T.C. SUPREME COURT
Date of Decision: 30.06.2016
THE CASE ARISING FROM THE WORK CONTRACT – AN ADDITIONAL REPORT SUITABLE FOR SENTENCING AND SUPREME COURT SUPERVISION IS RECEIVED AND THE RESULT IS DECIDED ACCORDINGLY – THE DECISION IS MADE BY INCOMPLETE EXAMINATION –
SUMMARY: a commission of experts by the court, the defendant issued by the contractor’s final account and report and this final Progress Report for the municipal attorney of the Defendant dated 05.05.2014 with objections in the petition of appeal, the contents of the agreement and all attachments shall be assessed the evidence with objections and additional to the control of the Supreme Court to rule in a way that answers a favourable report should be decided in accordance with the received and the result will occur while the study has not been decided the fate of missing for it to be true.
(818 P. K. m. 355) (6098 P. K. m. 470)
Case: On the day appointed for the hearing, the plaintiff’s deputy Lawyer … and the defendant’s deputy Lawyer, although the appellant’s examination of the provision written in the date and number above was requested by the defendant’s attorney at the hearing.. She came. After it was understood that the appeal petition was filed within the deadline and the lawyers of the parties present were listened to, the file returned to the scene due to the deficiency was replenished and the papers in the file were read and the need for work was discussed and considered:
Decision: the case stemmed from the building contract, whether temporary admission deficiencies and progress made under the contract does not connect to the determination of the completion of the collection of any debt that the defendant made the contract with the administration and with the approval of the project based on the cost of extra work inside and/or outside and are not included in the contract price but have made the early works of payments and services on behalf of the defendant that the price of the collection, the collection of receivables cash collateral, refund of letters of guarantee and collection of costs and commissions of letters of guarantee up to the date of the case are related to requests. The decision of the court on the partial acceptance of the case was appealed by the deputy mayor of the defendant municipality.
1-According to the articles in the file, the evidence on which the decision is based, the reasons for the necessity in accordance with the law, and in particular, there is no inaccuracy in the discretion of the evidence, the defendant’s other appeals that fall outside the scope of the following paragraph were not considered in place, and their rejection was required.
2-Dec between the parties .. Light Rail System 1. The stage is due to the construction work. The october and its annexes dated 06 dec06.2007 between the parties are not subject to dispute. The plaintiffs are the contractor, the defendant is the municipal business owner. 6 Of the Convention. in its article, it is stipulated that the contract is a one-time lump sum contract and is concluded at a total cost of 109.257.601,09 euros.
Court order dated 06.03.2012 at the scene by the discovery received additional money from the board dated 28.11.2012 noble and expert reports expert, over the objection of the parties the decision of the expert report dated Dec 07.03.2013 additional “temporary admission between the parties is made, however, and has not been taken out of the final account and final acceptance due to the fact that the courts referred to by the court of final accounts should be removed,” it said, taken out of the final account, and the plaintiff’s claims will get evaluated-it was decided to obtain additional information from the experts in order to determine the debt position. Upon decisiveness of the court, additional reports of the expert council dated 08.10.2013 and dated 03.04.2014 were taken from the expert council, the final account of the work was extracted by the experts and october final account file was added to the expert report. The defendant’s deputy objected to the additional expert report dated 03.04.2014 with his petition dated 05.05 october2014. The defendant’s deputy filed an appeal; final summary of the progress made by the experts-related accounts that is incorrect and incomplete, of the amount payable to the contractor under the contract are more calculated, experts claim, euro 3.252.933.28 have done extra work by the contractor, whether offsetting 368.346 advance,as a deduction should be taken into account 40 euro, again missing as a result of the actions of the expert account registered to the contractor for the work you gave extra 3.212.315 by the municipality,they were forced to pay 53 euros, he suggested that there was a big mistake in the account of additional work done with the approval of the expert administration, that the freezing of the trains screen was a very simple deficiency, that it was not possible to put a value of 56,000 euros and make a final account in this way, and the court ruled that the defendant’s attorney answered the objections in terms of the technical objections listed as an example in the appeal petition, without receiving a report from the expert witnesses. However, due to the fact that there are issues that require technical knowledge to be resolved by the court, a report has been received from the expert expert panel. In this case, it is obvious that the court makes a decision without clarifying technical issues and without satisfying the defendant’s objections. Again, from the scope of the file and the content of the defendant’s attorney’s appeal petition, it is understood that the final account of the work has been removed by the municipality that owns the defendant’s business, and this final account should also be examined and evaluated by experts.
In that case, the expert committee from the court, the defendant issued by the contractor’s final account and report and this final Progress Report for the municipal attorney of the Defendant dated 05.05.2014 with objections in the petition of appeal, the contents of the agreement and all attachments shall be assessed the evidence with objections and additional to the control of the Supreme Court to rule in a way that answers a favourable report should be decided in accordance with the received and the result will occur while the study has not been decided the fate of missing for it to be true.
On the other hand, of the items of receivables contained in the lawsuit petition, “The amount of EUR 2,473,850.09 made under the contract and not yet paid despite the fact that it must be linked to the right as of the date of temporary acceptance”, “The amount of costs and commissions incurred by the defendant up to the date of the lawsuit of letters of guarantee is EUR 64,523.09”, “The defendant made with the approval of the administration for the extra work 1.372.314,14 euro” and “inside the main project to the contract and/or outside and are not included in the contract price and services have made payments on behalf of the defendant but with the early work it is the price of 4.437.963,89 euro and VAT is added to the collection you have requested, VAT and fees have not been paid but the amount was calculated. The provision on the basis of additional expert reports dated 03.04.2014 that needs to be paid to the contractor for the 18% VAT amount 1.279.855,75 is calculated in euros and received under the terms 8.911.530,02 in euro receivables 1.279.855 the contractor,75 euro VAT amount. Although there is no case that has been duly filed by depositing the fee in respect of the VAT receivable, it has not been correct to establish a provision that includes the amount of VAT in the same way.
Again, in the justification part of the court’s decision, it was stated that “The request for costs related to letters of guarantee was rejected”. However, the October 51 of the additional expert council report dated 03.04.2014, which is based on the provision. 3 of the table “Evaluation of additional claims-final claim execution” on page. during the “Expenses and commissions of letters of guarantee between 24.12.2009 and 21.12.2010” were shown as 18.418.412,24 euros, and it is understood that this amount is included in the amount of 8.911.530,02 euros of receivables decoded. For this reason, it was not correct to state that the claim for costs related to letters of guarantee was rejected in the justification part of the court’s decision, even though it was convicted.
It was deemed appropriate that the decision should be overturned for the reasons described above.
Conclusion: The above 1. refusal of the defendant’s other appeals for reasons described in subparagraph, 2. it was decided unanimously on 30.06.2016 that the decision to OVERTURN the decision for the reasons described in the paragraph for the benefit of the respondent municipality, the hearing attorney fee of TL 1,100.00 was taken from the plaintiff and given to the defendant represented by the attorney at the hearing in the Supreme Court, the appeal advance fee paid was returned to the respondent who appealed upon request, within 15 days from the date of notification against the decision, a decision correction can be requested on 30.06.016.