In the case of a negotiable instrument in the form of a bond, the debt can only be cancelled by a written evidence of the same value or by a definite the defendant should be proved by oath evidence in the nature of evidence, and the defendant to ask why the promissory notes were taken in return for goods or why they were taken the decision of the court of first instance to reject the request for interrogation was procedurally is appropriate;
The negative declaration case between the parties is in accordance with the decision of the court of first instance Upon the appeal of the decision rendered at the end of the trial by the attorneys of the parties, Izmir BAM 17. Civil Chamber of Izmir Court of Appeal, the duration of the judgement on the rejection of the appeal requests on the merits Upon the appeal by the plaintiff’s attorney, the file was examined and the necessity was discussed and considered.
– DECISION –
The plaintiff’s attorney stated that the plaintiff company is engaged in leather production and the defendant company is engaged in raw leather supply business, that there has been a commercial relationship between the parties since 2013, that the plaintiff has given a total of 6 promissory notes to the defendant party by issuing 3 promissory notes and endorsing 3 promissory notes, that raw leather should be sent in return, that the goods have not been delivered and that there is no invoice.
were not sent, that there was a malen record on the bills, that these bills were recorded in their own commercial books the defendant party’s payment of the promissory note amounts, otherwise enforcement proceedings will be initiated. that he sent a warning notice stating that he would be transferred, and therefore he is not indebted,
demanded and sued for the cancellation of the promissory notes.
The defendant’s attorney stated that the plaintiff claimed that the goods were not delivered, that there is a “malen” record in the bond as a reason for issuance, and that the case must be proved with written evidence the case, arguing that it is not possible to prove the case with commercial books and records. the court dismissed the case.
As a result of the trial conducted by the court of first instance, it was concluded that the existence of records in the books of the plaintiff is not in itself conclusive evidence pursuant to the principle of the inexactness of bills of exchange, the plaintiff did not submit any other conclusive evidence and written evidence, the burden of proof is on the plaintiff pursuant to Article 225 of the CCP, and the plaintiff, who was reminded of his right to take an oath, did not apply to the oath evidence. the defendant’s claim for compensation was dismissed since the defendant did not act in bad faith, and the judgement appealed by the attorneys of the parties.
As a result of the judgement held by the Regional Court of Appeal, according to Article 207/2 of the TCO unless otherwise agreed by contract, the seller and the buyer are obliged to perform their obligations at the same time that these bonds are in accordance with this principle, that those who claim otherwise have the burden of proof, and that these bonds are, as a rule
Since the fact that the reason for the issuance of the bonds subject to the follow-up is written in goods constitutes a presumption that the price is paid by delivery of goods, in this case, the plaintiff must prove the claim that the goods have not been delivered contrary to the presumption with conclusive evidence, and in the case of negotiable instruments in the form of bonds, the debt should only be proved with a written evidence of the same value or with the evidence of oath, which is conclusive evidence, the request for interrogation to ask the defendant party why the bonds subject to the lawsuit were taken in return for goods or why they were taken is not appropriate, the decision of the court of first instance to reject the request for interrogation is procedurally appropriate, with the tensip memorandum dated 18/11/2015, if the receivable is covered by 15% of the collateral, the interim injunction decision was made not to initiate proceedings on the bonds subject to the lawsuit and to stop the proceedings when the proceedings started, but this interim injunction decision was not implemented, therefore, the compensation conditions regulated in Article 72/4 of the EBL
The court decided to reject the appeal applications of the attorneys of the parties on the grounds that there is no appeal, and the judgement was appealed by the plaintiff’s attorney.
According to the writings in the file, the evidence on which the decision is based and the reasons for the reasons, and the appreciation of the evidence, it was unanimously decided on 20/11/2019 to reject all the appellate objections of the plaintiff’s attorney, and to approve the judgement, which is in accordance with the procedural law and material law, to send the file to the court of first instance, and to collect the approval fee written below from the appellant, unanimously.
19TH HD. 20.11.2019 T. E: 2018/285, K: 5221
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