T.R.
Supreme Court
GENERAL ASSEMBLY OF LAW
Docket No:2011/862
Decision No:2012/251
K. Date:
In the concrete case, the plaintiff’s attorney filed this lawsuit, claiming that his client provided transportation services to the defendant and that invoices for freight receivables were issued and that these invoices were delivered to K.Ö., the defendant’s accountant. The defendant’s attorney, on the other hand, denied both the alleged contractual relationship and the related claim, arguing that his client did not owe anything to the plaintiff.
In this case, the plaintiff must first prove the existence of the transportation relationship. If and only after the plaintiff fulfills this burden of proof, the defendant will also be obliged to prove that he has paid.
In this respect, while the court should have determined whether there was a transportation relationship between the parties by asking the plaintiff to extract all his evidence, and if necessary by examining the books of the defendant party, and then if this issue was proven, a detailed investigation into whether the payment was made by the defendant or not, a verdict should have been established based on the result. However, it was not correct to make a written judgment based on incomplete examination, and therefore the decision had to be reversed.)
The case was overturned and the file was returned to its place, and at the end of the retrial, the court resisted the previous decision.
After it was examined by the HGK and it was understood that the decision to resist was appealed in due time and the papers in the file were read, the necessary discussion was taken:
DECISION
The case concerns the request for cancellation of the objection.
The plaintiff’s attorney stated that “the defendant’s excavation was transported by the plaintiff, the enforcement proceedings initiated for the collection of the fee due to non-payment of the invoice for the transportation service provided were stopped by the defendant’s unjust objection, the defendant did not deny the basic relationship and the invoice, but claimed that he had no debt without submitting documents” and requested and sued for “the cancellation of the defendant’s unfair objection, the continuation of the pursuit and the award of enforcement denial compensation.”
The defendant’s attorney argued that “the case should be rejected.”
The decision given by the local court to reject the case on the grounds that the invoice submitted by the plaintiff-creditor was not a document containing an unconditional acknowledgment of debt, that the burden of proving the existence of the debt belonged to the plaintiff, that the plaintiff’s commercial books were not kept properly and that oath evidence could not be relied upon, was overturned by the Special Chamber upon the appeal of the plaintiff’s attorney, for the reasons explained in the title section above.
The local court persisted in its previous decision; The plaintiff-creditor attorney appealed the decision.
The dispute brought before the HGK centers on whether the research conducted and the evidence available in the file are sufficient to make a decision.
As it is known, according to Article 326 of Civil Code No. 1086, both parties are obliged to submit their documents to the court.
In a case, the party who has the burden of proof relies on the commercial books of the other party along with other evidence, in other words, he does not confine his evidence to the commercial books of the other party, and therefore, the dispute is resolved under Article 83/2 of the Turkish Commercial Code No. 6762. In cases where the special provision in the article cannot be applied; The legal consequences that should be attributed to the opposing party submitting its own books to the court or refraining from doing so are subject to the general regulations on the subject in Article 330 and the following articles of the Code of Civil Procedure.
Article 332 of the Code of Civil Procedure stipulates that if a party does not present the relevant document within the time given to it by the court, the court may accept the explanation of the other party regarding that document, taking into account the intention of that party.
It should be emphasized that; This provision in Article 332 of the Code of Civil Procedure is also applicable in terms of presenting the commercial books to the court, in cases where one of the parties does not concentrate its evidence solely on the commercial books of the other party. In other words, in this case, commercial books are also in the nature of “documents” within the meaning of HUMK Article 330 and subsequent articles.
On the other hand, when the provision in Article 82 of the TCC, which regulates the proof of commercial books, is evaluated together with the marginal title “I-Conclusive evidence” and considering that the margin headings are included in the text in accordance with Article 1474 of the same Law; It stipulates that commercial books are conclusive evidence in disputes arising between merchants due to commercial transactions (provided that the conditions specified in the article are met).
In accordance with the 69th and subsequent articles of the said Law, such books cannot be evidence in favor of a merchant who has not had his books certified according to the method. However, the contents of commercial books kept in accordance with the law or not are considered evidence against the owner and his successors. According to Article 86 of the Turkish Commercial Code No. 6762, if the books of one of the parties are in compliance with the law and the other party is not, or does not have any books or does not want to submit them; The records in the books of the trader whose books are in order, confirming each other, become evidence against the other. Even if the books were not kept properly, there is no doubt that they will constitute evidence against the owner.
In the concrete dispute, although the plaintiff-creditor clearly relied on the commercial books of both parties as evidence, the court did not give a definite time period to the defendant by reminding him that he should present his books and that if the commercial books are not presented to the court, action would be taken in accordance with Article 321 of the Code of Civil Procedure and Articles 80, 83 and 86 of the Turkish Commercial Code; The expert examination was conducted limited to the evidence in the file and the commercial books of the plaintiff party.
It is clear that the existence of a legal relationship between the parties will have to be accepted, considering that even if the commercial books of the defendant party are not kept in accordance with the procedure, they will constitute evidence against him, and even if the invoice in question is not recorded in the commercial books, if there is a commercial relationship or debt recorded between the parties, this will constitute evidence against the defendant.
In this case, what the court should do is; It consists of giving all the evidence to the plaintiff and giving the defendant a certain period of time to submit his commercial books to the court, and making a decision based on the result, based on the evaluation made in line with the explanations made above.
This being the case, while the Local Court must comply with the Special Chamber’s reversal decision, which was also adopted by the HGK, resisting the previous decision is against procedure and law.
For this reason, the decision to resist must be overturned.
CONCLUSION
With the acceptance of the plaintiff’s attorney’s appeal objections, the decision to resist is REVERSED in the Special Chamber’s reversal decision and for the reasons given above.
Related Articles
*HUMK Article 326
*HUMK 330 and subsequent Articles
*HUMK Article 332
*HUMK 330 and subsequent Articles
*HUMK 321 and TTK Articles 80, 83 and 86