.
Although it is claimed that the promissory notes underlying the receivable subject to the lawsuit were ‘issued based on the cash amounts handed over’, considering the high amount of the amounts subject to the promissory notes, ‘handing them over to the defendant debtor in cash is in accordance with the ordinary course of life’.
‘does not appear’, in that case, the court should first investigate the plaintiff’s business and financial situation in order to determine whether the plaintiff is in a position to pay the cash subject to the promissory notes that are the basis of the lawsuit, and then, considering that the defendant debtor is one of the partners of the out-of-court company, the trade registry records should be included in the file. to determine his/her position in the company, and to determine his/her position in the company, which is the basis of the receivable subject to the lawsuit.
whether there is an inflow of money in the name of both the individual and the company at the dates of issue of the promissory notes the absence of the claimant’s receivable from the relevant banks and according to the result it will have to be determined whether it is true or not;
At the end of the judgement of the cancellation of disposition case between the parties for the reasons stated in the decision on the rejection of the appeal application of the defendant E.Ş. attorney
The appeal was requested by the defendant E.Ş. attorney, and the papers in the file were read as required considered:
DECISION
The plaintiff’s attorney stated that his client is a creditor of the defendant E.Ş., and that the defendant debtor proceedings were carried out, no assets registered in the name of the defendant debtor were found, the defendant registered in the name of the debtor A.Halı San ve Tic. A.Halı San ve Tic. AŞ shares corresponding to 792 shares declared that it was transferred to the other defendant E.Ş., who is his brother, with the intention of evading property, and the defendants
cancellation of the disposition between the parties was requested and sued.
The attorney of the defendant E.Ş. requested the dismissal of the lawsuit.
According to the evidence collected and the entire file scope; the court accepted the lawsuit, the defendants The cancellation of the share transfer transaction dated 28.08.2013 between the plaintiff and Bakırköy 6th. Enforcement Directorate’s file numbered 2013/14638 regarding these cancelled shares
authorisation of the defendant E.Ş., and the judgement was appealed by the defendant E.Ş.’s attorney within the time limit appeal was lodged.
The 17th Civil Chamber of Gaziantep Regional Court of Appeals rejected the appeal request on the merits and the decision of the Regional Court of Appeal was appealed by the counsel of the defendant E.Ş. is accepted.
1- Based on the information and documents in the file, the collected evidence, 30.10.2014 submitted to the file according to the fact that the foreclosure report dated 31 December 2016 is a temporary certificate of insolvency within the scope of EBL 105 other appeals of the defendant E.Ş.’s counsel, which are not deemed appropriate, except for the following sub-paragraphs objections should be rejected.
2- The lawsuit is based on the cancellation of disposition lawsuit filed based on articles 277 et seq. of the EBL is related. The action for cancellation of disposals is brought by the debtor with the intention of damaging the creditor the creditor who has suffered damage from the realisation of the disposition, the goods and rights or substitutes thereof, which have been removed from the debtor’s assets, shall be returned to the debtor’s assets to be transferred to the assets of the creditor and to obtain the receivable in this way.
Such a lawsuit filed by the creditor aims to complete the enforcement proceedings.
If the lawsuit is proved, the disposition is not completely cancelled. Only the property subject to the lawsuit the debtor’s assets are deemed to have never left the debtor’s assets, and the creditor may seize and sell this property, the possibility of obtaining the receivable from the sale price. Therefore, cancellation of the disposition is only possible the creditor bringing the action is entitled to obtain enforcement from the debtor who has acted with the intention to cause him damage is a way of enabling the collection of receivables.
Considering the explained purpose and the benefit to be obtained at the end of the lawsuit, cancellation of disposition in order for the lawsuit to be heard; the creditor must have a real receivable from the debtor, the debt the execution proceedings against the debtor are finalised and the debtor There must be a certificate of insolvency obtained about.
In the concrete case, the source of the debt is 485.000 TL with an issue date of 13.06.2013 and maturity date of 05.07.2013 with a value of TL 250.000 in cash with 12.06.2013 issue date and 15.09.2013 maturity date are promissory notes, after the date of issue of the promissory notes on which the savings receivable is based 28.08.2013, the lawsuit was filed on 06.02.2018 within the 5-year limitation period the proceedings against the debtor have been finalised and the EBL, which is accepted as a temporary insolvency certificate 30.10.2014 seizure report issued within the scope of 105 was submitted
The defendant E.Ş. declared that the plaintiff’s receivable is not a real receivable, and the plaintiff’s attorney claimed that the promissory notes on which the receivable is based were issued against the debt given in cash.
For this reason, it is important to examine the condition that “the creditor has a real receivable from the debtor” among the conditions listed, in the solution of the concrete case.
If it is claimed that the disposer does not owe a real debt to the creditor, then the debtor status of the disposer must first be analysed. For this reason, the third party defendant’s claim that the debt is not real and the defence of the existence of collusion
the investigation is mandatory.
Otherwise, by agreeing with the enforcement creditor or in any case being insolvent itself does not object to the enforcement proceedings by not showing the necessary effort due to the objection, and the enforcement proceedings are suspended upon objection the pursuit that does not file a negative assessment action against the pursuit based on bills of exchange that are not the subject of the pursuit
in the face of this behaviour of the debtor, third parties acquiring property from the debtor may be subjected to damages by the judiciary This is unacceptable. Even when making savings an element in the assets of non-debtor bad faith persons to bona fide third parties
after the transfer, by giving old dated debt notes to persons with whom he was in fraudulent co-operation it is even possible to indirectly reclaim the property that it has disposed of through a cancellation lawsuit can be introduced. Of course, these are not the situations intended by the law. Cancellation of savings while the creditor is provided with the opportunity to collect his/her receivable, this creditor’s receivable formally
It should not be ignored that it is not the existence but the reality that is aimed. The above-mentioned principles regarding the cancellation of disposals cases shall be applied by the Court of Cassation General Assembly of Civil Chambers Board’s decision numbered 2013/17-224 Esas 2013/1478, 2014/17-843 Esas 2014/433 also adopted in the judgements.
Although it is claimed that the promissory notes which are the basis of the receivable subject to the lawsuit were issued based on the cash amounts given by hand, considering the high amounts subject to the promissory notes, it seems to be in accordance with the ordinary flow of life to be delivered to the defendant debtor in cash by hand. In order to confirm this situation;
The work to be done is, firstly, to investigate the business and financial situation of the plaintiff S.A. in order to determine whether he is in a position to give the cash money subject to the promissory notes that are the basis of the lawsuit, and then to investigate the defendant debtor’s business and financial situation, and then to determine whether the defendant debtor is in a position to give the cash money subject to the promissory notes that are the basis of the lawsuit. AŞ Considering that he is one of the partners, the trade registry records were also brought into the file,
It is not correct to make a decision based on incomplete examination and research, while it is necessary to determine the position of the plaintiff in the company, to investigate from the relevant banks whether there is money inflow in the name of both the person and the company on the dates of issue of the promissory notes, which are the basis of the receivable subject to the lawsuit, and to determine whether the plaintiff’s receivable is real or not according to the result.
CONCLUSION:
For the reasons explained in subparagraph (1) above, the other appellate objections of the defendant E.Ş. attorney are rejected, for the reasons explained in subparagraph (2) above, the appellate objections of the defendant E.Ş. attorney are accepted and the decision of the Regional Court of Justice is reversed in accordance with Article 373/1 of the CCP, the file is sent to the court of first instance, and a copy of the decision is sent to the court of first instance.
The fee received in advance to be sent to the 17th Civil Chamber of Gaziantep Regional Court of Justice to be returned to the appellant defendant E.Ş. upon request, unanimously on 16/06/2021 judgement was rendered.
4TH HD. 16.06.2021 T. E: 1143, K: 3147
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