T.R. Supreme Court
12.Legal Department
Base: 2018/371
Decision: 2018/1405
Karar Tarihi: 15.02.2018
REQUEST FOR CANCELLATION OF PROCEEDINGS – THERE IS NO EXPLICIT ADMITTION BY THE CREDITOR THAT THE PAYMENTS IN THE DOCUMENTS SUBMITTED BY THE DEBTOR WERE MADE IN CONNECTION WITH THE CHECKS SUBJECT TO PROCEEDING – THE REQUIREMENT FOR REJECTION OF THE DEBTOR’S COMPLAINT – THE JUDGMENT IS REVERSED.
SUMMARY: There is an enforcement proceeding and check relationship based on more than one check between the parties, and it is not possible to determine from the response petition submitted in the negative determination case whether the statement of the creditor representative is related to the checks subject to the pursuit. There is no clear admission by the creditor that the payments in the documents submitted by the debtor were made in relation to the checks subject to follow-up, nor has the debtor submitted an appropriate payment document with a clear reference to the checks subject to follow-up. In that case, while the court should have decided to reject the debtor’s complaint, it is inappropriate to accept the complaint and make a decision to remove the movable liens.
(2004 Law No. 71)
Case: Upon the request of the creditor to be examined within the period of the court decision with the date and number written above, the file regarding this case was sent to the office from the locality, and after listening to the report prepared by the Examining Judge for the case file and reading and examining all the documents in the file, the need for the case was discussed and considered:
Decision: In the enforcement proceedings without a judgment through general seizure initiated by the creditor based on 2 checks, the debtor gave a check to the creditor in return for the goods, the checks were collected by tracking even though the goods were not delivered, a negative declaratory action was filed, the creditor in his response petition to this case admitted that the debts in the enforcement files including this pursuit file were paid, despite the fact that the actual seizure was carried out, despite the confession that the debt was paid, the seizure was not carried out. It was observed that the court requested the removal of the movable liens dated 25.05.2013, claiming that it was against the law, the court did not object to the documents submitted by the debtor, the debt was tied to bonds and renewed according to the documents, the creditor accepted that the receivable was paid with the response petition of the negative determination case, and the complaint was accepted and the movable liens were decided to be removed, on the grounds that it was unlawful to carry out the seizure despite the collection of the receivable.
71/1 of the Execution and Bankruptcy Law. According to the article, if the debtor proves, with a document certified by a notary or whose signature has been acknowledged, that the debt and its ancillaries have been repaid or that the creditor has given him a grace period in the period after the finalization of the proceedings, he can always request the cancellation or postponement of the proceedings from the en forcement court.
In the concrete case, the debtor submitted documents titled “promissory note receipt” dated 08.09.2012, “collection receipt” dated 03.01.2013, as a basis for his redemption claim, and showed the creditor’s attorney’s response petition dated 18.04.2013 in the negative determination case; In the examination of the “promissory note receipt” dated 08.09.2012; …24. The bill amounting to 56,000.00 TL, dated 05.10.2012, issued by third parties outside the case… and…, was given to the creditor in return for the receivables of the Enforcement Directorate regarding the follow-up files numbered 2012/10295 E., 2012/10369 E. and 2012/10372 E., and the bill was given as surety against the debt of the enforcement files, It is seen that it is written that when the bill price is paid to the creditor’s attorney on the specified date, this bill will be returned, 56,000.00 TL will be deducted from the debt of the enforcement files, and if this amount of money is not paid on the due date, the follow-up procedures in the enforcement files whose number is written will continue, and the bottom of the document is signed by the creditor’s attorney. In the document titled “collection receipt” dated 03.01.2013; A bond amounting to 56,000.00 TL was given as surety by … and … in return for the prosecution receivables of the enforcement files, and later, 3 bonds amounting to 7,000.00 TL dated 10.01.2013, 7,000.00 TL dated 10.03.2013, and 10,000.00 TL dated 28.02.2013 were given as surety for the cost of this bond. the check was received, 15,000.00 TL on 13.11.2011 and 11,000.00 TL on 11.12.2012 were paid in cash and the surety bond was returned to them, it was written that the debtors could declare and deduct these payments against the enforcement files numbered above, on the condition that they pay the necessary collection fee to the enforcement office, and the bottom of this receipt was written by the creditor’s attorney. It appears to have been signed. Again, by the creditor’s attorney, on which the debtor relies…8. It is seen that there is a statement in the 10th paragraph of the response petition submitted to the Commercial Court of First Instance file numbered 2013/163 E. that “the plaintiff gave these checks in return for his debt and paid his debt as a result of the enforcement proceedings.” Even though these documents have not been objected to by the creditor, the creditor; A total payment of 50,000 TL was made, there was more than one follow-up file, it did not cover all the debts, and it was not clear which of the three follow-up files and checks mentioned in the documents related to the payments made, the payment was not the subject of complaint…24. He stated that the Enforcement Directorate’s file numbered 2012/10372 E. has been notified to the relevant file that it has been offset, and there is an enforcement proceeding and check relationship based on more than one check between the parties, and it is not possible to determine from the response petition submitted in the negative determination case whether the statement of the creditor’s attorney is related to the checks subject to follow-up. There is no clear admission by the creditor that the payments in the documents submitted by the debtor were made in relation to the checks subject to follow-up, nor has the debtor submitted an appropriate payment document with a clear reference to the checks subject to follow-up.
In that case, while the court should have decided to reject the debtor’s complaint, it is inappropriate to accept the complaint and make a decision to remove the movable liens.
Result: It was unanimously decided on 15/02/2018, with the acceptance of the creditor’s appeal objections and the court decision to be REVERSED (REVERSED) in accordance with Article 366 of the EBL and Article 428 of the Code of Civil Procedure, for the reasons stated above, and to return the fee collected in advance upon request, with the possibility of correcting the decision within 10 days from the notification of the decision. (¤¤)