The Plaintiff Failed To Prove With Definitive Evidence That The Plaintiff Paid The Amount Due Under The Contract – The Court Should Bring The Promissory Notes Allegedly Unpaid And Decide According To The Result
T.C Judiciary Court 13th Civil Chamber Esas: 2016/ 12625 Decision: 2019 / 6317 Date of Decision: 20.05.2019
SUMMARY: The court ruled that the plaintiff could not prove that he paid ….. TL, which should have been paid in accordance with the contract, with conclusive evidence, therefore, the plaintiff cannot claim ….. TL, however, the plaintiff cannot claim ….. TL, which he paid in advance, has the right to claim within the framework of unjust enrichment, from this amount ….. TL ….., which is the balance and determined by the expert, was decided to be paid to the plaintiff, but the defendant did not submit the promissory notes allegedly not paid to the file. The court should bring the promissory notes claimed not to have been paid and decide accordingly. The court’s decision in the written manner by ignoring this aspect is contrary to the procedure and the law and requires reversal.
(6098 S. Code Art. 136)
Case: At the end of the trial of the receivable lawsuit between the parties, the file was examined and discussed upon the appeal by the plaintiff’s lawyer within the time period of the judgment given for the partial acceptance and partial rejection of the lawsuit for the reasons written in the judgment.
Decision: The plaintiff, with the contract dated 21/05/2009 with the defendant, purchased the independent section with mortgage in favor of the bank numbered 4 registered on block 4006, parcel 12 for 120.000,00 TL, gave 60.000,00 TL of the sales price in advance in accordance with the contract, and paid the defendant for the remaining 60. 000,00 TL for the remaining 60.000,00 TL, it was agreed that the mortgage would be removed after the payment of the promissory notes, since the mortgage was not removed by the defendant, the apartment was put up for sale and sold in the execution proceeding made by the bank through the foreclosure of the mortgaged receivable, declaring that the defendant acted contrary to the contract and caused the defendant to suffer damages, and requested a decision to collect 50.000,00 TL due to unjust enrichment and 150.000,00 TL for the compensation of negative and positive damages from the defendant.
The defendant defended that the plaintiff did not pay the amount of the promissory note and requested the dismissal of the lawsuit.
The court partially accepted the lawsuit and decided to collect 47.730,13 TL from the defendant and give it to the plaintiff with the legal interest to be accrued from the date of the lawsuit; the judgment was appealed by the plaintiff.
1- In the concrete case, the plaintiff purchased the independent section numbered 4, registered on block 4006, parcel 12, registered on block 4006, parcel 12, mortgaged in favor of the bank for 120.000,00 TL from the defendant for 120.000,00 TL, and in the contract; it was agreed that 60.000,00 TL of the sales price would be paid in cash and the remaining 60.000 TL would be paid by … endorsed promissory notes and the bank mortgage would be removed if the promissory note payments were completed. The plaintiff claimed that he paid the sale price in accordance with the agreement, and the defendant defended that the plaintiff did not pay the promissory notes. In the trial, upon the plaintiff’s oath offer, the defendant, at the hearing dated 17/09/2015, stated that It is true that there was a contract with the plaintiff regarding the sale of immovable property, I received 60.000,00 of 120.000,00 TL in advance as per the agreement, I was going to remove the mortgage on the immovable property when the remaining 60.000,00 TL was paid, but the plaintiff did not pay the remaining 60.000,00 TL to me, the allegations that 60.000,00 TL was paid with promissory notes endorsed by … are not true, no promissory note was given.” The court ruled that the plaintiff could not prove with conclusive evidence that the plaintiff paid 60.000 TL, which should be paid in accordance with the contract, and therefore, he could not claim 150.000 TL within the scope of negative and positive damages, but the 60. 000 TL, which he paid in advance, is entitled to claim within the framework of unjust enrichment, from this amount, it was decided to pay the plaintiff the balance of 45.730,13 TL, which was determined by the expert, by deducting 14.269,87 TL paid to him from the execution sale, but the defendant did not submit the promissory notes allegedly not paid to the file. The court should bring the promissory notes claimed to be unpaid and decide accordingly. The court’s decision in the written manner by ignoring this aspect is contrary to the procedure and the law and requires reversal.
CONCLUSION: For the reasons explained above, it was unanimously decided on 20.05.2019 that the appealed decision will be DISMISSED in favor of the appellant, the prepaid fee will be refunded upon request, and the way of decision correction will be open within 15 days from the notification in accordance with Article 440/I of the HUMK.
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