It Is Necessary To Investigate Whether Fulfillment Has Become Impossible And Establish a Verdict According To Its Conclusion

17 May It Is Necessary To Investigate Whether Fulfillment Has Become Impossible And Establish a Verdict According To Its Conclusion

T.C SUPREME COURT 13.Legal Department Basis: 2017 / 3657 Decision: 2018 / 10801 Decision Date: 19.11.2018

Abstract: the documents in the court file, the status of the cancellation of the zoning plan of the place where the transformer was moved and the provisions of the contract, the above-mentioned Tbk 136.a provision should be established according to the result of investigating whether the performance has become impossible by taking into account the provision of the article, while the decision to accept the case in writing with incomplete examination is contrary to the procedure and law and required violation.

(6098 P. K. m. 136)

Case: at the end of the trial of the case for the return of the letter of guarantee between the parties, the case was reviewed and considered by the defendant’s lawyer during the period of the provision given for the acceptance of the case for reasons written in the declaration.

Plaintiff, between the defendant … province, … County, 3007 Islands – 23 3007 3 plots in the plots island 151.117 to move into transformer,76 GBP worth, a protocol was signed check dated 05/11/2009 obligation falling upon the protocol’s requirement 6 months will be displaced as the No. 3 plots the transformer transformer pay all the costs and allocation of land and place is to do registration on behalf of … , but during the transformer displacement operations … since the municipality was not allowed to place the transformer on Parcel 3 by the municipality, the displacement process was carried out by establishing it on the land allocated in the transformer Center’s zoning plan, the defendant agreed to this, but since the new transformer location was not owned by the 14 main protocol. According to Article 6 of the articles of association, all costs are covered by him as the claimant and they make an additional protocol for expropriation operations … to be carried out by him.as a guarantee for their actions in accordance with the article … bank … issued by the branch dated 31/12/2009 606421 numbered 16.000,00 TL final and dated until 13/12/2012 the defendant gave the letter of guarantee to the institution, the protocol transformer location … on behalf of the General Directorate after the registration of the letter of guarantee given to the defendant will be returned, in the letter dated 15.11.2012 of the defendant institution … since the application of zoning in the area where the transformer location was located was not completed on its land, the deed to the transformer location could not be obtained, the letter of guarantee was renewed and replaced with an indefinite letter, otherwise the existing letter would be converted to cash, the letter of compensation was extended twice to date, the letter should no longer be returned, the expropriation initiated in accordance with the contract was not caused by it, the provision ”up to the registration of real estate” contained in the contract has become impossible to perform for a reason that does not arise from it, and the defendant accepts the state of impossibility, BK. 136. According to the provision of the article, if the debt becomes impossible to perform, the debtor will be freed from liability,and the plaintiff will not be able to harm the defendant, first of all … the bank … issued by the branch of 31/12/2009 No. 606421 16.000, 00 TL. the protocol dated 05/11/2009 between the parties to the return of the letter and the parties to prevent the conversion of the letter of guarantee to cash has expired due to the performance of the parties, and with the determination of this situation, it has requested and sued to decide on the termination of the protocol and its annex in the future.

The defendant asked for the dismissal of the case, arguing that the reason the letter of guarantee was not returned was because the plaintiff did not provide registration on behalf of the place where the transformer was moved in accordance with the protocol, which was in the plaintiff’s obligation.

It was decided by the court to accept the case, to return to the plaintiff a letter of guarantee of US $ 16,000.00 numbered 606421 dated 31/2009 issued by the branch of the bank; the provision was appealed by the defendant.

The case relates to the return of the letter of guarantee provided by the plaintiff in accordance with the protocol dated 05.11.2009, which they signed with the defendant, claiming that the performance became impossible for reasons not related to it. The defendant pleaded not guilty. By the court””.. since ownership of the property belongs to the Treasury, it is a matter that must be resolved between the registration process and the defendant, and since the plaintiff has fulfilled his duty in accordance with the protocol, the letter of guarantee must be returned to the plaintiff..”it is decided to accept the case on the grounds.

136 of the Turkish Code of Obligations No. 6098, which was in force on the date of the case, entitled ”impossibility of performance”.article; ” if the performance of the debt becomes impossible for reasons that the borrower cannot be held responsible, the debt ends.”” In the examination of the documents in the file, the plaintiff party carries the transformer 1482 parcel of the Treasury regarding the implementation of zoning covering the real estate … 29/12/2010 date of the Municipal Council and 295 with the request to cancel the decision … 1.A lawsuit was filed in the Administrative Court, The Administrative Court of 21.06.2012 date 2011/854 based on decision 2012/647 with the decision to cancel the zoning process subject to the case, and the decision, the Council of state on appeal 6.It is understood that the department has been decided to approve the date of 17.06.2015 2012/6778 with the main decision no.2015/4360 and has been finalized in this way. For this reason, the plaintiff has opened the case at hand by declaring that the title to the place where the transformer was moved cannot be registered on behalf of the General Directorate and that the performance has become impossible for a reason not caused by it. Although the Additional Protocol signed between the parties states that the letter of guarantee will be returned after the expropriation operations are completed and the new transformer location is registered on behalf of the General Directorate; the documents in the court file include the cancellation of the zoning plan of the place where the transformer was moved and the provisions of the contract, the relevant 136 of the Tbk described above.a provision should be established according to the result of investigating whether the performance has become impossible by taking into account the provision of the article, while the decision to accept the case in writing with incomplete examination is contrary to the procedure and law and required violation.

Conclusion: a unanimous decision was made on 19/11/2018, to overturn the decision appealed for the benefit of the defendant for the reasons described above, to return the advance expenses on request, to be clear within 15 days of the notification in accordance with Article 440/I of the Humk, to correct the decision within 15 days. (¤¤)