SUPREME COURT 13th Civil Chamber
2016/22543 E.
2017/5094 K.
Court of First Instance: Court of First Instance
Following the trial of the appeal for annulment between the parties, the plaintiff’s representative objected to the decision to dismiss the case within the interim decision period, citing the reasons stated in the decision, and the file was reviewed and the necessary examination was conducted.
Decision
The plaintiff is owed 4,691.15 TL according to the invoice dated 29/10/2013, and 6,565.00 TL based on the invoice dated 18/11/2013, and claimed that the enforcement proceedings initiated to collect these debts were suspended due to the defendant’s unjustified objection. The plaintiff requested that the defendant’s appeal be dismissed and that compensation be awarded.
Th defendant requested that the case be dismissed.
The court ruled to dismiss the request for annulment of the appeal on the grounds that the case was not filed within the one-year period; the decision was appealed by the plaintiff.
The plaintiff requested the cancellation of the objection filed against the enforcement proceedings initiated by the plaintiff for the collection of the debt based on the invoice in question in the complaint. Th court ruled to dismiss the case on 05/08/2014, and the enforcement proceedings were suspended on 06/08/2014 upon the debtor’s objection to the debt. The decision to suspend the enforcement proceedings was served to the creditor’s attorney on 01/09/2014.
The lawsuit was filed on 09/11/2015, and after the one-year statute of limitations had passed, the enforcement file was reviewed. It was understood that the appeal petition against the debt and the decision to suspend the enforcement proceedings were personally served on the plaintiff/creditor, but the enforcement proceedings were initiated by the plaintiff’s attorney. Article 11 of the Notification Law. According to the first paragraph of the article, in cases pursued by proxy, the notification is made to the proxy.
Therefore, making the notification to the proxy in a case pursued by proxy is contrary to the law. Given that the enforcement proceedings related to the case were initiated and pursued by the plaintiff creditor’s attorney, the notification made to the plaintiff’s family is invalid and cannot be taken as a basis for determining the one-year limitation period. In this case, considering that the notification made to the plaintiff is invalid and was filed during the trial, the written decision to the contrary is contrary to procedure and law and constitutes a violation.
CONCLUSION:
For the reasons explained above, it was unanimously decided on 04/27/2017 to REVERSE the case in favor of the plaintiff, to refund the 29.20 TL fee paid in advance upon request, and to close the appeal process in accordance with Article 440/III-1 of the Capital Markets Board.
SUPREME COURT 12th Civil Chamber
2016/8792 E.
2016/26089 K.
COURT: Enforcement Court
Within hours of the above-mentioned court decision being taken on appeal, upon the debtor’s written request, the files related to this audit work, dated and numbered, were sent from the scene to the office and brought before the judge for the preparation of an audit report for the petition. After all the documents in the file were read and examined, the nature of the case was considered:
If the creditor’s claim against the debtor is based on a valuable document subject to enforcement proceedings, and if the debtor established a company within the five-day statutory enforcement period when applying to the court, the writ of attachment pursued, the amount paid for the promissory note or the receipt for repayment to the creditors related to it before its maturity, and if the debt is claimed as a receivable, it shall be presented to the court and, if objected to, it is understood that the appeal was rejected on the grounds that the issue of whether the signature on the payment receipt submitted by the defendant was made by the defendant himself required a trial.
Pursuant to Article 169/a-1 of the Turkish Code of Civil Procedure, if there is no debt or if the repayment or settlement of the debt is established by an official or signed document, the objection shall be accepted by the court. On the other hand, according to the established case law of our Chamber, for the payment document presented to be accepted as relating to the debt subject to enforcement, the basis for enforcement must be clearly indicated in the document.
Article 169/a-3 of the EBC states: “If the signature under the document presented by the debtor is denied by the creditor, the enforcement court judge, upon examination pursuant to Article 68/a, concludes that the signature belongs to the creditor, the judge shall decide to accept the debtor’s objection and sentence the creditor to a fine equal to ten percent of the value or amount of the document in question…”
In the specific case, a TL surety bond in the amount of TL 15,000.00 was issued by the creditor against the debtor, and on 07/15/2015, an enforcement proceeding was initiated for TL 13,000.00. The objection petition states that the debtor is insolvent and includes the creditor’s signed payment receipt dated 06/06/2015; It was stated that the payment of 15,000.00 TL dated 24/4/2015 and 15/06/2015 was made on an annual basis. However, the creditor’s payment receipt dated below and bearing the attorney’s signature could not be submitted with the creditor’s petition bearing his signature on 02/11/2015, and the case was dismissed.
Under Article 3727 of Law No. 169/a-3 dated October 16, 2009, in such cases, the original payment receipt submitted to the court with the debtor’s petition shall be obtained from the debtor. According to the procedure to be followed as stipulated in Article 68/a of the same Law, the original document must be presented based on the outcome of the examination to determine whether the signature was made by the creditor. A ruling issued in writing based on an incomplete examination is invalid.
CONCLUSION:
Acceptance of the debtor’s objections and the court’s decision for the reasons stated above, pursuant to Article 366 of the EBC and Article 428 of the EBC (REGARDING ITS REVERSAL), the fee previously collected shall be refunded upon request, and pursuant to Article 428 of the EBC (REGARDING ITS REVERSAL), the fee previously collected shall be (REGARDING THE REVERSAL), the fee previously collected shall be refunded upon request, and the decision was unanimously rendered on December 26, 2016, with the right to appeal within 10 days of notification of the decision.