T.C.
SUPREME
GENERAL ASSEMBLY OF LAW
ISSUE NO : 12/2014-1129
DECISION NO : 2016/603
Y A R G I T A Y I L A M I
THE DECISION EXAMINED
COURT : Istanbul 16. Executive Civil Court
DATE : 27/02/2014
NUMBER : 2014/30 – 2014/256
PLAINTIFF-Debtor : D.O. Domestic and Foreign Trade Ltd. Şti. hunt the deputy. E.He.
DEFENDANT-Creditor : O.P. Curtain Industry Inc.Sh. hunt the deputy. M.I.
At the end of the trial held due to the “complaint” case between the parties; Istanbul dec6. Examination of the Decision No. 2013/151 of 07.02.2013 dated 2013 and No. 2013/142 issued by the Executive Civil Court on the acceptance of the complaint was requested by the defendant-creditor’s deputy, the Supreme Court of Cassation 12. The day of 09/16/2013 and the day of 18715/2013 of the Legal Department., 2013/28613 K. by the numbered hymn;
(… Against the follow-up initiated by the creditor through foreclosure on foreign exchange notes based on the check, the debtor applied to the executive court with a request to cancel the payment order, arguing that the original check is not in the executive vault, the court decided to cancel the payment order with the acceptance of the complaint on the grounds that the original check was not taken into the executive directorate’s vault.
167/2 of the IIK.in accordance with the article, the creditor is obliged to add the original of the exchange certificate and as many certified copies of the debtor to the follow-up request.
In the concrete case, it is understood that the creditor started the follow-up by foreclosure on the foreign exchange notes based on the check, added the original check to the follow-up request, but after the original check was seen by the enforcement directorate, the signature was delivered to the creditor’s attorney with a bet because the enforcement vault was insufficient.
The creditor is the IIK 167/2. in accordance with the article, the tracking basis fulfilled its obligation by adding the original check to the tracking request and submitting it to the enforcement directorate. In this case, since the original check subject to follow-up has been added to the follow-up request as of the date of follow-up, it is inappropriate to establish a provision with a written justification when the court should decide to dismiss the complaint.)
at the end of the retrial, the court resisted the previous decision.
APPELLANT : Defendant-deputy creditor
DECISION OF THE GENERAL ASSEMBLY OF JURISPRUDENCE
After it was understood that the decision to resist was appealed during the examination by the General Assembly of the Law and the papers in the file were read, the requirement was discussed:
According to the mutual claims and defenses of the parties, the minutes and evidence in the file, the necessary reasons explained in the decision to overturn, the decision to overturn the Special Chamber adopted by the General Assembly of Law must be followed, while resisting the previous decision is contrary to procedure and law.
Therefore, the decision to resist must be overturned.
CONCLUSION : It was decided unanimously on 11.05.2016 that with the acceptance of the appeals of the defendant-creditor’s deputy, the decision to resist would be OVERTURNED for the reasons shown in the Special Apartment decision, and if requested, the advance fee of the appeal would be returned to the depositor.
