REPUBLIC OF TÜRKİYE ISTANBUL REGIONAL COURT OF JUSTICE 22nd CIVIL CHAMBER
Basis No: 2017/1042
Decision No: 2017/1201
Date: 05.07.2017
HEADNOTES (SYNOPSIS)
OBLIGATION OF THE APPELLANT TO STATE GROUNDS AND REASONS IN THE PETITION: (The defendant failed to fulfill the obligation to present concrete grounds and reasons arising from Art. 342/2-e of the CCP – The application shall be rejected pursuant to Art. 352 of the CCP as the petition does not satisfy the requirements of admissibility.)
FAILURE TO SUBMIT A PETITION STATING GROUNDS FOR APPEAL DESPITE NOTIFICATION OF THE JUDGMENT: (Requirement to reject the application pursuant to Art. 352 of the CCP due to the petition not meeting the admissibility criteria.)
Relevant Articles: CCP Art. 342, 352, 355.
SUMMARY: An appellant is obliged to state the grounds and reasons for the appeal in the petition. In the concrete case, it is understood that the appellant defendant did not submit a petition stating the grounds for appeal despite the notification of the reasoned judgment. The defendant failed to fulfill the obligation to provide concrete grounds and reasons as per Art. 342/2-e of the CCP. Since the petition does not possess the conditions of admissibility, it must be rejected pursuant to Art. 352 of the CCP.
LAWSUIT: Following the submission of the appeal petition by the defendant’s counsel and the transfer of the file by the local court to our Chamber, the matter was examined pursuant to Article 352 of the Code of Civil Procedure (CCP); the requirements were considered:
JUDGMENT: In the lawsuit petition, the plaintiff’s counsel claimed that execution proceedings were initiated against the client via file No. 2015/19443 of the Istanbul 35th Execution Office, but that the date of issuance on the cheque was tampered with and initialed (paraf) before being put into circulation, and that the signature on the cheque did not belong to the client. The counsel requested the acceptance of the objection to the signature, the annulment of the proceedings, and the awarding of damages due to the defendant’s bad faith in initiating the proceedings.
The local court decided to ACCEPT THE LAWSUIT AND ANNUL THE PROCEEDINGS, stating that: “It is understood that the initial (paraf) does not belong to the plaintiff; accordingly, the date of issuance is 26/02/2014, and the cheque was not presented within the statutory period.”
Pursuant to paragraph (e) of Article 342 of the CCP, the appellant must state the grounds and reasons for the appeal in the petition. In the concrete case, it is understood that the appellant defendant failed to submit a petition indicating the grounds for appeal despite being served with the reasoned judgment. The defendant has not fulfilled the burden of presenting concrete grounds and reasons as required by Art. 342/2-e of the CCP. As the petition does not meet the requirements for admissibility, it must be rejected pursuant to Art. 352 of the CCP.
Furthermore, in the examination conducted within the framework of Article 355 of the CCP, no grounds contrary to public order (kamu düzeni) were found. Consequently, it has been decided to reject the defendant’s appeal on procedural grounds pursuant to Article 352 of the CCP.
CONCLUSION: For the reasons explained above;
As no violation of public order was found during the examination under Art. 355 of the CCP, the defendant’s appeal petition is REJECTED pursuant to Articles 352 and 342/e of the CCP.
The judicial expenses of the appeal stage shall be borne by the defendant.
The decision was rendered unanimously and FINALLY (kesin olarak) on 05.07.2017 pursuant to Article 364/1 of the EBL.