TURKISH SUPREME COURT
11th Civil Chamber
Main Case No.: 2004/5892
Decision No.: 2005/3009
Date of Decision: March 29, 2005
Summary: The plaintiff is the drawer of a check, and the action for the cancellation of the check must be dismissed.
(Turkish Civil Code Art. 669, 730)
Case: Aydın First Instance Court, regarding the case between the parties dated December 15, 2003, and numbered 2003/578 – 2003/1387, it was determined that the plaintiff filed the appeal within the prescribed time limit. After hearing the report prepared by the reviewing judge C. and re-examining the petition documents, the trial minutes, and all documents in the file, the judge reviewed and evaluated the case:
Decision: The plaintiff’s attorney filed a lawsuit seeking the cancellation of a check written by his client to the payee, stating that the check was in the amount of 5,000,000,000 TL and that the amount was written in TL. The attorney claimed that he had prepared the check for presentation but lost it, and that presenting it would result in damage to the check.
The attorney representing the defendant argued that his client was the holder of the check in question and, since there was no legal relationship between the defendant and the plaintiff, had transferred the check to the plaintiff by endorsement, and requested that the case be dismissed.
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Based on the allegations, the intervention petition, and the evidence gathered, the court decided to dismiss the case on the grounds that the check in question had been served to the holder, had been subject to intervention by endorsement, and there was no valid evidence regarding the claim of loss.
Pursuant to Article 4, Paragraph 669 of Law No. 730/20 of the Turkish Commercial Code, , the issuer of the check is not entitled to file a cancellation lawsuit; however, the law grants the creditor the right to file a cancellation lawsuit due to the loss of the check and the holder’s retention of it, as the delivery of goods required for the cancellation of the check—which would otherwise result in legal consequences—is necessary by the nature of the transaction.
In a specific example, the plaintiff is a check drawer, and based on the principles outlined above, the decision to dismiss the case on different grounds was found to be incorrect. Pursuant to the final provision of Article 438 of the Code of Civil Procedure, the court’s reasoning was amended, and consequently, the correct ruling must be affirmed based on the stated grounds.
Conclusion: For the reasons stated above, it was decided to reject the plaintiff’s attorney’s objections by unanimous vote on March 29, 2005, to confirm the judgment for the stated reasons, and to collect the appeal filing fee of 1.10 YTL from the plaintiff.