Compensation For The Damage Caused By The False Declaration Of The 3rd Person Against The Notice Of Attachment
Summary: As it is understood that the commercial books and records of the defendant have not yet been examined, the court should give the defendant a definite period of time to submit its commercial books and records, and if not submitted, a decision should be made according to the existing evidence, and when the commercial books are submitted, an expert report should be obtained in a way that is suitable for inspection, but it is inappropriate to make a decision in writing with incomplete research.
T.C. Court of Cassation 12th Civil Chamber E: 2018/9280 K: 2018/12521 K.T.: 19.11.2018 COURT: Execution Law Court
Upon the request of the creditor to examine the above-dated and numbered court decision on appeal within the due date, the file related to this matter was sent to the department from the relevant file, and after listening to the report prepared by the Examining Judge … for the case file and after all the documents in the file were read and examined, the matter was discussed and considered:
In the creditor’s petition, the third person … Nakliyat Amb. San. ve Tic. Ltd. Şti.’s objection to the 89/1 attachment notice sent from the follow-up file and to be sentenced to compensation. The court decided to dismiss the lawsuit by failing to accept that the defendant company owes a debt to the non-suit debtor company.
In Article 89/4 of the EBL; “If the third party objects to the attachment notice within the time limit, the creditor may request that the third party be penalized according to the provision of paragraph 1 of Article 338 and also sentenced to compensation by proving the contrary of the answer given by the third party in the enforcement court. The enforcement court shall settle the case regarding compensation according to the general provisions”. The subject of the compensation in the provision of the law is the damage suffered by the enforcement creditor due to the third party’s false declaration against the attachment notice. In this case, the plaintiff enforcement creditor must prove that the third party made a false statement. The contrary of the third party’s statement can be proved by any evidence, regardless of the documents listed in Article 68 of the EBL. Pursuant to the express provision of the aforementioned article, the execution court should proceed in accordance with the general provisions.
In the compensation case filed based on Article 89/4 of the EBL, the evidence to be presented by the parties, the expert examination of the commercial books and records, and as of the date of notification of the notice, it is determined whether the debtor has a definite receivable that has become claimable from the third party within the framework of general provisions. In other words, in order to award compensation according to the aforementioned article, it is mandatory that the debtor has a finalized, due receivable before the third party as of the date of notification of the attachment notice to the third party.
The case is related to the claim for compensation pursuant to Article 89 of the BEC and the court has given time to the third party … Ltd. Şti. and the debtor … Ltd. Şti. to submit the commercial books, and it has been understood that the defendant third party did not submit the books, and the debtor … Ltd. Şti. has lost its commercial books and submitted the uncertified printouts saved on the computer. The documents belonging to the debtor, which are the computer printouts in question, were taken as the basis for the calculations in the expert report, and it was determined that the third defendant owed the debtor company 80.233,50 TL. The defendant’s attorney stated in his first statement that although he requested the books to be examined on-site, they could not be reached by the expert, and in his statement regarding the expert report dated 20/04/2016, he stated that the commercial books and records were submitted and examined in the file numbered 2009/520 of the same court, and that an examination was made within the scope of the receivable in the file numbered … Commercial Court of First Instance, 2008/338 Main and 2010/72 Decision. In this framework, since it is understood that the commercial books and records of the defendant have not yet been examined, it is inappropriate to make a written decision with incomplete research, while the court should give the defendant a definite period of time to submit its commercial books and records in accordance with the procedure, and if they are not submitted, a warning that a decision will be made according to the existing evidence, and when the commercial books are submitted, an expert report should be obtained in a manner suitable for inspection.
CONCLUSION: With the acceptance of the creditor’s objections on appeal, the decision of the court is (DISMISSED) for the reasons written above, in accordance with Article 366 of the EBL and Article 428 of the HUMK, the prepaid fee may be refunded upon request, the way of correction of the decision will be open within 10 days from the notification of the judgment, it was unanimously decided on 29/11/2018.