T.C. SUPREME
12.law office
Basis: 2018/371
Verdict: 2018/1405
Decision Date: 15.02.2018
REQUEST FOR CANCELLATION OF THE FOLLOW-UP – THERE IS NO EXPLICIT ACKNOWLEDGEMENT BY THE CREDITOR THAT THE PAYMENTS IN THE DOCUMENTS SUBMITTED BY THE DEBTOR WERE MADE IN RELATION TO THE CHECKS SUBJECT TO FOLLOW–UP – DUE TO THE REJECTION OF THE DEBTOR’S COMPLAINT – THE PROVISION HAS BEEN VIOLATED
SUMMARY: There is a Decisional enforcement and check relationship between the parties based on more than one check and it is not possible to determine whether the declaration of the creditor’s attorney is related to the checks subject to follow-up from the response petition given in the negative determination case. There is no explicit acknowledgement by the payee that the payments in the documents submitted by the debtor were made in relation to the checks subject to follow-up, nor has a proper payment document with an explicit reference to the checks subject to follow-up been submitted by the debtor. In that case, the court should have decided to reject the debtor’s complaint, but the provision in the direction of removing the securities liens with the acceptance of the complaint is unjustified.
(2004 P. K. m. 71)
Case: the above date and number within hours of the court’s decision in writing upon request by the creditor temyizen this audit work-related files from the scene have been sent to the apartment and rested for the audit report to file a claim held by a judge, and all the documents in the file is read and analysed, after it was thought that the nature of the business discussed:
Decision: based on 2-shot lien enforcement proceedings initiated by the creditor with the way ilamsiz in general, the debtor the creditor in return for a cheque the goods are not delivered your goods, although that is charged by putting the pursuit of the shoot, negative clearance opened the case, and the answer he gave to the creditor in the case of the business that followed the execution of the file in the files it is acknowledged that the debt was paid, in spite of this, the actual foreclosure process made of, claiming that the foreclosure process is illegal despite the recognition that the debt has been paid, he requested that the decision be taken to remove the securities foreclosures dated 25.05.2013, the documents submitted by the debtor were not challenged by the creditor, according to the documents, the debt was attached to the bond, sequestered, the creditor accepted the payable receivable with a negative determination case response petition, despite the collection of the receivable, the foreclosure process was made legally it was seen that it was decided to remove the securities liens with the acceptance of the complaint on the grounds that it was contrary.
71/1 of the Enforcement and Bankruptcy Code. according to the article, if the debtor proves with a notarized or signed document that the debt and its carriers have been redeemed or that the creditor has given him a respite in the transfer after the finalization of the follow-up, he can always request the cancellation or talik of the follow-up from the enforcement court.
A concrete case, the debtor’s claim as a basis for the redemption, receipt, deed dated 08.09.2012”, dated 03.01.2013 “collection and receipt titled” negative clearance and documents you have submitted in the case of the creditor’s petition showed the answer of attorney dated 18.04.2013; deed dated 08.09.2012 of receipt of study; …24. 2012/10295 E. of the Enforcement Directorate., 2012/10369 e. and 2012/10372 E. 3 out of the case against the receivable related to the numbered follow-up files. issued by the people and …05.10.2012-term 56.000,00 TL is made to the creditors of bonds, where the execution of the voucher files kefaleten against debt, given the cost of the bond to the assignee of the creditor on the specified date will be returned to this stock when it is paid, also the execution of files from debt 56.000,00 TL if not paid will be deducted from this amount of money in the run, the files number will be continued in the following procedures it is written that the executive in writing, signed by the bottom of the document when it is seen that the creditor’s counsel. in the document titled “collection receipt” dated 03.01.2013, the; is the response you will get the tracking execution of files, and … kefaleten by 56.000,00 TL in the amount of bonds issued, then the price of these bonds dated 10.01.2013 corresponding to 7.000,00 TL, dated 10.03.2013 7.000,00 TL, dated 28.02.2013 10.000,00 TL 3 pull out pieces taken on 13.11.2011 15.000,00 TL and on 11.12.2012 11.000,00 TL are paid for in cash and Bail Bonds work have been returned to them, it is observed that the debtors pay the required collection fee to the enforcement office on registration and condition, and that these payments can be declared and deducted in response to the enforcement files with the numbers written above, and the bottom of this receipt is signed by the creditor’s proxy. Again, on which the debtor relies, by the creditor’s attorney …8. 2013/163 E. of the Commercial Court of First Instance. 10 of the response petition submitted to the file numbered. in the subparagraph, it is seen that there is a statement as follows: ”The plaintiff has given these checks in exchange for his debt and has paid his debt as a result of the enforcement proceedings.” Objection by creditor if it hasn’t been each of these documents, the creditor a total of $ 50,000 payment that was made, more than one track of a file that does not meet all of the payments made and the debt that is mentioned in the documents, which follow three pieces of the file that are not related to and pulled from certain, without complaining about pay 24. 2012/10372 E of the Enforcement Directorate. he stated that the relevant file was notified that it was deducted from the numbered file, and that there is a Decommissioning and check relationship between the parties based on more than one check, and it cannot be determined from the response petition submitted in the negative determination case whether the creditor’s proxy’s statement is related to the checks subject to follow-up. There is no explicit acknowledgement by the payee that the payments in the documents submitted by the debtor were made in relation to the checks subject to follow-up, nor has a proper payment document with an explicit reference to the checks subject to follow-up been submitted by the debtor.
In that case, the court should have decided to reject the debtor’s complaint, but the provision in the direction of removing the securities liens with the acceptance of the complaint is unjustified.
Conclusion: With the acceptance of the creditor’s appeals, the court’s decision is subject to Article 366 of the IIK for the reasons written above. and HUMK’s 428. in accordance with the articles (DETERIORATION), the refund of the fee received in advance, upon request, was decided unanimously on the day of 15/02/2018, so that the way to correct the decision is open within 10 days from the notification of the decision.
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