Although it has been alleged that the promissory notes forming the basis of the claim in this case were “issued in reliance on cash amounts delivered in person,” given the substantial amounts involved in the notes,
it “does not appear consistent with the ordinary course of life that the cash was delivered
in person to the defendant-debtor,” the court should first investigate the plaintiff’s
occupation and financial situation to determine whether he was in a position to provide
the cash covered by the promissory notes forming the basis of the claim, and subsequently,
taking into account that the defendant-debtor is a partner in a company not party to the
partners of the company, by obtaining trade registry records for the case file,
to determine his position within the company; to investigate with the relevant banks
whether there were any cash inflows in the name of either the individual or the company
at the dates the promissory notes forming the basis of the claim were issued; and
based on the results, to determine whether the plaintiff’s claim is valid;
Following the trial regarding the action for the annulment of the transaction between the parties, the decision
rejecting the appeal filed by the defendant E.Ş.’s counsel based on the reasons stated in the judgment
was appealed by the defendant E.Ş.’s counsel; the documents in the file were reviewed and the necessary
considerations were made:
– D E C I S I O N –
The plaintiff’s attorney stated that the plaintiff is a creditor of the defendant E.Ş., that enforcement
proceedings have been initiated against the defendant-debtor, that no assets registered in the defendant-debtor’s name were found, and that
had transferred his 792 shares in A.Halı San ve Tic. AŞ, registered in his name,
to the other defendant, his brother E.Ş., with the intent to conceal assets, and thus sought
the annulment of the transaction between the defendants.
The attorney for defendant E.Ş. requested the dismissal of the case.
Based on the evidence gathered by the court and the entire case file, the court ruled to grant the claim, to annul the share transfer transaction dated August 28, 2013, between the defendants, and to grant the plaintiff authority for compulsory execution regarding these annulled shares from the Bakırköy 6th
Enforcement Directorate’s file no. 2013/14638 regarding the shares subject to this annulment,
and an appeal was filed by the attorney for the defendant E.Ş. within the appeal period.
The 17th Civil Chamber of the Gaziantep Regional Court of Appeal ruled to dismiss the appeal on its merits;
the Regional Court of Appeal’s decision was appealed by the attorney for the defendant E.Ş.
1- Based on the information and documents in the file, the evidence gathered, and the attachment record dated October 30, 2014
constitutes a provisional certificate of insolvency under Article 105 of the Enforcement and Bankruptcy Code,
it is necessary to rule to dismiss the defendant E.Ş.’s counsel’s other appeals, which are deemed unfounded
except for the provision specified below.
2- This case pertains to an action for the annulment of a disposition
brought pursuant to Articles 277 et seq. of the Enforcement and Bankruptcy Code. An action to set aside a disposition is a lawsuit filed by a creditor who has suffered harm from a disposition
carried out by the debtor with the intent to cause harm to the creditor,
aiming to ensure that the property and rights removed from the debtor’s estate, or their equivalent values,
are returned to the debtor’s estate and thereby recover the debt.
The purpose of such a lawsuit filed by the creditor is to complete the enforcement proceedings.
If the lawsuit is proven, the disposition is not completely voided. Instead, the property in question is deemed to have never left the debtor’s estate, and the creditor may have it seized and sold, thereby
recovering their claim from the proceeds of the sale. Therefore, the annulment of the disposition is merely a means
enabling the creditor who filed this
lawsuit to collect their claim through compulsory execution against a debtor acting with the intent to cause them harm.
Considering the stated purpose and the benefit to be obtained at the conclusion of the case, for the action to set aside the disposition
to be heard, the following conditions must be met: the creditor must have a genuine claim against the debtor, the debt
must have arisen prior to the disposition, the enforcement proceeding against the debtor must have become final, and there must be
a certificate of insolvency issued against the debtor.
In the present case, the source of the debt is a promissory note dated June 13, 2013, with a maturity date of July 5, 2013, in the amount of 485,000 TL
and a promissory note dated June 12, 2013, due on September 15, 2013, in the amount of 250,000 TL,
and the disposition occurred after the issuance dates of the promissory notes forming the basis of the claim
on August 28, 2013; the lawsuit was filed on February 6, 2018, within the 5-year statute of limitations,
the enforcement proceedings against the debtor have become final, and a seizure record dated October 30, 2014,
was submitted under Article 105 of the Enforcement and Bankruptcy Code, which is deemed equivalent to a provisional certificate of insolvency
Defendant E.Ş. asserted that the plaintiff’s claim was not a genuine debt, while the plaintiff’s attorney
argued that the promissory notes underlying the claim were issued in exchange for a cash loan.
For this reason, examining the condition that “the creditor has a genuine claim against the debtor”
among the listed conditions is crucial for resolving the specific case.
If it is alleged that the party holding the asset does not owe a genuine debt to the creditor, in such a case
the debtor status of the asset holder must first be determined. For this reason, it is necessary to investigate
the third-party defendant’s defense regarding the claim that the debt is not genuine and the existence of a sham transaction.
Otherwise, by failing to make the necessary effort—either by reaching an agreement with the creditor or by not objecting to the enforcement proceedings on the grounds that the creditor is already insolvent
and thus failing to make the necessary effort to object to the enforcement proceedings, and failing to file a declaratory judgment action against enforcement proceedings based on negotiable instruments where suspension upon objection is not
possible, the debtor’s conduct in this regard would result in third parties who acquired property from the debtor being
subjected to loss through judicial intervention, which is unacceptable. Indeed, even in cases where
a person who was not a debtor at the time of the transaction transfers an asset from their estate to a bona fide third party
and then, through fraudulent collusion with others, issues an old promissory note to those individuals
to indirectly reclaim the transferred assets through an action for rescission, such a scenario
could be considered a possibility. Of course, these are not the situations intended by the law. In actions for the annulment of a disposition,
while the creditor is provided with the opportunity to collect their claim, it is essential not to overlook
that the aim is not the formal existence of the creditor’s claim, but its actual validity. The principles outlined above regarding actions to rescind a transaction have also been
adopted in the decisions of the Supreme Court of Appeals’ General Assembly of Civil Law,
Case No. 2013/17-224, Decision No. 2013/1478, and Case No. 2014/17-843, Decision No.
2014/433.
Although it has been alleged that the promissory notes forming the basis of the claim in question
were issued based on cash amounts delivered in person, given the high value of the amounts in question,
the delivery of the cash in person to the defendant debtor appears consistent with the ordinary course of life. To confirm this situation:
The first step is to investigate the plaintiff S.A.’s occupation and financial
situation to determine whether he was in a position to provide the cash
amounts covered by the promissory notes forming the basis of the case; subsequently, considering that the defendant debtor is a partner in the third-party company A.Halı ve San Tic. AŞ
, by obtaining trade registry records and determining his position within the company,
and by investigating with the relevant banks whether there were any cash inflows
in the name of either the individual or the company on the dates the promissory notes
underlying the claim were issued, and determining whether the plaintiff’s claim is valid based on the results
; however, rendering a decision based on an incomplete investigation and inquiry is deemed inappropriate.
CONCLUSION: For the reasons explained in paragraph (1) above, the defendant E.Ş.’s counsel’s other appeals
are dismissed; for the reasons explained in paragraph (2) above, the defendant E.Ş.’s counsel’s appeals
are accepted, and pursuant to Article 373/1 of the Code of Civil Procedure, the decision of the Regional Court of Appeal
and the case file is remanded to the court of first instance; a copy of the decision is also
to be sent to the 17th Civil Chamber of the Gaziantep Regional Court of Appeal; and the advance fee
is to be refunded to the defendant E.Ş., who filed the appeal, upon request. This decision was rendered unanimously
on June 16, 2021.
4th Civil Chamber, June 16, 2021, Case No. 1143, Decision No. 3147
