Negative Detection Case Based on the Guarantee Bond Claim, Exchange Monitoring Supreme Court Decision

T.C.
SUPREME
19. law office
MAIN NUMBER: 2016/3357
DECISION NO: 2016/13899
DECISION DATE: 24.10.2016

>> FOREIGN EXCHANGE MONITORING, NEGATIVE DETECTION CASE BASED ON THE CLAIM THAT THE BILL IS A SECURITY BILL, BURDEN OF PROOF AND STATE OF EVIDENCE

6100/m.222/5

6102/m.64

SUMMARY: The case is related to the request for negative determination.

The plaintiff has filed a negative determination request by claiming that the bond subject to follow-up was given for collateral due to the follow-up related to the exchange deed initiated against him. The plaintiff must prove these claims with a written document. Since the case petition is not based exclusively on the defendant’s notebooks as evidence, the defendant’s failure to submit his notebook does not constitute a presumption that the case has been proven by being interpreted in favor of the plaintiff. While the plaintiff’s evidence based on the written document should be evaluated and evaluated according to the result, the court decided to “accept the case on the grounds that the plaintiff has proved his claim because the defendant has refrained from submitting his books” and required an annulment.

CASE: At the end of the trial of the negative determination case between the parties, the file was examined, discussed and considered as necessary upon the appeal of the plaintiff’s attorney within the period of the judgment given for the dismissal of the case for the reasons written in the Decriminalization:

decision

The plaintiff’s attorney claimed that the enforcement proceedings were conducted against his client, the 30.000 TL bond subject to prosecution was given for collateral, the “for collateral” part was cut with scissors, the due date was added later, and the case filed in the Assize Court continued due to this issue, and he demanded and sued that his client be ruled not to be a debtor.

The defendant’s attorney requested the dismissal of the case, arguing that the plaintiff should prove with written evidence that he is not a debtor based on the year containing the debt acknowledgement.

According to the Court, 222/5 of the Civil Code No. 6100.according to Article 64 of the TCC No. 6102, the commercial books were not presented to the defendant despite the exact period given to the defendant party to submit its commercial books, since the defendant is a merchant.according to the article, it was decided to accept the case on the grounds that the plaintiff had to clearly state the debt and credit relations in his books, the defendant refrained from presenting his books, the plaintiff proved his claim, and the verdict was appealed by the defendant’s attorney.

The plaintiff has filed a negative determination request by claiming that the bond subject to follow-up was given for collateral due to the follow-up related to the exchange deed initiated against him. The plaintiff must prove these claims with a written document. Since the case petition is not based exclusively on the defendant’s notebooks as evidence, the defendant’s failure to submit his notebook does not constitute a presumption that the case has been proven by being interpreted in favor of the plaintiff. In accordance with the principle described above, the court should evaluate the plaintiff’s evidence based on a written document and evaluate it according to its conclusion, but making a decision in writing required an annulment.

CONCLUSION : It was unanimously decided on 24.10.2016 to OVERTURN the judgment for the benefit of the defendant for the reasons described above and to refund the advance fee if requested.

You can read our articles and petition examples by clicking here.