Summary:
In proceedings based on a bill of exchange, objections to the debt and signature must be filed with the Enforcement Court within five days.
TC
High
Council of Judges and Prosecutors
Case No: 2012/806
Decision No: 2013/286
Date:
(….. Pursuant to Article 168/5 of the Enforcement and Bankruptcy Code, the debtor’s signature on the promissory note
must be either that the debt does not exist, that the debt has been extinguished, that the claim has become due, or that the debtor must notify the enforcement court within five days from the date of objection to the authority.
In the present case, it is seen that the 10th payment order was served on the joint and several debtor on December 27, 2010, and that the debtor applied to the enforcement court on February 21, 2011, requesting that the proceedings be terminated on the grounds that his signature and title were not on the promissory notes.
Since the irregularity of the service of the payment order was not alleged, the court decided to accept the application in accordance with Article 168 of the Enforcement and Bankruptcy Code. After the appeal review, instead of deciding to reject it due to the statute of limitations within the five-day legal period, it is necessary to issue a written passive hostility complaint and issue a decision of discontinuance and pursue the case indefinitely, given that the debtor does not have a driver’s license and therefore a decision of discontinuance would be issued. The reason for the appeal (inadmissibility) was invalidated, and at the end of the trial, the file was returned with a new notification; the court issued a single summons for the previous decision.
APPELLANT: Defendant’s representative
DECISION OF THE GENERAL ASSEMBLY OF THE COURT OF APPEALS
Upon review by the General Assembly of the Court of Appeals, it was determined that an appeal had been filed against the decision to uphold the judgment, and after reviewing the documents in the case file, the following matter was discussed:
The case concerns an action for annulment of the trial.
As a result of the court’s examination of the documents; a person who did not participate in any stage of the exchange bills as a debtor did not consent to the pursuit of a person who did not participate in any stage against the debtor, the court did not approve the pursuit of a person against whom there was no possibility of pursuit on the grounds that there was no passive dispute under the law of pursuit,
and that the approved bill of exchange samples in the enforcement file did not specify a period, and that the dispute could request the cancellation of the enforcement proceedings because it concerned public order, the court accepted the case and decided to cancel the enforcement proceedings against the plaintiff on the grounds that there was no passive dispute, in accordance with Article 170a of the Enforcement and Bankruptcy Law, and to reject the claim for damages.
Upon appeal by the defendant’s representative, the Special Chamber’s decision was overturned based on the same reasons stated in the above land registry article.
The court ruled that “…the endorsement used by the plaintiff as a signature is not binding on the promissory note and cannot be used to request cancellation due to Sadir bahis, Accordingly, in the event of the dismissal of the claim and the lack of jurisdiction, the dismissal of the claim is not within the meaning of Article 170, but rather within the meaning of Article 170/ which refers to the dispute mentioned in the document, and the person named therein has his own signature on the bill of exchange.”
Th decision states that if the person mentioned in the document referring to the dispute specified in the article has their own signature on the promissory note, the dispute is subject to public order, and therefore the claim in question must be dismissed indefinitely due to lack of jurisdiction, and the claim for compensation must be rejected.
The decision was appealed by the defendant’s attorney.
The dispute, which has been referred to the General Assembly of the Law, shall be resolved upon the plaintiff’s request by means of an objection signed in accordance with Article 168 of the Enforcement and Bankruptcy Law and the presentation of the promissory notes. otherwise, if a complaint is filed within 5 days based on Article 170 of the EBL (the debtor’s complaints in terms of exchange law), it shall be deemed subject to that complaint, and as a result, it shall be decided whether or not the enforcement shall be canceled.
Upon examination of the file numbered 2010/31686 of the Istanbul 8th Enforcement Directorate, the defendant creditor S. Gıda vb. Ltd. Şti. and B. Pasta ve Fırıncılık Gıda Sanayi Ltd. Şti. and the defendant E. Gıda Otel ve Fırıncılık vb. Ltd. Şti. for a total amount of TL 15,239.63, and a claim dated 11.06.2010 for the collection of the amount of TL 3,000 , and that a payment order based on five foreign currency bills backed by bonds of the same date, along with supporting documents, was served on BG on December 27, 2010.
The plaintiff claims that the defendant company initiated proceedings against him based on a foreign exchange bill dated February 21, 2011, and that B. vb. A.Ş., which is listed as the debtor in the proceedings, is the authorized signatory with joint signature authority, did not endorse the bills of exchange on which the proceedings are based, and cannot be a party to the proceedings. that the signature on the company seal does not belong to him, that the proceedings cannot be directed against him, and that he objects to the proceedings on the grounds of hostility and signature. He has requested the cancellation of the proceedings and compensation at a rate of 40%.
As is known, Article 168 of the Enforcement and Bankruptcy Law dated 2004 regulates the matters to be written in the payment order in the enforcement of bills of exchange through seizure. Accordingly: 3. If the bill subject to enforcement is not a bill of exchange, a complaint must be filed with the relevant authority within five days; 4. If the petitioner claims that the signature on the bill of exchange is not his, he must notify the enforcement court of this in a clear petition within five days;
otherwise, the signature on the bill of exchange shall be deemed to belong to them in the enforcement proceedings to be carried out in accordance with this section, and if they unjustly deny their signature, they shall be subject to a fine of ten percent for that year, and if the court does not decide to accept their objection, the enforcement shall continue in case of force majeure; 5. If the debt or the debtor is not subject to a stay of execution, or if the default or grounds for objection issued or to be issued by the enforcement office are time-barred, an application must be made to the court within five days of the acceptance of the objection, and
It is mandatory to state in the notice of attachment that no decision from the competent authority is required.
In the specific case, the plaintiff has not objected to the irregularity of the payment order. The plaintiff has objected to the secondary debt and the signature. The payment order was served on the plaintiff on December 27, 2010, and the case was filed on February 21, 2011, and is subject to Article 168 of the Enforcement and Bankruptcy Code. Since the 5-day period specified in the article has passed, the Special Chamber must reject the objection because the period for the notice of violation has expired.
For the reasons explained, while the decision to comply with the annulment decision issued by the General Assembly of the Law with the reasons stated in the Special Chamber’s annulment decision is required, resisting the previous decision is contrary to procedure and law. Therefore, the decision to resist must be overturned.
Conclusion
Article 30 of Law No. 6217 on the Acceptance of Appeals by the Defendant’s Representative, Article 429 of the Code of Civil Procedure No. 1086, and with reference to “Provisional Article 3” added to the Code of Civil Procedure No. 6100.