to sue a constitutional right to a fair trial, he is entitled edited within the limit of this right must be used.

In the case subject to the case; The reason for the claimant’s late delivery of the immovable property received through the tender and the damage caused by this reason is the termination of the tender filed by the defendant and exceeding the limits of the right to file a legal claim. Due to the termination of the tender, the plaintiff received the immovable property late. There is also an appropriate causal link between the damage caused and the defendant’s action, and while the extent of the damage caused by the claimant’s late delivery of the real estate should be determined and decided according to the result, it was not correct to decide to dismiss the case with incomplete examination and erroneous assessment, and this situation necessitated the Decisionization.

CONCLUSION: It was unanimously decided on the day of 06/03/2018 to OVERTURN the appealed decision for the benefit of the plaintiff for the reasons described above and to load the trial lawyer fee of 1.630,00 TL appreciated for the benefit of the plaintiff company to the defendant, to return the fee received in advance upon request.

T.C.
SUPREME
4. law office
MAIN NUMBER: 2016/2269
DECISION NO: 2016/4601
DECISION DATE: 6.4.2016

6098/m.51,52

CASE: At the end of the trial conducted by the court on the request for financial compensation with the petition filed by the plaintiff’s attorney against the defendant on 30.10.2013; The Supreme Court of Appeals examined the decision of 6.11.2014 on partial acceptance of the case by the defendant’s representative … after the decision was made to accept the appeal, the report prepared by the examining judge and the papers in the file were examined and discussed as necessary:

decision

1- ) According to the articles in the file, the evidence on which the decision is based and the compelling reasons in accordance with the law, especially if there is no inconsistency in the evaluation of the evidence, the defendant’s appeals that fall outside the scope of the following paragraph should be rejected.

2- ) Regarding the defendant’s other appeals;

a- ) The case is related to the request to pay the financial damage suffered due to the unfair action. The court decided to partially accept the case; the verdict was appealed by the defendant.

The plaintiff, bought the truck with the file on the auction No. 2008/2029 instruction on 11.2.2009 plate No. the defendant of the termination of the administration of the tender open the case, the decision of the case on 17.3.2011 onanar reddd determined that the defendant’s bad faith under unfair and purchased a case of delayed delivery due to the termination of the tender truck has taken 805 days, and for that reason have suffered damages incurred by noting that they wanted to make.

By the court, the defendant of the plaintiff’s case in case of termination of the tender truck tender is not logged in will take delivery of purchased subject to delay and compensation on the grounds that the expert report and the supplementary cost will not be offset by the amount specified in the report, it was decided to partial acceptance of the case.

The information and documents on file, according to record contract dated 9.12.2005 hostage in traffic with commentary in favor of the plaintiffs in the case are registered in the name of the company the plate out of the truck, while the defendant was arrested by the forest administration officials confiscated due to the use SMC 17.5.2007 in crimes where the defendant Forest Law No. 6831 by the administration of Act 84. pursuant to the article, it is understood that the owner was returned to the out-of-court company official with the condition to return it exactly if confiscated after the inalienable annotation was placed on the traffic record, it was decided to sell the truck during the enforcement proceedings due to the debt of the out-of-case company, the pawnee plaintiff purchased the truck in the tender held on 11.2.2009. In the event that the defendant administration has an ongoing criminal case against the truck and a confiscation decision has been made about the vehicle, it has been decided to reject the termination of the tender lawsuit filed for the implementation of the decision. Due to this lawsuit filed by the defendant, the plaintiff was able to take delivery of the truck he purchased with the tender on 20.2.2009, while he was able to take delivery on 5.5.2011. The plaintiff’s loss of earnings due to the fact that he could not operate the truck during this period was caused by the termination of the tender filed by the defendant.

By the court, damages, lost profits calculated under the provision … TL is taken by an expert purchased model brand truck would not be able to get a job and work during the Year 1997 and disregarding of lost profits damages calculated in accordance with the articles of motor carriers cooperative has been taken under the provision. On the other hand, since the tender buyer enters the tender knowing that there is an unsellable-non-transferable annotation placed by the defendant administration on the plaintiff truck’s traffic record, part of the damage should be left on the compensation creditor. 51 and 52 of the Turkish Code of Obligations No. 6098, taking into account the issues explained by the court. in accordance with the provisions, an appropriate equity deduction should be made from the loss of earnings and the provision should be established, but the fact that the issues described were not observed was contrary to the procedure and the law and required to be violated.

b- ) The person who buys a movable property in the increase wins his ownership at the time of tender. Together with the revenging of the property, the nave and damage of that property also passes to the buyer. The plaintiff who bought the truck with tender truck motor vehicle liable to pay tax in case of default interest paid during the tax period because it is responsible, and without any interest of the defendant … the decision not to be held responsible corruption procedures and therefore had to comply with the law.

c- ) In the auction announcement of the tender subject truck, it is stated that the windshield of the vehicle is cracked, the paint is old, there are scratches on the dump sheet case and the truck, the tires are old spare wheel and the tape recorder is not available. It is understood that this state and model of the vehicle should be repaired when it is considered old. As a matter of fact, the plaintiff had the truck repaired after receiving it. Instead of deciding to reject the repair fee requested by the plaintiff, the fact that it was decided to hold the defendant responsible for the repair fee required incorrect distortion.

d ) due to a case of the defendant of the termination of the tender, the date of the truck to remain in escrow until the date 20.2.2009 5.5.2011 caused this period, the fee paid to the trustee for the trustee is responsible for all fees without considering the unprecedented decision had to be responsible for this aspect of corruption.

CONCLUSION: It was unanimously decided on 06.04.2016 that the appealed decision was OVERTURNED for the benefit of the defendant for the reasons shown in paragraphs (2/ a-b-c-d) above, and that the defendant’s other appeals were rejected for the reason shown in the first paragraph.

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