Supreme Court 13. Legal Department
2016/22543 E.
2017/5094 K.

Court :Court of First Instance

At the end of the trial of the case for the annulment of the appeal between the parties, the case was dismissed for reasons written in the decree and the case was dismissed within the period of the appeal by the attorney of the plaintiff, upon which the case was examined, the case was discussed and considered.

DECISION

The plaintiff asked the defendant to decide on cancellation and denial compensation by claiming that he was a creditor of TL 4,691.15 with the invoice dated 29/10/2013 and TL 6,565. 00 with the invoice dated 18/11/2013,and that the execution proceedings initiated for the purpose of collecting these receivables had stopped with the wrongful objection of the defendant.

The defendant pleaded guilty.

Since it was understood that the case had not been opened within 1 year, the court decided to reject the request for the cancellation of the appeal in terms of duration; the sentence was appealed by the plaintiff.

The plaintiff requested that the case at hand and the follow-up initiated for the purpose of collecting the receivables based on the invoice be annulled. The court ruled that the debtor objected to the debt on 05/08/2014 and within the period, the proceedings were stopped on 06/08/2014, the decision to stop the proceedings was notified to the creditor … attorney on 01/09/2014, the case was opened on 09/11/2015 and after the 1-year reduction period had passed. Examination of the execution file; it is understood that the petition for objection to the debt and the decision to stop the proceedings were communicated to the plaintiff/creditor …personally on 01.09.2014, but the execution proceedings were initiated by the plaintiff’s lawyer. 11 of the Notification Act. according to the first paragraph of the article, notification is made to the deputy in the works followed by the proxy. Therefore, it is against the law to make the notification to the noble in a work followed by the proxy. The notification made to the plaintiff principal against the fact that the execution follow-up in the subject of the lawsuit was initiated and followed by the claimant creditor’s attorney is invalid and it is not possible to take the basis for the determination of the 1-year reduction period. In this case, a decision should be made according to the result of the examination which will be made by entering into the basis of the work, considering that the notification made by the plaintiff to the principal is invalid and that the case was opened during the period, whereas the decision in writing with the contrary opinion is against the procedure and

Conclusion: it was decided unanimously on 27/04/2017 that the provision was impaired for the benefit of the plaintiff due to the reasons described above, and that the fee of TL 29.20 received in advance was returned upon request, in accordance with article 440/III-1 of Humk, the way of Correction of the decision was closed.

Supreme Court 12. Legal Department
2016/8792 E.
2016/26089 K.

Court :Executive Law Court

After hearing the report prepared by the court judge for the case file … and after reading and reviewing all documents in the file, the job requirement was discussed and considered.:

In the application made by the debtor company to the execution court within the legal five-day period, the bond price was paid before the due date, the tediye receipt was presented and the debt was objected to by claiming that there was no debt to the creditor; the signature on the tediye receipt presented to the file as a payment document was denied by the defendant, it is understood that the appeal was dismissed on the grounds that it entailed the trial as to whether the signature was the product of the defendant’s hand.

Iik’s 169 / a-1. if, in accordance with the article, the debt is not found or the redemption or destruction is proved by an official or certified document, the appeal shall be accepted by the court. On the other hand, according to the established case law of our department, in order to be accepted that the payment document presented is issued in relation to the debt subject to follow-up, the document must be explicitly referred to the basis of follow-up.
Iik’s 169 / a-3. in the article, ” if the signature under the document presented by the debtor is denied by the creditor, the execution Court judge, as a result of his examination according to the procedure in Article 68/a finds that the signature belongs to the creditor, decides to accept the objection of the debtor and sentences the creditor to a fine of ten percent of the value or amount”the judgment is given.

In the concrete case, a follow-up was initiated by the creditor on 15.000.00 TL against the debtor on 15/07/2015 based on the bond of 15000.00 TL,the debt objection petition was presented in the Annex and the creditor … signed and the tediye receipt dated 06/06/2015; 24/4/2015 arranged date, 15/06/2015 payment date, 15.000.00-TL payment based on the year stated, but the creditor’s proxy petition dated 02/11/2015 suggested that the signature under the tediye receipt and the signature has been denied.

In this case, the court shall obtain from the debtor the original receipt of the tediye presented by the debtor in the annex of the petition of action 169/a-3 of the iik. according to the procedure in Article 68/a of the same law, which should be applied with the submission of the article, the original document, whether the signature is the product of the creditor …’s hand in terms of the examination should be determined according to the result that will occur, incomplete examination and the provision in written form is not

Conclusion: 366 of iik and 428 of Humk for reasons written above of the court decision with the acceptance of the debtor’s appeal appeals. in accordance with its articles (deterioration), a unanimous decision was made on 26.12.2016 to return the mortar received in advance upon request, with the way of Correction of the decision being clear within 10 days of the notification of the decree.

Supreme Court 12. Legal Department
2016/8509 E.
2016/25564 K.

Court :Executive Law Court

After hearing the report prepared by the court judge for the case file … and after reading and reviewing all documents in the file, the job requirement was discussed and considered. :

It is understood that the execution proceedings initiated by the creditor through foreclosure on foreign exchange bonds based on the bond; the debtor has appealed to the execution court and all its members, the court has decided that the case is not related to a matter that falls within the scope of authority and duty, there is no place to decide on the demand on the grounds that.

The provisions between articles 167-170/b of the iik shall be applied in the follow-up through foreclosure for foreign exchange promissory notes. 168/5. article of warning, in the follow-up made by lien for foreign exchange promissory notes, debtor, debtor is not or the debt has been redeemed, within 5 days with a petition to the execution court informs. The execution court shall examine and evaluate whether this objection is in place or not.

In the concrete case, the payment order was notified to the debtor on 03/08/2015, and the debtor’s deputy objected to the debt 168/5 of the ICJ. in accordance with the article, it is observed that he reported it to the execution court in a legal 5-day period (on 10.08.2015).

Therefore, while a positive or negative decision should be made by the court by examining the merits of the work, it is not possible to make a written judgment without taking into account the provisions of the above-mentioned law.

Conclusion: 366 of iik and 428 of Humk for reasons written above of the court decision with the acceptance of the debtor’s appeal appeals. in accordance with its articles, a unanimous decision was made on 19/12/2016 to return the fees received in advance upon request, with the way of Correction of the decision being clear within 10 days of the notification of the decree.

Supreme Court 12. Legal Department
2016/4228 E.
2016/6466 K.

Court :Executive Law Court

After hearing the report prepared by the court judge for the case file … and after reading and reviewing all documents in the file, the job requirement was discussed and considered. :

In the application made to the execution court within the legal 5-day period, with the objection of authority, the creditor company official … issued a release regarding the follow-up bonds and objected to the debt by asserting that there is no debt to the creditor., it is understood that the authority requirement in the bills is valid and that the objection to the debt cannot be proved in accordance with the procedure specified in Article 169/a of the OIC and that the objection was decided to be rejected.

I.I.K.of 169 / a-1. in accordance with the article, if the debt is not found or the redemption or destruction is proved by an official or certified document, the appeal shall be accepted by the court. On the other hand, according to the established case law of our department, in order to be accepted that the payment document presented is issued in relation to the debt subject to follow-up, the document must be explicitly referred to the basis of follow-up.

In the concrete case, a follow-up was initiated against the debtors on 29.08.2014 based on 9 bills of TL 10.000 each by the creditor, submitted in the annex of the petition for objection to the debt and represented by the creditor company D. C. signed by the creditor on behalf of the Hebrew dated 21.03.2014; it is understood that there are no rights and receivables due to the bills, that the debtors are released in the widest manner, and that the original bills will be sent to the debtors by cargo. It is understood that the creditor’s proxy made a declaration in the form of “we do not accept the Hebrew…”at the Hearing dated 27.01.2015 and therefore has no objection to the signature under the Hebrew. According to the legal regulation in Article 169/a-3 of the OIC, since the signature in the Hebrew submitted by the debtor is not explicitly denied by the creditor, there is no need to examine the signature in accordance with Article 68/A of the same law. Since there is no clear denial of the signature under Hebrew, the creditor is deemed to have professed the signature under Hebrew.

In that case, the court should decide on the acceptance of the objection to the debt due to the proof of its signature with the document deemed to have been accepted, while the provision in written form is inconclusive.

Conclusion: 366 of iik and 428 of Humk for reasons written above, with the acceptance of the Debtors ‘ appeals and the court’s decision. in accordance with its articles (deterioration), a unanimous decision was made on 07/03/2016 to return the mortar received in advance upon request, with the way of Correction of the decision being clear within 10 days of the notification of the decree.

Supreme Court 12. Legal Department
2015/29864 E.
2016/6686 K.

Court :Executive Law Court

After hearing the report prepared by the court judge for the case file … and after reading and reviewing all documents in the file, the job requirement was discussed and considered.:

In the follow-up without a warrant through general lien initiated by the creditor about the debtor, the creditor in his application to the execution court requested the cancellation of the decision dated 15.5.2015 on the suspension of the execution Directorate by claiming that the execution directorate was not correct to stop the follow-up even though the debtor’s objection to the execution, it was decided to reject the complaint on the grounds that the date of the appeal should be accepted as 29.4.2015 in accordance with the transfer date in the appeal petition and the date written in the proxy fee receipt in the follow-up file, and that the subsequent delivery of the communication number by the execution directorate would not result against the debtor.

Iik’s 8. and enforcement Bankruptcy Code regulation 22/2. in accordance with the article, the execution and Bankruptcy offices shall make a report on the actual claims and declarations to them through their transactions. Verbal objections and demands and declarations are signed by the sub-parties concerned and the executive director or deputy or clerk.

The petition for objection to the payment order must be transferred to the executive officer and printed in the execution record. Because the date of objection to the payment order is not the date on the appeal petition, but the date on which this petition was submitted to the execution record (HGK.13.5.2009 date and 2009/12-185 E.- 2009/182 K).

In the concrete case , … Execution Department’s follow-up File No.2015/581 on 25.4.2015 notification of Payment Order 7 to debtor, debtor’s objection petition dated 29.4.2015 with the decision given by execution Directorate on 15.5.2015, debtor’s attorney … sent through execution Directorate on 12.5.2015 and 2015/516 Muh. if the petition for objection to the numbered debt has been put to the file and the follow-up has been stopped because of the duration of the objection.; it is observed that the appeal petition was recorded to the UYAP system on 12.5.2015 after 7 days from the notification of the payment order and that there is no file number on the receipt of the proxy fee in the follow-up file that is related to the follow-up file subject to the complaint. In this case, according to the scope of the present file, it is not possible to accept the date written on the appeal petition as the date of the appeal on the grounds of the court decision.

In that case, since the debtor’s petition for objection to the debt has been sent to the Enforcement Agency via communication, the court has decided that … the Enforcement Agency’s 2015/516 Muh. while it should be decided according to the result of the investigation whether the debtor’s attorney’s petition for objection to the debt was recorded in the Communication Book of the said enforcement agency, the provision facility in written form with incomplete examination is inconclusive.

Conclusion: 366 of iik and 428 of Humk for reasons written above, with the acceptance of the appeal appeals of the creditor and the court decision. in accordance with its articles (deterioration), a unanimous decision was made on 08.03.2016 to return the mortar received in advance upon request, with the way of Correction of the decision being clear within 10 days of the notification of the decree.