Summary:
Although the amount payable on the final installment date of March 30, 2009, was not specified in the commitment agreement and was written as “remaining portion,” a careful review of the commitment agreement dated February 15, 2008, shows that the debtor accepted that the total debt amounted to TL 23,075.60, calculated by separately showing the principal amount, collection fee, interest paid, interest accrued thereafter, commission, etc. separately, thereby acknowledging that the total debt was 23,075.60 TL and committing to pay this amount. The paid interest and subsequent interest are shown separately.
The subject of the complaint is the Kastamonu 1st Enforcement Directorate dated 1.2.2008, issued by the Kastamonu 1st Enforcement Directorate, the written debt and the debt amount corresponding to the debt amount of 22,869.82 TL shown in the commitment record must be accepted and certified by ICAP without leaving any room for doubt.
TC
Supreme
Law Office
Decision No: 2009/3906
Decision No: 2009/3858
Date: 2.6.2009
Following the trial for the debtor A’s act of breaching the payment obligation, it was determined that the elements of the crime were not present, and the defendant was acquitted. 1. Pursuant to the Enforcement Court’s decision dated 22/09/2008 and numbered 2008/10502002 regarding the same act of the defendant, The files containing the same Court’s decisions dated 09/10/2008 and numbered 2008/841-2121, imposing a mandatory detention penalty of up to three months pursuant to Article 340 of the Enforcement and Bankruptcy Law No. 2004, were examined.
In the enforcement proceedings initiated based on file no. 2008/104 of the Kastamonu 1st Heavy Penal Court, Following the seizure notice issued by the Azdavay 1st Heavy Penal Court under instruction No. 2008/20, and the payment made during the enforcement proceedings dated 15/02/2008, the complainants failed to fulfill their commitment as stated in the letter of undertaking drawn up during the proceedings. Consequently, on 30/05/ failure to fulfill the commitment dated 05/06/2008 by not paying the debt dated 30/05/2008 and failing to fulfill the commitment dated 05/06/2008,
the payment notice dated 05/06/2008 made by Recep Bacıoğlu on 05/06/2008 was deemed invalid, and the elements of the acquittal offense against the defendant were finalized by the same court’s decision dated 09/10/2008 and numbered 2008/1050-2002,
following the decision of the Kastamonu 1st Heavy Penal Court dated 22/09/2008 and numbered 2008/1050-2002. In the case brought against the defendant for failing to pay his debt dated 10/04/2008 with the same payment commitment, the decision not to impose a penalty was based on the provisions of Articles 2008/841-2121 and 309 of the Criminal Procedure Code No. 5271. Pursuant to the law, upon the request of the Ministry of Justice General Directorate of Criminal Affairs dated 17/04/2009 and numbered 23864, an appeal was filed with the Supreme Court Public Prosecutor’s Office, and the Supreme Court Public Prosecutor’s Office determined the date as 06.05.2009. Upon request with letter No. YB2009/113214;
TO BE DISCUSSED WHEN NECESSARY:
The debtor, A.uk, has had a total of approximately 18,878.87 TL seized from the debtor at the address Kastamonu 1 for the purpose of collecting the debt. In the follow-up conducted through the Enforcement Directorate’s file numbered 2008/1041, the Azdavay Enforcement Directorate issued an order on 2008/20 to place a lien on the debtor’s address. On February 15, 2008, after the order was registered, the debtor applied to the Azdavay Enforcement Directorate, committing to pay the debt on specific dates. After the enforcement director explained the legal and criminal liability of the commitment, interest, commission, fees, attorney’s fees, and other expenses to be collected were recorded, showing the total debt amount as 23.TL 075.60.
Accepting this amount and the start date, and specifying the amount to be paid on 10.04.2008 and 30.03.2009, the debtor committed to making payments almost every month, indicating only the payment amount for the last installment on 30.03.2009, the debtor paid the “remaining portion” of the installment payment indicated on the form on 10.04.2008 by power of attorney and by transfer dated 15.04.2008 to the creditor’s account at Kastamonu 1. Following a complaint filed with the Enforcement Court based on the decision of the said court numbered 2008/841, the debtor was sentenced to imprisonment for up to three months in accordance with Article 340 of the Enforcement and Bankruptcy Law by the decision dated October 9, 2008, numbered 2008/2121.
According to the article, the creditor, who was sentenced to up to three months in prison, agreed to pay the same commitment by installments via a transfer dated June 5, 2008, as per the minutes dated May 30, 2008. Upon the complaint of the creditor’s representative, the Kastamonu 1st Enforcement Court, in its decision dated September 22, 2008, No. 2008/ 1050, the debtor was acquitted on the grounds that “…the amount of the final installment was left undefined as the ‘remaining portion’…” in its decision dated 22.09.2008, numbered 2008/2002, and it is understood that both decisions became final without any appeal.
Although the amount payable on the final installment date of March 30, 2009, was not specified in the commitment memorandum and was written as “remaining portion,” a careful examination of the commitment memorandum dated February 15, 2008, shows that the debtor accepted that the total debt was TL 23,075.60 by separately indicating the principal receivables, collection fees, accrued interest, subsequent interest, commission, etc. separately, thereby acknowledging that the total debt was TL 23,075.60 and committing to pay this amount. The interest paid and the interest accrued subsequently were shown separately.
The commitment letter dated February 1, 2008, issued to the Kastamonu 1st Enforcement Directorate, which is the subject of the complaint, states that the debt amount is TL 22,869. Considering the 82 TL shown in the commitment record and the debt amount, ICAP acceptance and approval are mandatory without any room for doubt. Therefore, the commitment statement cannot be considered invalid.
Kastamonu 1 Following a complaint filed due to the debtor’s failure to pay the debt specified in the commitment letter dated May 30, 2008, the acquittal decision issued by the Enforcement Court on September 22, 2008, became final without any appeal. As stated in the above explanations, although the acquittal decision was based on “…the amount of the last installment being left undefined as an ‘undisclosed remaining portion’…” this reasoning cannot be accepted.
However, the acquittal decision was not subject to a request for reversal in the interest of the law. In accordance with the rule of compliance with the notification, the decision of the Kastamonu 1st Heavy Penal Court dated 9.10.2008 and numbered 2008/841-2121, in which our chamber decided to sentence the debtor to imprisonment for up to three months, was subject to review. The previous acquittal decision, which became final without going to the Court of Cassation, cannot be considered binding in this case.
For the reasons stated above, it was unanimously decided on June 2, 2009, that the Supreme Court of Appeals should reject the request of the Supreme Court of Appeals Chief Public Prosecutor’s Office to overturn the decision in the interest of the law and that the file should be sent to the Supreme Court of Appeals Chief Public Prosecutor’s Office to be forwarded to the court.