Signature Objection, Supreme Court Decision On The Necessity Of Taking Signature Samples In The Presence Of The Parties At The Hearing
Republic of Turkey
COURT OF CASSATION
19th CIVIL CHAMBER
CASE NO: 2016/11600
DECISION NO: 2018/441
DATE OF DECISION: February 7, 2018
>SIGNATURE OBJECTION – NECESSITY OF TAKING SIGNATURE SAMPLES IN THE PRESENCE OF THE PARTIES DURING THE HEARING – TAKING SIGNATURE SAMPLES AFTER THE HEARING BY INTERIM DECISION
2004/m.72
SUMMARY: Upon the plaintiff’s claim that the drawer’s signature on the promissory note subject to the lawsuit was not his, a hearing was held in the presence of the parties’ attorneys at the session dated 23.01.2014, and it was decided by interim decision no. 1 that the plaintiff’s signature samples would be taken in his presence. However, although the signature sample record taken later bears the signatures of the judge and the clerk, it was determined that this was not done in the presence of the parties at the hearing, It was understood that it was done after the hearing by the interim decision. This situation is contrary to the procedure for signature examination and has been the subject of the defendant’s objection to the report obtained. A decision based on an investigation contrary to procedure cannot be made. The court shall summon the plaintiff to the hearing to be questioned about the signature, show him the original promissory note in question in the presence of the parties present, ask him whether the signature belongs to him, and if he does not accept it, take signature samples in his presence and then obtain a graphological report together with other signature samples obtained from the places indicated by the parties.
CASE: Following the trial of the negative determination-restitution case between the parties, the judgment accepting the case for the reasons stated in the decision was appealed by the parties’ attorneys within the time limit. The file was reviewed, and the necessary discussions and considerations were made:
DECISION
The plaintiff’s attorney claimed that the defendant initiated enforcement proceedings specific to bills of exchange against the plaintiff, but argued that the signature on the promissory note subject to enforcement did not belong to the plaintiff, requesting a determination that the plaintiff was not indebted and subsequently filed a lawsuit. The plaintiff then stated that the payment was made under fear of enforcement and declared that it had been converted into restitution.
The defendant’s attorney argued that the defendant sold animals to the plaintiff and that the bill in question was signed by the plaintiff and given to the defendant, requesting that the case be dismissed.
According to the evidence gathered by the court, it was determined that the signature of the drawer on the promissory note in question did not belong to the plaintiff, and therefore the plaintiff was not liable for the promissory note. Since collection had been made during the enforcement phase, the case had become a restitution case. and that the conditions for the compensation sought by the parties from each other were not met. The court accepted the case and ruled that 43,000.00 TL, plus commercial interest from the date of payment, should be collected from the defendant and that the parties’ compensation claims should be dismissed. The ruling was appealed by the parties’ attorneys.
Upon the plaintiff’s claim that the drawer’s signature on the promissory note in question was not his, a hearing was held in the presence of the parties’ attorneys on January 23, 2014, and it was decided by interim decision no. 1 to take the plaintiff’s signature samples in court. However, although the signature sample record taken later bore the signatures of the judge and the clerk, it was understood that this was not done in the presence of the parties during the hearing, It was understood that it was done after the hearing by the interim decision. This situation is contrary to the procedure for signature examination and has been the subject of the defendant’s objection to the report obtained. A decision based on an investigation contrary to procedure cannot be made. The court must summon the plaintiff to the hearing to be questioned about the signature, show him the original promissory note in question in the presence of the parties, ask him whether the signature is his, and if he does not accept it, take signature samples in his presence and then obtain a graphological report together with other signature samples obtained from the places indicated by the parties.
CONCLUSION: For the reasons explained above, the judgment is REVERSED in favor of the defendant. Based on the grounds for reversal, there is no need to examine the defendant’s other appeals or the plaintiff’s appeals at this time. If the advance fee is requested, it shall be refunded to the parties. This decision was made unanimously on February 7, 2018.