Lawsuit Arising From The Contract of Work – Decision On Progress Payment Receivable In A Lesser Amount By Making A Cash Collateral Deduction From The Unpaid Work Fee Receivable – Reversal Of The Judgment
T.C Judiciary Court 15th Civil Chamber Esas: 2019/ 1938 Decision: 2020 / 675 Date of Decision: 19.02.2020
SUMMARY: In addition to the acceptance of the other claims, the court should have decided to partially accept the unpaid progress payment receivable over … TL calculated by the experts and without deduction of cash collateral, but it was not correct to deduct the cash collateral from the unpaid work price receivable as a result of the wrong evaluation and to award a lesser amount of progress payment receivable, and it was deemed appropriate to revoke the decision.
(492 S. K. Art. 42)
The appeal of the judgment dated and numbered above has been requested by the attorneys of the parties and it has been understood that the petitions for appeal have been submitted within the time limit, the papers in the file have been read, discussed and considered:
DECISION
The case, the work
The claim is related to the collection of the unpaid work price and cash security deduction receivables arising from the contract and the request for the return of the performance bonds. The court’s decision on partial acceptance of the case was appealed by the attorneys of the parties.
1- Based on the writings in the case, the evidence on which the decision is based and the reasons in accordance with the law and especially regarding the return of the performance bonds
Article 45 of the General Specification for Construction Works, which must be applied in accordance with Article 10.4.1 of the contract, states that half of the performance bond will be returned after it is determined that the contractor has no debt to the administration and after the approval of the provisional acceptance report, and after the approval of the final acceptance report, the remainder will be returned if the contractor brings a certificate of discharge from the SSI, and the return of the cash collateral deduction
Article 30/2 of the contract is subject to the condition that the final accounts are approved by the administration, and the liquidation final account was issued by the court due to the defendant business owner’s refusal of final acceptance, according to the liquidation final account issued, the contractor has no debt to the business owner and from the letter dated 31.01.2019 of the non-suit SSI … Provincial Directorate
Since it is understood that the plaintiff has no debt to the SSI regarding the work subject to the contract, since there is no inconsistency in the revocation and return of the cash collateral deductions and performance bonds, all the appeal objections of the defendant’s attorney were not deemed appropriate and should be rejected.
2-As for the plaintiff’s appeal objections; The agreement signed between the parties dated May 10, 2012
In Article 30/2 of the contract, it is stated that a letter of guarantee will be taken at the rate of 5% of the productions that have been completed but the final account has not been submitted to the administration, and that this letter of guarantee will not be returned unless the final accounts are approved by the administration, and in the last sentence of the same article, it has been decided that if the contractor does not provide a letter of guarantee, 5% of the amounts belonging to the productions whose final account has not been submitted to the administration will be kept and these amounts will not be paid unless the final accounts are approved by the administration. As it is also accepted by the court, since it is understood that the liquidation final account was drawn up with the expert report and that the plaintiff contractor has a receivable of 220.312,19 TL for the unpaid work price according to the liquidation final account, the fact that the liquidation final account was drawn up by the court and since this action of the court is in the nature of approving the final account, the calculated and unpaid progress payment receivable is also
Pursuant to Article 30.2 of the contract, it is not possible to deduct cash collateral. In this case, the court, in addition to the acceptance of the other claims, should have decided to partially accept the unpaid progress payment receivable over 220.312,19 TL calculated by the experts and without deduction of cash collateral, while it was not correct to deduct the cash collateral from the unpaid work price receivable as a result of the wrong evaluation and to award a lesser amount of progress payment receivable, and it was deemed appropriate to revoke the decision.
CONCLUSION: For the reasons explained in subparagraph 1 above, all appellate objections of the defendant are rejected, and for the reasons explained in subparagraph 2 above, with the acceptance of the plaintiff’s appellate objections, the judgment is reversed in favor of the plaintiff, and the payment of the fees in accordance with the amendment made by Article 11 of the Law No. 5766. Pursuant to the amendment made by Article 11 of Law No. 5766, it was unanimously decided on 19.02.2020 that the 218,50 TL Supreme Court application fee required to be taken pursuant to Article 42/2-d of the Law on Fees shall be deducted from the amount paid, the excess appeal fee, if any, shall be refunded to the appellant, and the remaining 97,20 TL appeal decision fee written below shall be collected from the appellant defendant, and that a request for correction of the decision can be made within 15 days from the date of notification against the decision.
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