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Loss of a cheque; may occur through human acts such as theft, loss, tearing or the cheque becoming unusable, or through natural disasters such as floods, fires and earthquakes. In this case, the cheque cannot be used by its authorised and legitimate holder. In this article, we examine the circumstances in which a cheque is lost, the payment prohibition and deposit options available to the holder, and the action for proof of entitlement (recovery).
Currency note
This article was prepared on the basis of the legislation and practice in force on the date of publication. The temporary provisions on post-dated cheques and certain statutory provisions referred to in the article may have changed since then. You are advised to consult a lawyer for the current position.
“Loss and Cancellation of Cheques” In our study entitled as above, we aim to examine in detail the circumstances in which a cheque is lost, the general rights of the holder where a cheque is lost, the action for proof of entitlement, the action for cancellation of a cheque and the consequences of a cancellation judgment, while filling the gaps encountered in practice by combining Court of Cassation judgments with the views expressed in legal doctrine.
In a cheque, which is an instrument of payment, performance takes place by presentation to the drawee within the statutory period. Where the cheque is stolen, lost, torn or rendered unusable, in short, where it leaves the possession of the legitimate holder without his or her consent, presentation will not be possible. Seeking to protect the holder facing such situations, the legislature has introduced a number of provisions in the interests of justice and equity. Striving to regulate the balance of interests that lies at the foundation of law, the legislature ultimately allows the holder of a cheque that has left his or her possession without consent, after certain procedures and by obtaining a cancellation judgment, to assert his or her right against the debtor without having the cheque in hand.
Our study is organised under four main headings. In the first part, “the concept of loss of a cheque”, the concept of loss in general is discussed, the circumstances in which a cheque is lost are examined, and the rights and obligations of the holder when faced with such circumstances are analysed. In the second part, the legal nature, conditions, proof and consequences of the action for recovery which the holder who lost the cheque will bring against the possessor of the instrument, where it is subsequently established in whose possession the cheque is, are discussed.
In the third part, to be covered in our next article, information is given on the legal nature, conditions, proof and consequences of the action for cancellation to be brought where it is not known in whose possession the cheque is. In the final part, the consequences and effects of the cancellation judgment on the holder of the judgment, the debtor and third parties will be addressed.
A cheque is a negotiable instrument in the nature of a payment order, addressed to a bank and drawn up in accordance with the provisions of the Turkish Commercial Code No. 6102.
By its legal nature, a cheque is a means of payment. Its statutory elements are set out in the provisions of the TCC No. 6102 and the Cheque Law No. 5941. As a general rule, a cheque must be paid on sight. For this reason, acceptance and maturity do not apply to the cheque as a means of payment. However, a maturity date for cheques was introduced under Provisional Article 3 of the Cheque Law No. 5941.
In the law of bills of exchange, which covers a large part of commercial life, there are special provisions alongside the general rules designed first to ensure trust and then to enable that trust to materialise swiftly. In its spirit, the law of bills of exchange steers the flow of capital in commercial life. In practice, this flow of capital is disrupted by the loss of negotiable instruments and the subsequent cancellation of the lost instruments.
The measures that may be taken by the legitimate holder in respect of a lost cheque are regulated in Turkish Commercial Code No. 6102. Foremost among these measures are obtaining a payment prohibition order from the court to prevent payment of the cheque amount to a third party and requesting the court to order the deposit of the cheque amount. Once these orders have been obtained, if it is known in whose possession the cheque is, an action for restitution of entitlement (recovery/return) must be brought. If it is not known in whose possession the cheque is, the holder from whose possession the cheque left without consent must bring an action for cancellation.
In brief, the route described in the article for a lost cheque is as follows:
The cancellation of negotiable instruments is generally regulated in Articles 651–652 of Turkish Commercial Code No. 6102; Article 657 regulates the cancellation procedure for registered instruments and Articles 661–669 that for bearer instruments. The provisions on the cancellation of bills of exchange are set out in Articles 757–765 of the Turkish Commercial Code. The cancellation of cheques and promissory notes, which are bills of exchange in the broad sense, is carried out under the provisions governing the cancellation of bills of exchange (Articles 778/1–ı and 818/I of the Turkish Commercial Code).
Owing to the sui generis nature of negotiable instruments, their loss and cancellation are regulated in more detail in the legislation than those of ordinary instruments. Before explaining the institutions of loss and cancellation, which in practice are closely intertwined, two matters must be distinguished. The first is the extinction of the right in negotiable instruments. Where one of the various grounds leading to the extinction of the right, such as performance or release, materialises, the right arising from the negotiable instrument is extinguished. The second is that where the negotiable instrument is worn so as to become illegible, torn, stolen or lost, and the instrument does not lose its character as a negotiable instrument (so the right that has arisen is not extinguished either), it will be impossible to assert the right. This is because the instrument and the right are identified with each other, which is the fundamental principle of the law of bills of exchange.[1] This situation has a far more complex structure than the first. This is because the first paragraph of Article 646 of Turkish Commercial Code No. 6102 regulates the claiming of the right arising from a negotiable instrument as follows: “The debtor of a negotiable instrument is obliged to pay only against delivery of the instrument.” Accordingly, in the second situation we have mentioned, where the negotiable instrument is lost, stolen, torn without the intention of release, scribbled over, worn so that its content cannot be read, or otherwise rendered unusable, it will not be possible to present the instrument to the debtor.[2]
“The debtor under a negotiable instrument is obliged to pay only against delivery of the instrument.”
Turkish Commercial Code No. 6102, Art. 646/1
Where presentation of the negotiable instrument is not possible, the right holder will face the grave consequence of losing his or her right. In such cases, the complete loss of the right can never be justified.[3] The legislator has granted rights holders a number of options and facilities in the event that they face such situations. These options will be examined in full in the following sections of our study.
In Turkish law, possession essentially appears in two forms: original (direct) possession and derivative possession. [4] Where the person who is a possessor on behalf of another or a derivative possessor abuses the possession of the original possessor, or does not recognise the possession of the original possessor and unlawfully becomes the possessor of the instrument himself or herself, the possession of the original possessor also comes to an end. This possibility arises in particular where it is not stated that the instrument was endorsed for pledge or for collection and the endorsement appears as if it were an endorsement for transfer. Where the instrument is taken from the possessor by threat, fraud or mistake, which are defects of consent, possession has not in fact been lost with consent. In such cases, the instrument will be deemed to have been lost.[5]
When the cheque is presented to the drawee for performance, the drawee may refuse the request because the original instrument cannot be identified. Such situations generally arise where the instrument has been washed, scribbled over, worn, erased or damaged, and the text of the instrument may not be legible. The provisions on the cancellation of bills of exchange set out in Article 757 of Turkish Commercial Code No. 6102 are available only where the instrument has left the holder’s possession without his or her consent. There is no special provision for the case where the cheque is damaged and rendered unusable.[6]
There are also several conflicting views in the doctrine on this matter. According to the first view, where the instrument is worn or damaged, the holder entitled under the instrument cannot bring an action for cancellation under the provisions on loss of negotiable instruments. This is because, in cases of wear and damage, the legislator allows the rights holder, relying on Articles 488 and 743 of the TCC, to apply to the principal debtor and request the issue of a new instrument at their own expense.[7]
According to the second view, with which we also agree, the provision in Article 925 of Turkish Civil Code No. 4721, which reads “If the pledge instrument has left possession against the holder’s will or has been destroyed without the intention of extinguishing the debt, the creditor may have the pledge instrument and coupon cancelled by court judgment and request the debtor to pay the debt and, if the claim is not yet due, to issue a new pledge instrument or coupon.”, may also be applied to negotiable instruments. Therefore, where the instrument encounters the circumstances listed above and cannot be presented, this will be deemed a loss and will be the subject of an action for cancellation.[8]
“If the pledge instrument has left the creditor’s hands against their will or has been destroyed without the intention of extinguishing the debt, the creditor may have the pledge instrument and coupon cancelled by court order and request the debtor to pay the debt and, if the receivable is not yet due, to issue a new pledge instrument or coupon.”
Turkish Civil Code No. 4721, Art. 925
First view
Where the instrument is worn or damaged, the holder cannot bring an action for cancellation; they may apply to the principal debtor and request the issue of a new instrument at their own expense.
Second view · Endorsed in the article
Where presentation of the instrument is not possible, this is deemed loss and is subject to an action for cancellation.
The third paragraph of Article 711 of the repealed Turkish Commercial Code No. 6762 granted the drawer “If the drawer claims that the cheque has left his own possession or that of a third party without consent, he may prohibit the drawee from paying the cheque.” an option in these terms. Accordingly, where the drawer made a request to the drawee bank merely on the basis of a claim, the drawee could be prohibited from paying. In practice, owing to drawers acting in bad faith, this facility could be used entirely unjustifiably and without being based on any fact. To prevent this, the legislature removed this provision from the text of the law.[9]
After the relevant provision was removed from the text of the law, the drawer no longer has the power to prohibit the drawee from paying. By virtue of the reference in Article 818 of Turkish Commercial Code No. 6102 to Article 757, the holder who applies directly to the court may obtain a court order prohibiting payment.
It is one of the fundamental principles of the law of bills of exchange that the right in a negotiable instrument is closely bound to the instrument, is embodied in it, and cannot be transferred separately from it. To claim the right under a cheque, which is a negotiable instrument, the cheque must be presented to the drawee. In general, the holder who has the cheque in his or her possession for a legitimate reason has the right, where the cheque leaves his or her possession without consent or is damaged, to take a preventive measure “with regard to non-payment”, in other words, to obtain an interim injunction so that the cheque amount is not paid. The first paragraph of Article 757 of the Turkish Commercial Code “A person from whose possession a bill of exchange has left against his will may request the commercial court of first instance at the place of payment or of the holder’s domicile to prohibit the drawee from paying the bill.” provides as above. The concept referred to under the heading of preventive measure is nothing other than the institution of interim injunction provided for in Procedural Law No. 6100. The prevention of payment of the cheque amount, which is foremost among the preventive measures relating to cheques, appears in practice as a payment prohibition.[10]
“A person from whose possession a bill of exchange has left against his will may request the commercial court of first instance at the place of payment or of the holder’s domicile to prohibit the drawee from paying the bill.”
Turkish Commercial Code No. 6102, Art. 757/1
We mentioned above that, under the repealed Law No. 6762, the drawer could prohibit the drawee from paying. Under the new Commercial Code, the drawer has no such right. It is also worth examining whether the cancellation of blank cheque leaves may be requested. Accordingly, the cancellation of blank cheque leaves cannot be requested. Since the mandatory elements on the cheque leaf have not been filled in and signed by the drawer, a blank leaf does not qualify as a cheque.[11] However, once the mandatory elements have been filled in by the drawer and the instrument has acquired the character of a cheque, the drawer should be able to request its cancellation and, accordingly, to request a payment prohibition.[12]
Blank cheque leaves
Accordingly, the cancellation of blank cheque leaves cannot be requested.
The holder and the holder’s attorney have the right to request a payment prohibition under the express provision of Article 757, by virtue of the reference in Article 818 of Turkish Commercial Code No. 6102. The judgment of the Assembly of Civil Chambers of the Court of Cassation dated 18.3.2015, No. 2013/11-1884 E. – 2015/1059 K., is to the same effect.[13]
Under procedural law, a request for a payment prohibition is a preventive measure. A preventive measure can be ordered only through a court. For the institution of interim injunction regulated in Articles 389 et seq. of Code of Civil Procedure No. 6100 to operate and achieve its purpose, the person concerned must make a request to that effect to the court. This is because orders for interim injunctions protect the interest of the holder who is the right holder, and this matter is subject to private law. For this reason, the court has no power to decide of its own motion on this institution, which is not subject to public law. Furthermore, a payment prohibition may be requested before the action for cancellation on grounds of loss, during the action for cancellation or together with it. However, in terms of procedural economy, it would be more reasonable to request the cancellation and the payment prohibition in the same petition.[14]
Pursuant to Article 6 of Code of Civil Procedure No. 6100, the court of general jurisdiction is the court of the domicile of the natural or legal person on the date the action is brought. The domicile is determined according to the general provisions of the Turkish Civil Code (Article 19 TCC). Pursuant to Article 757 of the Turkish Commercial Code, the court with territorial jurisdiction in actions for cancellation of cheques and payment prohibition is specified as the court of the place of payment. As regards subject-matter jurisdiction, as stated in the same provision, the competent court Commercial Court of First Instanceis the commercial court of first instance. Where there is no commercial court of first instance, the civil court of first instance will have jurisdiction under the general rules.[15]
After the holder has individualised the instrument in dispute before the court,[16] and following the investigation stage, the court may prohibit payment. In this case, pursuant to Article 757 of the Turkish Commercial Code, the court, in its decision, permits the drawee to deposit the cheque amount upon maturity and designates the place of deposit.
Where payment is prohibited, the holder will act according to whether or not the person who has obtained the lost cheque is known. Pursuant to Article 758 of the Turkish Commercial Code, if it is known in whose possession the cheque is, the court gives the holder who requested the payment prohibition a time limit to bring an action for proof of entitlement (recovery/return). If the holder does not bring the action for recovery within the time limit given, the payment prohibition imposed on the drawee is lifted. In that case, the cheque will be collected by the person in possession of it, regardless of whether he or she is the authorised holder. However, if the action is brought within the time limit given, the injunction will remain in force until the dispute is resolved. Where it is not known in whose possession the cheque is, whether through the announcements made or in any other way, the cancellation of the cheque will be ordered pursuant to Article 759 of the Turkish Commercial Code.[17]
Course of action depending on who holds the cheque
| It is known who holds the cheque | It is not known who holds the cheque | |
|---|---|---|
| Foundations | TTK m. 758 | TTK m. 759 |
| Mahkemenin tutumu | The court grants the holder time to bring an action for proof of entitlement (recovery/return) | The cheque is cancelled |
| If the time limit is missed | The payment prohibition is lifted | — |
“In its decision prohibiting payment, the court authorises the drawee, upon maturity, to deposit the amount of the bill of exchange and designates the place of deposit.”
Turkish Commercial Code, Art. 757/2
The second paragraph of Article 757 of the Turkish Commercial Code provides: “In its decision prohibiting payment, the court permits the drawee to deposit the amount of the bill upon maturity and designates the place of deposit.” The matter debated in the doctrine is whether the court will order the deposit of its own motion or upon request. Poroy/Tekinalp state: “In its decision, the court is obliged to permit the debtor to deposit the debt upon maturity and to designate the place of deposit. This last provision has rightly been laid down so that a dispute between the creditor who is the right holder and the person holding the instrument, or, where the instrument is lost, the cancellation proceedings which will last for some time, do not aggravate the position of the debtor.” stated.[18]
Once the holder has presented the cheque to the drawee for payment within the time limit, the holder may, if the cheque is dishonoured, have recourse against the other parties liable. The most important point for the right of recourse is applying within the presentation period. The fact that the court has imposed a payment prohibition does not remove the requirement that the cheque be presented within the time limit and that non-payment be established in order for the right of recourse to be exercised. Where these determinations have not been made, a holder whose cheque has been lost must, in order to exercise the right of recourse, apply to the court and request, together with the payment prohibition, an order for the deposit of the cheque amount.
Important · Presentation period
Otherwise, if no request for deposit is made within the presentation period, the holder loses the right of recourse against the cheque debtors.[19]
Where, despite the court ordering the deposit of the cheque amount, the drawee bank does not deposit it, the authorised holder still has the right of recourse against the parties liable on recourse, even though it becomes more difficult for him or her to recover the claim. Pursuant to Article 808 of the Turkish Commercial Code, this situation amounts to a cheque that has been presented but not paid. In such a case, the authorised holder who has the right of recourse against the parties liable on recourse may apply to them after the cancellation judgment. Furthermore, if the drawee bank does not deposit the amount despite the deposit order, it will be liable under the general provisions to the authorised holder who has suffered loss.[20]
The general action for recovery, regulated in Articles 987–990 of Turkish Civil Code No. 4721, must be brought by the holder who has lost the instrument against the person in possession of it, if the holder knows in whose possession the instrument is. In the Turkish Commercial Code, this matter is regulated in two different places: first, the action for recovery to be brought after a preventive measure has been obtained, regulated in Article 758; and second, the action for recovery to be brought upon the instrument being submitted to the court following the announcements, regulated in Article 763.[21] The instrument alleged to have been lost must have been lost in the relative sense. Since an instrument lost in the absolute sense will not exist physically, there is no legal interest in bringing an action for recovery in respect of an instrument lost in the absolute sense. The main purpose of the action for recovery is to have the instrument returned to the authorised holder through the court without the need to cancel the lost instrument.[22]
The main purpose of the action for recovery was to recover the instrument lost in the relative sense without the need for its cancellation. There is no right of recovery arising from ownership here. There is only a right of recovery arising from the loss of the status of authorised/legitimate holder. In this respect, it is clear that this action is not the action for recovery of property (istihkak) regulated in Articles 988 et seq. of Turkish Civil Code No. 4721. Its legal basis is the action for return (recovery) regulated in Article 763 of the Turkish Commercial Code. In Articles 758 and 763, it has been deliberately termed an action for return. This matter, regulated differently across the laws, differs owing to the spirit of the institutions, particularly on the following point: the action for recovery of (movable) property based on possession regulated in the Civil Code must be brought within five years even against a new possessor in good faith. However, in the action to be brought in respect of bills of exchange, the action can be brought only if the new holder of the instrument is in bad faith or grossly at fault. If it is known in whose possession the instrument lost in the relative sense is, the court gives the claimant a reasonable time limit to bring an action for recovery, and if no action is brought within this period, the preventive measure is lifted.[23]
When Articles 4 and 5 of the Turkish Commercial Code are assessed together with the general rules on subject-matter jurisdiction, the court with subject-matter jurisdiction in the action for recovery, without being subject to any condition, is Commercial Court of First Instance.
The law contains no special provision on the court with territorial jurisdiction in respect of the action for recovery. Although this is controversial in the doctrine, according to one view the court with territorial jurisdiction in the action for recovery is the court of the defendant’s domicile under the second paragraph of Article 6 of the Code of Civil Procedure. Authors holding this view consider that the first paragraph of Article 757 of the Turkish Commercial Code cannot be applied here.[24]
According to the view with which we agree, the jurisdiction rule in Article 757 should be applied by analogy. This is because, under Article 758 of the Turkish Commercial Code, where it becomes known during the action for cancellation in whose possession the instrument is, the court gives an appropriate time limit for bringing an action for recovery. The action for recovery that is likely to be brought is connected with the pending action for cancellation. For this reason, both for procedural economy and for the proceedings to be concluded more quickly, it is more reasonable for the action for recovery to be brought where the action for cancellation is to be heard.[25]
A view in legal doctrine
Under paragraph two of Article 6 of the Code of Civil Procedure, the competent court is the court of the defendant’s place of residence.
View endorsed in the article
The jurisdiction rule in Article 757 should be applied by analogy; the recovery action should be brought where the action for cancellation is to be heard.
The claimant in the action for recovery is the holder from whose possession the instrument has left against his or her consent. If he or she knows in whose possession the instrument is, he or she may bring an action for recovery against the person holding the instrument by filing a petition with the competent court. For this action to be brought, the party in possession of the instrument must be known. In the action for recovery, which must be brought against the person in possession, the important point is original possession. Since a person holding the instrument for safekeeping is not the original possessor, that person lacks capacity to be sued, and this action cannot therefore be brought against him or her.[26] The judgment of the 11th Civil Chamber of the Court of Cassation dated 26/04/1979, No. 1979/2180 E. – 1979/2217 K., is to the same effect.[27]
The conditions of the action for recovery consist of concrete and abstract circumstances. The concrete circumstances are that the instrument has left the authorised holder’s possession against his or her consent and that it is known in whose possession the instrument is. Since it is known in whose possession the instrument is, the loss of the instrument is relative.
The abstract circumstances are that, however the instrument left the holder’s possession, the new holder is obliged to return it only if he or she acquired it in bad faith or was grossly at fault in acquiring it. In view of these circumstances, the extent to which the provisions of Articles 989 et seq. of Turkish Civil Code No. 4721 can be applied is a matter requiring consideration.[28]
In brief, the conditions of the recovery action are as follows:
Pursuant to Article 6 of Code of Civil Procedure No. 6100, unless otherwise provided by law, everyone is obliged to prove the fact on which he or she bases his or her right. In the action for recovery, the claimant seeking the return of the instrument must prove that the instrument left his or her possession without consent. It must also be proven, as one of the conditions of the action, that the new holder acquired the instrument in bad faith or was grossly at fault in its acquisition. In this case, for a claimant who cannot firmly prove the position of the new holder, the defendant will be deemed to be in good faith. Furthermore, according to the judgment of the Assembly of Civil Chambers of the Court of Cassation dated 17/04/1968, No. 966/T-769 E. – 255 K., the fact that the instrument left the claimant’s possession without consent may be proven by witnesses.[29]
Acceptance of the claim
Where the action is upheld, the right claimed by the claimant over the instrument is recognised by the court. Accordingly, the defendant in possession of the instrument is obliged to return it to the claimant. If the court has also imposed a payment prohibition, it must lift that prohibition. The authorised holder who recovers the instrument may collect its amount by presenting it to the drawee bank. However, if the court has previously ordered the deposit of the instrument amount elsewhere, the authorised holder may collect the amount by applying to the place of deposit. The claimant who achieves the desired result through the action for return has no legal interest in bringing an action for cancellation.[30]
Dismissal of the action
Where the action is dismissed, the instrument is returned by the court to the holder of the instrument. The payment prohibition imposed as a preventive measure is lifted and, if the amount has been deposited, collection takes place by presentation at the place of deposit. After judgment is given in the contested action for recovery, the parties may appeal, subject to the finality threshold applicable to appeals.[31]
[1] PULAŞLI, Hasan: Kıymetli Evrak Hukukunun Esasları, 4th ed., Ankara, 2015, p. 83.
[2] SEZER, Ahmet: Kıymetli Evrakın Zayi olması ve İptal Davası, 4th ed., Ankara, 2016, p. 109.
[3] PULAŞLI, op. cit., p. 85.
[4] SİRMEN, A. Lale: Eşya Hukuku Dersleri, 1995, Ankara, p. 49.
[5] GÜLTEKİN, Özkan: Kıymetli Evrakın Ziya ve İptali, 8th ed., Ankara, 2016, p. 69.
[6] CEBECİ, Emine: Çekin Ziyaı ve İptali, Erzurum, 2014, p. 31.
[7] SEZER, p. 113.
[8] DİRİKKAN, Hanife: Kıymetli Evrakın Ziyaı ve İptali, Ankara, 1990, p. 4.
[9] Paragraph repealed by Article 32 of Law No. 5838 dated 18/02/2009, published in Official Gazette No. 27155 (Repeated) dated 28/02/2009.
[10] ERİŞ, Gönen: Türk Ticaret Kanunu Hükümlerine Göre Kıymetli Evrak, 2nd ed., Ankara, 2016, p. 33.
[11] Court of Cassation 11th Civil Chamber, 20/03/2013, 2012/5680 E., 2013/5477 K.
[12] POROY, TEKİNALP: Kıymetli Evrak Hukuku Esasları, 19th ed., Istanbul, 2010, p. 100 et seq.
[13] “The action concerns a request for the cancellation of a cheque due to its loss. Although the court dismissed the action on the ground that the claimant bank was not the holder but the drawee of the cheque and had no legal interest, the cheque presented by the cheque holder to the claimant bank for collection was lost while being sent to another branch; therefore, bearing in mind that the claimant bank, being in the position of a holder by proxy, could bring this action, the evidence should have been assessed and a decision rendered accordingly; the dismissal of the action on the stated ground was incorrect and necessitated reversal… )”(Kazancı Case Law Database)
[14] KARAKAYA, Umur: Kıymetli Evrakın Zayi Olması ve İptali, Istanbul, 2013, p. 30.
[15] SEZER, op. cit., p. 129.
[16] Individualisation: the claimant’s submission to the court of information on the content and statutory elements of the cheque. (GÜLTEKİN, Özkan: Kıymetli Evrakın Ziya ve İptali, 8th ed., Ankara, 2016, p. 5. ÖZTAN, Fırat: Kıymetli Evrak Hukuku, 16th ed., Ankara, 2009, p. 65.)
[17] CEBECİ, op. cit., p. 52.
[18] POROY, op. cit., p. 101.
[19] KENDİGELEN, Abuzer; ÜLGEN, Hüseyin; HELVACI, Mehmet; KAYA, Arslan: Kıymetli Evrak Hukuku, 7th ed., Istanbul, 2013, p. 267 et seq.
[20] GÜNAY, Erhan: Uygulamalı Çek Rehberi, Ankara, 2009, p. 68 et seq.
[21] COŞKUN, Mahmut: Hukuki ve Cezai Yönleriyle Kıymetli Evrak Hukuku, 3rd ed., Ankara, 2016, p. 1013
[22] Court of Cassation 13th Civil Chamber, 02/05/2005, 2005/1661 E., 2005/7411 K.
[23] GÜLTEKİN, Özkan: Öğretide ve Uygulamada Kıymetli Evrakın Ziyaı ve İptali, 8th ed., Ankara, 2016, p. 75
[24] ERİŞ, op. cit., p. 688.
[25] CEBECİ, op. cit., p. 68.
[26] SEZER, op. cit., p. 132.
[27] “…The court, on the basis of the claim, the defence and the evidence, decided to dismiss the action for lack of standing to be sued, on the ground that the share certificate in dispute had been deposited by A…. Menkul Değerler A.Ş. with the defendant Takasbank for safekeeping, and that the defendant, which was not the original possessor and performed a safekeeping function, lacked standing to be sued in the action.
The claimant’s attorney appealed the judgment on points of law.
Since there is nothing contrary to procedure and law in the discussion and assessment of the evidence relied upon in the reasoning of the court’s judgment in light of the information and documents in the case file, and all the grounds of appeal of the claimant’s attorney are unfounded … the judgment is upheld…” (Kazancı Case Law Database)
[28] POROY, op. cit., p. 103 (see for detailed information).
[29] POROY, op. cit., p. 102.
[30] KARAKAYA, op. cit., p. 70
[31] CEBECİ, op. cit., p. 97.
Related legislation: Turkish Commercial Code No. 6102 (mevzuat.gov.tr)
According to the article, loss of a cheque may occur through acts such as theft, loss, tearing or becoming unusable, or through natural disasters such as floods, fires and earthquakes. Loss of possession and the cheque becoming illegible and unusable are examined under separate headings.
Hamil, TTK 818’in yollamasıyla 757. madde uyarınca mahkemeye başvurarak muhatabın çeki ödemekten menedilmesini, yani ödeme yasağı kararı verilmesini isteyebilir. Mahkeme bu kararında muhataba çek bedelini tevdi etmesi için izin verir ve tevdi yerini gösterir.
According to the article, this option available to the drawer under the repealed TTK No. 6762 has been removed from the statutory text; under TTK No. 6102, the drawer has no power to prohibit the drawee from paying. The holder, however, may apply to the court for a payment prohibition.
According to the article, cancellation of blank cheque leaves cannot be requested; a leaf whose mandatory elements have not been filled in and signed does not qualify as a cheque.
No. According to the article, a payment prohibition is in the nature of an interim injunction and requires a request by the interested party. A payment prohibition may be requested before the cancellation action, while it is pending, or together with it.
In this case the court gives the holder time to file an action for proof of entitlement (recovery). If no action is filed within the period, the payment prohibition is lifted; if an action is filed, the measure continues until the dispute is resolved. If it is not known who holds the cheque, the cheque is cancelled.
If the action is upheld, the respondent holding the cheque is obliged to return it to the claimant and the payment prohibition is lifted. The holder who recovers the cheque may collect it by presenting it to the drawee or, if the amount has been deposited, by applying to the place of deposit.
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