Since Whether The Manufacturing Fee Is Requestable And Its Amount Is Determined By The Trial And The Expert Report, The Execution Denial Compensation Cannot Be Ruled.
T.C Judiciary Court of Appeal 15th Civil Chamber Esas: 2018/ 2380 Decision: 2018 / 1912 Date of Decision: 14.05.2018
SUMMARY: Pursuant to the subcontracting contract dated 13.03.2012 between the parties, the cost of the works performed by the plaintiff was determined as 52,580.00 according to the expert report and there is no inconsistency in the acceptance of this part of the plaintiff’s claim, but the partial acceptance of the plaintiff’s claim for the penalty clause was not correct in the face of the contract and legal regulations. The plaintiff is the subcontractor and the defendant is the contractor and with the contract dated 13.03.2012, some of the works undertaken by the defendant were made by the plaintiff. Although a penalty clause was agreed in Article 16 of the contract between the parties, in Article 15 of the contract between the defendant and the non-suiting business owner; it is prohibited to have the work done through subcontractor-subcontractor, and the plaintiff party should know this provision in the contract made by the contractor with the non-suiting business owner, and the precedent decision of our Chamber dated 26.09.2016 with the number 2016/14-16 Esas, Karar. According to the precedent decision of our Chamber dated 2016; since the contract between the parties cannot be executed due to this provision between the owner and the contractor, since it is not possible to request a penalty clause (Articles 136, 177, 182 of the law numbered 6098), the partial acceptance of the penalty clause request should be rejected in its entirety, while it should be rejected in its entirety is not correct, and since whether the manufacturing price is demandable and its amount is determined by the trial and the expert report, – since it is not liquid – the execution denial compensation cannot be awarded. It was not correct to make a decision contrary to the explained legal regulations and judicial practices, and the decision had to be reversed in favor of the defendant.
(6098 S. Code Art. 136, 177, 182)
Case: The appeal of the judgment dated and numbered above was requested by the attorneys of the parties and it was understood that the petitions for appeal were submitted within the time limit, and the file returned to its place due to deficiency was completed and returned, the papers in the file were read, discussed and considered:
The lawsuit is related to the cancellation of the objection to the enforcement proceeding for the collection of the manufacturing price and penalty clause due to the unfair termination of the work contract, the continuation of the proceeding, and the request for compensation for denial of execution, and the decision of the court regarding the partial acceptance of the case was appealed by the attorneys of the parties within the time limit.
1-According to the writings in the file, the evidence on which the decision is based and the reasons in accordance with the law, all the appellate objections of the plaintiff’s attorney and the other appellate objections of the defendant’s attorney other than the scope of the following paragraph were not deemed appropriate and should be rejected.
2- The plaintiff’s attorney stated that his client has been awarded a contract by the defendant from the General Directorate of Highways for the … …(13+896,062 km) … The General Directorate of Highways stopped the construction in order to determine a new project and route since it was understood that road safety could not be ensured due to landslides during the construction of a part of the bridge, according to the new project, the defendant gave the work to another subcontractor, and asked for the cancellation of the objection to the proceeding for the collection of 52. 580.00 TL and the penal clause of 400.000.00 TL written in the contract for the collection of … 2nd Execution Directorate’s file numbered 2013/6731 Main.
The defendant attorney argued that the claim cannot be made due to a contract that does not appear in the commercial records, which does not exist legally and does not have validity, because there is a provision in Article 15 of the contract made with the business owner that the work subject to the lawsuit cannot be subcontracted, that the amount of the penalty clause requested is exorbitant and unfair, and that the lawsuit should be rejected.
Pursuant to the subcontracting agreement dated 13.03.2012 between the parties, the cost of the works performed by the plaintiff was determined as 52,580.00 according to the expert report and there is no inconsistency in the acceptance of this part of the plaintiff’s claim, but the partial acceptance of the plaintiff’s claim for the penalty clause was not correct in the face of the contract and legal regulations. The plaintiff is the subcontractor and the defendant is the contractor and with the contract dated 13.03.2012, some of the works undertaken by the defendant were made by the plaintiff. Although a penalty clause was agreed in Article 16 of the contract between the parties, in Article 15 of the contract between the defendant and the non-suiting business owner; it is prohibited to have the work done through subcontractor-subcontractor, and the plaintiff party should know this provision in the contract made by the contractor with the non-suiting business owner, and the precedent decision of our Chamber dated 26.09.2016 with the number 2016/14-16 Esas, Karar. According to the precedent decision of our Chamber dated 2016; since the contract between the parties cannot be executed due to this provision between the owner and the contractor, since it is not possible to request a penalty clause (Articles 136, 177, 182 of the law numbered 6098), the partial acceptance of the penalty clause request should be rejected in full, while it should be rejected in full, as it is not correct, and since whether the manufacturing price is demandable and its amount is determined by the trial and the expert report received, – since it is not liquid – the execution denial compensation cannot be awarded. It was not correct to make a decision contrary to the legal regulations and judicial practices explained, and the decision had to be reversed in favor of the defendant.
Conclusion For the reasons explained in paragraph 1 above, all the objections of the plaintiff’s attorney and the other clean objections of the defendant’s attorney are rejected, for the reasons explained in paragraph 2 above, the judgment is reversed in favor of the defendant, the remaining 6,70 TL appeal decision fee written below is to be taken from the appellant, the prepaid appeal fee paid is to be returned to the appellant defendant upon request, and it was unanimously decided on 14.05.2018 that a request for decision correction can be made within 15 days from the date of notification against the decision.
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