309/2005 Federal Taxation Act (387673)
(1ST LAW PUBLICATION)
Yard commercial value. In what cases is it due. It is not due to
case of contractual extension with an expiry time after 31.8.1987, because the
this case of contractual termination does not fall under article 58 par. 10 sec. c
and 12 nor in the restrictive cases of art. 60 of Presidential Decree 34/1995.
Israeli community in limbo. As an NPDD, it has capacity as a party.
Ancillary nature of unjust enrichment.
Decision Number 309/2005
DODEKANIS COURT OF APPEALS
It was formed by Judges Konstantinos Apostolopoulos, President
Appellants, Nikolaos Karadimitriou-Rapporteur, Spyridoula Makri, Appellants and the
secretary Aikaterini Diakokoliou, court clerk of the Court of Appeal
Dodecanese.
He met publicly in his audience in Rhodes on January 14, 2005,
to try the following case:
Caller: K.T., resident of Rhodes, who appeared in court afterwards
of Stefanos Stefanidis' attorney-at-law.
Ms. Call: Administrative Committee of the N.P.D.D. with the
name “………………………” legally represented, which
appeared in court, through Ioannis' attorney
Karamihali (with no. 130436 and 130437/2005 promissory notes
Board of Directors fee Rhodes).
The plaintiff (………………………) brought an action before the Single Member
Court of First Instance of Rhodes on 28.8.2001 and with no. exp. 161/4.9.2002 lawsuit
of against the defendant (appellant), who filed a counterclaim with the
30.5.2003 document of his proposals. That Court with 101/2003
his final decision, rejected the counterclaim brought by the proposals and
accepted the action, against the opposition of the parties. Against this decision,
defendant (counter-claimant through his motions) filed before the court
which issued it on 20.9.2003 and with no. exp. No. 221/23.9.2003 litigated
his appeal, a copy of which was filed with the court registry
of this with no. exp. 301/2003, for the discussion of the one written in
board, a hearing was set for 5.3.2004, at which time it was canceled due to the
parliamentary elections of the Greek Parliament. The case is already referred to
discussion with her from 8.3.2004 and with no. exp. Court of Appeal 81/12.3.2004 summons
of the appellant, and for the discussion the one written on the board was set
arbitrable the one mentioned at the beginning of this decision.
During the discussion in the audience, during which the case was decided
legally in turn from the relevant board, their attorneys
parties also developed their claims orally and referred to
written proposals submitted by them.
Study The Litigation
He Thought According To The Law
The pending appeal against his final decision number 101/2003
Single Member Court of First Instance of Rhodes, which was issued during the special procedure
of lease disputes (articles 647 et seq. of the Civil Code) has been legally exercised and
on time if it does not appear from the submitted documents that it has been served
decision, but neither is the deadline contested by the parties.
It must, therefore, be formally admitted and investigated for admissibility
and the validity of its reasons during the same special procedure.
With the lawsuit, the plaintiff and already the defendant requests that the
respondent and already appellant to assign to her the use of the leased property which
used as a business roof. The defendant by oral statement which
was entered in the records of the first instance trial which he developed with the documents
proposals filed a counterclaim. On the claim and counterclaim, the
appealed decision allowing the action and ordering the performance
of the use of the lease to the plaintiff and the counterclaim was rejected. Against
of this decision, the defendant-counter-plaintiff appealed and requests that
his appeal be allowed with a view to dismissing the action and allowing it
his counterclaim.
According to article 1 of Law 2456/1920 "on Israeli Communities",
"in the cities of the Kingdom there are more than twenty permanent residents
of Israeli families and operates a Synagogue, may be established by
B.D. Israeli Community, recognized as a public legal entity
of law". According to article 8 of the same law, "the community councils
appoint special commissioners for the management of the Synagogues and the
management of their private property, as well as their Committees
of Charitable and Educational Institutions". On the other hand, with the sub
number 2558/21.3.2001 decision of the General Secretary of the South Region
Aegean, a management committee of the inactive Israelitika was formed
Community of Rhodes which was two years and with the then under no
6013/11.7.2003 decision of the same General Secretary regrouped
committee for the next two years. Subsequently, with the 27.12.2004 minutes n
constituted according to the aforementioned Administrative Committee decided the
authorization of the lawyer I.K. to attend and represent at
court as attorney-in-fact the aforementioned legal entity.
Therefore the claim of the appellant which constitutes the second and third
grounds of appeal that the plaintiff ………………… does not have
the ability to be subject to rights and obligations, to
is legally represented and has capacity to be a party is deemed unfounded in view
of the aforementioned, since …………………… is a legal entity
of public law and is legally represented. Following these, the
first-instance Court which, with the so-called decision, implicitly rejected him
the defendant's claim of lack of capacity as a party to the plaintiff, no
it was wrong.
Pursuant to article 60 p.d/tos 34/1995 (5§6 law 2041/1992, amended by
art. 2§4 Law 2235/1994), as opposed to Art. 7§4 of Law 2741/1999, in
case of return of rent due to termination of the lease in accordance with
paragraphs 10 to 14 of article 58 of the above decree 34/1995 and in case
termination of the lease due to completion of twelve years, the lessor owes to
lessee for the restoration of the intangible commercial value an amount equal to
24 months' rent payable at the time of expiry. With paragraph 14
of article 7, amending the provision of article 60 of the Presidential Decree, 34/1995. With the news
regulation the general rule is set that in the event of termination of the lease in accordance
with paragraphs 10-14 of article 58 and in any case of its termination
lease due to completion of twelve years, the lessor must pay
to the lessee a certain sum of money for the restoration of the intangible
commercial value. The above compensation is due only in cases where
restrictively refer to the law, because no general obligation is established
of the lessor in any case of termination of the lease, i.e. for any reason that
is provided for in p.d/ma 34/1995 or the A.K. Because this is serious
financial burden thereof, which is due to exceptional cases, o
law is narrowly interpreted in favor of the lessor (EA 10378/1998, Decree 40.
652, EDP 1999. 173). After all, it follows from the text of the provision with
clarity, that it refers only to the cases of termination of the lease according to law.
2041/1992. In particular, the cases, in which limitation is due to
compensation are the following: a) The termination of the lease, due to what has
completed in the use of the rental period of at least 30 or 20 or 12
years (art. 58§10 p.d/tos 34/1995) on 1.5.1994 and were extended
compulsorily until 31.8.1995 or 1996 or 1997 respectively, b) the expiration of
lease on 31.8.1997, because by then the contractual or legal one expires
time and c) the expiry of the lease in each case completed
twelve years, which includes the case of article 6§1, that is
of the legal extension of the original lease until twelve years are completed.
Therefore, if the lease was not terminated in any of the aforementioned ways or
in the event that it was contractually extended and an expiry time was set after
31.8.1997, the above compensation is not due, because this case of
contractual termination of the lease does not fall under article 58§10 sec. c` and 12 of
p.d/tos 34/1995, nor in the limiting cases of the above article 60
(see Char. Papadakis, System of Commercial Leases, vol. A, ed. C, p. 163
seq., AP 1264/2001 LAW).
From the assessment of the affidavits of the witnesses contained
in the cited and submitted together with the appealed decision
records of the Court of First Instance and documents relied upon and
legally presented by the parties, either to be taken into account as independent
evidence, either to serve as judicial evidence,
are proved, in relation to the allegations of the parties and in part
which is transferred with the decided appeal the case before him
Court, the following facts: Based on from 30.4.1982
private lease agreement the plaintiff leased to the defendant a
shop located in the Old Town of Rhodes, (on the street
……………….), with an area of 18 m2, instead of a monthly rent of 9,000 drachmas,
in order to be used by the lessee as a tourist shop
species. The duration of the lease was set for the period from 1.5.1982
until 30.4.1984. Then and after the aforementioned expiration
contractual duration of the lease, it was extended following a verbal agreement
agreement of the parties until 10.4.2000, and the monthly rent after
successive adjustments finally amounted to the amount of 96,800 drachmas.
Subsequently, with the private lease agreement from 10.4.2000, the
duration of the lease for three years, i.e. until 9.4.2003, when it expired
the lease. With the appealed decision, the performance of its use was ordered
rent for this reason, and the appellant does not formulate any with the appeal
certain reason against the chapter of this decision. But he complains with her
appeal (second ground) that his counterclaim was not rightly dismissed by implication
on the part that requested the amount of 11,928 euros as compensation for immaterial
Market Value. However, according to the aforementioned, the defendant is not entitled
to ask for intangible commercial value, because the lease which lasted beyond it
twelve years and even twenty years until the initiation of the lawsuit,
was contractually extended and set to end after 31.8.1997. Therefore
the trial Court which rejected this basis of counterclaim even with
less reasons, which this Court admissibly supplements,
he did not err and correctly applied the law and evaluated the evidence and each
contrary claim made in the second ground of appeal
first, it is deemed unfounded and rejectable.
Furthermore, from article 904 A.K. the action of unjust enrichment
is of an auxiliary nature and can only be exercised when the
conditions of the action in contract or tort, unless
is based on facts different from or additional to those, at
which the action is based on the contract or tort (AP 531/1994
El.D/ni 37. 81). In this case the defendant-counter-plaintiff with the
counterclaim requests the amount of 6,000,000 drachmas with its provisions
of unjust enrichment which he claims he paid to the plaintiff in
each contractual extension of the lease, namely 2,000,000 drachmas in 1990, 2,000,000
in 1996 and 2,000,000 in 2000 for corresponding contractual extensions
which the plaintiff claimed as "air". This counterproductive demand that supports it
in the provisions of unjust enrichment, as long as the defendant does not
alleges facts different from those it supports
his counterclaim from the contract is deemed indefinite. Therefore the primary
Court that rejected as indefinite this counterclaim of the defendant
he did not err and correctly applied the law and evaluated the evidence and each
contrary claim formulated in the second ground of appeal (part
second) is deemed unfounded and rejectable.
Even further the defendant contends in the counterclaim that his exercise
right of the plaintiff to return the rent due to termination of the contract
is found to be abusive for the reason that the plaintiff for a new contractual extension
of the contract claimed as "air" the amount of 20,000,000 drachmas. This, however,
it turns out. Even the witness I.X. which was considered at his suggestion
in response to this, he testifies that "T. had not told me if he had given bribes
left and right". However, regardless of these, the plaintiff after the last one
contractual extension of the year 2000 lease in any case legally
brought the legal claim for the performance of the rent after its expiry
contract and did not make this right dependent on any payment or
not some amount of money as "air". Therefore the Court of first instance
which implicitly rejected this claim of the counterclaim was not wrong either
contrary claim made in the fourth ground of appeal is decided
baseless and dismissible. Based on all of the above as proven
the appeal must be rejected in its entirety as essentially unfounded and to
the appellant is ordered to pay the court costs of the respondent herein
degree of jurisdiction according to art. 183 and 176 of the Civil Code, according to the provisions
in the ordinance.
For those reasons
He judges against the opposition of the parties.
Formally accepts and essentially rejects the appeal against no.
101/2003 of the decision of the Single Member Court of First Instance of Rhodes.
It orders the appellant to pay the court costs of the present respondent
degree of jurisdiction, which determines the amount of four hundred euros (€400).
It was judged, it was decided in Rhodes on 13.9.2005 in a secret conference.
The President The Secretary
Source: Law Legal Information Network (www.lawdb.intrasoftnet.com)
