In Case Of A Discrepancy, The Written Record Shall Prevail Provided That No Alterations Have Been Made To The Numerical And Written Records. Supreme Court Decision
Summary:
(Article 676/1 of the same law, which must also be applied to bonds pursuant to Article 778/2-c of the Turkish Commercial Code No. 6102) For the provision stating that if the amount of the bill is indicated both in words and in figures and there is a difference between the two amounts, the amount indicated in words shall prevail to be applicable, there must be no alteration in the figures and the written records. If tampering is detected, the bill shall be deemed valid for the amount prior to the tampering (HGK. 14.05.2003 T. 2003/12-347 E. 2003/345 K.).
T.C.
Supreme Court of Appeals
12th Civil Chamber
Case No: 2014/12157
Decision No: 2014/14423
Date: 14.5.2014
Upon the debtor’s request for the appeal review of the court decision dated and numbered above within the prescribed period, the relevant file was sent from the local court to the chamber. After hearing the report prepared by the Review Judge for the case file and reading and examining all the documents in the file, the matter was discussed and considered:
Although the other appeal objections are unfounded;
The creditor initiated enforcement proceedings against the debtor based on a promissory note, using the attachment procedure specific to bills of exchange. Upon notification of payment order No. 10, the debtor applied to the enforcement court within the 5-day statutory period provided for in Article 168/4 of the Enforcement and Bankruptcy Code, claiming that the bill of exchange on which the proceedings were based had been altered by adding the number “0” to the amount indicated as was altered by adding the number “0” to it, thereby changing it from “1,000” TL to “10,000” TL, and that 750 TL of the 1,000 TL debt had been paid, requesting that the proceedings be suspended. The court decided to reject the request.
Pursuant to Article 690 of the Turkish Commercial Code No. 6762, which refers to the same Article 588/1 of the same Law that must also be applied to promissory notes (Article 676/1 of the same law, which must also be applied to promissory notes pursuant to Article 778/2-c of the Turkish Commercial Code No. 6102), In order for the provision stating that if the amount of the bill is indicated both in words and in figures and there is a difference between the two amounts, the amount indicated in words shall prevail to be applicable, it is necessary that no tampering has been made in the figures and written records. If tampering is detected, the bill shall be deemed valid for the amount prior to the tampering (HGK. 14.05.2003 T. 2003/12-347 E. 2003/345 K.).
Pursuant to the provision of Article 207 (Article 298 of HUMK) of the Code of Civil Procedure, any erasures, scratches, or deletions on the document shall not be taken into account in case of denial unless they are additionally certified. In other words, for the changes made on the document to be valid, they must be approved by the issuer by means of a signature or initials.
The report dated 12.06.2012 by the Forensic Medicine Institution’s Department of Physical Expertise, prepared as a result of the expert examination conducted by the court regarding the alterations, stated that “in the document under examination, the number ‘0’ is finer, larger, and drawn differently than the preceding ‘0’ numbers, and it is the opinion that it was added later.” is finer, larger, and drawn in a different style than the preceding zeros, and was added later.”
In the report dated February 20, 2013, prepared by the Ankara Criminal Police Laboratory Directorate in the criminal investigation initiated upon the debtor’s complaint regarding the alteration on the promissory note, it was stated that “it was observed that, except for the ”0“ digit in the ones place of the ”10,000“ digits in the value field of the promissory note, the same pen was used repeatedly over the other digits, and that the distance between the ”1“ digit on the right side and the ‘0’ digit at the end of the ”10,000″ digits and the closing lines was different. and that the (dot) mark is observed to be positioned in a cramped manner. It is possible and probable that the “0” digit in the ones place of the “10,000” digit in the value field of the document in question was added later by handwriting, thereby altering the value of the document from “1,000” TL to “10,000” TL, it was deemed possible and probable that the ‘0’ digit in the ones place of the number “10,000” in the value field of the document in question was added later by handwriting, but no definitive conclusion could be reached due to the inability to identify other conclusive findings.”
In the public case opened at the end of the investigation, the Ankara Gendarmerie General Command’s expert report dated 25.11.2013, obtained by the Seydişehir Heavy Penal Court, stated that “It is not possible to express a positive or negative opinion as to whether the repeated strokes over the zeros, except for the ‘0’ in the ones place of the number ‘10,000’, were made with the same type of pen for the purpose of falsification or to correct an inadvertent error.”
Although the court dismissed the case on the grounds that “it could not be clearly established whether the addition of the digit ‘0’ to the ones place of the number ‘10,000’ in the amount field of the promissory note was for the purpose of falsification, as this addition could also have been made for the purpose of correction”; The report dated 12.06.2012 by the Forensic Medicine Institute’s Department of Physical Expertise determined that the number “0” in the ones place of the number “10,000” shown in the amount field of the promissory note was added later, and that the amount field of the promissory note, which was amount section of the document, which was originally “1,000” TL, had been altered to “10,000” TL. The expert reports dated February 20, 2013, from the Ankara Criminal Police Laboratory Directorate and November 25, 2013, from the Ankara Gendarmerie General Command, which were obtained during the criminal investigation and prosecution conducted on the matter, were found not to contradict the Forensic Medicine Institution report in terms of their content. It must be accepted that the promissory note with a value of “1,000” TL was altered to “10,000” TL and that this change in the amount is invalid because it was not approved by the drawer (i.e., it was falsified).
Therefore, the court must accept that the promissory note was altered from 1,000.00 TL to 10,000.00 TL and, in accordance with Article 169/a-5 of the Enforcement and Bankruptcy Law, , the objection to the debt should be partially accepted and the enforcement proceedings should be suspended for the portion of 9,000.00 TL and its accessories. Therefore, the ruling to reject the claim in its entirety with the written justification is incorrect.
CONCLUSION: With the partial acceptance of the debtor’s appeal, the court’s decision is REVERSED for the reasons stated above, in accordance with Articles 366 of the Enforcement and Bankruptcy Code and 428 of the Code of Civil Procedure. The advance fee shall be refunded upon request. The decision may be appealed within 10 days of the notification of the judgment. was unanimously decided on 05.14.2014.
From the Local Court Decision: “It has been understood that the amount was previously written as ‘ten thousand YTL’ in one go, and that the previously written ‘YTL’ was later converted to ‘T’ instead of ‘yt’ and ‘I’ to ‘L’ by means of a top-down and completion method.”