T.R. JUDICIARY 19th Department of Law Base: 2018/ 1341 Decision: 2019 / 876 Decision Date: 14.02.2019
SUMMARY: Since it was collected at the point of payment of withdrawal compensation and the determination that the defendant was right to receive this amount was incorrect, the plaintiff did not have any request in this direction, and there was no lawsuit filed by the defendant duly with fees, since the court’s reasoning was partially wrong in this aspect, which is not in accordance with the scope of the file. that the defendant’s return of some of the checks and returning some of the semen he received to the plaintiff after the settlements, does not mean acceptance, however, the defendant does not have an appeal in this regard, in terms of attorney’s fees and litigation expenses, the termination of the plaintiff’s case is not justified and the adaptation conditions are not accepted. It was rejected on the grounds that it was not found, and the decision was appealed by the attorneys of the parties.
The judgment had to be upheld.
(6098 S. K. Art. 136, 138)
Litigation: As a result of the application of the plaintiff’s attorney to the appeal law against the decision of the first instance court regarding the termination of the contract between the parties… Upon appeal by the defendant’s attorney without a hearing, a summons was sent to the relevant parties. On a certain day, the plaintiff’s attorney Atty…. and the defendant’s attorney, Atty. After hearing the oral explanations of the lawyers who were present, the case was examined, and the necessity was discussed and considered.
DECISION
The attorney of the plaintiff stated that 1000 tons of oranges were purchased as seeds for a price of 630,000 TL with the citrus sales contract signed between the defendant and the defendant on 1.2.2016, five checks of 100.000 TL each, each in sequence, of 130.000 TL in cash, and that the first of the given checks was paid. According to the contract, it has been decided that the frost damage in January will be covered by Tarsim insurance and the defendant will receive the cost, but that the products cannot be sold in case the damage is 80%, not a small one, that the 230,000 TL and 400,000 TL of checks collected with the warning to the defendant are requested to be returned, and the contract was terminated, the damage rate was determined after the sale contract and the defendant concealed this situation, the termination of the contract due to impossibility of performance and excessive difficulty of performance in accordance with Articles 136 and 138 of the TCO, or its adaptation according to the evidence, the collection of the money paid 230.000.TL, the unrequited 400.000. In order not to pay 4 checks amounting to TL demanded and sued for a decision to impose a preliminary injunction.
The defendant’s attorney stated that the plaintiff signed the contract by making the necessary examinations in the garden and the product before the contract, it was known to the plaintiff that he hit the oranges cold, that the plaintiff terminated the contract unjustly, therefore, he is obliged to pay 30% of the contract price, except for the withdrawal compensation amount of 189,000 TL. arguing that he was ready to return the sale price, and demanded the dismissal of the case.
At the end of the trial made by the court, as per the contract between the parties, Articles 136 and 138 of the TCO were not applicable, upon the plaintiff’s notice of termination, the defendant’s notice of termination was accepted as a withdrawal, and against the explicit provision of Article 6 of the contract, 630,000.00 TL of sales and contract 300.000,00-TL of the contract amounting to the claimant, in accordance with the contract, in which the claimant deposited 141,000,00-TL of the remaining 441,000,00-TL to the plaintiff’s bank account, keeping 189.000.00-TL corresponding to the cancellation compensation at the rate of 30% of the cost. Since the defendant has given back the sales price he received before the court, except for the withdrawal compensation according to article 6 of the contract, the defendant does not have any debts to the plaintiff regarding the contract in question, and the defendant has been repaid to the plaintiff after the lawsuit has been filed. The case was dismissed on the grounds that the fee was determined over the remaining 189.000.00 TL, which is the subject of dispute. gave a decision and the judgment was appealed by the plaintiff’s attorney.
The Regional Court of Justice has determined that the contract concluded between the parties is valid, the termination of the contract by the claimant party, who is the buyer in the contract of sale, due to impossibility or excessive difficulty in performance of the contract is not justified, the conditions for the request for adaptation are not met, but the dispute is gathered at the point of payment of withdrawal compensation and the defendant’s decision is made. Since the determination that he was right to receive this amount was wrong, the plaintiff did not have a request in this direction, and there was no lawsuit filed by the defendant duly and with fees, the court’s decision was partially erroneous in this aspect, which is not in accordance with the scope of the file.
that the defendant’s return of some of the checks and returning some of the semen he received to the plaintiff after the settlements, does not mean acceptance; It was decided to be rejected on the grounds that there were no conditions, and the decision was appealed by the attorneys of the parties.
According to the articles in the file, the evidence on which the decision is based, the necessitating reasons, and the lack of inaccuracy in the discretion of the evidence, all the objections of the parties’ attorneys that are not found on the spot were rejected, and it was found in accordance with the procedure and the law … of the 17th Civil Chamber of the Regional Court of Justice, 21/12/2017 day, 2017/565-2017 /1450 E.-K. APPROVED the provision of no., the attorney fee of 2.037,00 TL from the lawyers present at the hearing to be transferred from one to another, the file to be sent to the 2nd Civil Court of First Instance, a copy of the judgment of our Office to be sent to the 17th Civil Chamber of the Regional Court of Justice for information. 2,030,00 TL appraised for the benefit of those present at the Supreme Court hearing. It was unanimously resolved on 14/02/2019 that the attorney’s fee for the hearing be taken from one person and given to the other, and that the following approval fee be charged to the appellant. (¤¤)
