04 Dec THE DEFENDANT DOESN’T REQUEST FOR APPEAL
T.C SUPREME COURT 19.Legal Department Base: 2018/ 1341 Decision: 2019 / 876 Decision Date: 14.02.2019
SUMMARY: at the point of a forfeit the defendant is justified in the price of pay is collected and determined that it is incorrect, at the request of the plaintiff and by the defendant duly, harclandirara is not the case opened, and the file scope in accordance with the court’s non-decision on the grounds that this aspect should be eliminated were partially incorrect because, after the agreement of the defendant and the plaintiff to return the check to return to a portion of semen would not imply the acceptance of a part, however, it was decided that the defendant did not have a request for an appeal both in this regard and in terms of attorney fees and trial expenses, and the plaintiff’s case was rejected on the grounds that the termination was not justified and there were no adaptation conditions, and the decision was appealed by the party’s attorneys.
The decision has to be upheld.
(6098 P. K. m. 136, 138)
Case: As a result of the application to the decency law by the plaintiff’s attorney against the decision to dismiss the case filed by the court of first instance on the termination of the contract between the parties … District Court of Justice 17. After the decision to accept the plaintiff’s attorney’s application for the appeal law granted by the Legal Department and reject the case was appealed by the plaintiff’s attorney without a hearing, by the defendant’s attorney without a hearing, the call paper was sent to the interested parties. On a certain day, the deputy plaintiff is hunting…. with the defendant acting Av. … since he had arrived, the oral statements of the lawyers who were present at the start of the hearing were listened to and it became clear that the appeal was pending, the file was examined, discussed and considered as necessary.
With the agreement concluded between the defendant on the plaintiff’s attorney orange citrus 1.2.2016 sale at a price of 1000 tons tohur as 630.000 TL 130.000 TL that was purchased in advance of the remaining debt in line with the contract checks are given for each of the five pieces for the payment of the first pull 100.000 TL given that, pursuant to the contract of frost damage won’t be covered by insurance Tarsim in the month of January and the price was agreed on the defendant’s receivables, but the damage is not part of the 80% of the products can be sold is not in the face of emergence, the defendant was asked to refund the TL 230,000 and TL 400,000 checks collected with the warning and the contract was terminated, the damage rate was determined after the sale agreement and the defendant concealed this situation, TBK 136. and 138.impossibility of performance due to hardship under Article according to the state of the evidence the termination of the contract or for the adaptation 230.000.TL collecting the money paid, unrequited 400.000.4 TL to injunctive relief consistent with the request and has decided to put prosecuted for failure to pay check.
Counsel for the defendant, the plaintiff’s pre-contractual signed the contract in the garden and the necessary inspection of the product, oranges yanc cold shot that is known to the plaintiff, the plaintiff the contract as unfair and therefore the dissolution of the contract price of 30% that is obliged to pay a forfeit, forfeit the amount by arguing that they were ready to give back to the TL outside 189,000 a sale price requested a dismissal of the case.
At the end of the trial held by the court, according to the contract between the parties, DEC 136. and 138.6 of the contract, accepting this notice of termination of the respondent as a withdrawal upon notification of termination of the claimant, to which the article has no possibility to apply. in the face of the clear provision of Article 630.000,00-TL sales and contract 30% of the price corresponding to a forfeit of 189,000 a,00-TL by keeping the remaining 441.000,00-TL 141.000,00-TL deposited into the bank account of the plaintiff, 300.000,00-TL in accordance with the agreement the plaintiff delivered the checks in the presence of the court, the defendant received the sales price of the contract 6. according to the article, he decided to dismiss the case on the grounds that the proxy fee was determined over the remaining and disputed TL 189.000,00, since he had returned the remaining part of the withdrawal compensation, the defendant did not owe the plaintiff any debt related to the contract in question, the defendant had repaid the plaintiff after the lawsuit was filed, and the defendant’s portion of the amount in question was determined, the judgment was appealed by the plaintiff’s attorney.
Regional justice by the tribunal, the parties in a contract of sale is a contract concluded between the buyer in which case, termination of the contract or hardship due to a justifiable reason they are not based on impossibility of performance, adaptation of the detection of the prompt in the direction of the court whether the conditions are in place, however, dispute, and pay a forfeit is collected at the point of the defendant is justified in that the price is incorrect determined, at the request of the plaintiff and by the defendant duly, this is not the case opened harclandirara, file scope in accordance with the court’s non-decision on the grounds that this aspect should be eliminated were partially incorrect because, after the agreement of the defendant and the plaintiff to return the check to return to a portion of semen would not imply the acceptance of a part, but the need of the defendant in this regard, both attorneys ‘ fees and litigation costs aspect of the request for an appeal in the absence of a right of termination of the prosecution’s case on the grounds of denial and lack of adaptation to the conditions made a decision in the absence of the All-Party of First Instance was appealed.
According to the articles in the file, there is no inaccuracy in the evidence based on the evidence and the necessary reasons, the discretion of the evidence, the District Court of Justice 17, which is in accordance with the procedure and law with the rejection of all appeals that are not considered on the spot by the party’s deputies. The date of the Legal Department is 21/12/2017, 2017/565-2017/1450 E.K. approval of the numbered provision, transfer of the power of attorney fee of 2.037,00 TL from one to another of the lawyers present at the hearing, transfer of the file … 2. For information about sending a sample from our apartment to the Court of First Instance … the District Court of First Instance 17. 2,030.00 TL, which was appreciated for the benefit of sending it to the Legal Department, whose deputy was present at the Supreme Court hearing. it was decided unanimously on 14/02/2019 that the trial attorney’s fee should be taken from one to the other and given to the other, and the approval fee written below should be taken from the appealing parties. (¤¤)