Court Of Cassation Decision On The Cancellation Of Negotiable Instruments.
JUDICIARY
LAW DIVISION
1979/1436
1979/1416
21.3.1979
Obtaining a certificate of loss due to the loss of a valuable document (Proving the existence of a receivable in a lawsuit filed without a promissory note)
THE OBLIGATION OF PROVING THE EXISTENCE OF THE RECEIVABLE (Obtaining a Certificate of Loss due to the Loss of Negotiable Instruments)
DISPOSAL OF THE BONONDS (Obligation to Prove the Existence of the Receivable in the Lawsuit Filed Based on the Certificate of Loss)
CLAIM FOR RECEIVABILITY FILED BASED ON THE DOCUMENT OF DESTRUCTION (In Case of Loss of the Bond)
6762/m.557,564,669,743
SUMMARY : Due to the loss of the negotiable instrument, the plaintiff, who has received a cancellation decision (certificate of loss), has gained the right to file a lawsuit against the debtor without a promissory note with the cancellation decision and must prove the existence of the receivable in the lawsuit filed.
LAWSUIT : The appeal of the judgment dated 29.9.1978 and numbered 1336/585 given by (Erzurum First Civil Judgeship of First Instance) due to the lawsuit between the parties was requested by the plaintiff’s lawyer and it was understood that the petition for appeal was submitted within the time limit, the papers in the file were read, discussed and considered:
DECISION : The plaintiff’s attorney claimed that the defendant was the debtor of the promissory note of 9.000 liras dated 15.11.1976, which was deposited to his client with a collateral endorsement, that the promissory note sent to Erzurum Yapı ve Kredi Bank for the collection of the note was lost in the mail, that his client also obtained a cancellation decision from the court, and demanded and sued for the collection of 9.000 liras from the defendant.
In its defense, the defendant requested the dismissal of the lawsuit since it was not the debtor of the bill subject to the lawsuit.
The court decided to dismiss the case, which could not be proved.
The judgment was appealed by the plaintiff’s attorney.
Pursuant to Article 557 of the TCC, the right inherent in the bill cannot be asserted separately from the bill. For this reason, the plaintiff has obtained a certificate of loss due to the lost original promissory note and thus has gained the right to file a lawsuit against the debtor without a promissory note. However, the plaintiff must also prove the existence of the receivable. The plaintiff deposited the amount he owed to the plaintiff bank with the cash receipt dated 17.11.1976, which he was credited with the lost promissory note, but with the cash receipt dated 16.12.1976, he owed the bank and collected the amount he deposited from the bank since the promissory note was not returned to him. In the meantime, the defendant, who stated that he was not a debtor, personally stated that he was the debtor of the promissory note subject to the lawsuit in the letter dated 7.2.1977 addressed to the plaintiff. In this case, since the plaintiff has proved his receivable embedded in the lost promissory note, it is necessary to decide to accept the lawsuit, but it is inappropriate to dismiss the lawsuit on the basis that the claim has not been proved and unnecessarily made at the time.
CONCLUSION : For the reasons written above, it was unanimously decided on 21.3.1979 to accept the appeals of the plaintiff’s attorney and to VACATE the judgment and to refund the prepaid appeal fee to the appellant upon request.