In the case of negotiable instruments, the debt must be proven only by a written document of equal value or by
evidence in the form of an oath constituting conclusive proof; the request for cross-examination regarding
regarding why the instruments in question were received or in exchange for what property
is unfounded, and that the first-instance court’s decision to reject the request for examination
is in accordance with procedure;
Following the appeal filed by the parties’ attorneys against the decision rendered by the first-instance court
at the conclusion of the proceedings in the negative declaration action pending between the parties, the judgment
of the 17th Civil Chamber of the İzmir Regional Court of Appeal
Civil Chamber, the plaintiff’s counsel filed a cassation appeal against the ruling dismissing the appeals on the merits within the prescribed time limit,
whereupon the case file was reviewed, and the matter was thoroughly considered.
– DECISION –
The plaintiff’s counsel stated that the plaintiff company is engaged in leather production, while the defendant company is engaged in the supply of raw hides,
that a commercial relationship has existed between the parties since 2013, that the plaintiff issued 3 promissory notes to the defendant
and endorsed 3 others, thereby providing a total of 6 promissory notes,
that raw hides were to be delivered in exchange, but neither the goods were delivered nor an invoice
sent, that the promissory notes bear the notation “malen,” that these notes were recorded
in the plaintiff’s commercial ledgers, that the plaintiff sent a formal notice to the defendant
stating that the amounts of the promissory notes must be paid or else enforcement proceedings
would be initiated, and therefore requests a ruling determining that the plaintiff is not liable
and ordering the cancellation of the promissory notes.
The defendant’s counsel argued that the plaintiff claims the goods were not delivered and thus the promissory notes are void,
that the promissory notes bear the notation “on account” as the basis for issuance,
that the case must be proven with written evidence,
and that proof through commercial ledgers and records is not possible, thereby requesting the dismissal of the case.
As a result of the trial conducted by the court of first instance, it was determined that, pursuant to the principle of the abstract nature of negotiable instruments,
the mere existence of an entry in the plaintiff’s books does not constitute conclusive evidence on its own,
that the plaintiff failed to present any other conclusive or written evidence, and that pursuant to Article 225 of the Code of Civil Procedure,
, the burden of proof rests with the plaintiff, and the plaintiff, despite being reminded of the right to take an oath,
did not resort to sworn testimony; therefore, since the claim could not be proven and the plaintiff
was not found to have acted in bad faith, the court ruled to dismiss the defendant’s claim for compensation, and the judgment
was appealed by the parties’ attorneys.
As a result of the proceedings conducted by the Regional Court of Appeal, pursuant to Article 207/2 of the Turkish Civil Code,
unless otherwise agreed upon in the contract, the seller and buyer are obligated to perform their obligations simultaneously
, and the party claiming otherwise bears the burden of proof; it must be accepted that such promissory notes are generally
issued for the purpose of paying a debt; since the reason for the issuance of the promissory notes in question
is stated in writing, this constitutes a presumption that the price was paid by delivery of the goods,
and therefore, in this case, the plaintiff must prove, by conclusive evidence to the contrary,
with conclusive evidence; in the case of negotiable instruments, the debt may only be proven
by a written document of equal value or by the sworn testimony of a witness constituting conclusive evidence; the defendant’s
request for examination regarding the reason the promissory notes in question were received or in exchange for goods
regarding why the promissory notes in question were received in exchange for goods or for what purpose is unfounded; the first-instance court’s decision to reject the request for interrogation is in accordance with procedure; although a provisional remedy decision was issued on November 18, 2015,
stating that enforcement proceedings regarding the promissory notes in question would not be initiated if 15% of the claim was secured,
and that such proceedings would be suspended if already initiated, this provisional remedy decision
was not implemented; therefore, on the grounds that the conditions for compensation under Article 72/4 of the Enforcement and Bankruptcy Code
were not met, the appellate court decided to dismiss the appeals filed by the parties’ attorneys,
and the judgment was appealed by the plaintiff’s attorney.
Based on the documents in the file, the evidence and compelling reasons upon which the decision is based, and the fact that there is no
error in the assessment of the evidence, all of the plaintiff’s counsel’s appeal
objections, which are deemed unfounded, are rejected, and the judgment, which is in accordance with procedural and substantive law,
, the case file is remanded to the court of first instance, and the appeal fee specified below
is to be collected from the appellant plaintiff; this decision was rendered unanimously on November 20, 2019.
19th Civil Chamber, November 20, 2019, Case No. 2018/285, Decision No. 5221