3rd Person’s Claim Of Appropriation – Presumption Of Ownership In Favor Of The Debtor – Invoices Without Distinctive Characteristics Do Not Constitute Evidence
Republic of Turkey Court of Cassation 8th Civil Chamber E: 2018/304, K: 2018/1828, K.T.: 08.03.2018
At the end of the trial held in the above-mentioned case between the parties, the Court decided to accept the case and upon the appeal of the judgment by the defendant’s attorney, the file was examined and considered by the Chamber.
DECISION :
The plaintiff 3rd person, explaining that the goods in the workplace belonging to him were seized, that the debtor had nothing to do with the seized goods, that the debtor started to operate a cafe in the same place after the debtor closed his business, and requested a decision to remove the seizure on his client’s goods with the acceptance of the appropriation case.
The defendant creditor’s attorney argued that both the debtor … and his wife … were present at both seizures made in the same place and that the lawsuit should be dismissed.
The court decided to accept the lawsuit and to remove the attachments on the seized goods on the grounds that, according to the witness statements, 2 months after the debtor evacuated the goods belonging to him at the workplace from the seizure address, the plaintiff started his activities by bringing the goods belonging to him to the workplace, the plaintiff did not take the business by transfer, and it could not be determined that there was a kinship and organic bond between the defendant debtor and the plaintiff.
The decision was appealed by the defendant creditor’s attorney.
The lawsuit is related to the third party’s claim of appropriation based on articles 96 et seq. of the EBL.
The seizure subject to the lawsuit was made in the presence of the debtor at the address “…”. On the other hand, the notification of the payment order issued to the debtor’s address ”…”, which is the debtor’s residence address, was made to the plaintiff third party as a co-worker at the same place at the attachment address. In addition, the debtor and the debtor’s spouse were present at the attachment dated 19.12.2014, which was held at the same place as the attachment subject to the lawsuit. In addition, the plaintiff third person used the debtor’s “…” It continued to use its title as it was. Accordingly, the presumption of ownership stipulated in Article 97/a of the EBL is in favor of the debtor and therefore the creditor. The contrary of this legal presumption must be proved by the plaintiff 3rd party with convincing and strong evidence.
The invoices and witness statements relied upon by the plaintiff third party, some of which are dated after the birth of the debt and do not have distinctive features; they do not constitute strong evidence in the claims of appropriation and are not sufficient to prove the contrary of the presumption of ownership.
Therefore, considering these material and legal facts, the court, instead of dismissing the lawsuit, it was not correct to render a judgment for the acceptance of the lawsuit with a justification that does not comply with the facts and file content.
CONCLUSION: For the reasons explained above, it was unanimously decided on 08.02.2018 that the appeal objections of the defendant creditor’s attorney are accepted and the judgment is DISMISSED in accordance with Article 366 of the EBL and Article 428 of the HUMK, and that the parties may request a correction of the judgment within 10 days as of the notification of the Supreme Court of Appeals Chamber decision in accordance with Article 366/3 of the EBL.