Ancora una volta un Tribunale di merito affronta il tema della perentorietà dei termini in mediazione, affermando che il termine per l’avvio della procedura di conciliazione ex D.Lgs 28/2010, è perentorio.
Così il Tribunale di Cagliari con sentenza dell’08.2.2017, Estensore Tamponi, sigilla il principio secondo cui “Il termine di quindi giorni per la presentazione dell’istanza di mediazione ha – in ragione della sua funzione e delle conseguenze decadenziali – natura perentoria, così che dal suo mancato rispetto consegue la necessità per il giudice di emettere una pronunzia di rito contenente la declaratoria di improcedibilità del processo”.
La vicenda giudiziale trae le mosse dall’istanza con cui l’attore mutuatario conveniva in giudizio l’istituto di credito chiedendo che lo stesso venisse condannato alla restituzione delle somme indebitamente percepite per violazione delle norme antiusura.
Trattandosi dunque di controversia concernente la materia dei contratti bancari, l’esperimento del tentativo di mediazione oltre ad essere obbligatorio ex art. 5 D.Lgs 28/2010, rappresentava una condizione di procedibilità della domanda giudiziale.
Il giudice de quo, rilevando la mancata instaurazione del procedimento di mediazione ante giudizio (onere di parte istante), rimandava le parti in mediazione, assegnando loro un termine perentorio di 15 giorni per l’instaurazione della procedura conciliativa.
Il termine fissato dal Giudicante non veniva rispettato da parte attrice e, per questo, risultava fondata l’eccezione di improcedibilità sollevata da parte convenuta.
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