The lawsuit for objection to execution proceedings (specific to negotiable instruments)

February 15, 2024 
Under the Turkish Commercial Code, negotiable instruments are listed in a limited number. According to the law, negotiable instruments consist of promissory notes, bills of exchange, and cheques. These instruments are drawn within the scope of the principal debt and are valuable documents containing an unconditional and unrestricted payment commitment independent of the principal debt. When the holder of a negotiable instrument fails to collect the receivable specific to negotiable instruments, execution proceedings specific to negotiable instruments (Articles 168-170b of the Execution and Bankruptcy Law) are regulated. According to this regulation, the holder can request execution proceedings specific to negotiable instruments from the relevant execution office in accordance with the applicable articles for the collection of the receivable based on the negotiable instrument.

The debtor against whom execution proceedings specific to negotiable instruments have been initiated is obliged to make the payment within 10 days from the date of service of the payment order. However, if the debtor believes that the execution proceedings have been unjustly initiated, the debtor should file an objection to the proceedings by submitting an objection to the relevant execution court within the prescribed legal period. The objection can be made in two ways: an objection to the debt or an objection to the signature, as stipulated by the law. In the case of execution proceedings based on a negotiable instrument, an objection regarding whether the document in question qualifies as a negotiable instrument can be made through a complaint within 5 days from the service of the payment order. This is because the determination of whether the document is a negotiable instrument requires the competent execution officer to review the document after the execution proceedings have been initiated against the liable party.

The person responsible for the negotiable instrument against whom execution proceedings specific to negotiable instruments have been initiated has the right to object in accordance with Articles 169-170 of the Execution and Bankruptcy Law. The debtor may object to the debt under Article 169 and Article 169-a, and may object to the signature under Article 170.

Objection to Debt in Execution Proceedings Specific to Negotiable Instruments
In execution proceedings specific to negotiable instruments initiated against the debtor, according to the provisions of Article 169 and Article 169-a of the Enforcement and Bankruptcy Law (İİK):

Objection to the Debt: Article 169 – (Amended: 18/2/1965-538/82) The debtor shall notify the enforcement court of their objection to the debt, in accordance with item 5 of Article 168, by submitting a petition. This objection does not suspend any enforcement procedures other than the sale.

Examination of the Objection: Article 169/a – (Added: 18/2/1965-538/83) (First paragraph amended: 17/7/2003-4949/46) The judge of the enforcement court shall summon both parties to a hearing within thirty days at the latest to investigate the reasons for the objection. If, as a result of the hearing, the absence of the debt or its payment or cancellation is proven with an official document or a signed acknowledgment, the judge will accept the objection. The judge of the enforcement court shall make the necessary decision even if the parties do not appear when examining an objection related to jurisdiction. (Second paragraph amended: 17/7/2003-4949/46) If the judge of the enforcement court concludes from the documents submitted by the debtor with the objection petition that the debt has been settled or canceled, or that the document has expired, or that the debtor is not liable for the debt, or that the enforcement office lacks jurisdiction, the judge may order the temporary suspension of the enforcement proceedings until a decision is made regarding the essence of the objection.

(Amended: 9/11/1988-3494/32) If the creditor denies the signature on the document submitted by the debtor, the judge of the enforcement court shall, following an examination as per Article 68/a, decide whether the signature belongs to the creditor. If the judge concludes that the signature is indeed the creditor’s, the objection will be accepted, and the creditor will be fined an amount equal to ten percent of the value or amount of the document in question. If the creditor fails to attend the hearing summoned under the first paragraph, the judge of the enforcement court will order the temporary suspension of enforcement for the disputed amount of the debt. Afterward, the creditor may request a hearing before the enforcement court within six months and prove that the signature on the receipt is not theirs, in order to continue the enforcement proceedings. If the enforcement court determines that the signature does not belong to the creditor, the debtor will be fined an amount equal to ten percent of the value or amount of the document in question.
The enforcement judge will consider the debtor’s statute of limitations objection based on the date on the negotiable instrument submitted by the creditor. If the creditor is unable to prove the interruption or suspension of the statute of limitations with an official document or a signed acknowledgment, the objection will be accepted; otherwise, it will be rejected.

If the objection is accepted, the enforcement proceedings are suspended. The creditor retains the right to file a lawsuit according to general provisions. If the creditor files a lawsuit in the general court, the collection of the denial compensation and the monetary penalty will be postponed until the end of the trial. If the creditor wins the case, the denial compensation and the monetary penalty will be lifted.

(Added paragraph: 9/11/1988-3494/32) (Amended first sentence: 17/7/2003-4949/46) In case the debtor’s objection is accepted by the enforcement court based on substantial grounds, the creditor, if acting in bad faith or with gross negligence, will be liable to pay compensation of no less than 20% of the claim subject to enforcement. If the enforcement is temporarily suspended and the objection is rejected, the debtor will be liable for compensation of no less than 20% of the claim subject to enforcement, upon the request of the other party. If the debtor files a negative declaratory action or restitution lawsuit, or if the creditor files a lawsuit in the general court, the collection of the ordered compensation will be postponed until the end of the lawsuit, and if the lawsuit results in favor of the party, the previously ordered compensation will be lifted.

(Amended last paragraph: 2/3/2005-5311/13) Filing an appeal against the rejection of the objection does not suspend any enforcement proceedings. However, if the debtor provides security in accordance with Article 33, paragraph 3, the enforcement will be suspended.
In an enforcement proceeding through bankruptcy based on negotiable instruments, if the debtor intends to object, the objection can be made in the manner prescribed by law. Article 172 of the Enforcement and Bankruptcy Law (İİK) regulates the procedure for objections to enforcement via bankruptcy with negotiable instruments. According to this legal provision, the objection in a bankruptcy enforcement based on negotiable instruments can be made within 5 days from the date of delivery of the payment order to the debtor, to the relevant enforcement office for examination by the competent Commercial Court handling the bankruptcy case. The debtor must file the objection in writing. Failure to file the objection in writing will result in the rejection of the objection without examining its merits, and the enforcement proceeding through bankruptcy based on negotiable instruments will be finalized.

The proper execution of the enforcement proceeding via bankruptcy with negotiable instruments halts the bankruptcy process. As a result of the debtor’s objection to enforcement via bankruptcy with negotiable instruments, the creditor may file a bankruptcy lawsuit in the Commercial Court. If the court finds the debtor’s objection unfounded, it will order the debtor’s bankruptcy. In order for the debtor to avoid the bankruptcy decision, the debtor must pay the debt based on the negotiable instrument, along with its interest and expenses, to the creditor, and deposit the amount of the debt with the court cashier according to the court’s deposit order.

According to Article 172 and the following provisions of the Enforcement and Bankruptcy Law (İİK): Article 172 – (Amended: 18/2/1965-538/87) A debtor who wishes to object or complain against the payment order must notify the enforcement office, within five days from the delivery of the payment order, of any objection or complaint, along with its reasons, in a written petition, and provide one additional copy of the petition to the other party. One copy of this petition shall be immediately delivered to the creditor.

Article 174 – (Amended: 18/2/1965-538/89) The creditor may request the Commercial Court to annul the debtor’s objection and complaint and to order the debtor’s bankruptcy. The court shall decide the bankruptcy case in accordance with Article 158.
Situations in Which Objection to Debt Can Be Made in Enforcement Proceedings Specific to Negotiable Instruments
The debtor against whom enforcement proceedings specific to negotiable instruments have been initiated may apply to the enforcement court within 5 days from the service of the payment order, claiming that the enforcement is unjust. The debtor can object to the debt on the following grounds:
• The debt has been extinguished
• The debt has been paid off
• The debt does not exist, or the individual is not liable for the debt
• The debt is time-barred
• The enforcement office handling the case is not the competent enforcement office
It will be possible. As stated in Article 168/5 of the Enforcement and Bankruptcy Law, “If no objection is made and the debt is not paid, within ten days, the debtor must declare their assets under Article 74, and if an objection is made and rejected, they must declare their assets within three days according to Article 75; if they fail to declare or refuse to make a truthful declaration, they will be subjected to imprisonment as a penalty.” Objections to the debt can be made by asserting the existence of these situations. The debtor may only raise objections related to the enforcement proceedings within the scope of the reasons for objection evident in the document that is the subject of the enforcement.
Objection to the Signature in Enforcement Proceedings Specific to Bill of Exchange
Objection to the Signature in Enforcement Proceedings Specific to Bill of Exchange

The objection to the signature by the debtor in the enforcement proceedings specific to the bill of exchange is regulated under Article 170 of the Enforcement and Bankruptcy Code. According to this:

Article 170 – (Amended: 9/11/1988-3494/33)

The debtor shall notify the enforcement court in writing of their objection regarding the signature on the bill of exchange not being theirs, in accordance with the 4th paragraph of Article 168. This objection does not stop the enforcement proceedings other than the sale.

Before the hearing, the enforcement court, after reviewing the debtor’s objection petition or the documents provided, and if it deems the objection to be serious, may decide to temporarily suspend the enforcement proceedings until the decision regarding the objection is made, without the need to notify the creditor.

(Amended third paragraph: 17/7/2003-4949/47)

After examining the objection, according to the fourth paragraph of Article 68/a, if the enforcement court concludes that the disputed signature does not belong to the debtor, it will accept the objection. The enforcement proceedings will stop with the acceptance of the objection. The creditor’s right to file a lawsuit under general provisions remains reserved. If it is determined that the disputed signature belongs to the debtor, and the enforcement proceedings have been suspended under the second paragraph with the objection, the debtor will be sentenced to an objection compensation of not less than 20% of the debt in question, and a monetary penalty of 10% of the debt subject to enforcement, and the objection will be rejected. If the debtor files a negative determination or restitution lawsuit, the collection of the compensation and monetary penalty will be postponed until the end of the lawsuit, and if the lawsuit is decided in favor of the debtor, the previously ordered compensation and penalty will be canceled.

(Amended first sentence: 17/7/2003-4949/47)

If the enforcement court decides to accept the objection, and if the creditor has acted in bad faith or with gross negligence in initiating the enforcement proceedings based on the bill, the creditor will be sentenced to compensation of not less than 20% of the debt in question and a monetary penalty of 10% of the amount owed. If the creditor files a lawsuit in the general court, the collection of the monetary penalty will be postponed until the end of the lawsuit, and if the lawsuit is won, the monetary penalty previously imposed will be canceled.
Statute of Limitations for Objection in Enforcement Proceedings Specific to Bills of Exchange
The party responsible for the bill of exchange, against whom enforcement proceedings specific to bills of exchange have been initiated, may object to the enforcement proceeding if they claim that the enforcement was initiated unjustly and there is an objection to the debt or signature. Such objection must be made to the competent enforcement court by filing a petition within 5 days starting from the date the payment order was served on the debtor. Since the 5-day objection period is a time-barred period, the court will take it into consideration ex officio.

Court of Cassation, 12th Civil Chamber, Decision No. 2015/1074, Decision No. 2015/10130, Date: 17.04.2015: “… In enforcement proceedings specific to bills of exchange, the objection to the debt must be made to the enforcement court within the legal 5-day period under Article 168/5 of the Enforcement and Bankruptcy Law (İİK). This period is related to public order and is a time-barred period, and as such, it must be observed ex officio by the court. In the present case, the payment order sent to the debtor was served on 08.07.2014, and the debtor objected to the debt after the legal 5-day period, on 17.07.2014. Upon reviewing the complaint petition regarding the debtor, no request was made regarding the improper service of the payment order. Therefore, the debtor’s application to the enforcement court is not within the legal period as outlined in the aforementioned article. Thus, the court should have rejected the objection due to the expiration of the time limit, instead of examining the merits of the case and accepting the complaint with a written justification, which is erroneous…”

If the debtor misses the 5-day objection period, which is provided by law and is a time-barred period, and if the debtor missed the deadline due to no fault of their own, the debtor may file an objection with the enforcement court within 3 days once the obstacle is removed, along with the objection petition and justification for the delay.

The Competent and Authorized Court for Objections in Enforcement Proceedings Specific to Bills of Exchange
In enforcement proceedings specific to bills of exchange, the competent court for the debtor who wishes to object to the payment order served to them within the prescribed time is the enforcement court. The debtor can submit their objection to the enforcement court in the context of the matters indicated in the bill through a written petition.

The authorized court in enforcement proceedings specific to bills of exchange is the court located in the area where the relevant enforcement office handling the enforcement proceedings is situated. Although there is no exclusive jurisdiction under the Civil Procedure Code (HMK), the objection can also be made to the enforcement court in the creditor’s place of residence.
The Procedure for Litigation in Enforcement Proceedings Specific to Bills of Exchange.
In enforcement proceedings specific to bills of exchange, if the debtor wishes to object to the payment order, the objection must be made by petition to the enforcement court. The objection must be in writing; if made orally instead of by petition, the objection will be rejected, and the enforcement proceeding will be finalized.

In enforcement proceedings related to bills of exchange, the debtor’s objection to the payment order will not stop the enforcement process, unlike objections made in general enforcement procedures. In other words, an objection made by the debtor in the enforcement court regarding the debt will not automatically suspend the enforcement process, but it will suspend the sale procedure. Goods that have been seized under the enforcement proceedings will not be sold if there is an objection, and any proceeds from goods already sold will be held in the enforcement office’s vault until a decision is made. If the debtor wishes to temporarily halt the enforcement procedure by objecting to the debt, the debtor can submit the request to the enforcement court. The enforcement court can also, upon finding valid reasons for the objection, decide to suspend the enforcement procedure until a decision on the objection is made. The court’s decision to temporarily halt the enforcement procedure is discretionary.

The litigation concerning objections in enforcement proceedings specific to bills of exchange must be conducted with a hearing before the enforcement court, as required by the Enforcement and Bankruptcy Law. The judge will summon the parties involved in the objection within 30 days for a hearing. If the parties fail to attend, the judge may make a decision regarding the objection in their absence.

If the court accepts the objection, and the creditor is found to have started the enforcement process in bad faith or unjustly, the court may order an enforcement denial compensation (icra-inkâr tazminatı) amounting to at least 20% of the amount of the bill in favor of the debtor, provided the debtor requests compensation in their petition.

If the objection is temporarily suspended and the creditor is found to be in the right, the court will reject the objection. Upon the creditor’s request, the court may also order an enforcement denial compensation amounting to at least 20% of the bill’s value against the debtor. If the objection is rejected, the enforcement will continue, and the debtor must submit a declaration of assets within 3 days from the court’s decision. If the debtor fails to submit the asset declaration within this period, the court may order coercive detention (tazyik hapsi).

In cases where the debtor objects to the signature on the bill in the enforcement proceedings specific to bills of exchange, and the court concludes that the signature belongs to the debtor, the objection will be rejected. If the objection is unjust, upon the creditor’s request, the court may order enforcement denial compensation of at least 20% of the bill’s value against the debtor. Additionally, a monetary fine of 10% of the bill’s value will be imposed on the debtor for unjustly objecting to the signature. If the objection is rejected, the enforcement will continue, and the debtor will be required to submit a declaration of assets within 3 days of the court’s decision. If the debtor fails to do so, coercive detention may be imposed.
If the debtor’s objection to the enforcement proceeding is rejected, the enforcement will continue. However, the debtor retains the right to file a lawsuit in general courts. If the debtor files a lawsuit (such as a negative declaratory action or restitution), the enforcement procedure will be suspended until the case is concluded.

The decision made by the enforcement court regarding the debtor’s objection in the enforcement proceedings specific to bills of exchange can be appealed. However, the appeal will not suspend any actions related to the enforcement proceeding. For the sale or other enforcement actions to be suspended, the debtor must provide the guarantee required by the court.

Examples of Court of Cassation Rulings Related to Objections in Enforcement Proceedings Specific to Bills of Exchange
General Assembly of Civil Chambers 2017/276 E., 2020/695 K.
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“Judgment Text”
COURT: Execution Court

  1. After reviewing the request for “cancellation of the execution” between the parties, the decision of the Tunceli Execution (Civil) Court to reject the complaint was appealed by the debtor. Following a review by the 12th Civil Chamber of the Court of Cassation, the decision was overturned, and the Court resisted the decision of the Special Chamber.
  2. The resistance decision was appealed by the debtor’s attorney.
  3. After reviewing the documents in the case, the matter was discussed by the General Assembly of the Court.

I. Review Process
Debtor’s Request:

  1. In the complaint petition dated 10.09.2014, the debtor stated that in the promissory note, which was the basis for the execution proceeding initiated against them by the creditor through the enforcement procedure specific to promissory notes, the maturity date was shown as 15.04.2014 in the section marked as the payment date at the top of the note, while the written part of the note mentioned the maturity date as 13.08.2013. Since the note contained two different maturity dates, it lost its characteristic as a promissory note. The debtor argued that the enforcement proceeding should be canceled. Furthermore, as there was no commercial relationship between the creditor and debtor related to the note in question, the debtor objected to the debt. The debtor requested the cancellation of the execution proceeding, the awarding of compensation to the debtor of at least 20% of the debt, and a fine equal to 10% of the debt.
    Creditor’s Response:
  2. The creditor’s attorney did not submit a written statement. In the hearing on 10.10.2014, the attorney stated that the date written at the top of the note was mistakenly written as the issue date instead of the maturity date and requested the rejection of the complaint.
    Court Decision:
  3. With the decision of the Tunceli Execution (Civil) Court dated 30.12.2014, and numbered 2014/25 E., 2014/42 K., it was stated that although the payment date on the upper part of the note was shown as 15.04.2014, and the maturity date was mentioned as 13.08.2013 in the body of the note, considering that the issue date of the note was 13.08.2013, it was concluded that the maturity date was mistakenly written as the issue date in the note. It was also noted that according to Article 703/2 of the Turkish Commercial Code (TCC) and the reference to Article 778 of the same Code, the note did not contain different maturities, and the debtor was unable to prove their objection to the debt with an official document or a document recognized by the creditor. Therefore, the debtor’s complaint regarding the promissory note and the objection to the debt were rejected.
    Court of Appeals’ Decision to Overturn:
  4. The debtor has filed a request for appeal within the specified time against the decision of the Tunceli Enforcement (Civil) Court mentioned above.
  5. By the decision of the 12th Civil Chamber of the Court of Cassation dated 13.10.2015, with the case number 2015/12186 E., 2015/24272 K.;
    “… In the execution proceeding based on the promissory note initiated by the creditor through a special enforcement procedure for negotiable instruments, after the service of the sample 10 payment order, the debtor, in their application to the enforcement court within the legal time limit, argued that the promissory note contained dual due dates, and for this reason, it was not considered a negotiable instrument, and requested the cancellation of the proceeding. The court rejected the request on the grounds that ‘the objection to the debt was not proven, and since the issue date was mistakenly written as the due date in the note, it cannot be said that there are different due dates in the note.’ According to Article 170/a-2 of the Enforcement and Bankruptcy Code (İİK), the enforcement court, due to a complaint or objection made within the statutory period, automatically takes into account whether the promissory note underlying the proceeding does not have the status of a negotiable instrument or whether the creditor has the right to proceed under the provisions of negotiable instruments law. According to the provisions of the Turkish Commercial Code (TTK) Article 778 and its reference to Article 703, which applies to promissory notes, promissory notes issued with dual due dates cannot be considered as promissory notes. In the case at hand, it is observed that the promissory note underlying the proceeding has ‘April 15, 2014’ written under the ‘payment date’ heading, and ‘August 13, 2013’ written in the body of the note, indicating that the note contains dual due dates. Since a promissory note with dual due dates does not qualify as a negotiable instrument, an enforcement proceeding based on this document cannot be initiated through the special enforcement procedure for negotiable instruments. Therefore, the court should have decided to cancel the proceeding according to Article 170/a of the Enforcement and Bankruptcy Code, and it was incorrect to disregard this issue and rule in favor of rejecting the request.” Based on this reasoning, the decision was overturned.
    Resistance Decision:
  6. With the decision of Tunceli Enforcement (Civil) Court dated 05.04.2016 and numbered 2016/17 E., 2016/15 K.; a resistance decision was issued based on the reasoning that in the decisions of the Special Chamber dated 29.06.2015 and numbered 2015/8038 E., 2015/18134 K.; dated 04.06.2015 and numbered 2015/6753 E., 2015/15552 K.; and dated 18.01.2016 and numbered 2015/3246 E., 2016/1084 K., it was stated that the repetition of the issuance date on the payment date does not mean a double maturity, and accepting otherwise would be an excessive formalism leading to loss of rights.
    Appeal of the Resistance Decision:
  7. The resistance decision was appealed by the debtor’s attorney within the prescribed period.

II. DISPUTE

  1. The dispute brought before the General Assembly of Civil Chambers through resistance concerns whether the promissory note, which serves as the basis for the enforcement proceedings through the special seizure procedure for negotiable instruments, contains dual maturity dates, and if so, whether it retains the characteristics of a negotiable instrument. Based on the conclusion reached on this matter, the key issue is whether the enforcement proceedings should be annulled.

III. JUSTIFICATION

  1. According to Article 167, paragraph 1 of the Enforcement and Bankruptcy Law No. 2004 (İİK), in order for the creditor to initiate enforcement proceedings through the seizure method specific to negotiable instruments, the debt must necessarily be based on a negotiable instrument. Pursuant to Article 168, paragraph 3, and Article 170/a, paragraph 1 of the İİK, in enforcement proceedings specific to negotiable instruments, the debtor may apply to the enforcement court within five days from the notification of the payment order and request the annulment of the proceedings by claiming that the instrument serving as the basis for the enforcement is not a negotiable instrument. According to Article 170/a, paragraph 2 of the İİK, if a complaint or objection is made by the debtor within the prescribed period, this matter is automatically and primarily considered by the enforcement court. If, as a result of this examination, the enforcement court determines that the instrument serving as the basis for the enforcement is not a negotiable instrument, it shall decide to annul the enforcement proceedings. However, pursuant to the last paragraph of Article 170/a of the İİK, this provision shall not apply if, for any reason, the objection of signature denial has been withdrawn or if the debt has been partially or fully acknowledged.
  2. In order to be distinguished from other instruments, negotiable instruments are subject to special formal requirements. The strictest formal requirements are observed in negotiable instruments. As a result of the need for security, the principle of informality, which is accepted by modern law and particularly commercial law, has been abandoned in negotiable instruments.The adherence to strict formal requirements governing negotiable instruments gives rise to the principle that “the instrument is processed exactly as it is and according to what it states,” meaning that the text and formal requirements of the instrument cannot be interpreted based on the possible intentions of the parties or external events beyond the instrument itself (Poroy, R./ Tekinalp, Ü.: Fundamentals of Negotiable Instruments Law, 15th Edition, Istanbul 2001, p. 29). In negotiable instruments, “strict adherence to form” is essential. A commercial instrument must exclusively provide the necessary information concerning itself (Öztan, F.: Negotiable Instruments Law, Ankara 1997, p. 370).
  3. According to Article 776 of the Turkish Commercial Code (TTK), a promissory note or a note payable to order must contain the word “promissory note” or its equivalent in another language if the note is written in a language other than Turkish, an unconditional promise to pay a specific amount, the place of payment, the name of the person to whom or to whose order the payment is to be made, the date and place of issuance, and the signature of the issuer. These details are mandatory and essential elements that affect the validity of the note. A note that does not contain any of these essential elements cannot be considered a promissory note.
  4. According to Paragraphs 3 and 4 of Article 777 of the TTK, the alternative mandatory elements of the promissory note are the place of issuance and the place of payment. The legislator has deemed it mandatory for these elements to be included in the promissory note, but if they are missing, other elements of the note may substitute for them, thus ensuring that the note retains its status as a promissory note.
  5. The maturity date, on the other hand, is an optional element. It is not mandatory to specify the maturity date in the promissory note, and according to Paragraph 2 of Article 777 of the TTK, “a promissory note without a specified maturity date is considered to be payable on sight.”
  6. The types of maturity dates that can be included in a promissory note are limited and specified in the Turkish Commercial Code (TTK). According to Article 703, Paragraph 1 of the same Code, which is referenced by Article 778 of the TTK, a promissory note can have four types of maturity: it can be payable upon sight, a certain time after being presented, a certain time after the date of issuance, or on a specific date. According to Article 703, Paragraph 2 of the TTK, “promissory notes with a different maturity written in any other way or showing successive maturity dates are void.”
  7. The presence of two different maturity dates in the same promissory note is a reason for its invalidity (Öztan, p. 482). The fact that the maturity date coincides with the date of issuance does not invalidate the status of the promissory note (Poroy, R./Tekinalp, Ü., p. 119). There is no regulation that prohibits the maturity date and the date of issuance from being the same.
  8. It is not a requirement for the maturity date to be included in the text of the note. As long as the issuer’s signature is present, the maturity date can be placed anywhere on the note. In other words, the position of the maturity date does not matter in situations where it is covered by the issuer’s signature (Öztan, p. 492).
  9. In light of the above principles and rules, in the case at hand, it was observed that the promissory note, which was the basis for the execution proceeding initiated by the creditor against the debtor, showed the date of issuance as 13.08.2013, the maturity date as 13.08.2013 within the text of the note, and the payment date as 15.04.2014 at the top of the note.
  10. In this case, considering that the maturity date of 13.08.2013 is consciously written in the text of the note, and the payment date of 15.04.2014 is written at the top of the note, it is necessary to acknowledge that the note contains dual maturity dates. According to Article 703, Paragraph 2 of the Turkish Commercial Code (TTK), as referenced by Article 778 of the same Code, the note is deemed void.
  11. Therefore, since an execution proceeding based on a note that does not have the characteristics of a commercial paper cannot be conducted via the enforcement method specific to promissory notes, the execution must be annulled according to Article 170/a of the Execution and Bankruptcy Law (İİK).
  12. During the discussions in the General Assembly of the Court, it was argued that the maturity date included in the note text is merely a repetition of the note’s issuance date, and that considering it as a dual maturity date would constitute excessive formalism. However, this opinion was not adopted by the majority of the Court.
  13. Thus, while the Special Chamber’s annulment decision should have been followed, it is procedurally and legally incorrect to resist the previous decision.
  14. IV. CONCLUSION: For the reasons explained above, the objection of the debtor’s attorney is accepted, and the resistance decision is REVOKED due to the reasons stated in the Special Chamber’s annulment decision. If requested, the appeal advance fee will be refunded to the payer. In accordance with Article 366/III of the İİK, which is applied with reference to the temporary Article 7 added to the Law No. 5311, the decision is subject to correction within 10 days from the delivery of the decision. The decision was made by a majority of votes on 29.09.2020.
  15. Court of Cassation Civil Chamber 2018/4658 E., 2018/4032 K.
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“Judgment Text”
COURT: Enforcement Court

The court decision with the date and number mentioned above was requested to be reviewed by the debtors for appeal within the time limit. As a result, the relevant case file was sent from the local office to the chamber. After the report prepared by the Examining Judge … was read and all documents in the file were examined, the matter was discussed and considered:

The creditor initiated an enforcement proceeding through the specific attachment method for bills of exchange, based on six bills owed by the debtors, under file number 2016/87747 of the 9th Enforcement Directorate. The debtors raised an objection regarding jurisdiction within the time limit, after which the case file was transferred to the competent … 12th Enforcement Directorate. The sample 10 payment order issued by the competent enforcement directorate was served to both debtors on 16/05/2016. Upon the debtors’ application to the enforcement court, it was argued that the promissory notes with due dates of 30/09/2014 and 30/10/2014 had been paid, and regarding the document with a value of 15,000 TL and a due date of 30/11/2014, although an enforcement proceeding was initiated, the said document did not have the characteristics of a bill of exchange. One of the debtors, …, stated that he only signed the bills in his capacity as a company representative and objected to the debt on the grounds that the debtor was the company, thus requesting the cancellation of the enforcement. The court rejected the claim on the grounds that the debtors did not file their objection within the five-day statutory period.

According to Article 168/5 of the Enforcement and Bankruptcy Law (İİK), objections to the enforcement through bills of exchange must be made within five days from the notification of the payment order to the enforcement court. This period is of a nature that deprives the right to act, and the court must consider this ex officio.

In the present case, the payment order sent to the debtors from the enforcement file was served on 16/05/2016, and the complaint was filed on 18/05/2016. Therefore, the objection made according to the payment order notification date issued by the competent enforcement office is considered timely.

Thus, the court erred by rejecting the claim due to the expiration of the time limit, rather than examining the substance of the debtors’ objection and making a decision accordingly.

CONCLUSION: The debtors’ appeal objections are accepted, and for the reasons written above, the court decision is reversed in accordance with Articles 366 of the İİK and 428 of the Civil Procedure Code (HUMK). The advance fee collected shall be refunded upon request. The decision is subject to rectification within 10 days from the service of the judgment. The decision was made unanimously on 02/05/2018.

  1. Civil Chamber 2021/10487 E. , 2022/4250 K.
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“Judgment Text”
COURT: … Regional Court of Appeal

Upon the request of the debtor for the appellate review of the decision rendered by the Regional Court of Appeal, as indicated by the date and number above, the file related to this procedure has been sent to the chamber. After the report prepared by the Review Judge … for the case file was read and after all the documents in the file were examined, the matter was discussed and considered:

It is seen that the creditor initiated an execution proceeding based on a promissory note via the special enforcement procedure for commercial bills, and the debtor, while asserting other objections, also raised an objection to the debt and requested the cancellation of the proceeding. The first-instance court ruled to reject the case, and following the debtor’s appeal, the Regional Court of Appeal ruled to reject the appeal on the merits.

According to Article 170/a of the Enforcement and Bankruptcy Law (İİK), the enforcement court, upon a timely complaint or objection, may annul the enforcement procedure ex officio if the bill that is the basis of the enforcement procedure does not possess the characteristics of a commercial bill, or if the creditor does not have the right to pursue the claim according to commercial law. In this regard, if the debtor raises an objection regarding the debt or signature within the legal 5-day period under Article 168 of the İİK or files an objection based on the statute of limitations, and it is determined that the document in question does not have the characteristics of a commercial bill, and therefore the creditor does not have the right to pursue the claim via the special enforcement procedure for commercial bills, the enforcement procedure must be annulled ex officio, without examining other reasons for objection.

According to Article 776/1-a of the Turkish Commercial Code (TTK) No. 6102, the promissory note must include the words “bono” or “promissory note,” and if the note is written in a language other than Turkish, the equivalent term used in that language must also be included.

Furthermore, if the document does not contain the words “bono,” “promissory note,” “bill of exchange,” or “check,” the document cannot be considered a promissory note, bill of exchange, or check, and therefore, it is not possible to initiate an execution procedure for a debt based on the special enforcement procedure for commercial bills as set forth in Articles 776/1-a, 671/1-a, and 780/1-a of the TTK.

In the present case, the document on which the enforcement is based includes the phrase “…this promissory note in exchange for …” but does not contain the words “bono” or “promissory note.” Therefore, it is understood that the document in question does not have the characteristics of a commercial bill. Additionally, since the debtor has not partially or fully admitted the debt under the last paragraph of Article 170/a of the İİK, there is no application for the provision of the last paragraph of Article 170/a.

Thus, pursuant to Article 170/a-2 of the İİK, since the document in question does not possess the characteristics of a commercial bill, the execution procedure should have been annulled ex officio. However, the first-instance court’s decision to reject the request and the Regional Court of Appeal’s rejection of the debtor’s appeal on the merits was incorrect, requiring the decision to be overturned.
RESULT:

With the acceptance of the debtor’s appeal objections, and for the reasons written above, in accordance with Article 364/2 of the Enforcement and Bankruptcy Law (İİK) as amended by Law No. 5311, and the reference to Article 373/1 of the Civil Procedure Code (HMK) No. 6100, it was decided to CANCEL the decision of the … 5th Civil Chamber of the Regional Court of Appeal, dated 02/09/2021, with case numbers 2021/1228 E. and 2021/1197 K., and to OVERTURN the decision of the … 2nd Enforcement Court, dated 11/03/2021, with case numbers 2021/10 E. and 2021/90 K.; the advance fee paid shall be refunded upon request, and the file shall be sent back to the First Instance Court, with a copy of the decision also being sent to the Regional Court of Appeal. The decision was made unanimously on 31/03/2022.


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