Check Cancellation
T.C. JUDICIARY
11th Civil Chamber
Main: 2004/5892
Decision: 2005/3009
Date of Decision: 29.03.2005
SUMMARY: The plaintiff is the drawer of a check and the check cancellation lawsuit should be dismissed.
(6762 S. Code Art. 669, 730)
Case: In the case between the parties, the Supreme Court of Appeal has been requested by the plaintiff’s attorney to review the decision dated 15.12.2003 and numbered 2003/578 – 2003/1387 given by Aydın 1st Civil Court of First Instance and it has been understood that the petition for appeal has been submitted within the time limit, and after the report prepared by the Examining Judge Deyiş C. for the case file has been listened to and the petitions, hearing minutes and all documents within the file have been read and examined, the matter has been discussed and considered:
Decision: The plaintiff’s attorney claimed that his client prepared the bearer check to be given to Sedat Ö. by writing a price of 5.000.000.000.000.-TL, but lost it, claiming that he would suffer loss if the check was presented, and demanded and sued for the cancellation of the check.
The attorney, who participated in the case as an intervener, defended that his client was the bearer of the check subject to the lawsuit, that it was passed to him through endorsement, and that he was a bona fide bearer since he had no legal relationship with the plaintiff, and requested that the lawsuit be dismissed.
The Court decided to dismiss the lawsuit on the grounds that, according to the claim, the petition for intervention and the evidence collected, the check subject to the lawsuit was issued to the bearer, passed to the intervener by endorsement, and there was no valid evidence about the claim of loss.
With the reference to Article 730/20 of the Turkish Commercial Code and Article 669 and the following articles of the same law, the lawsuits for the cancellation of the check due to loss should be filed without an adversary due to the nature of the business and the legal consequences it will bring, and the right to file a lawsuit for cancellation due to the loss of the check in this case is a right granted to the beneficiary and the bearer, and the drawer has no right to file a lawsuit for cancellation based on these legal provisions.
In the concrete case, the plaintiff is the drawer of the check, and in line with the above-mentioned principles, while the check cancellation lawsuit should be dismissed, it was not deemed correct to decide to dismiss the lawsuit on different grounds, and in accordance with Article 438/last of the H.U.M.K., the reasoning of the court should be changed and the judgment, which is correct as a result, should be approved for the reasons explained.
Conclusion For the reasons explained above, it was unanimously decided on 29.03.2005 that the appellate objections of the plaintiff’s counsel be rejected and the judgment be upheld for the reasons explained, and that the appellate judgment fee of YTL 1.10 written below be collected from the appellant.