Supreme Court Decision On Objection To Debt And Signature Based On Exchange Bill
Summary:
In proceedings based on a bill of exchange, objections to the debt and signature must be filed with the Enforcement Court within five days.
Republic of Turkey
Supreme Court
General Assembly of Civil Law
Case No: 2012/806
Decision No: 2013/286
Date:
(….. Pursuant to Article 168/5 of the Enforcement and Bankruptcy Code, the debtor must notify the enforcement court within five days of any objections regarding the signature on the bill,
or that he/she is not the debtor, or that the debt has been extinguished or a grace period has been granted, or that the claim is time-barred, or regarding jurisdiction.
In the present case, it is seen that payment order No. 10 was served on the debtor on December 27, 2010, and that on February 21, 2011, the debtor applied to the enforcement court requesting that the proceedings be terminated on the grounds that he did not sign the promissory notes and was not liable for the debt.
Since the irregularity of the payment order service was not alleged, the court, considering that the application was made after the five-day statutory period pursuant to Article 168 of the Enforcement and Bankruptcy Law, Instead of deciding to reject the objection due to the expiration of the time limit, it is inappropriate to decide in writing to cancel the enforcement proceedings on the grounds that the debtor does not have passive legal capacity in the proceedings and that this complaint is also time-barred…) The case was overturned and returned to the court for a new trial, at the end of which the court upheld its previous decision.
APPELLANT: Defendant’s attorney
GENERAL ASSEMBLY OF LAW DECISION
After the General Assembly of Law reviewed the case and determined that the appeal against the decision to uphold the previous ruling was filed within the time limit and after reading the documents in the file, the following was decided:
The case concerns the cancellation of the enforcement.
As a result of the court’s examination of the documents, it was determined that the request was related to objections to the signature and jurisdiction and the cancellation of the enforcement, that the plaintiff did not appear in the certified copies of the promissory notes in the enforcement file as the beneficiary, drawer, or endorser, enforcement law does not allow enforcement proceedings to be brought against a person who has not been a debtor at any stage of the exchange bills, and that it is possible to request the cancellation of enforcement proceedings against a person against whom enforcement proceedings cannot be brought due to lack of passive jurisdiction, without being subject to any time limit, and that it is possible to request the cancellation of the enforcement proceedings on the grounds that the dispute relates to public order. The court accepted the case and ruled that the enforcement proceedings against the complainant should be cancelled pursuant to Article 170a of the Enforcement and Bankruptcy Law due to the absence of passive litigation, and that the claim for damages should be rejected.
Upon appeal by the defendant’s attorney, the Special Chamber overturned the ruling with the same reasoning as stated in the heading section above.
The court stated: “…The plaintiff requested the cancellation of the enforcement proceedings on the grounds that the signature used in the endorsement chain did not originate from him and therefore the bill of exchange could not be binding. Accordingly, the plaintiff’s request for cancellation is a claim of lack of jurisdiction arising from the denial of the signature and severing the relationship between the subject matter and the case. In this case, it is not a dispute within the meaning of Article 170, but rather a dispute referred to in Article 170/a of the Enforcement and Bankruptcy Code. The person claims that there is no signature belonging to him on the bill and that there is no name, and therefore he cannot be held liable. Accordingly, there is a complaint. and that the claim of non-liability is also subject to unlimited complaint due to its relevance to public order, the decision was made to cancel the enforcement in accordance with Article 170/a of the EBC and to reject the claim for compensation.
The defendant’s attorney appealed the decision.
The dispute before the General Assembly of the Court of Appeals centers on whether the plaintiff’s claim is based on the signature and objection to the debt in the promissory note as specified in Article 168 of the EBC; or whether it is a complaint based on Article 170/a of the EBC (the debtor’s complaint under exchange law), whether the 5-day period should be considered accordingly, or whether it is subject to an unlimited complaint, and ultimately whether the decision to cancel the enforcement is correct.
Upon examination of the file numbered 2010/31686 of the Istanbul 8th Enforcement Directorate; it was found that the defendant creditor S. Gıda vs. Ltd. Şti. filed a complaint against the non-party B. Pastacılık ve Ekmekçilik Gıda San. Tic. A.Ş., the plaintiff B.G., and the non-party E. Gıda Otel ve Pastane vs. Ltd. Şti. for a total debt of TL 15,239.63, based on 5 promissory notes dated 11.06.2010, each worth TL 3,000. It is understood that enforcement proceedings were initiated against the defendant company based on five promissory notes dated December 22, 2010, and that the enforcement request dated December 22, 2010, the payment order dated the same day, and the supporting documents were served on B.G. on December 27, 2010.
The plaintiff, in his petition dated February 21, 2011, stated that the defendant company had initiated enforcement proceedings against him based on a bill of exchange, that B. vs. A.Ş. was the authorized signatory with joint signature authority, that he did not endorse the bills of exchange on which the enforcement was based, that he could not be a party to the enforcement, that the signature on the company seal did not belong to him, that no claim could be brought against him, and that he objected to the enforcement on the grounds of claim and signature. He requested the cancellation of the enforcement and 40% compensation.
As is known, Article 168 of the Enforcement and Bankruptcy Law No. 2004 regulates the matters to be included in the payment order in enforcement proceedings by attachment specific to negotiable instruments. Accordingly: Paragraph 3 stipulates that if the instrument on which the enforcement is based does not qualify as a bill of exchange, the debtor must file a complaint with the competent authority within five days. Paragraph 4 stipulates that if the debtor claims that the signature on the bill of exchange on which the enforcement is based is not his/her own, he/she must clearly notify the enforcement court of this fact in writing within five days. otherwise, the signature on the bill of exchange shall be deemed to have been made by him in the enforcement proceedings to be conducted in accordance with this section, and if he unjustly denies his signature, he shall be sentenced to a fine of ten percent of the amount claimed in the enforcement proceedings based on the said bill of exchange, and if he does not obtain a decision from the court accepting his objection, compulsory enforcement shall continue; Paragraph 5 states that if the debtor does not notify the enforcement court within five days by means of a petition that he/she is not indebted, or that the debt has been extinguished, or that a grace period has been granted, or that the claim is time-barred, or that he/she objects to jurisdiction, stating the reasons, and does not obtain a decision from the court accepting the objection, compulsory enforcement shall continue.
In the present case, the plaintiff has not raised any objection regarding the irregularity of the payment order. The plaintiff has objected to the debt and the signature. The payment order was served on the plaintiff on December 27, 2010, and the present case was filed on February 21, 2011. Since the five-day period stipulated in Article 168 of the Enforcement and Bankruptcy Code has passed, the Special Chamber’s reversal ruling, which states that the objection must be rejected due to the expiration of the time limit, is correct.
For the reasons explained, it is necessary to comply with the reversal decision adopted by the General Assembly of the Court of Appeals, based on the grounds stated in the Special Chamber’s reversal decision. Therefore, the previous decision to resist is contrary to procedure and law. For this reason, the decision to resist must be reversed.
CONCLUSION
With the acceptance of the defendant’s attorney’s appeal, the decision to resist is REVERSED pursuant to Article 429 of the Code of Civil Procedure No. 1086, as applied by reference to “Provisional Article 3” added to the Code of Civil Procedure No. 6100 by Article 30 of Law No. 6217, for the reasons stated in the Special Chamber’s reversal decision…