Return Of The Original Check Presented In Enforcement Proceedings Due To The Enforcement Cashier’s Office Being Full
Republic of Turkey
Supreme Court of Appeals
General Assembly of Civil Law
Case No.: 2014/12-1129
DECISION NO: 2016/603
SUPREME COURT DECISION
DECISION UNDER REVIEW
COURT: Istanbul 16th Enforcement Court
DATE: 02/27/2014
NUMBER: 2014/30 – 2014/256
PLAINTIFF-Debtor: D.O. Domestic and Foreign Trade Ltd. Co., represented by Attorney E.Ö.
DEFENDANT-Creditor: O.P. Curtain Industry Inc., represented by Attorney M.İ.
Following the trial of the “complaint” case between the parties, the Istanbul 16th Enforcement Court of Justice issued a decision dated 07.02.2013, Case No. 2013/151, Decision No. 2013/142, accepting the complaint. Upon request by the attorney of the defendant-creditor to review the case, the 12th Civil Chamber of the Court of Cassation Civil Chamber of the Supreme Court of Appeals, dated 16.09.2013, Case No. 2013/18715, Decision No. 2013/28613, ruled that;
(… It was observed that the debtor, in response to the enforcement proceedings initiated by the creditor based on a check through the attachment procedure specific to bills of exchange, applied to the enforcement court requesting the cancellation of the payment order, claiming that the original check on which the enforcement was based was not in the enforcement office’s safe. The court accepted the complaint and decided to cancel the payment order on the grounds that the original check had not been taken into the enforcement office’s safe.
Pursuant to Article 167/2 of the Enforcement and Bankruptcy Law, the creditor is obliged to attach the original bill of exchange and a certified copy for each debtor to the enforcement request.
In the present case, it is understood that the creditor initiated enforcement proceedings based on the check through attachment specific to bills of exchange, attached the original check to the enforcement request, but after the enforcement office saw the original check, it was delivered to the creditor’s representative against signature on the grounds that the enforcement office’s safe was insufficient.
The creditor fulfilled their obligation by attaching the original check, which was the basis for the enforcement, to the enforcement request and presenting it to the enforcement office, in accordance with Article 167/2 of the Enforcement and Bankruptcy Law. In this case, since the original check subject to enforcement was attached to the enforcement request as of the date of enforcement, the court should have decided to dismiss the complaint, and it was inappropriate to issue a ruling with a written justification.
The case was overturned on this ground and returned to the court, and after a new trial, the court upheld its previous decision.
APPELLANT: Defendant-creditor’s attorney
DECISION OF THE GENERAL ASSEMBLY OF LAW
After the General Assembly of Law reviewed the case and determined that the appeal against the decision to uphold the previous ruling was filed within the time limit and after reading the documents in the file, the following was decided:
In light of the parties’ mutual claims and defenses, the minutes and evidence in the file, and the compelling reasons explained in the reversal decision, it is necessary to comply with the Special Chamber’s reversal decision, which was also adopted by the General Assembly of the Court of Appeals. Therefore, upholding the previous decision is contrary to procedure and law.
For this reason, the decision to uphold the previous decision must be reversed.
CONCLUSION: The defendant-creditor’s attorney’s appeal is accepted, and the decision to uphold the ruling is REVERSED for the reasons stated in the Special Chamber’s reversal decision. If requested, the appeal fee shall be refunded to the payer. This decision was made unanimously on May 11, 2016.