Judgment of the Supreme Court No.

7618/2552
Short verdict
When the contract is terminated The parties must return
the other party to the original position. Determination of the work
to be paid to each other. Therefore not as compensation or
damages But it is one way to bring the parties back to their
original position. As for the value of the work that will pay each
other It must be considered from the value of the work that the
plaintiff actually made to the defendant. May not take the wages
to be paid according to the period of work specified in the
contract that has been terminated as a rule again Because the
wages required to pay under the contract may be assigned
what is not the value of the work as well.
The plaintiff and the defendant agreed that Will cost a
certain amount of money When not paying the debt or paying
the debt incorrectly Regarded as a penalty If higher than the
portion The court has the power to reduce to a reasonable
amount according to the Civil and Commercial Code, Section
383.
Ultimate liability for fees The court has the power to
exercise its discretion to allow any party to be the victim. Taking
into account the reasonable and honesty in the proceedings.
 
Long verdict
The plaintiff sued to force the defendant to pay the
amount. 10,832,909.77 baht with interest at the rate of 7.5% per
annum of the said principal from the date of filing onwards until
payment is complete.
The defendant made a request for dismissal.
The Court of First Instance ordered the defendant to pay
an amount of 1,921,714.77 baht plus interest at the rate of 7.5
percent per year from the date of filing (filed May 6, 1999) until
the payment is made to the plaintiff and the defendant must pay
the court fee on behalf of the plaintiff. By setting a lawyer fee of
60,000 baht, only the court fee to be used instead as the
plaintiff won the case
Defendant to appeal
The Court of Appeals Standing Judgment The defendant
must use the attorney fee in the appeal class 10,000 baht
instead of the plaintiff.
Defendant petition
The Supreme Court ruled that Problems that must be
diagnosed in this class according to the petition of the
defendant is that The plaintiff has the right to receive the value
of the work that the plaintiff has done to the defendant, or not
just when the contract is terminated. Civil and Commercial
Code, Section 391 states that "Each party must have the other
party returned to the position as it was in ... the work that has
been made ... To pay back You can do it by using the money as
it should be ... "So when the contract is terminated The law
forced the parties to return the other party to their original
position. The determination of the work to be paid to each other
is not compensation or damage. But it is one way to bring the
parties back to their original position. As for the value of the
work that will pay each other It must be considered from the
value of the work that the plaintiff made to the defendant in
truth. May not take the wages to be paid according to the
period of work specified in the contract that has been
terminated as a rule again Because the wages determined to
be paid to each other under the contract There may be things
that are not the value of the work as well. As can be seen that In
requesting the defendant to pay the fee of the 5th installment,
the plaintiff described in the indictment that The plaintiff
invested in the construction of the 5th installment of 1,510,000
baht only. The lower court determined that the work in the 5th
installment was worth 2,576,000 baht, which is the installment
payment under the contract as a basis for
calculation. Therefore, it is the configuration of the work rather
than what appears in the indictment. And when it did not
appear that the defendant argued the value of the work in the
5th installment, it would serve as proof that the plaintiff did not
complete the fifth installment of the work, ie the transformer was
not installed. The value of the work is 273,295 baht, so the value
of the work in the 5th installment is worth as much as the plaintiff
described in the indictment, deducted by the installation of the
transformer, which is 1,236,705 baht.
For the work that the plaintiff asks the defendant to pay
further is The value of the work in the 6th and 7th installments
the plaintiff attest that Plaintiff invested in installing aluminum
ceilings 286,670 baht, wages for painting the ceiling, making a
sewer fence, 100,000 baht and a deposit of 150,000 baht for
painting by paying for the paint already. The defendant did not
argue. Therefore determined as the plaintiff attest As for the
furniture Even if the plaintiff will attest that the deposit has been
paid But the furniture maker testified that The furniture has not
been installed. Therefore cannot set the value of the work in the
furniture section Would require that the plaintiff only
invested For work in the seventh installment did not appear that
the plaintiff had served as proof that he had done any
work. Therefore not set to The value of the work in the sixth
installment is 536,670 baht, including the value of the work that
the plaintiff has done in total of 1,773,375 baht. The plaintiff was
in breach of the contract. The delivery was delayed for 53 days
before the defendant terminated the contract. Civil and
Commercial Code, Section 391, paragraph four, stipulates that
the exercise of the right to terminate the contract does not
wound up to claim damages. And in the employment contract,
Article 20 stipulates that the defendant can demand a fine in the
event that the plaintiff delivers the work late at a rate of 31,880
baht, even if the defendant terminates the contract with the
plaintiff, so the plaintiff has to pay a fine in case of late delivery
of work to defendant And must be deducted from the value of
the work that the defendant has to pay to the plaintiff.
The plaintiff, the defendant agreed that Will cost a certain
amount of money When not paying the debt or paying the debt
incorrectly, it should be considered a penalty. If it is too high,
the court's jurisdiction can be reduced to a reasonable
amount. According to the Civil and Commercial Code, Section
383, this case the plaintiff, the defendant agreed that If the
plaintiff delivers the work late, the defendant has the right to
demand a fine from the plaintiff at a rate of 31,880 baht per day
without appearing. Under what criteria are such fines
calculated? And did not appear to be the exact amount of the
defendant being damaged But said that after the defendant
terminated the contract with the plaintiff The defendant hired
another contractor to complete the rest of the work at a price of
4,900,000 baht, a lower price compared to the price of hiring
the plaintiff. Which shows that the plaintiff charged a relatively
high construction cost But when considering the interests of the
defendant as a creditor who will have the right to charge a fine
from the plaintiff under the contract. The fines are still
considered unreasonable. Agreed that the defendant is entitled
to a fine of 20,000 baht per day, a total of 53 days, a fine of
1,060,000 baht must be deducted from the cost of the plaintiff's
work. As for the lower court, the amount of 900,000 baht
according to the bank's guarantee is calculated in the
determination of the work by ruling that the defendant forfeited
the said amount, then considers that the letter of guarantee in
the amount of 900,000 baht is the money specified. In the letter
of guarantee that the plaintiff presented to the defendant. In
order to fulfill the contract, including insurance against damage
of employment that may occur within 2 years from the date of
delivery If there is no damage or the plaintiff has paid damages
to the defendant in full. The defendant will return the letter of
guarantee to the plaintiff under Article 3 and Article 6 of the
employment contract and the fact that The defendant has not
yet exercised the right to claim the bank to use the money for
the defendant according to the said guarantee, so it is
considered that the defendant forfeited 900,000 baht as
payment for damages to the defendant, so when the value of
the work that the plaintiff made to the defendant was 1,773,375
baht deducted. Issued with a fine of 1,060,000 baht and
construction costs in the fifth installment of 588,990.23 baht that
the defendant paid to the plaintiff. The defendant still has to use
the value of the work to the plaintiff is 124,384.77 baht, the
defendant's petition to listen to some.
 As for the defendant to petition that When the case can be
heard that the defendant is not in breach of the contract The
court should not require the defendant to use the fees instead of
the plaintiff that the Code of Civil Procedure, Section 161 states
that the liability in the most class for the cost. The court has the
power to exercise its discretion to allow any party to be the
victim. Taking into account the reasonable and honesty in the
proceedings. The lower court required the defendant to use the
fees instead of the plaintiff. Therefore it is the exercise of
discretion according to the law But in this class, when it
appears that the defendant has largely won the case under the
petition. Therefore saw appropriate to pay new fees
Judge is said The defendant to pay 124 , 384.88 baht with
interest at the rate of 7.5 percent per year from the date of filing
onwards until the payment is completed to the plaintiff. In order
for the defendant to use the fees in all three courts instead of
the plaintiff, only the portion of court fees shall be equal to the
funds that the plaintiff won the case in the petition class. On the
court, the three lawyers, including 10 , 000 baht.