T.R. YARGITAY 13th Law Office Principle: 2017/ 3657 Decision: 2018 / 10801 Decision Date: 19.11.2018
SUMMARY: While the court should investigate the documents in the file, the situation that the zoning plan of the place where the transformer is moved has been canceled, and whether the contract provisions have become impossible by taking into account the relevant article 136 of the TCO explained above, a judgment should be established according to the result. The decision to accept the case in written form was against the procedure and the law and required reversal.
(6098 S. K. Art. 136)
Litigation: At the end of the trial of the case for the return of the letter of guarantee between the parties, the file was examined and considered, upon the appeal of the defendant’s lawyer within the period of the verdict given for the acceptance of the case due to the reasons stated in the decision.
Plaintiff and the defendant signed a protocol with a price of 151.117.76 TL, approval date of 05/11/2009 for 6 months, for the transfer of the transformer located in … province, … district, island 3007 – parcel 23, to block 3007 – parcel 3, and that the obligation falling on the protocol is the displacement of the transformer. It is stated that as a transformer location in the parcel no. 3, where the transformer will be located, to cover all the expenses and to allocate and register the title deed on behalf of … It was established on its land and the displacement process was carried out, the defendant accepted this, but since the new transformer place does not belong to him, all expenses were borne by him as the claimant, as per the 14th article of the main protocol, and they made an additional protocol for the expropriation procedures to be carried out by … as per article 6 of the main contract. guarantees his deeds Ak … Bank … Branch, dated 31/12/2009 and numbered 606421, with the amount of 16.000.00 TL, has given the defendant institution a definitive letter of guarantee until 13/12/2012, that the letter of guarantee given to the defendant after the transformer location was registered in the name of the … General Directorate in the protocol. It was decided that it would be returned, with the defendant institution’s letter dated 15.11.2012 that the title deed of the transformer location could not be obtained because the zoning practice in the region where the transformer location displaced on the land of … was not concluded, that the letter of guarantee should be renewed and replaced with an indefinite letter until the deed transfer process is concluded, otherwise the existing letter should be cashed. He warned that he would be converted, that he extended the period of the compensation letter twice so far, that the letter should now be returned, that the expropriation proceedings initiated pursuant to the contract were not concluded due to him, that it was not caused by the “until the registration of the immovable” clause in the contract itself. that it has become impossible to perform with the perpetrator and that the defendant has accepted the impossibility, BK. Stating that if the performance of the debt becomes impossible in accordance with the provision of Article 136, the debtor will be relieved of responsibility and that there is no possibility of the plaintiff inflicting damage on the defendant, first of all, 16.000.00 TL, dated 31/12/2009 and numbered 606421, issued by the … Bank … Branch. has ended due to the fulfillment of the performance of the parties by the return of the letter of guarantee and the return of the letter, and has demanded and sued that the protocol and its annex be terminated prospectively upon the determination of this situation.
The defendant argued that the reason why the letter of guarantee was not returned was that the plaintiff did not ensure that the place where the transformer was transported was registered in the name of … in accordance with the protocol, and that it was the plaintiff’s responsibility, and demanded the rejection of the case.
It was decided by the court to accept the case, and to return the letter of guarantee with the amount of 16.000.00 TL, dated 31/12/2009 and numbered 606421, issued by the Bank of … Branch to the plaintiff; The verdict was appealed by the defendant.
The case is about the return of the letter of guarantee given by the plaintiff in accordance with the protocol dated 05.11.2009 signed with the defendant, with the claim that the performance has become impossible due to reasons not arising from him. The defendant requested that the case be dismissed. By the court; It was decided to accept the case on the grounds that “.. since the ownership of the immovable property belongs to the treasury, it is an issue that needs to be resolved between the registration procedures … and the defendant … and the letter of guarantee should be returned to the plaintiff since the plaintiff fulfilled his obligations in accordance with the protocol.”
Article 136 of the Turkish Code of Obligations No. 6098, which was in force on the date of the lawsuit, titled “impossibility of performance”; “If the performance of the debt becomes impossible for reasons for which the debtor cannot be held responsible, the debt ends.” is in the form. In the examination of the documents in the file, regarding the implementation of the zoning application covering the real estate with parcel number 1482 belonging to the treasury where the plaintiff carries the transformer … With the request of the cancellation of the decision of the Municipal Committee dated 29/12/2010 and numbered 295 … File a lawsuit in the 1st Administrative Court
With the decision of the Administrative Court dated 21.06.2012 and numbered 2011/854 with the main 2012/647 decision, it was decided to cancel the zoning process which is the subject of the lawsuit, and upon the appeal of the decision, the 6th Chamber of the Council of State made the 2012/6778 basis 2015/4360 decision dated 17.06.2015. It has been understood that it was decided to be approved with the decision numbered and it became final in this way. For this reason, the plaintiff party declared that the title deed of the place where the transformer was moved could not be registered in the name of the General Directorate of … In the additional protocol signed between the parties, although it is regulated that the letter of guarantee will be returned after the expropriation procedures are completed and the new transformer location is registered in the name of the General Directorate; While the court should investigate the documents in the file, the situation that the zoning plan of the place where the transformer is moved has been canceled, and whether the contract provisions have become impossible by taking into account the relevant article 136 of the TCO, explained above, a judgment should be made according to the result. The decision to accept the case was against the procedure and the law and required reversal.
Conclusion: It was unanimously decided on 19/11/2018 that the appealed decision for the reasons explained above be overturned for the benefit of the defendant, the refund of the advance fee upon request, with the possibility of rectification within 15 days from the notification pursuant to Article 440/I of the HUMK. (¤¤)
