T.R. JUDICIARY 13th Law Office Principle: 2016/ 12625 Decision: 2019 / 6317 Decision Date: 20.05.2019
SUMMARY: According to the court, the plaintiff could not prove with definitive evidence that he paid the amount of ….. TL that must be paid under the contract, therefore he requested the claim within the scope of negative and positive damage. The claimant is to pay the claimant the balance of ….. TL, which is determined by the expert, with the deduction of the ….. TL paid to him from the execution sale from this amount, which he cannot claim, but paid in advance, for which he has the right to demand within the framework of unjust enrichment. Even though a decision was made, the bills that were alleged to have not been paid were not submitted to the file by the defendant. The court should decide according to the result by bringing the bills that are alleged to have not been paid. Ignoring this aspect by the court and establishing a written sentence is against the procedure and the law, and it requires annulment.
(6098 S. K. Art. 136)
Litigation: At the end of the trial of the lawsuit between the parties, the case was examined and considered, upon the appeal of the plaintiff’s lawyer within the time limit of the judgment given for the partial acceptance and partial rejection of the case due to the reasons stated in the verdict.
Decision: The plaintiff, with the contract dated 21/05/2009 made with the defendant, purchased the mortgaged detached section in favor of bank number 4, registered on island 4006, plot 12, for 120,000,00 TL, paid 60,000,00 TL of the sale price in advance, in accordance with the contract, the remaining 60,000. By declaring that he gave a bond for 0,00 TL to the defendant, that it was decided that the mortgage would be lifted after the payment of the bills, that the flat was put up for sale and sold in the execution proceeding made through the bank’s conversion of the mortgaged receivable into money, since the mortgage was not lifted by the defendant, 50,000 due to unjust enrichment, 00, 150,000.00 TL for the compensation of negative and positive damages, to be decided to be collected from the defendant.
The defendant, arguing that the plaintiff did not pay the price of the promissory note, requested that the case be dismissed.
With the partial acceptance of the lawsuit, the court decided that 47,730.13 TL, with the legal interest to accrue from the date of the lawsuit, will be taken from the defendant and given to the plaintiff; The judgment was appealed by the plaintiff.
1- In the concrete case, the plaintiff has purchased the independent section numbered 4, registered in parcel no. 4006, 12 parcel, with a mortgage in favor of the bank, for 120.000 TL from the defendant for 120.000.00 TL, and in the contract; 60,000.00 TL of the sales price will be paid in advance and the remaining 60,000 TL will be paid by endorsed bills. The plaintiff claimed that he paid the sales price in accordance with the contract, while the defendant argued that the plaintiff did not pay the bills. In the trial, despite the hearing dated 17/09/2015 upon the plaintiff’s offer of oath, the defendant said, “It is true that there is a contract with the plaintiff regarding the sale of real estate, as per the agreement, I received 60,000,00 TL of 120,000,00 TL in advance, the remaining 60,000,00 TL. I would have removed the mortgage on the immovable when it was paid, but the claimant did not pay the remaining 60.000.00 TL to me, the allegations that 60.000.00 TL was paid with endorsed bills by … are not true, no promissory notes were given.” The court held that the plaintiff could not prove with conclusive evidence that he had paid the 60,000 TL due under the contract, therefore he could not claim the 150,000 TL he wanted within the scope of negative and positive damage, but the 60,000 TL he paid in advance was paid to him from the execution sale from this amount, which he had the right to demand within the framework of unjust enrichment. Although it was decided that 45,730.13 TL, which was determined by the expert with the deduction of 14,269,87 TL, to be paid to the plaintiff, the bills that were allegedly unpaid were not submitted to the file. The court should decide according to the result by bringing the bills that are alleged to have not been paid. Ignoring this aspect by the court and establishing a written sentence is against the procedure and the law, and it requires annulment.
CONCLUSION: It has been unanimously decided on 20.05.2019 that the appealed decision for the reasons explained above will be overturned for the benefit of the appellant, 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. (¤¤)
