TC
HIGH
GENERAL ASSEMBLY
NUMBER: 12/2014-1129
DECISION NO: 2016/603
CASE REVIEWED
COURT: Istanbul 16th Enforcement Court
DATE: 02/27/2014
NUMBER: 2014/30 – 2014/256
PLAINTIFF-Debtor: DO Domestic and Foreign Trade Ltd. Co. is represented by its attorney. E.He.
DEFENDANT-Creditor: OP Curtain Industry Inc. is represented by its attorney. MI
Following the trial of the “complaint” case between the parties, the Istanbul 6th Degree Court, upon the request of the defendant-creditor’s representative to review the Enforcement Court’s decision dated 07.02.2013 and numbered 2013/151 regarding the acceptance of the case, the 12th Chamber of the Court of Cassation Civil Chamber’s ruling dated 16.09.2013, numbered 18715/2013, and numbered 2013/28613 K.
(… In response to the creditor’s enforcement proceedings initiated through attachment on foreign exchange bills based on the check, the debtor claimed that the original check was not in the enforcement office’s safe and applied to the enforcement court for the cancellation of the payment order. The court accepted the complaint and decided to cancel the payment order on the grounds that the original check was not taken into the enforcement office’s safe.
Pursuant to Article 167/2 of the Enforcement and Bankruptcy Law, the creditor is required to attach the original foreign exchange bill and certified copies thereof to the enforcement request.
In the present case, it is understood that the creditor initiated enforcement proceedings against the foreign exchange bills based on the check, attached the original check to the enforcement request, but after the enforcement office saw the original check, the signature was delivered to the creditor’s attorney due to the insufficiency of the enforcement office’s cash.
The creditor fulfilled its obligation by submitting the original checks subject to enforcement to the enforcement office, attached to the enforcement request, in accordance with Article 167/2 of the Enforcement and Bankruptcy Code. In this case, since the original checks subject to enforcement were attached to the enforcement request as of the date of enforcement, it is not appropriate for the court to issue a written ruling when deciding to dismiss the complaint.
As a result of the retrial, the court upheld its previous decision.
CLEARED BY: Defendant-creditor’s attorney
DECISION OF THE GENERAL ASSEMBLY OF THE COURT OF APPEALS
Upon review by the General Assembly of the Court of Appeals, it was understood that an objection was filed against the decision to uphold the decision, and after reading the documents in the file, the following was discussed:
Based on the mutual claims and defenses of the parties, the minutes and evidence in the file, the necessary reasons explained in the reversal decision, and the need to comply with the Special Chamber’s reversal decision issued by the General Assembly of the Court of Appeals, it was concluded that the insistence on the previous decision was contrary to procedure and law.
Therefore, the decision to insist must be reversed.
CONCLUSION:
With the acceptance of the defendant-creditor’s attorney’s appeal, it was unanimously decided to REVERSE the decision to resist on the grounds stated in the Special Chamber’s decision to terminate and, if requested, to refund the appeal advance fee to the payer on May 11, 2016.