Supreme Court of the Republic of Turkey
15. Law Office
Basis: 2019/ 1938
Decision: 2020 / 675
Decision Date: 19.02.2020
SUMMARY: While the court should decide to partially accept the unpaid progress payment receivable over … TL calculated by the experts and without any cash guarantee deduction, in addition to the acceptance of other demands, it was not correct to conclude that a smaller amount of progress payment would be received by deducting the cash guarantee due to the unpaid work receivable as a result of the wrong evaluation. found suitable.
As it was understood that the above-mentioned verdict, with the date and number, was requested by the attorneys of the parties, and it was understood that the appeal petitions were submitted in due time, the papers in the file were read and considered as necessary:
DECISION
lawsuit, work
It is related to the collection of unpaid work cost and cash guarantee deduction receivables arising from the contract and the return of performance guarantee letters. The decision of the court regarding the partial acceptance of the case was appealed by the attorneys of the parties.
1- Regarding the writings in the file, the evidence on which the decision is based, the legally compelling reasons and especially the return of performance bonds.
According to Article 45 of the General Specification for Construction Works, which must be applied in accordance with Article 10. 4. 1. of the contract, half of the performance bond will be returned after it is determined that the contractor has no debts to the administration and the provisional acceptance report is approved. It is stated that it will be returned if he brings a certificate of disengagement from the company and the refund of the cash collateral deduction
30/2 of the contract. In the article, the final accounts are subject to the condition of approval by the administration, and because the defendant employer refrained from final acceptance, the liquidation final account was drawn up by the court, according to the liquidation final account issued, the contractor has no debts to the employer, and the non-litigation SGK … Provincial Directorate’s letter dated 31.01.2019
As it was understood that the plaintiff did not owe the SSI regarding the work subject to the contract, the cash guarantee deductions and the recovery and return of the performance guarantee letters were not found to be inaccurate.
2-As for the plaintiff’s appeals, dated 10 May 2012 signed between the parties.
30/2 of the contract. In the last sentence of the same article, after it is stated that a letter of guarantee will be received at the rate of 5% of the productions completed but the final account of which has not been given to the administration, this letter of guarantee will not be returned unless the final accounts are approved by the administration. It has been decided that these amounts will not be paid unless the final accounts are approved by the administration. As it was accepted by the court, since it was understood that the liquidation final account was drawn with the expert report received and that the plaintiff contractor had unpaid work fee of 220,312,19 TL according to the liquidation final account, the liquidation final account was drawn up by the court and this transaction was in the nature of the court’s approval of the final account. in addition to due
Pursuant to article 30. 2 of the contract, it is not possible to deduct cash collateral. In this case, besides the acceptance of other demands, the court should decide that the unpaid progress payment receivable will be partially accepted over 220,312,19 TL calculated by the experts and without any cash guarantee, but it was not correct to conclude that a smaller amount of progress payment will be received by deducting the cash guarantee from the unpaid work fee due to the wrong evaluation, It was found appropriate to reverse the decision.
CONCLUSION: For the reasons explained in the first paragraph above, all the objections of the defendant were rejected, the judgment was overturned for the benefit of the plaintiff with the acceptance of the plaintiff’s objections in accordance with the second paragraph, in accordance with the Article 42/2-d of the Fees Law in accordance with the amendment made with the 11th article of the Law No. 5766. That the 218.50 TL Court of Appeals application fee that should be charged is deducted, the appeal fee, if any, is returned to the appellant, the remaining 97.20 TL of appeal decision fee is collected from the appellant, and a request for correction of the decision can be made within 15 days from the date of notification against the decision 19.02 It was unanimously decided on the day of .2020.
