T.C SUPREME COURT 13.Legal Department, Base: 2016/ 12625 Decision: 2019 / 6317 Decision Date: 20.05.2019
SUMMARY: By the court, the claimant must be paid in accordance with the contract ….. He could not prove with conclusive evidence that he had paid the TL, so he wanted it within the scope of negative and positive damages.…. That he could not claim the TL, but paid in advance ….. From this amount, which TL has the right to demand within the framework of unjustified enrichment, the executive is paid to it from among the decommissioned sales ….. Which has a balance of TL deducted and determined by an expert….. Although it was decided that TL should be paid to the plaintiff, the notes that were allegedly not paid by the defendant were not submitted to the file. The court should decide according to its result by bringing bills of exchange that are allegedly not paid. Ignoring this aspect by the court, the establishment of a provision in writing is contrary to the procedure and law and requires a violation.
(6098 P. K. m. 136)
Case: At the end of the trial of the receivable case between the parties, the case was reviewed by the plaintiff’s lawyer within the period of the provision made for the partial acceptance or rejection of the case for the reasons written in the application, and the file was examined dec considered as necessary.
Decision: the plaintiff, the defendant registered in contract dated 12 Number 4 made with 21/05/2009 4006 island with independent plots mortgaged in favour of the bank Department 120.000,00 TL bought under the contract sales price of 60.000,00 TL given the advance, the remaining 60.000,00 TL gave the deed to the defendant, after the payment of the bonds, the mortgage will be removed if it is decided that the defendant mortgage yanc are not removed, since through encashment of the bank’s receivable on the sale of the apartment in mortgage enforcement proceedings removed sold, declaring that the defendant had caused damage by acting contrary to the contract, he requested that the defendant be ordered to collect TL 50,000.00 for unjustified enrichment and TL 150,000.00 for compensation for negative and prospective damages.
The defendant, arguing that the plaintiff had not paid the price of the promissory note, requested the dismissal of the case.
The court decided that with the partial acceptance of the case, the legal interest of 47.730,13 TL to be processed from the date of the case was taken from the defendant and given to the plaintiff; the judgment was appealed by the plaintiff.
1-in a concrete case the plaintiff, the defendant registered in plots from 120.000 TL 4006 Island 12, Number 4, independent department mortgaged in favour of the bank 120.000,00 TL is purchased at a price of contract sales price is 60.000,00 60.000 TL TL advance promissory note payable on turnover remaining payments over … if that’s all the stocks in the bank, it was agreed to remove the discretion of the mortgage. The plaintiff claimed that he had paid the sale price in accordance with the contract, while the defendant argued that the plaintiff had not paid the bills. In this trial, the plaintiff dated the oath of the defendant at the hearing on the proposal 17/09/2015” it is true that the plaintiff is a contract for the sale of the real property, the deal per 120.000,00 TL 60.000,00 I got the cash, the rest 60.000,00 I was going to remove the mortgage on immovable property is paid in GBP, but the rest of the party plaintiff 60.000,00 TL didn’t pay me, 60.000,00 TL s … cirola bills paid by dedicated by allegations are true, not a bill of exchange has not been given,” in the form of a statement has been sworn in. The court, required to be paid pursuant to the contract, the plaintiff can’t prove it with hard evidence, because that paid 60.000 TL therefore wants 150.000 TL demand that could not harm within the scope of the negative and positive, however 60.000 TL paid in advance of unjust enrichment within the framework of the sales executive has the right to demand that the amount paid to itself from 14.269,87 TL has detected a balance with the deduction of bilirkisice 45.730,13 it has been decided that TL be paid to the plaintiff, the defendant yanc, the alleged lack of payment to file securities has not been submitted. The court should decide according to its result by bringing bills of exchange that are allegedly not paid. Ignoring this aspect by the court, the establishment of a provision in writing is contrary to the procedure and law and requires a violation.
CONCLUSION: It was decided unanimously on 20.05.2019 that the decision appealed for the reasons described above should be OVERTURNED for the benefit of the appellant plaintiff, the fee received in advance should be returned on request, and the way to correct the decision was open within 15 days from the notification in accordance with Article 440/I of the HUMK, on 20.05.2019. (¤¤)