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Action for cancellation of a cheque, the remedy available to a right holder who cannot present the instrument in cases such as where the cheque has been stolen, lost, burnt or worn to the point of illegibility, protects that holder against losing their right. In our system, the principle of “the instrument is lost, the right is not” applies. In this article, we discuss the nature of the action and the applicable provisions, the conditions of the action, the persons who may bring it, the competent court and venue, the burden of proof and the publication process, and the consequences of the cancellation decision.
Currency note
This article was prepared on the basis of the legislation and practice in force at the date of publication. Some of the court decisions cited in the article date from the period of the repealed Turkish Commercial Code; case law on the cancellation of cheques may have changed since then. You are advised to consult a lawyer for the current position.
Where an instrument is stolen, worn to the point of illegibility, lost or burnt, the right embodied in the instrument does not disappear. This is because the instrument and the right are identified with one another. Just as the instrument has no meaning without the right, the right will have no meaning without the instrument. Under Article 645 of the Turkish Commercial Code, for the right to be claimed from the debtor, the instrument must be presented and delivered to the debtor. However, where the instrument is lost, stolen, torn or worn to the point of illegibility, it cannot be presented to the debtor. As a result, the true right holder will face the serious situation of losing the right. In such cases, the loss of the right could not be compensated by anything, and it would also represent a meaningless and rigid approach from the perspective of commercial life. Taking into account that right holders may face such situations, the legislator has granted them certain remedies.[1]
In Turkish Commercial Code No. 6102, the legislator provided that the right embodied in the instrument does not come to an end where negotiable instruments are lost. The prevailing view is that, in the event of loss, the link between the instrument and the right is severed by a court decision. In our system, the principle that “the instrument is lost, the right is not” applies, and this principle is given effect through the court.[2]
Owing to the diverse and extensive nature of negotiable instruments, the institution of the loss and cancellation of negotiable instruments is regulated in a scattered manner. In regulating the loss and cancellation of negotiable instruments, the legislator first laid down general provisions applicable to all types of negotiable instruments unless otherwise provided (Turkish Commercial Code No. 6102, Arts. 651-653). After the general provisions, the legislator laid down special provisions on the cancellation of registered instruments; on the cancellation of bearer instruments, keeping the rules on annuity instruments and mortgage debt instruments separate; and finally on the cancellation of bills of exchange (Turkish Commercial Code No. 6102, Arts. 657, 661-669, 757-765). The Code contains no provision on the cancellation of order instruments. To fill this gap, the provisions on the cancellation of bills of exchange will also apply to order instruments other than warrants and warehouse receipts. In short, the cancellation of promissory notes and cheques is also subject to the provisions on the cancellation of bills of exchange (Turkish Commercial Code No. 6102, Arts. 778, 818).[3]
The order of the provisions in the Law is briefly as follows:
The first condition of the cancellation action is that the cheque in question has been lost. What is lost here is not the right embodied in the instrument but the instrument itself. It makes no difference that the holder has a copy or photocopy of the instrument, since the drawee will not make payment on presentation of a copy or photocopy. As explained earlier, the point is that presentation is impossible because the instrument no longer physically exists or has left the right holder's possession against his or her will.[4]
Instrument handed to another person by mistake
Where a negotiable instrument has not been lost but has mistakenly been given to someone else, an action for its cancellation cannot be brought. For example, where a negotiable instrument handed to a bank for collection is given by the bank to another person instead of the right holder, the instrument is not deemed lost, since it has not suffered any of the circumstances just listed. In this case, since the instrument cannot be regarded as having been lost involuntarily, its cancellation cannot be requested either.[5]
The requirement that the right embodied in the cheque continue to exist is not expressly stated in the Code. However, the person bringing the cancellation action must not have lost the right embodied in the instrument. If the right has been extinguished, for example by performance or release, there is no longer any need to cancel the instrument. From another perspective, if the right embodied in the instrument had not arisen before the instrument was lost and can no longer arise after its loss, there is again no need for cancellation. The expression “no need” should be understood to mean that it is not possible to bring an action for cancellation of the instrument. Furthermore, the fact that the right embodied in the instrument has become time-barred, or that the right embodied in the instrument has been made the subject of litigation by the debtor, does not constitute an obstacle to cancellation of the instrument.[6]
The institution of cancellation of an instrument due to loss is a form of legal protection intended mainly to protect the creditor. For a request for cancellation, the loss of the instrument must be permanent rather than temporary. If the instrument has left the holder's possession temporarily, or if it is known who holds it, there is no legal interest in bringing a cancellation action; an action for recovery (istirdat) must be brought instead. The well-established case law of the Court of Cassation is to this effect.
Action for cancellation
Brought where the loss of the instrument is permanent and it is not known in whose hands it is.
Action for recovery (istirdat)
Brought where the instrument has left the holder’s hands temporarily or it is known in whose hands it is.
Decision of the 11th Civil Chamber of the Court of Cassation dated 18/01/1978, numbered 1323 E. – 1940 K.:
“ … On the basis of the evidence gathered and the defendant's statement to the police dated 29/07/1976, in which he stated and admitted that (he had taken the cheques during the fight in order to keep them safe), it having thus been established that the cheques left the claimant's possession against his will, the court decided to cancel the cheques in dispute, totalling 137,500 lira.
The judgment was appealed by the defendant's counsel.
In view of the documents in the file, the evidence on which the decision is based and the reasons requiring it, and there being no error in the assessment of the evidence, and since the liquidation agreement was not completed as it was not signed and therefore there was no longer any basis for issuing the cheque, the defendant's grounds of appeal had to be rejected.
Conclusion: The judgment is … upheld …” The decision reads as above.[7]
Court of Cassation, 11th Civil Chamber, 18/01/1978, E. 1323 – K. 1940
The cancellation action and its conditions are regulated in the second paragraph of Article 651 of the Turkish Commercial Code. According to that article, the cancellation action to be brought on account of the loss of the instrument may be brought by the legitimate and true holder who was the right holder of the instrument at the time the instrument was lost or the loss occurred. The concept of right holder in the text of the article covers not only the owner of the instrument but also persons holding a limited real right over the instrument. For example, the creditor of the right embodied in the instrument, a holder who has taken the instrument as a pledge, a holder acting as agent, a usufructuary, or their agents and commission agents are also included among right holders. In the case of joint ownership, since there is compulsory joinder between the right holders under the provisions of the Turkish Civil Code, all right holders must exercise this right together. In the case of co-ownership in shares, too, since the instrument cannot be divided into shares, all the co-owners must bring the action together, as in joint ownership.[8]
Ex parte action
Where the instrument is lost, the request for cancellation must be brought ex parte, without a respondent. This is expressly regulated in sub-paragraph 6 of paragraph (e) of Article 382 of Code of Civil Procedure No. 6100. The legal values protected by bringing the action ex parte are very important. If the cancellation action were brought against a respondent, it would entail many drawbacks. Assuming that the cancellation action were brought against a respondent and that the instrument were then cancelled, what would be the position of both the legitimate holder and the debtor if the true and legitimate holder later appeared? The debtor on the instrument might be obliged to pay the amount of the instrument both to the person presenting the instrument and to the person who obtained the cancellation decision against a respondent. For this reason, the law provides that the action for cancellation of a cheque must be brought ex parte.[9]
Competent court
Commercial Court of First Instance; in places where there is none, the Civil Court of First Instance
Yetkili mahkeme
No express provision in the Law; according to the view in the article, the court of the place of payment or of the holder’s domicile
When Articles 4, 5 and 757 of the Turkish Commercial Code are considered together with Articles 2, 282 and 383 of the Code of Civil Procedure, it will be understood that the court with subject-matter jurisdiction is the Commercial Court of First Instance. Naturally, in places where there is no Commercial Court of First Instance, the Civil Courts of First Instance will have jurisdiction.
As regards territorial jurisdiction, there is no express provision in the law. For this reason, although one might think of the defendant's domicile, which is the general rule of jurisdiction in civil actions, as explained above the cancellation action is brought ex parte. In addition, although there is no express provision in either the repealed Turkish Commercial Code or Turkish Commercial Code No. 6102, the first paragraph of Article 669 of the Turkish Commercial Code provides that the court competent to take preventive measures is the court of the place of payment or of the holder's domicile. In this case, it is clear that two complementary institutions will have the same jurisdiction, since the prohibition of payment is the step preceding the cancellation action. Furthermore, conferring jurisdiction on the court of the place of payment takes into account the likelihood that the evidence relating to the allegations of the person requesting cancellation can be found there most securely and easily.[10]
Since the cancellation action is brought ex parte, the applicant is obliged to prove to the court that he or she was in possession of the instrument and that the instrument was lost. Before deciding, the court will investigate the allegations put forward for cancellation of the instrument and the matters it considers necessary, and will allow the action if it finds the allegation highly probable, and otherwise dismiss it. Since the claimant's possession of the instrument and its leaving his or her possession involuntarily constitute a “factual situation”, they may be proven by witnesses. If it were otherwise, a problem of proof would arise.[11]
After the party bearing the burden of proof has put forward its allegations, if the court finds credible the applicant's allegations that the instrument was lost while in his or her possession, it will, under Articles 760 et seq. of the Turkish Commercial Code, first require the instrument to be presented within a period to be determined of not less than three months and not more than one year. Secondly, it will announce three times that the instrument will be cancelled if it is not presented within the period given. For instruments that have fallen due, if the limitation period would expire before the three-month period elapses, the court will not be bound by this three-month period. The announcement is made in the Turkish Trade Registry Gazette. However, depending on the particular features of the specific case, other forms of announcement may also be used. The announcement states that the instrument must be deposited with the court within the specified period, failing which a decision will be made to cancel the instrument.[12]
The publication process consists of the following stages, in the order described in the article:
If, after the court has made the announcement, the instrument is not brought to the court within the announcement period and the other conditions are also met, the action is allowed. If the instrument is presented to the court within the period given, the court grants the party requesting cancellation a period within which to bring an action for recovery. If no action for recovery is brought within this period, or if the action for recovery is dismissed, the instrument is returned to the person who presented it and the prohibition of payment is lifted.[13]
The cancellation decision is not a decision that is announced. The second paragraph of Article 764 of the Turkish Commercial Code provides: “Even though the bill of exchange has been cancelled, the applicant may assert the claim arising from the bill of exchange against the acceptor.” According to this provision, in order instruments the principal debtor (in a bill of exchange, the drawee who has accepted it; in a promissory note, the maker and the avalists) is personally liable to the person who obtained the cancellation decision. The position is different for cheques, however. Owing to the exception in Article 818, a person who has lost a cheque may, on the basis of the cancellation action, claim his or her right from the drawee, the endorsers and the avalists.[14]
Positive consequence
The true right holder may assert their right without the instrument; a debtor who pays in good faith is discharged from the debt.
Negative consequence
The lost cheque loses its identification function; this function is extinguished by the cancellation decision.
Through the cancellation decision, the legislator has granted the person who is the true right holder of the instrument the right to assert that right without the instrument. The cancellation decision shows the debtor on the instrument who the creditor is; in other words, it performs the function of identifying the creditor to the debtor. This is the positive consequence of the cancellation decision. By this decision, the debtor on the instrument will also be deemed discharged from the debt by making payment in good faith.[15]
A lost cheque has lost the identification function, which is the most important feature of a negotiable instrument. With the cancellation decision, the identification function of the cheque ceases to exist. As a result of this negative consequence of the cancellation decision, there is no requirement to hold or present the cheque in order to assert the right. With the cancellation decision, the true and legitimate holder of the instrument may request payment from the debtor without the instrument.[16]
With the cancellation decision, the person who requested cancellation acquires the right to demand performance from the debtor. Performance may be requested by presenting the cancellation decision and by the holder of the decision proving his or her identity. Furthermore, if the cancelled instrument has been notified to the debtor, it is not mandatory to present the cancellation decision to the debtor. The second paragraph of Article 646 of the Turkish Commercial Code reads: “Unless guilty of fraud or gross negligence, the debtor shall be discharged from the debt by making payment, when due, to the person who, according to the nature of the instrument, appears to be the creditor.” Under this provision, if the debtor on the instrument makes payment in good faith, regarding the holder of the decision as the legitimate right holder, he or she will be discharged from the debt.[17]
“Unless there is fraud or gross negligence on its part, the debtor is discharged from its debt by making payment, upon maturity, to the person who appears to be the creditor according to the nature of the instrument.”
Turkish Commercial Code, Art. 646/2
The cancellation decision establishes who holds the right against the debtor. Once the cancellation action has been concluded, the person deemed to be the holder of the instrument may claim the receivable without presenting the instrument. In other words, the cancellation decision makes it possible to identify the right holder. Furthermore, with the cancellation decision, in addition to the identification function of the lost instrument ceasing to exist, the instrument and the right embodied in it are separated from one another. However, if a new instrument is issued after the cancellation decision, the right will become embodied in the new instrument.[18]
Under Article 652 of the Turkish Commercial Code, where a cheque has been cancelled, the holder of the cancellation decision may request the debtor to issue a new instrument. Despite the express provision in the Code, this matter has given rise to debate in legal doctrine.[19] However, according to the view we also share, issuing and delivering a new instrument to a creditor who, by virtue of the cancellation decision, is already entitled to demand performance of the receivable on the basis of the cancellation decision alone, without presenting the instrument, does not confer on the holder of the cancellation decision any power beyond the rights he or she already has. Some authors state that, with the creation of a new instrument, the holder may have recourse against the parties liable on recourse. Other authors have stated that, after the cancellation decision, a protest may be drawn up and recourse may be had against the parties liable on recourse.[20] As mentioned earlier, the holder may have recourse against the parties liable on recourse if the right of recourse was acquired before the cheque was lost. For this reason, the new instrument to be issued has no significance in terms of conferring greater powers on the holder.[21]
In the cancellation decision obtained as a result of a cancellation action brought ex parte, the debtor does not have the status of a party during the proceedings. The cancellation decision obtained does not mean that the holder of the cancellation decision has definitively acquired the status of creditor. For these reasons, where the holder of the cancellation decision has recourse to the debtor, the debtor may raise whatever defences he or she could have raised had the instrument not been cancelled. These defences must be in accordance with Article 687 of the Turkish Commercial Code.[22]
Another matter requiring attention is the issue of recourse by the holder of the cancellation decision against the parties liable on recourse. By virtue of the reference in Article 818 of the Turkish Commercial Code, the second paragraph of Article 764 will not apply. A holder who has lost a cheque will benefit from the first paragraph of Article 652 of the Turkish Commercial Code. On the basis of the cancellation decision, he or she may claim the right from the drawee, the drawer, the endorsers and the avalists, and may request that a new cheque be issued. The finest nuance here arises in practice: owing to the provisions on bills of exchange that apply to cheques, the period for protest may already have expired by the date on which the cheque is cancelled, in which case recourse against the parties liable on recourse will no longer serve any purpose.[23]
It is more accurate to explain the relationship between the debtor on the instrument and the possessor of the instrument by reference to a Court of Cassation decision. Since there is no specific provision on this matter, it can be resolved in the light of the spirit of the cancellation institution and the general provisions. Where the possessor of the instrument appears with the cancelled instrument after the cancellation decision has been given, the possessor must first request the “cancellation of the cancellation decision” and, after obtaining a decision on this, may then make a claim in respect of the instrument. The decision of the 11th Civil Chamber of the Court of Cassation dated 26/01/2001, numbered 5674/8724, reads: “ A decision cancelling commercial instruments on account of their loss does not produce the effects of res judicata in terms of substantive law, since the action is brought and heard ex parte. Accordingly, it binds neither the drawer of the instrument nor the possessor of the instrument, even if, despite the announcement made by the court, the possessor somehow failed to present the commercial instrument he holds to the case file.
Just as it is not possible for the possessor holding an instrument cancelled on account of loss to apply to the drawer and request payment of the amount of the instrument, the drawer must also refrain from paying an instrument that has been rendered void by the cancellation decision. It is not possible for the possessor of the instrument, claiming to be its legitimate holder, to bring an action for cancellation of the cancellation decision, have the cancellation decision given on account of loss set aside and recover his rights based on the instrument, in other words to request payment on the basis of the instrument.”[24]
Where the holder of the cancellation decision applies to the debtor before the third party in possession of the instrument does so, and performance was made by the debtor in good faith, the third party may bring an action for unjust enrichment. If the third party can prove that the debtor did not perform in good faith, he or she may request the debtor to perform a second time and may also bring an action for damages in tort against the debtor.[25]
In legal doctrine, the prevailing view is that the good faith of a third party who acquired the lost instrument in good faith should be protected despite the cancellation decision. If the third party acquired the lost instrument in good faith before the cancellation decision, there should be no change in the position of the possessor. This is because the cancellation decision is not a decision establishing the true right holder but merely a decision showing that the instrument has been lost.[26]
The third party in good faith loses only the right to have recourse to the debtor on the basis of the instrument he or she holds. Good faith applies only to order and bearer instruments; registered instruments cannot be acquired in good faith. Where the instrument has been cancelled but no performance has yet been made by the debtor, the possessor in good faith may bring an action for recovery of ownership against the holder of the cancellation decision if the debtor has issued a new instrument; may request that performance be made to him or her if no new instrument has been issued; and may bring an action for unjust enrichment against the holder of the cancellation decision if performance has already been made.[27]
Presentment period for cheques
Unlike promissory notes and bills of exchange, a cheque has no principal debtor; therefore, if it is not presented to the drawee within the presentation period, the holder of the cheque cannot make a claim based on the cheque. Cancellation of a cheque will not arise before the presentation period has expired. A possessor who appears after cancellation, even in good faith, cannot claim the amount of the cheque, and good faith will not be protected here. This situation is not related to the cancellation decision; what matters is that the holder who missed the presentation period loses the right of recourse.[28]
Since the cancellation action is brought ex parte, it does not constitute res judicata in the substantive sense. The purpose of this decision is the formal identification and determination of the right holder. As a result of the cancellation judgment given by the court, the holder of the decision is restored to the legal position he or she would have been in had he or she presented the lost instrument. With the cancellation decision, the holder of the decision may demand performance from the debtor without presenting the instrument. Moreover, with the cancellation decision, the identification function of the instrument ceases and the instrument and the right embodied in it are separated from one another. If a new instrument is issued by the debtor after the cancellation decision, the right will be embodied in the new instrument.[29]
With the cancellation decision, the requirement to present the instrument in order for the debtor to perform ceases to exist. If the debtor performs in good faith to the holder of the decision who presents the cancellation decision given by the court, the debtor will be discharged from the debt. If performance is made in bad faith, fraudulently or with gross negligence, the debtor will not be discharged from the debt and will have to pay it a second time.[30]
Actions available to the person in possession of the instrument
| Durum | Dava |
|---|---|
| If the amount of the instrument has been paid to the holder of the decision | Action for unjust enrichment |
| If the amount has not yet been paid to the holder of the decision | Action for the prevention of interference with entitlement (prevention of dispute) |
| If a new instrument has been issued | Recovery action |
Since the cancellation decision does not constitute res judicata in the substantive sense, if the person holding the instrument claims that the instrument was wrongfully cancelled, it is open to that person to bring against the holder of the cancellation decision an action for unjust enrichment if the amount of the instrument has been paid to the latter; an action to prevent interference (muarazanın men'i) with the right if the amount has not yet been paid to the holder of the decision; and an action for recovery if a new instrument has been issued.[31]
Another possibility regarding liability for damage in the event of cancellation is the liability of the drawee. The drawee's liability arises where it makes payment despite a prohibition of payment on the cheque. The prohibition of payment notified to the drawee is a measure preventing payment of the cheque. It is clear that, if the drawee makes payment despite this interim measure having been notified to it, it will be liable. The drawee's liability here will be owed only to the legitimate holder.[32] The scope of liability will be assessed within the framework of tortious liability under Article 49 of the Turkish Code of Obligations.[33]
Under Article 645 of the Turkish Commercial Code, the right embodied in a negotiable instrument cannot be transferred or asserted separately from the instrument. Had the provisions on cancellation on account of the loss of negotiable instruments not been laid down, the right of the person who lost the negotiable instrument would have come to an end entirely, and he or she would not have been able to claim anything from the debtor. The institution of cancellation in the event of the loss of negotiable instruments, framed in accordance with the standards of justice and equity, was created to protect the person who has lost the instrument.
The legitimate holder who has lost possession of a cheque for reasons such as theft, robbery or loss must apply to the court under Article 757 of the Turkish Commercial Code and request a prohibition of payment, in order to prevent a person into whose hands the instrument has wrongfully passed from claiming rights on the basis of the instrument he or she holds and from being unjustly enriched. The prohibition of payment is a preventive measure, specially designed in keeping with the nature of negotiable instruments, that prevents payment of the instrument.
Once the holder has obtained the prohibition of payment, which is in the nature of an interim measure, the course of action under the law will be determined according to whether or not it is known in whose hands the lost cheque is. If it is known who holds the cheque, the court grants the holder who obtained the prohibition of payment a period within which to bring an action for recovery. If no action for recovery is brought within the period granted by the court, the court will lift the prohibition of payment. The condition for the action for recovery is that the person against whom it is brought acted in bad faith or was guilty of gross negligence in acquiring the cheque.
Where the holder has lost the cheque in such a way that possession of it cannot be regained, and it is not known in whose hands the cheque is after the payment decision, a cancellation action must be brought. The cancellation action, which is a matter of non-contentious jurisdiction, is brought ex parte, and at the end of the action the cheque is cancelled on account of loss. When the cheque is cancelled as a result of the cancellation action, the holder of the decision has the right to claim the amount of the cheque by presenting the decision to the drawee. Since the cancellation decision is obtained through non-contentious proceedings, it does not constitute res judicata in the substantive sense. It does not affect the content or existence of the right embodied in the instrument or the power of disposal over that right. For this reason, the debtor may raise all defences against the holder of the decision as though the instrument still existed.
[1] PULAŞLI, op. cit., p. 84.
[2] POROY, op. cit., p.96.
[3] CAN, Erol: Kıymetli Evrak Hukuku, 2nd ed., Ankara, 2012, p. 40.
[4] BOZER, Ali; GÖLE, Celal: Kıymetli Evrak Hukuku, 3rd ed., Ankara, 2013, p. 36.
[5] ERİŞ, op. cit., p. 201.
[6] PULAŞLI, op. cit., p. 85.
[7] GÜRBÜZ, op. cit., p. 777.
[8] SEZER, op. cit., p. 138.
[9] ERİŞ, op. cit., p. 692.
[10] GÜLTEKİN, op. cit., p. 155.
[11] COŞKUN, op. cit., p. 1000.
[12] PULAŞLI, op. cit., p. 107.
[13] COŞKUN, op. cit., p. 1001.
[14] PULAŞLI, Hasan: Kıymetli Evrak Hukukunun Esasları, 4th ed., Ankara, 2015, p. 106. KENDİGELEN, Abuzer; ÜLGEN, Hüseyin; HELVACI, Mehmet; KAYA, Arslan: Kıymetli Evrak Hukuku, 7th ed., Istanbul,2013, p. 74.
[15] YAMAN, Adnan: Kıymetli Evrakın Zıyaı ve İptali, Ankara, 2004, p. 75
[16] POROY, op. cit., p. 105.
[17] KENDİGELEN, op. cit., p. 53.
[18] COŞKUN, op. cit., p. 1007.
[19] It is debatable whether a new instrument may be issued where instruments of exchange (kambiyo senetleri) have been cancelled. In my view, the issue of a new instrument cannot be requested. However, in the cancellation of share certificates, which have a single debtor and are by law regarded as order instruments, a new share certificate must be issued.( PULAŞLI, Hasan: Kıymetli Evrak Hukukunun Esasları, 4th ed., Ankara, 2015, p. 106)
[20] KARAYALÇIN, Yaşar: Ticaret Hukuku Ticari Senetler Kambiyo Senetler, 4th ed., Ankara,1990, p. 373;ÖZTÜRK, Hanife: Kıymetli Evrakın Zıyaı ve İptali, Ankara, 1990, p. 88.
[21] CEBECİ, op. cit., p. 109.
[22] GÜLTEKİN, op. cit., p. 178.
[23] GÜLTEKİN, op. cit., p. 192.
[24] Kazancı Case Law Database
[25] KARAKAYA, op. cit., p. 83.
[26] CEBECİ, op. cit., p. 116.
[27] GÜLTEKİN, op. cit., p. 192.
[28] GÜLTEKİN, op. cit., p. 197.
[29] COŞKUN, op. cit., p. 1013.
[30] SEZER, op. cit., p. 152.
[31] KENDİGELEN, op. cit., p. 53.
[32] CEBECİ, op. cit., p. 119.
[33] GÜLTEKİN, op. cit., p. 198.
Related legislation: Turkish Commercial Code No. 6102 (mevzuat.gov.tr)
It is filed where the cheque has left the holder's possession involuntarily and permanently, for example through theft, loss, burning or wear to the point of illegibility. If the cheque was given to someone else by mistake or it is known who holds it, an action for recovery rather than cancellation should be pursued.
TTK m. 651/2’ye göre zıya anında senet üzerinde hak sahibi olan meşru ve gerçek hamil açabilir. Makaleye göre bu kavrama malik yanında rehin alan hamil, intifa hakkı sahibi gibi sınırlı ayni hak sahipleri de girer; elbirliği ve paylı mülkiyette tüm hak sahipleri birlikte hareket etmelidir.
Makaleye göre HMK m. 382’de çekişmesiz yargı işi olarak düzenlendiğinden dava hasımsız açılır. Hasımlı açılması hâlinde, sonradan meşru hamil ortaya çıktığında borçlunun iki kez ödeme yapmak zorunda kalması gibi sakıncalar doğabilir.
According to the article, the court with jurisdiction is the commercial court of first instance or, where there is none, the civil court of first instance. There is no express provision on venue; the article defends the view that the court of the place of payment or of the holder's domicile, which has venue for the payment prohibition, will also have venue for the cancellation action.
The claimant must prove that they were in possession of the instrument and that the instrument was lost. According to the article, since these are matters of fact, they may be proven by witnesses.
If the cheque is presented within the period, the party seeking cancellation is given time to file an action for recovery. If no action is filed within that time or the action is dismissed, the instrument is returned to the person who presented it and the payment prohibition is lifted.
Makaleye göre iptal kararı maddi anlamda kesin hüküm oluşturmadığından, senedi elinde bulunduran kişi duruma göre karar hamiline karşı sebepsiz zenginleşme, muarazanın men’i veya istirdat davası açabilir. Öğretide iptalden önce iyiniyetle iktisap edenin korunması görüşü ağır basmaktadır.
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