T.C SUPREME COURT 15.Legal Department Base: 2019/ 2487 Decision: 2020 / 654 Decision Date: 19.02.2020
SUMMARY: According to the scope of the file … there is no dispute about the payment of the down payment in USD, according to the expert report agreed on the expiry date in the contract.. the last payment by the plaintiff on the date of which the payments were not completed.. it is seen that it was made in its history.In order for the business owner to ask the contractor to perform his/her performance in the work contract containing mutual actions, .. in accordance with article … of the numbered TCC, he must first of all have fulfilled his own act. In the concrete case, it is understood from the expert report that the plaintiff did not pay the agreed amount of the work price that he had to pay on the due date of the contract no later than the time agreed in the contract, the court should have decided to reject the plaintiff’s request for a criminal condition that did not form the conditions, while it was not correct to decide on its partial acceptance, it had to be overturned.
(492 pp. K. m. 42)
The appeal examination of the decision made by the Legal Department of the Regional Court of Justice with the date and number written above was requested by the defendant’s deputy for a hearing, and the request for a hearing was accepted and the hearing held on 11.02.2020 was attended by the plaintiff’s deputy Lawyer … and the defendant’s deputy Lawyer …. After it became clear that the appeal had been filed within the time limit and the lawyers of the parties present were listened to, the work was left to another day to be examined and decided due to the lack of time. This time, after the papers in the file were read, the need for the job was discussed and considered:
The case, the work
the decision made by the court of first instance on the partial acceptance of the case was appealed against by the defendant in the way of the appeal law, and the decision made by the official and authorized Istanbul Regional Court of Justice on the rejection of the appeal application was appealed by the defendant.Dec. 13.10.2014, which was held between the defendant and the plaintiff in the plaintiff’s case
according to the contract, the defendant must deliver 3000 tents that he undertakes to manufacture no later than 06.11.2014, while stating that he did not
he asked the defendant to decide on the collection of USD 170,000.00 over the daily penalty amount agreed in the contract.However, in the defendant’s defense, the plaintiff
stating that he did not pay under the terms agreed in the contract, he asked to be decided on the dismissal of the case.Delivery delayed for 34 days on the respondent by the court of first instance, the plaintiff is permitted to each party upon delivery of the goods resulting from delay in delivery of shipment of falling reservation all the rights of the amount of the penalty calculated from hidden 170.000,00 USD, as a rule, the penalty can be reduced from a debt in which the borrower merchant, however, it was decided to accept the case over USD 42,500.00 on the grounds that the exceptional discount was accepted by the supreme court application in cases where an extremely high criminal requirement was agreed that could cause economic ruin. After the defendant filed an appeal against this decision, the District Court of Justice decided to reject the defendant’s appeal on the basis of the decision.Dated 13.10.2014, dec between the parties
according to the contract, the defendant contractor undertakes the construction of 3,000 tents at a cost of 355 USD/piece, which must be delivered no later than 06.11.2014, 5. according to the article, it is understood that it has been agreed that the goods will be loaded after 85% of the total amount of each batch of goods to be paid and prepared in advance of 150,000.00 USD has been paid. According to the scope of the file, there is no dispute about the payment of the down payment of 150,000.00 USD, according to the expert report
it is observed that the last payment was made by the plaintiff on 31.12.2014, when the payments were not completed on 06.11.2014, which was agreed as the end date of the contract.A work containing mutual actions
in its contract, in order for the business owner to ask the contractor to perform his/her performance, it is necessary to comply with Article 97 of the TCC No. 6097. in accordance with the article, he must first of all have fulfilled his own act. In the concrete case, the plaintiff,
no later than the time agreed in the contract
according to the expert report, according to which the court had to decide on the rejection of the plaintiff’s request for a criminal condition that did not form the conditions, while it was not right to decide on its partial acceptance, it had to be overturned.
CONCLUSION: For the reasons described above, the decision to be appealed is subject to HMK 371. according to article 11 of the Law No. 5766, which is paid, the trial power of attorney fee of TL 2,540.00 is taken from the plaintiff and given to the defendant represented by a proxy at the hearing in the Supreme Court, to be impaired for the benefit of the defendant in accordance with Article 11 of the Law No. 2,540.00. in accordance with the amendment to article 42/2-d of the Fees Code, in accordance with Article 218.50, which must be received in accordance with Article 373/1, since the decision to cancel is related to the decision to return the appeal fee received to the appellant, if any, by deducting the application fee of the Supreme Court of 218.50, which must be received in accordance with Article 373/1. in accordance with the article, it was decided unanimously to cancel the decision of the Regional Court of Justice on the fundamental rejection of the application and send the file to the Court of first instance, which decided to re-decide in accordance with the decision to overturn, and a sample of the decision was sent to the Regional Court of Justice, to be final on 19.02.2020. (¤¤)</b