11 Feb THE BURDEN OF PROOF IN CASES OF OBJECTION TO THE ORDINAL CHART BASED ON THE SIMULATION CLAIM IS ON THE DEFENDANT CREDITOR- SUPREME COURT DECISION
T.C. SUPREME COURT 23. DEPARTMENT OF LAW E. 2013/8006, K. 2014/832, T. 6.2.2014
CASE: At the end of the trial of the case of appeal against the order line between the parties, the case was examined by the defendant’s attorney within the period of the decision dec for the acceptance of the case for reasons written in the application, the file was discussed and considered as necessary.
DECISION : the plaintiff’s attorney, the debtor’s immovable by way of sale of the partnership gidererilm out of the case after the execution file that is sent to the ruler as well as the distribution of the money held for the defendant in the first place that will receive the client that will receive the third place was given, however, that the defendant is collusive receivables, bills receivable, arguing that alone is not enough to prove the existence of, as well as from the amount allocated to the defendant in the ruler, primarily as a creditor of the client where you stand Konya 12. 2009/7887 E of the Executive Directorate. he requested and sued that it be decided to pay for his numbered file, cancel and/or correct the queue schedule in this way.
The defendant’s deputy asked for the rejection of the case, arguing that the sale of construction materials was made to the debtors outside the case, bonds were taken out due to these sales, invoices were issued for the goods subject to sale, the receivables were real.
According to the scope of the court, the claim, the defense, the expert report adopted and the entire file; the nature of the case and the TMK’s 6. pursuant to the Defendant dated 20.03.2009 the mainstay of monitoring the execution of payment specified in the securities issued have shown 20.02.2009 152,000,00 TL vesting on the date of the deed from the debtor the amount of the creditor must prove drawer, then do not submit any documents for the underlying stock to follow up on this, except the defendant, who at the request of the company as a result of expert witnesses incelettirilm of the book, in spite of existing legal relationship between the borrower with the defendant, the defendant never have 152,000 from the debtor,the creditor is not until 00 TL, according to company records, according to the acceptance of the case, the claimant’s share allocated to the defendant in the queue line is primarily Konya 12, on the grounds that the defendant cannot prove his claim that he will receive a basis of follow-up, where it is stated that he has a receivable of TL 53,429.49 as of the follow-up date. It was decided to pay the receivables in the follow-up file No. 2009/7887 of the Executive Directorate and to pay the increased portion to the related parties according to the current order chart.
The decision was appealed by the deputy defendant.
1-The case concerns an appeal to the queue ruler based on the reason for the failure. As a rule, in cases of objections to the queue schedule based on the reason for the failure, the claim is to the point that the debtor and the respondent creditor create a debt relationship in an agreed (mutual) form and intend to smuggle goods from other creditors. For this purpose, the date of the agreed treatment according to the debtor’s transaction is important. The burden of proof in cases of objection to the ordinal chart based on the Muvazaa claim is on the defendant creditor. The defendant must prove the existence and amount of the receivable with documents issued before the follow-up and other documents in accordance with the procedure. In order for muvazaa to be mentioned, as a rule, the receivable that is claimed to be muvazaa must have been born later or recently than the receivable that is alleged to have been stolen from it, and in other words, as a rule, muvazaa savings must bear the date after the debtor transaction made in favor of the other creditor.
Konya, where the plaintiff is a creditor, 12. In the file No. 2009/7887 of the Executive Directorate, Konya 1. The Commercial Court of First Instance dated 04.08.2009 and dated 2009/1749 D. It was understood that by taking the injunction foreclosure decision No. 1, on 04.08.2009, a follow-up was initiated through foreclosure for foreign exchange notes based on a bond dated 18.12.2008, dated 20.03.2009 with a maturity of 26.000,00 TL.
Konya, where the defendant is a creditor, 6. In the file No. 2009/4214 of the Executive Directorate, Konya 2. The Commercial Court of First Instance dated 07.04.2009 and dated 2009/959 D. It was understood that a follow-up was initiated on 07.04.2009 on the basis of an injunction No. 152.000.00 bond dated 20.03.2009, issued on 20.02.2009, by foreclosure on foreign exchange notes based on a bond with a maturity of TL 152.000.00 by taking an injunction No. 17.04.2009. 299 of the CMB, which was in force at the time of the lawsuit. according to the article 07.04.2009, which is the date when the bond dated 20.02.2009 can be issued last, the defendant decided to foreclose and started enforcement proceedings, considering that this date is before the plaintiff’s follow-up date and the defendant’s commercial books confirm the portion of the receivable of 53.429,49 TL, the defendant’s receivable should be considered to be a real receivable. In this case, the court decided to accept the case on the grounds that, although there was a legal relationship between the defendant and the non-debtor, the defendant was never a creditor of up to TL 152,000.00 from the debtor, and the defendant could not prove that he would receive, although the rejection of the case should be decided, it was not correct.
2-According to the acceptance; In complaints about the queue line, the Executive Court is responsible for concluding complaints and instructing the executive director in this direction, indicating which principles the queue line will be organized in the new queue line to be organized, determining which rows creditors should be placed for what amount, showing the parts that are not in accordance with the law, instructing the executive director to take action within this framework (IIK. m.17 / I) since it is necessary, the reasons for the cancellation should be stated in the justification and the cancellation of the queue table should be decided upon.
In cases of objections to the order line organized in the proceedings by foreclosure, it is 235/3 of the IIK that should be applied by comparison. according to the article, it is necessary to decide not to cancel the queue schedule, but to pay the share allotted to the defendant, including trial expenses and power of attorney fees, to the plaintiff first, and to leave it to the defendant if there is an increased portion. The decision made at the end of the cases of appeal to the ordinal chart has consequences only for the parties to the case, and the eda provision should be established, and not content with determining the situation with the acceptance decision made. Although the eda provision has been established by the court, paragraph 1 of the provision. in the subparagraph “from the share allocated to the defendant, first of all, the plaintiff’s Konya 2. The statement ”Payment of the receivable in the follow-up file No. 2009/7887 of the Enforcement Directorate, payment of the increased portion to the interested parties in accordance with the current order schedule” did not comply with and did not meet the said provision and was of a nature that caused hesitation in execution.
CONCLUSION: For the reasons described in paragraph (1) above, it was unanimously decided on 06.02.2014 that the decision would be OVERTURNED for the defendant’s benefit with the acceptance of the defendant’s attorney’s appeals, that the advance fee would be refunded on request, and that the decision would be corrected within 15 days from the notification of the decision, on 06.02.2014.
No Comments