Lawsuit Arising From The Contract Of Work – It Is Understood From The Expert Report That The Plaintiff Did Not Pay The Agreed Amount Of The Work Fee, Which Should Have Been Paid At The Latest On The Delivery Date In Accordance With The Contract – Reversal Of The Judgment
T.C Judiciary Court of Appeal 15th Civil Chamber Esas: 2019/ 2487 Decision: 2020 / 654 Date of Decision: 19.02.2020
SUMMARY: According to the scope of the file, it is seen that there is no dispute about the payment of the down payment of … USD, according to the expert report, the payments were not completed on the date …, which was agreed as the completion date in the contract, and the last payment was made by the plaintiff on … In the work contract involving mutual performances, in order for the owner to request the contractor to fulfill its performance, in accordance with Article … of the TCO numbered …, it must first have fulfilled its own performance. In the concrete case, since it is understood from the expert report that the plaintiff did not pay the agreed amount of the work price, which should be paid on the delivery date as per the contract at the latest within the period agreed in the contract, it was not correct to decide to partially accept the plaintiff’s request for the penal clause, which did not meet the conditions, while the court should have decided to reject the plaintiff’s request for the penal clause, and it was necessary to be reversed.
(492 S. K. Art. 42)
The appeal of the decision given by the Civil Chamber of the Regional Court of Appeal, the date and number of which is written above, was requested by the defendant’s attorney, and the request for hearing was accepted and the hearing held on 11.02.2020 was held on 11.02.2020 and the plaintiff’s attorney, Attorney … and the defendant’s attorney, Attorney … came. After it was understood that the petition for appeal was submitted within the time limit and the lawyers of the parties present were heard, the examination and decision of the matter was left to another day due to the shortage of time. This time, after the papers in the file were read, the matter was discussed and considered:
DECISION
The case is related to the claim for compensation arising from the work contract, and the defendant appealed against the decision of the first instance court on the partial acceptance of the case, and the decision of the competent and authorized Istanbul Regional Court of Justice to reject the appeal was appealed by the defendant. In the plaintiff’s lawsuit, the plaintiff stated that according to the contract dated 13.10.2014 between the defendant and the defendant, the defendant should have delivered the 3000 tents that the defendant undertook to manufacture on 06.11.2014 at the latest, but failed to do so, and requested a decision to collect 170.000,00 USD from the defendant over the daily penalty amount agreed in the contract.
In its defense, the defendant stated that it manufactured the tents, but the plaintiff did not make payment under the terms agreed in the contract and requested the dismissal of the lawsuit.
The Court of First Instance decided to accept the case over USD 42.500,00 on the grounds that the defendant was 34 days late in delivery, the plaintiff reserved all his rights arising from the delay in delivery by making a reservation on the delivery note when receiving each batch of goods, the calculated penal clause amount was 170.000,00 USD, as a rule, the debtor, who is a merchant, cannot be deducted from the penal clause debt, but in cases where a high penal clause is agreed that may cause economic ruin, it is accepted by the practice of the Supreme Court of Justice to make an exceptional discount. Upon the defendant’s appeal against this decision, the … Regional Court of Appeals decided to reject the defendant’s appeal on the merits.
According to the contract dated 13.10.2014 between the parties, it is understood that the defendant contractor undertook the construction of 3,000 tents at USD 355/piece, that they should be delivered on 06.11.2014 at the latest, and that it was agreed that the goods would be loaded after the payment of USD 150,000.00 in advance and 85% of the total amount of each batch of goods to be prepared according to Article 5. According to the scope of the file, it is seen that there is no dispute about the down payment of 150.000,00 USD, and according to the expert report, it is seen that the payments were not completed on 06.11.2014, which was agreed as the completion date in the contract, and the last payment was made by the plaintiff on 31.12.2014. In a work contract involving mutual performances, in order for the owner to request the contractor to fulfill its performance, in accordance with Article 97 of the TCO No. 6097, the owner must first fulfill its own performance. In the concrete case, since it is understood from the expert report that the plaintiff did not pay the agreed amount of the work price, which should be paid on the delivery date in accordance with the contract at the latest within the period agreed in the contract, it was not correct to decide to partially accept the plaintiff’s request for the penal clause, which did not meet the conditions, while the court should decide to reject the plaintiff’s request for the penal clause, and it was necessary to be reversed.
CONCLUSION: For the reasons explained above, the decision subject to appeal shall be DISMISSED in favor of the defendant pursuant to Article 371 of the CCP, 2.540,00 TL trial attorney fee shall be taken from the plaintiff and given to the defendant who was represented by an attorney at the hearing at the Court of Cassation, 218,50 TL Supreme Court application fee required to be taken in accordance with Article 42/2-d of the Law on Fees pursuant to the amendment made by Article 11 of Law No. 5766 shall be deducted from the paid amount and the excess appeal fee, if any, shall be returned to the defendant. In accordance with the amendment made by Article 11 of Law No. 5766, the Court of Cassation application fee of 218.50 TL, which should be taken pursuant to Article 42/2-d of the Law on Fees, shall be deducted from the amount paid, and the excess appeal fee, if any, shall be returned to the appellant defendant, and since the reversal decision is related to the decision to reject the application on the merits, the application shall be dismissed on the merits in accordance with Article 373/1 of the CCP. Pursuant to Article 373/1 of the CCP, the decision of the Regional Court of Appeals regarding the rejection of the application on the merits shall be annulled and the file shall be sent to the court of first instance that made the decision and a copy of the decision to the Regional Court of Appeals for a new decision to be made in line with the reversal decision, it was unanimously decided on 19.02.2020 to be final.
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