Money Transferred From The Bank Without Any Explanation Is Deemed To Be Payment Of Debt
3rd Civil Chamber
Principal Number: 2016/12372
Decision Number: 2018/4208
“Case Law Text”
COURT: FAMILY COURT
As a result of the trial of the cancellation of the objection case between the parties, the judgement given for the acceptance of the case was appealed by the defendant within the time limit; after it was decided to accept the appeal petition, the papers in the file were read and considered accordingly:
JUDGEMENT OF THE COURT
The plaintiff; they divorced with the defendant, in accordance with the protocol approved by the court, a monthly poverty alimony of 3.000,00 TL was ruled in favour of the defendant, on 21/12/2010, the amount of accumulated alimony debt 9. 925,00 TL to the defendant through the bank channel on 21/12/2010, the defendant initiated a proceeding against the defendant with the file numbered 2013/17558 of the Anatolian 24th Execution Directorate for the collection of alimony fees for the months 08/09-10-11/2010 and 03/05-06/2013, and filed a lawsuit for the cancellation of the excessive demanded part of the execution order, Anadolu 5. Execution Law Court with the decision numbered 2013/598, 2014/50,
it was decided to dismiss the case on the grounds that the amount sent in the transfer was not stated that it was an alimony payment, the plaintiff had to pay the entire amount subject to the proceeding, therefore the plaintiff was enriched without reason, this time the defendant was overpaid 9. 925,00 TL, which was overpaid to the defendant, against the defendant with the file numbered 2014/19570 of … Anatolia 22nd Execution Directorate, however, claiming that the proceeding was stopped due to the defendant’s unfair objection, the defendant requested the cancellation of the objection, the continuation of the proceeding and the award of execution denial compensation not less than 20% of the receivable.
The defendant objected to the pendency and requested the dismissal of the lawsuit.
Court decided to accept the lawsuit, to continue the proceeding by cancelling the objection of the defendant-debtor to the file no. 2014/19570 Esas of the Anatolian 22nd Execution Directorate, and to collect the execution denial compensation not less than 20% of the receivable from the defendant, and the judgement was appealed by the defendant in due time.
The lawsuit is related to the request for cancellation of the objection to the execution proceeding without judgement initiated against the alimony creditor for the collection of the receivable, based on the legal reason of unjust enrichment with the allegation that the alimony obligor has made repeated alimony payments.
1) According to the writings in the file, the evidence on which the decision is based, the reasons that are in accordance with the law and especially the appreciation of the evidence, the other appellate objections of the defendant other than the following sub-paragraphs should be rejected.
2) In the concrete dispute; the plaintiff claimed that the alimony debt was paid in duplicate, and the defendant defended that the amount transferred to him through the bank was not for alimony.
The payment documents must contain a clear reference to the receivable for which the payment was made. However, it is seen that there is no explanation in the receipt in the file regarding the transfer made by the plaintiff.
However, it should be noted immediately that; as a rule, a money order is a means of payment and shows that an existing debt has been paid. The sender of the remittance must prove the contrary of the presumption expressed. In this case, the burden of proving the loan relationship belongs to the plaintiff. In the remittance receipt relied upon by the plaintiff as evidence, there is no explanation as to what the money sent was sent for, and as stated above, it is not suitable to create an opinion on its own that it was sent for the payment of the alimony debt. As such, the receipt in question is not sufficient to prove the claim and cannot be accepted as the beginning of written evidence.
In this respect, since it could not be proved that the amount sent to the defendant via money order was sent to the defendant to offset the accumulated alimony debt, it was not correct to decide to accept the case as written above with an erroneous evaluation, while the case should be rejected.
3) As for the appellate objections of the defendant regarding the denial of execution compensation;
Although execution-denial compensation was awarded against the defendant; since the existence and amount of the receivable subject to the cancellation of the objection case can be determined by the trial, it was not correct to award execution denial compensation in favour of the plaintiff in accordance with Article 67 of the BEC, considering the receivable liquid, and this issue also required a reversal.
CONCLUSION:
For the reasons explained in the first subparagraph above, it was unanimously decided on 18.04.2018 that the other appeal requests of the defendant were rejected, and for the reasons explained in the second and third subparagraphs, the judgement was DISMISSED in favour of the defendant in accordance with Article 428 of the Code of Civil Procedure, the prepaid appeal fee shall be refunded to the appellant defendant upon request, and the way of decision correction shall be closed in accordance with Article 440 of the Code of Civil Procedure No. 1086 with reference to the provisional article 3 of the Code of Civil Procedure No. 6100.
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