The Defendant Does Not Have An Appeal Request In This Respect Or In Terms Of Attorney’s Fees And Trial Expenses
T.C Judiciary 19th Civil Chamber Main: 2018/ 1341 Decision: 2019 / 876 Date of Decision: 14.02.2019
SUMMARY: The court’s decision should be eliminated due to the fact that the court’s reasoning in this respect, which is not in accordance with the scope of the file, is partially erroneous, since the plaintiff does not have a request in this direction and there is no lawsuit duly filed by the defendant by paying a fee, It was decided that the defendant’s returning some of the checks after their agreement and returning some of the semen to the plaintiff would not mean acceptance, but the defendant did not have an appeal request in this respect and in terms of attorney fees and trial expenses, and the plaintiff’s lawsuit was dismissed on the grounds that the termination was not justified and there were no conditions for adaptation, and the judgment was appealed by the attorneys of the parties.
The judgment should be upheld.
(6098 S. Code Art. 136, 138)
Case: As a result of the appeal by the plaintiff’s attorney against the judgment of the court of first instance for the dismissal of the lawsuit filed by the court of first instance regarding the termination of the contract between the parties, … As a result of the appeal to the law of appeal by the plaintiff’s attorney against the judgment of the court of first instance for the dismissal of the lawsuit, the decision of the 17th Civil Chamber of the Regional Court of Justice to accept the appeal of the plaintiff’s attorney and to dismiss the lawsuit was appealed by the plaintiff’s attorney with a hearing and by the defendant’s attorney without a hearing by way of participation, and a summons was sent to the relevant parties. Since the plaintiff’s attorney Av…. and the defendant’s attorney Av. … came on the appointed day, the hearing started and after the oral explanations of the lawyers present were heard and it was understood that the petition for appeal was in due time, the file was examined, the necessity was discussed and thought.
DECISION
The plaintiff’s attorney stated that 1000 tons of oranges were purchased at a price of 630.000 TL in tohur with the citrus sales contract concluded between the defendant and the defendant on 1.2.2016, 130.000 TL was paid in advance with the contract, five sequential checks of 100.000 TL each were given for the remaining debt. 000 TL each for the remaining debt, the first of the checks was paid, it was agreed that the frost damage in January would be covered by Tarsim insurance and the defendant would receive the price, but the products could not be sold as the damage was not minor but 80%, 230. 000 TL and 400.000 TL checks were requested to be returned and the contract was terminated, the damage rate was determined after the sales contract and the defendant concealed this situation, the impossibility of performance and excessive difficulty of performance in accordance with Articles 136 and 138 of the TCO, the termination of the contract due to impossibility of performance and excessive difficulty of performance or its adaptation according to the state of evidence, the collection of 230.000.TL paid money, and the decision to impose a precautionary measure for the non-payment of 4 checks amounting to 400.000.TL.
The defendant’s attorney argued that the plaintiff signed the contract by making the necessary examinations in the garden and the product before the contract, that the plaintiff knew that the oranges were hit by cold, that the plaintiff terminated the contract unfairly, that the plaintiff was therefore obliged to pay 30% of the contract price as withdrawal compensation, and that the plaintiff was ready to return the remaining sales price except for the withdrawal compensation amount of 189.000 TL and requested the dismissal of the lawsuit.
At the end of the trial held by the court, it was concluded that there was no possibility of application of Articles 136 and 138 of the TCO due to the contract between the parties, upon the termination notice of the plaintiff, the defendant accepted this termination notice as a withdrawal and deposited 141.000,00-TL of the remaining 441.000,00-TL into the plaintiff’s bank account by keeping 189.000,00-TL, which corresponds to 630.000,00-TL sales and 30% withdrawal compensation of the contract price in accordance with the express provision of Article 6 of the contract, and 300. 000,00-TL of the remaining 441.000,00,00-TL was deposited into the plaintiff’s bank account, the defendant delivered the checks to the plaintiff in the presence of the court, and the defendant received the sales price in accordance with Article 6 of the contract. Since the defendant has returned the part of the sales price received by the defendant, except for the withdrawal compensation according to Article 6 of the contract, the defendant has no debt to the plaintiff regarding the contract in question, since the defendant has repaid part of the amount subject to the lawsuit to the plaintiff after the lawsuit was filed, it has decided to dismiss the lawsuit on the grounds that the attorney’s fee is determined over the remaining and disputed 189.000,00 TL, and the judgment has been appealed by the plaintiff’s attorney.
The Regional Court of Appeal determined that the contract concluded between the parties is valid, the termination of the plaintiff, who is the buyer in the sales contract, due to the impossibility of performance or excessive difficulty of performance of the contract, is not based on just cause, the court’s determination that the conditions for the adaptation request are not met is appropriate, but the dispute is gathered at the point of payment of withdrawal compensation and the determination that the defendant is right to receive this fee is erroneous, since the plaintiff does not have a request in this direction and there is no lawsuit duly filed by the defendant by paying the fee, The court’s reasoning in this respect, which is not in accordance with the scope of the file, should be partially erroneous and the decision should be eliminated, the defendant’s returning some of the checks after their agreement and returning some of the semen received to the plaintiff would not mean acceptance, but the defendant did not have an appeal request both in this respect and in terms of attorney fees and trial expenses, the plaintiff’s lawsuit was dismissed on the grounds that the termination was not justified and there were no conditions for adaptation, and the judgment was appealed by the attorneys of the parties.
According to the writings in the file, the evidence on which the decision is based, the reasons for the decision, and the appreciation of the evidence, there is no inaccuracy in the appreciation of the evidence, the appeal objections of the attorneys of the parties, which are not deemed appropriate, are rejected and the judgment of the 17th Civil Chamber of the … Regional Court of Appeals dated 21/12/2017, 2017/565-2017/1450 E.- K. numbered judgment, the attorney fee of 2.037,00 TL from the lawyers present at the hearing shall be transferred from one to the other, the file shall be sent to … 2nd Civil Court of First Instance, a copy of the judgment of our Chamber shall be sent to … Regional Court of First Instance 17th Civil Chamber for information. It was decided unanimously on 14/02/2019 that the attorney fee of 2.030,00 TL, which was appreciated for the benefit of the attorney who was present at the Supreme Court of Appeals hearing, be taken from one another and given to the other, and the approval fee written below be taken from the appellants.
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