Defence Petition For Breach Of Payment Commitment
……… ( ) ENFORCEMENT CRIMINAL COURT
OBJECTING TO THE COMPLAINT
DEBT : A….. B…. (T.C.:………)
ADDRESS
AGENT :Lawyer ………………
ADDRESS
COMPLAINANT
CLIENT : C…. D…. (T.C.:……..)
ADDRESS
SUBJECT OF THE REQUEST : It consists of the presentation of our defences against the complaint against our client and our request for evacuation.
EXPLANATIONS
Upon the non-payment of the debt of the client A… B…. to the creditor C… D…., the creditor initiated execution proceedings through the file numbered 2021/….. of Ankara …. Enforcement Directorate Execution proceedings were initiated through the file numbered 2021/ (Annex-1).
With the finalisation of the said proceeding, the client undertook to pay the debt for a period to be determined in the presence of the execution manager and with the consent of the creditor. Accordingly, the client ../../…. He undertook to pay his debt by paying 000,00TL per month starting from the date. By the creditor ../../…. This commitment offer was accepted by sending us a memorandum of acceptance (Annex-2) on the date …/./.
Although the client made a commitment to pay, after the commitment, due to the Covid-19 pandemic that affected the world and our country, the client’s business, like many of our citizens, was interrupted. The requirements of the commitment subject to the complaint given to the complainant before the pandemic could not be fulfilled due to the fact that the client fell into debt after the pandemic. As a result of this situation, which occurred without the client’s intention, the complainant has filed a complaint against the client through your court’s file numbered 2021/…. A complaint was filed against the client through the file numbered 2021/ Esas of your court and the client was requested to be penalised. The said lawsuit petition was notified to us on ../…/…. We have been notified on the date of .././ and we submit our objections within the time limit.
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When all the documents and information in the file are examined, it will be seen that the material and moral elements of the offence have not occurred and that there are no moral facts that can punish the client.
The client has no intention to fail to pay the promised instalments. This difficult situation in which the client is in debt has put him in a situation that he does not want in his commercial relations, although he has no intention. Failure to pay the promised instalments was not within the control of the client and did not occur with intent.
Pursuant to Article 340 of the BEC, “the debtor who violates the condition of payment of the debt agreed upon in the execution office with the consent of the creditor without a reasonable cause, upon the complaint of the creditor, shall be sentenced to compulsory imprisonment for up to three months.” It is stated. However, as your court is aware, as a result of this unfortunate situation, which the world and our country were caught unprepared for, most of the things in the client’s hand and palm have been exhausted; the client has fallen into a situation where he cannot afford the instalments he undertook to pay. Although this difficult situation of the client was notified to the complainant and time was requested, the complainant rejected this request and filed a complaint to your Court despite the fact that the client had no intention.
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For these reasons, it is not possible for the client to have committed the offence charged against him. The client did not act with intent. It is not the case that the client, whose commercial activities were hit due to the pandemic, did not fulfil the commitments without a deliberate or reasonable reason. When the client’s assets and bank account movements (ANNEX-3) submitted to the file are examined, it will become clear that he has no intention, and that the situation has become this way due to completely unavailable reasons. The client acted with great care and commercial awareness in his commercial relations until the pandemic period. This situation he has fallen into has occurred completely due to reasons beyond his control, without any intention or fault.
Considering the difficult conditions of our country and the fact that the material and moral element of the offence did not occur, your court should reject the complaint, but accepting it and putting the client in the defendant status is not in accordance with the law and procedure. Failure to acquit the client of the imputed offence will affect his commercial status even worse and will cause irreparable damages in the future.
We declare that we do not accept any of the complainant’s allegations in this respect. Since the client has no intent and fault and the material and moral elements of the offence have not occurred in this respect, your Court should decide to acquit him of the imputed offence.
LEGAL GROUNDS :
BEC (Article 340 and all other articles), CCP, Law on Attorneys and other relevant legislation
EVIDENCE :
Ankara ….Execution Directorate’s file numbered 2021/….. E. numbered file subpoena, Acceptance memorandum, Bank records and asset breakdown of the client defendant, Expert report (If deemed necessary), Any other evidence
CONCLUSION AND REQUEST:
For all the reasons explained above and to be taken into consideration by your Court ex officio,
1- With the acceptance of our defence as explained above, the complaint filed by the complainant C….. D….’s lawsuit is dismissed,
2- The client A….. charged with the offence of breach of payment commitment B….. is acquitted,
3- We request and demand that the costs of the trial and the attorney’s fee be decided to be imposed on the other party complainant. 28/09/2021
Defendant A…. B…. Defence Counsel
Lawyer
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