22 Apr THE DECISION OF THE SUPREME COURT ON THE CANCELLATION OF NEGOTIABLE INSTRUMENTS
SUPREME COURT
law office
1979/1436
1979/1416
21.3.1979
OBTAINING A CERTIFICATE OF LOSS DUE TO THE LOSS OF VALUABLE DOCUMENTS (Proving the Existence of the Receivable in a Lawsuit Filed Without a Bond)
THE OBLIGATION TO PROVE THE EXISTENCE OF THE RECEIVABLE (Obtaining a Certificate of Loss Due to the Loss of Valuable Documents)
LOSS OF THE BOND (The Obligation to Prove the Existence of the Receivable in the Case Filed on the Basis of the Casualty Certificate)
A CLAIM FOR RECEIVABLES FILED ON THE BASIS OF A CASUALTY DOCUMENT (In Case of Loss of a Bond)
6762/m.557,564,669,743
ABSTRACT: Due to the loss of valuable documents, the plaintiff who received the cancellation decision (loss certificate) has earned the right to file a lawsuit against the debtor without a bond with the cancellation decision and must also prove the existence of the receivable in the lawsuit filed.
CASE: The appeal examination of the judgment dated 29.9.1978 and numbered 1336/585 issued by the First Instance Law Court of Erzurum due to the case between the parties was requested by the plaintiff’s lawyer and it was understood that the appeal petition was granted within the period of the papers in the file were dec and considered as necessary to be read :
DECISION : the plaintiff’s Attorney, his client turnover of £ 9000 with the depositary of the stock of collateral that the debtor the defendant 15.11.1976 term, the act is sent to the bank for the education of Erzurum and credit structure of the act that was lost in the Mail, the court took the decision to cancel 9.000 pounds his client from the defendant with the claim that demand and has prosecuted his education.
In his defense, the defendant asked for the dismissal of the case because the subject of the lawsuit was not the debtor of the deed.
The court decided to dismiss the case, which could not be proven.
The verdict was appealed by the acting plaintiff.
Article 557 of the TCC. in accordance with its article, the right that is inherent in the bond cannot be compiled separately from the deed. For this reason, the plaintiff has received a certificate of loss due to the lost original deed and thus has earned the right to file a lawsuit against the debtor without the deed. However, the plaintiff must also prove the existence of the receivable. The plaintiff is dated cash register receipt with your 17.11.1976 with certificates that are lost because of the creditor that is owed the plaintiff the amount mentioned the bonds deposited to the bank, however, dated cash register receipt with your 16.12.1976, the deed was not returned to him, if you owe the bank, deposited the amount that the bank has collected from you. Meanwhile, the defendant, who said that he was not decebted, personally informs that he is the debtor of the deed that is the subject of the lawsuit in the letter dated 7.2.1977 addressed to the plaintiff. In this case, since the plaintiff has proved that he will receive a mundemic in the year that is a casualty, it is inappropriate to proceed to the rejection of the case based on the fact that the claim has not been substantiated in writing, and at the time when it was unnecessarily sanctioned, while it is necessary to decide on the acceptance of the case.
CONCLUSION: For the above-mentioned reason, it was unanimously decided on 21.3.1979 that the plaintiff’s attorney’s appeals would be accepted and the provision would be OVERTURNED, and that the appeal fee he paid would be returned to the appellant at his request.
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