In another case;
The plaintiff’s attorney summarised in the “petition for lawsuit”; “…The client limited liability company is a company with a single shareholder and a capital of 1.050.000,00 TL, the amount of the cheque subject to the lawsuit is 500.000,00 USD (the Turkish lira equivalent of approximately 3.200.000,00 TL on the “date of the incident”). ), it is contrary to the ordinary course of life for the client company to borrow 3 times the amount of its capital, the defendant company official asked the client for a cheque in order to guarantee its receivables arising from exports and imports, the client signed and gave the defendant company official the cheque in question, the value part of which was blank… Due to the crisis with Russia in 2015 – due to the downing of a Russian plane in Turkey – the client’s exports stopped…. , the defendant company official filled this blank cheque as 500.000,00 USD and made it subject to enforcement proceedings, … there is no debt between the parties that requires the issuance of a cheque, the defendant must prove the basic relationship that will cause the cheque to be issued …”.
The defendant attorney summarised in his reply petition; “… The cheque subject to the lawsuit is a bill of exchange, it is a debt payment instrument free from any cause, the cheque is unconditionally a remittance for the payment of a certain amount, therefore it is a payment instrument, his client will be deemed as an authorised bearer, the burden of proof belongs to the plaintiffs in this case, the client does not have the burden of proving the basic relationship between the parties, that the cheque subject to the lawsuit was given to his client by the beneficiary through endorsement for the payment of the cash debt, that there is no other legal relationship between the parties that constitutes the basis for the issuance of the cheque as stated in the claims of the plaintiffs, that there is no carriage relationship between his client and the plaintiffs, that the plaintiffs have to prove their claims with conclusive evidence… ” defending that “the lawsuit should be dismissed”.
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The Court ruled that “…the defendant is in the position of a bona fide bearer by accepting the defendant as ‘bona fide’ without listening to the plaintiff’s witnesses that the defendant obtained the cheque through endorsement – ‘the defendant who obtained the cheque subject to the lawsuit through endorsement is malicious’ – and that this situation is not proven otherwise by the plaintiff debtor, SMMM. In the report prepared by the expert; it was stated that there was no transaction that would confirm the commercial relationship between the parties based on their commercial books, and that the cheque subject to the lawsuit was not in the commercial books and accounting records of the parties…”.
The Regional Court of Appeal decided “… the allegations put forward by the plaintiffs cannot be duly proved by conclusive evidence, the fact that the cheque subject to the lawsuit and the follow-up is not recorded in the commercial books of the defendant will not invalidate it, nor will it affect the nature of its impermissibility, according to the fact that the cheque is a means of payment for the liquidation of an existing debt – without ensuring the plaintiff’s witnesses to listen to the witnesses of the plaintiff that the defendant, who obtained the cheque subject to the lawsuit by endorsement, is in bad faith’, the defendant is accepted as ‘in good faith’ – on the grounds that the decision of the court is in accordance with the procedure and the law…. it was decided to reject all the objections of the plaintiffs’ attorneys on the merits.”( …. Regional Court of Appeal 4th Civil Chamber 21.09.2020 T. ……. )
By the 11th Civil Chamber of the Court of Cassation “….. Since it is concluded that there is no inconsistency in the decision rendered by the Court of First Instance…., and that the decision of the Regional Court of Appeal to reject the appeal is in accordance with the procedure and law, it was unanimously decided on 26.05.2022 to approve the decision of the Regional Court of Appeal.” ( Court of Cassation 11th HD 26.05.2022. T. ….)
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