T.C SUPREME COURT 15.Law Department Base: 2019/1938 Decision: 2020/675 Decision Date: 19.02.2020
ABSTRACT: While the court should have decided that the unpaid claim will be accepted partially over TL calculated by experts and without cash guarantee deduction, it was not correct to conclude that it will receive a smaller amount of claim by making a cash guarantee deduction because it will receive an unpaid work fee as a result of an incorrect assessment, and it was deemed appropriate to overturn the decision.
(492 pp. K. m. 42)
It is understood that the date and number of the above written decision were requested by the appellant’s attorneys for the examination of the party and the appeals were granted within the period of the petitions, but the papers in the file were discussed and considered as required to be read:
The case, the work
the unpaid cost of work arising from the contract> and the cash deduction of collateral are related to the collection of receivables and the request for the return of final letters of guarantee. The decision made by the court on the partial acceptance of the case was appealed by the deputies of the parties.
1-Related to the articles in the file, the evidence on which the decision is based, the reasons for the requirement in accordance with the law and, in particular, the return of certain guarantees
10 of the convention. 4. 1. 45 of the General Specification for Construction Works, which must be implemented in accordance with Article. in the article, it is stated that half of the final guarantee will be returned after it is determined that the contractor has no debt to the administration and the temporary acceptance minutes are approved, and the rest will be returned after the final acceptance minutes are approved if the contractor brings a certificate of non-affiliation from the SGK, and the refund of the cash guarantee deduction is also
30/2 of the contract. according to the final liquidation account issued, the contractor has no debt to the business owner and is out of the case from the letter dated 31.01.2019 of the Provincial Directorate of SSI … Provincial Directorate of SSI dated 31.01.2019
according to the understanding that the plaintiff does not owe SGK for the work subject to the contract, all the appeals of the defendant’s attorney were not considered on the spot, since there was no failure to correct and return the cash security deductions and final letters of guarantee, rejection was required.
Dec May 10, 2012, signed between the parties; 2-As for the plaintiff’s appeals, dated May 10, 2012
30/2 of the contract. the item is not given to the production of the final account of the administration completed but 5% of the letter of guarantee will be final accounts unless approved by the administration of this letter of guarantee should be returned after you specify whether, in the last sentence of the same article, if the contractor does not give a letter of guarantee is given to the manufacturing of the final account of the administration of belonging to 5% of the amount approved by the administration, unless reimbursement of such amounts and will hold final accounts, it was agreed. Since it is also understood that the expert report received, as well as the court’s acceptance, was issued with the liquidation final account, and the plaintiff contractor will receive a work fee of 220.312,19 TL that was not paid according to the final liquidation account, the liquidation final account must be issued by the court, and the court will receive calculated and unpaid rights, since this transaction is a confirmation of the final account, and the final account will also
article 30 of the convention. 2. according to the article, it is not possible to make a cash guarantee deduction. In this case, the court decided that, in addition to accepting other claims, it would receive unpaid claims over TL 220,312.19 calculated by experts and partially accepted without a cash guarantee deduction, while it was not correct to conclude that it would receive a smaller amount of rights by deducting a cash guarantee because it would receive unpaid work fees as a result of an incorrect assessment, and it was deemed appropriate to overturn the decision.
CONCLUSION: The above 1. refusal of all appeals of the defendant for the reasons described in subparagraph, 2. according to paragraph 11 of the Law No. 5766, from the amount paid, to the VIOLATION of the provision for the benefit of the plaintiff with the acceptance of the plaintiff’s appeals in accordance with the paragraph. the amendment clause, pursuant to law, the fees 42/2-d TL 218,50 that need to be taken in accordance with the deduction of fees by the Supreme Court, how to contact, if you have taken more, the appeal to which the appeal fee to return the plaintiff to the following to check the writ of appeal of a defendant who appeals from TL 97,20 writing fees within 15 days from the date of notification of the decision to be taken for the correction of the decision 19.02.2020 can be requested on the day it was decided unanimously. (¤¤)</b