Whether The Execution Became Impossible Or Not Should Be Investigated And A Judgment Should Be Established According To The Result
T.C Judiciary Court 13th Civil Chamber Main: 2017/ 3657 Decision: 2018 / 10801 Date of Decision: 19.11.2018
SUMMARY: While the court should investigate whether the performance has become impossible by taking into account the documents in the file, the fact that the zoning plan of the place where the transformer is moved has been canceled and the provisions of the contract, the relevant Article 136 of the TCO explained above, and a decision should be made accordingly, the decision to accept the lawsuit in writing with incomplete examination is contrary to the procedure and the law and requires a reversal.
(6098 S. Code Art. 136)
Case: At the end of the trial of the lawsuit for the return of the letter of guarantee between the parties, upon the appeal of the judgment given for the acceptance of the lawsuit for the reasons written in the judgment by the defendant’s lawyer within the time limit, the file was examined and discussed.
The plaintiff has signed a contract with the defendant for the transfer of the transformer located in … province, … district, 3007 block – parcel 23 to 3007 block 3 parcel 151. 117,76 TL, dated 05/11/2009, for the relocation of the transformer located on parcel 3, block 3007, parcel 23, in the province of …, district of …, township of …, province of …, district of …, township 3007, block 3007 – parcel 23, to block 3007, parcel 3, for the relocation of the transformer to block 3007, parcel 3, for a period of 6 months; however, during the transformer relocation procedures, … Upon the objection made to the Municipality, since the Municipality did not allow the installation of a transformer on the parcel numbered 3, the transformer center was installed on the … land allocated in the zoning plan and the displacement process was carried out, the defendant accepted this, but since the new transformer location was not in its ownership, according to Article 14 of the main protocol, they made an additional protocol for the expropriation procedures to be carried out by … by covering all expenses by itself as the claimant. According to Article 14 of the main protocol, they made an additional protocol for the expropriation procedures to be carried out by … by covering all expenses by the claimant as the claimant, and as a guarantee for their obligations pursuant to Article 6 of the main contract, they signed a final and definitive agreement dated 31/12/2009 and numbered 606421 and dated 31/12/2009 and numbered 16. 000,00 TL dated 31/12/2009 and numbered 606421, issued by the … Bank … Branch, as a guarantee for the performance of the obligations as per Article 6 of the main agreement, the defendant institution gave the defendant institution a letter of guarantee dated 31/12/2009 and numbered 606421, dated 31/12/2009 and numbered 16. 11. 2012 dated letter … that since the zoning application has not been finalized in the region where the transformer place displaced on the land is located, the title deed of the transformer place cannot be obtained, the letter of guarantee must be renewed and replaced with a letter with an indefinite phrase until the title deed transfer procedures are finalized, otherwise the existing letter will be converted into cash, The compensation letter has been extended twice so far, the letter should be returned, the expropriation procedures initiated pursuant to the contract have not been concluded due to him, the performance of the provision “until the registration of the immovable” in the contract has become impossible due to reasons not caused by him, and the defendant has accepted the impossibility, and the debtor will be released from liability if the performance of the debt becomes impossible in accordance with the provision of Article 136 of the Code of Obligations. 136. stating that if the performance of the debt becomes impossible in accordance with the provision of Article 136, the debtor will be released from liability, and that there is no possibility that the plaintiff will cause damage to the defendant, first of all, the letter of guarantee dated 31/12/2009 and numbered 606421 and dated 31/12/2009 and issued by the … Bank … Branch amounting to 16.000,00 TL. dated 31/12/2009 and numbered 606421, dated 31/12/2009, issued by the … Bank … Branch, the return of the letter and the protocol dated 05/11/2009 between the parties has expired due to the fulfillment of the parties’ obligations, and requested and sued for the determination of this situation and the prospective termination of the protocol and its annex.
The defendant argued that the reason for the non-return of the letter of guarantee was that the plaintiff had not ensured the registration of the place where the transformer was moved in the name of … in accordance with the protocol, and that this was the plaintiff’s obligation, and requested the dismissal of the lawsuit.
The court decided to accept the lawsuit and to return the letter of guarantee dated 31/12/2009 and numbered 606421 issued by … Bank … Branch to the plaintiff with a value of 16.000,00 TL; the judgment was appealed by the defendant.
The lawsuit is related to the return of the letter of guarantee given by the plaintiff in accordance with the protocol dated 05.11.2009 signed with the defendant, claiming that the performance has become impossible for reasons not caused by the defendant. The defendant requested the dismissal of the lawsuit. Court decided to accept the case on the grounds that “… since the ownership of the immovable property belongs to the treasury, the registration procedures are a matter to be resolved between … and the defendant … and since the plaintiff has fulfilled its part of the protocol, the letter of guarantee should be returned to the plaintiff…”.
Article 136 of the Turkish Code of Obligations No. 6098 in force on the date of the lawsuit, titled “impossibility of performance”; “If the performance of the debt becomes impossible for reasons for which the debtor cannot be held responsible, the debt ends.” In the examination of the documents in the file, a lawsuit was filed at the … 1st Administrative Court with the request to cancel the decision of the … Municipality Council dated 29/12/2010 and numbered 295 regarding the zoning application covering the immovable property numbered 1482 parcel belonging to the treasury, where the plaintiff moved the transformer, and the Administrative Court decided on 21. 06.06.2012 with the decision numbered 2011/854 Esas 2012/647 and it is understood that the decision was decided to cancel the zoning transaction subject to the lawsuit and that the decision was approved by the 6th Chamber of the Council of State on 17.06.2015 with the decision numbered 2012/6778 Esas 2015/4360 and became final in this way. For this reason, the plaintiff party filed the present lawsuit by declaring that the title deed of the place where the transformer was moved could not be registered in the name of the General Directorate of … as agreed and that the performance became impossible for reasons not caused by him. Although the additional protocol signed between the parties stipulates that the letter of guarantee will be returned after the expropriation procedures are completed and the new transformer location is registered in the name of the General Directorate of …, the court, considering the documents in the file, the fact that the zoning plan of the place where the transformer is moved has been canceled and the provisions of the contract, the relevant Article 136 of the TCO explained above. The fact that it was decided to accept the lawsuit in writing with incomplete examination is contrary to the procedure and the law and requires a reversal, while the issue of whether the performance has become impossible should be investigated and a judgment should be made according to the result.
Conclusion For the reasons explained above, it was unanimously decided on 19/11/2018 that the appealed decision will be DISMISSED in favor of the defendant, 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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