Decision On Contract Cancellation And Claims
T.C. JUDICIARY
23rd Civil Chamber
Basis: 2012/2464
Decision: 2012/5486
Date of Decision: 27.09.2012
CONTRACT TERMINATION AND RECEIVABLE LAWSUIT – THE LAWSUIT REGARDING THE RECEIVABLE WAS LEFT IN THE PAST AND THERE WAS NO ROOM FOR A DECISION – THE LAWSUIT REGARDING THE TERMINATION OF THE CONTRACT WAS DECIDED TO BE DISMISSED – THE REASONED DECISION DECIDED TO DISMISS THE LAWSUIT IN ITS ENTIRETY – REVERSAL OF THE JUDGMENT
SUMMARY: In the concrete case, the lawsuit petition requested the termination of the contract, the cancellation of the annotation on the immovable property and the collection of … TL for the time being, during the trial, the claim for the receivable was left to the future, and with the short decision given at the end of the trial, it was decided that there was no place to make a decision since the case regarding the receivable was left to the future, and the case regarding the termination of the contract was dismissed, and in the reasoned decision; it was decided to dismiss the case completely. As such, the reasoned decision is different from the short decision. In this case, within the framework of the Supreme Court of Appeals Unification of Jurisprudence decision, it is necessary to revoke the judgment in order to issue a new short and reasoned decision without being bound by this short decision.
(2709 S. K. art. 141) (1086 S. K. art. 294, 381, 388, 389) (6100 S. K. art. 294, 298)
Case: At the end of the trial of the contract cancellation and receivable lawsuit between the parties, the judgment given for the dismissal of the lawsuit for the reasons written in the judgment was appealed by the plaintiff’s attorney with a hearing, and a summons was sent to the relevant parties. On the appointed day, the hearing was started with the attendance of the plaintiff’s attorney Av. S. A. and the defendant’s attorney Av. A. U., and after the oral explanations of the attorneys 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 considered:
Decision: The plaintiff’s attorney stated that there was a land share construction contract dated 05.06.1995 between his client and the defendant contractor for 38.000 m2 of the 108.250 m2 immovable property located in Ankara, Yenimahalle District, Alacaatlı Village, Yerlidağ Mevkii, 515 parcel. 1995 dated 05.06.1995 regarding the 38.000 m2 portion of the 108.250 m2 immovable property located in Alacaatlı Village, Yerlidağ Mevi, parcel 515, and it was agreed that the construction would start within 8 months after the issuance of the zoning deeds, but the construction has not started despite the passage of 16 months, and requested for the termination of the aforementioned contract, the cancellation of the annotation on the immovable and the collection of 7.500,00 TL for the time being, and during the trial, the claim for the receivable was abandoned.
The defendant’s attorney requested the dismissal of the lawsuit.
The court, according to the claim, defense and the scope of the file, decided to dismiss the case on the grounds that the plaintiff dismissed from the duty of attorney dated 05.06.1995, which he gave to the defendant official in order to fulfill the requirements of the contract, on 26.03.1996 before the issuance of the zoning deeds, and therefore the defendant could not obtain a construction license.
The decision was appealed by the plaintiff’s attorney.
1-After all the evidence of the parties have been collected and examined and their last words have been heard and the hearing has been declared over, it is essential for the judge to write the decision together with its justification and to announce the result of the judgment in the manner stipulated in Article 388 of the Code of Civil Procedure (Article 298/3 of the CCP) and Article 389 of the Code of Civil Procedure (Article 294/3 of the CCP). However, in practice, based on the provision of paragraph 381/last of the Code of Civil Procedure (Article 294/4 of the CCP), for compelling reasons, only the conclusion of the judgment is recorded in the minutes and announced, and the reasoned decision is written later.
In such cases, it is obligatory to write the reasoned decision in accordance with the short decision, which gains publicity and legal existence with the announcement clearly indicating the rights and obligations of the parties in accordance with Article 389 of the HUMK (Article 294/3 of the CCP). As a matter of fact, the judge, who has dismissed the case by writing and pronouncing the short decision, has no legal possibility to change this decision. According to Article 298/2 of the CCP, the reasoned decision cannot be contrary to the announced judgment. On the other hand, the fact that the short decision and the reasoned decision are contradictory or different creates a situation contrary to the publicity of the trial, Article 141 of the Constitution regarding the public announcement of the decisions, and the above-mentioned mandatory articles of the Code of Civil Procedure and the CCP. In addition, the aforementioned issue is related to public order, and its observance is a duty imposed on the judge by law. The contrary opinion and practice is incompatible with the principle that the judiciary, the judge and his/her decisions should be free from all kinds of considerations, respectable and reliable.
In the concrete case, the lawsuit petition requested the termination of the contract, the cancellation of the annotation on the immovable property and the collection of 7.500,00 TL for the time being, the claim for the receivable was abandoned during the trial, and with the short decision given at the end of the trial, it was decided that there was no place to make a decision since the case regarding the receivable was abandoned, and the case regarding the termination of the contract was dismissed, and in the reasoned decision; it was decided to dismiss the case completely. As such, the reasoned decision is different from the short decision.
In this case, within the framework of the Court of Cassation Unification of Case Law decision dated 10.04.1992 and numbered 1992/7, 1992/4, the judgment should be reversed in order to make a new short and reasoned decision without being bound by this short decision.
2-According to the reason for reversal, it is not deemed necessary to examine the appellate objections of the plaintiff’s attorney for the time being.
Conclusion For the reason explained in subparagraph 1 above, the judgment should be reversed, for the reason explained in subparagraph 2 above, it is not necessary to examine the appellate objections of the plaintiff’s attorney for the time being, the prepaid fee should be refunded upon request, the 900,00 TL trial attorney fee should be taken from the defendant and paid to the plaintiff, and it was unanimously decided on 27.09.2012, within 15 days from the notification of the decision, with the way of decision correction being open.