Negative Determination Lawsuit Based On A Guarantee Certificate Claim, Bill Of Exchange Proceedings
Republic of Turkey
COURT OF CASSATION
19th CIVIL CHAMBER
CASE NO: 2016/3357
DECISION NO: 2016/13899
DATE OF DECISION: 10/24/2016
>>BILL OF EXCHANGE PROCEEDINGS, NEGATIVE DETERMINATION ACTION BASED ON THE CLAIM THAT THE INSTRUMENT IS A SECURITY INSTRUMENT, BURDEN OF PROOF AND EVIDENCE
6100/m.222/5
6102/m.64
SUMMARY: The case concerns a negative determination claim.
The plaintiff filed a negative determination claim, alleging that the bill of exchange subject to the enforcement proceedings initiated against him was provided as collateral. The plaintiff must prove these allegations with written evidence. Since the complaint does not rely exclusively on the defendant’s books as evidence, the defendant’s failure to submit their books does not constitute prima facie evidence in favor of the plaintiff. The court should have evaluated the plaintiff’s evidence based on written documents and made a decision accordingly. However, the court ruled that “the defendant’s failure to submit its books proves the plaintiff’s claim” and accepted the case, which requires reversal.
CASE: Following the trial of the negative determination case between the parties, the judgment dismissing the case for the reasons stated in the decision was appealed by the plaintiff’s attorney within the time limit. The case file was reviewed, and the necessary discussions and deliberations were made:
DECISION
The plaintiff’s attorney claimed that enforcement proceedings had been initiated against his client, that the promissory note in the amount of TL 30,000 subject to the proceedings had been given as collateral, that the phrase “for collateral” had been cut out with scissors, the maturity date was added later, and that a case had been filed in the Heavy Penal Court on this matter and was ongoing. The plaintiff’s attorney requested that the court rule that the client was not indebted.
The defendant’s attorney argued that the plaintiff must prove with written evidence that he was not indebted based on the promissory note containing the acknowledgment of debt and requested that the case be dismissed.
The court ruled that, despite the definitive deadline given to the defendant to submit their commercial books pursuant to Article 222/5 of the Code of Civil Procedure No. 6100, the commercial books were not submitted, and that since the defendant was a merchant, they were obliged to clearly show the debt and credit relationships in their books pursuant to Article 64 of the Commercial Code No. 6102. and since the defendant avoided presenting the books, the plaintiff’s claim was proven, and the case was accepted. The defendant’s attorney appealed the decision.
The plaintiff filed a negative determination request, claiming that the bill of exchange subject to the enforcement proceedings initiated against him was given as collateral. The plaintiff must prove these claims with written documents. Since the complaint did not rely solely on the defendant’s books as evidence, the defendant’s failure to submit his books does not constitute prima facie evidence in favor of the plaintiff. The court should have evaluated the plaintiff’s evidence based on written documents in accordance with the above principle and made a decision accordingly; however, the decision rendered in writing necessitates reversal.
CONCLUSION: For the reasons explained above, it was unanimously decided on October 24, 2016, to REVERSE the judgment in favor of the defendant and to refund the advance fee if requested.