Negative Determination- Filling in the text section of the promissory note given for a debt of 900 TL as ‘nine hundred thousand lira’

Hukuk Genel Kurulu 2017/827 E. , 2019/689 K.
          At the end of the trial held due to the “negative determination” case between the parties, the decision dated 22.01.2013 and numbered 2011/307 E., 2013/10 K. of the Ankara (Closed) 18th Commercial Court of First Instance, determining that the plaintiff was not indebted and rejecting the bad faith compensation claim, was appealed by the plaintiff’s attorney and the defendant’s attorney, and the decision dated 10.03.2014 and numbered 2013/6714 E., 2014/4567 K. of the 19th Civil Chamber of the Court of Cassation; “…The case is regarding the request for determination that there is no debt on the grounds that the promissory note given and paid for the debt of 900 TL to the defendant was initiated by the defendant by writing ‘’nine hundred thousand liras’’ in the open writing part, and that there is no debt to the defendant of 900,000 TL. The defendant’s attorney requested the dismissal of the case, stating that the plaintiff’s debt was 900,000 TL and that the claim that the amount was filled in later should be proven with written evidence. According to the evidence collected and the expert report, the court ruled; that the only relationship between the parties was related to the purchase of a flat by the plaintiff, who is a police officer, from the defendant, who is a contractor, and that there was no other relationship between them, and that it was not recorded in the defendant’s books, that even though it was ruled in accordance with Article 588 of the TCC that if there was a difference between the amounts written in numbers and words on the promissory note, the written amount could be relied upon, as stated in the Court of Cassation precedents, this rule is exclusive to the case where the written amount in the promissory note was filled in by the debtor, that this rule cannot be applied in cases where the written amount was not filled in by the debtor and the numerical amount was falsified, that the amounts written in numbers and words on the promissory note in question and the names of the creditor and debtor were written in a single transaction by the person named… outside the lawsuit, and that there was no falsification on the promissory note, that the actual amount of the promissory note, which was 900 TL, was paid by the plaintiff, that the loaning of the amount in the part not filled in by the debtor and written in words was contrary to the economic conditions and the ordinary course of life of the parties, that the amount written in numbers on the promissory note was not filled in by the other promissory notes in the file, It was decided that the case should be accepted and the plaintiff should not be indebted due to the promissory note in question, the fact that the edges of the promissory note were tightly closed, the application of the rule in Article 588 of the TCC to the subject matter of the case would harm the sense of justice, and considering Article 2 of the Civil Code, it was concluded that the plaintiff did not owe the amount claimed in the pursuit, the defendant’s bad faith in taking the promissory note into consideration could not be proven, and the plaintiff’s bad faith compensation claim was rejected. The decision was appealed by the attorneys of the parties. The drawer of the promissory note in question is the plaintiff …, the beneficiary is the defendant … Olgun, it is dated 28.11.2009, the maturity date is not written, the reason for issuance is ”in cash”, ”900 TL” is written in the numerical price field and ”nine hundred thousand liras” is written in the written price field. It is understood from the photocopy of the promissory note in the file that the maturity date on the promissory note is an optional element; the fact that the maturity date is not written means that it will be paid when seen in accordance with the provision of Article 689/2 of the TCC No. 6762. While ”900 TL” is written in the numerical price field of the promissory note in question, ”nine hundred thousand liras” is written in the written price field, and as a result of the fact that the said promissory note has a difference between the numerical price field and the written price field. In this case, in writing, 29/11/2019 15:53 ​​Created by the Supreme Court Information Processing Center Directorate.

COURT OF APPEALS PRESIDENCY
The acceptance of the written part as the price of the bond is in accordance with the provision of Article 588 of the said law. In such a case, while the court should have given a decision considering the issues explained above and the article of law, it is against the procedure and law to give a written decision based on the plaintiff’s claims and disregard the provisions of the law and on the grounds of the normal course of life…” The case was overturned by a majority vote and the file was returned to its place, and at the end of the retrial, the court insisted on the previous decision.

GENERAL ASSEMBLY OF LAW DECISION
After the General Assembly of Law examined and understood that the decision to resist was appealed within the time limit and the documents in the file were read, the necessary was discussed:
The case is about the request to determine that there is no debt due to the bill of exchange.

The plaintiff’s attorney; that his client is a police officer, that he earns his living with his salary, that he purchased the independent section no. 20 in the building located in the parcel no. 308, island no. 12, Pursaklar district of Ankara province from the defendant for a price of 67,000.00 TL, 8,000.00 TL to be paid in cash and the remaining 59,000.00 TL to be paid through credit, that the defendant promised to deliver the house in June 2009, but could not deliver it on the date he promised, that there was no commercial relationship between the plaintiff and the defendant other than the purchase of the house, that the plaintiff was forced to move into the house on 17.09.2009 even though it was not completely finished, that his neighbor Musa Oğuz also moved into the apartment no. 21 in the same way, that the occupancy permit of the house had not yet been received on the date they moved, that therefore the electricity and water were not connected, that the plaintiff and his neighbor Musa Oğuz had to use the electricity and water of the construction site, On 19.01.2010, the electricity of the construction site was cut off by BEDAŞ due to the electricity debt, when the plaintiff and his neighbor were left without electricity in the middle of the winter, the plaintiff and his neighbor Musa Oğuz and other neighbors Ercan Kızılcı, Ahmet Şahin all worked together to calculate the unpaid electricity debts and had to accept to pay 900.00 TL upon the defendant’s request in order to subscribe to electricity in order to solve the problem, the defendant demanded this amount immediately, but the plaintiff and Musa Oğuz said that they could not pay the money in advance, upon this the defendant also asked for a promissory note to be given to him, when Musa Oğuz said that he would pay the 900.00 TL in 3 installments, 3 separate promissory notes were prepared for him, when the plaintiff declared that he would pay the entire 900.00 TL after 3 months, the promissory note for 900.00 TL was prepared by his neighbors and given to the defendant after being signed by the plaintiff, outside the lawsuit Musa Oğuz Oğuz paid 3 promissory notes through a real estate agent, the plaintiff wanted to pay this amount in April in order not to be indebted to the defendant due to the existing prosecutor’s complaints between him and the defendant and his brothers, but the defendant refrained from taking the money, he transferred the money through PTT, but the defendant still did not take it, thereupon he deposited the money with the determination of the place of deposit through the file numbered 2010/375 D. İş of the Ankara 4th Civil Court of Peace, but Ercan Kızılcı, who prepared the promissory note in the prepared promissory note, mixed up the TL and YTL and wrote 900.00 TL in the numerical part, but wrote “nine hundred thousand lira” in the written part, the defendant also unfairly and maliciously subjected the promissory note to enforcement proceedings for 900,000.00 TL, the plaintiff did not owe the defendant 900,000.00 TL, there was no commercial relationship between the parties other than buying and selling houses, the defendant did not give the plaintiff any money, Created by the Supreme Court Information Processing Center Directorate on 29/11/2019 15:53 ​​Page 2

COURT OF APPEALS PRESIDENCY

He claimed that giving cash was out of the question, that this was against the normal flow of life, that it was not possible for anyone to give 900,000.00 TL in cash to the person who bought a house from him, that when the bank records of both parties and the defendant’s book records were examined, it would be understood that such money was not taken or given, and requested that the plaintiff be found not to be indebted in the file numbered 2010/9906 of the Ankara 31st Enforcement Office, and that the defendant be sentenced to pay compensation due to bad faith. The defendant’s attorney; He argued that the plaintiff’s allegations do not reflect the truth, that the rule that when the promissory note price is written in both words and numbers, if there is a difference between the two, the price written in words will be taken into account, as stated in the provisions of the TCC and the Court of Cassation precedents, therefore the plaintiff’s debt is 900,000.00 TL, and that if there is a claim that the price part was filled in later, this should also be proven with written evidence, and that the case should be rejected. According to the evidence collected and the expert report by the Local Court; that the only relationship between the parties was related to the purchase of a flat by the plaintiff, who is a police officer, from the defendant, who is a contractor, and that there was no other relationship between them recorded in the defendant’s books, that even though Article 588 of the TCC stipulates that if there is a difference between the amounts written in numbers and words on the promissory note, the written amount can be relied upon, as stated in the Court of Cassation precedents, this rule is exclusive to the case where the written amount in the promissory note is filled in by the debtor, that this rule cannot be applied in cases where the written amount is not filled in by the debtor and the numbered amount is falsified, that there is no dispute between the parties on the issues that the amounts written in numbers and words on the promissory note in question and the names of the creditor and debtor were written in a single transaction by a person named… outside the lawsuit, and that there was no falsification on the promissory note, that the actual amount of the promissory note, which is 900.00 TL, was paid by the plaintiff, that the loaning of the amount in the part written in words and not filled in by the debtor is contrary to the economic situations and the normal course of life of the parties, the amount written in the figure on the promissory note is supported by other evidence in the file, the edges of the amount written in the figure on the promissory note are tightly closed, therefore, the application of the rule in Article 588 of the TCC to the incident in question would offend the sense of justice, in addition, considering Article 2 of the Turkish Civil Code, it was concluded that the plaintiff does not have a debt in the amount claimed in the pursuit, the defendant’s bad faith in starting the promissory note could not be proven, therefore, the case was accepted and the plaintiff was not indebted due to the promissory note in question and the plaintiff’s claim for bad faith compensation was rejected. Upon the separate appeals of the plaintiff’s attorney and the defendant’s attorney, the decision was overturned by the Special Chamber by a majority vote for the reasons explained in the heading section above. In addition to the previous reasons, the Local Court ruled that; the plaintiff gave the promissory note to the defendant for 900.00 TL but the written part was written as 900,000 lira YTL by mistake, this situation is entirely a result of confusion and mistake caused by the removal of six zeros from lira in 2005 and the subsequent change from YTL to TL in 2009, accepting that the defendant benefited solely from the situation caused by the incorrect writing in the promissory note based on this mistake in the promissory note would be excessive formalism and would cause serious loss of rights, the Supreme Court of Appeals had previously made decisions based on this principle in similar cases, and the defendant contractor, who made a claim contrary to the normal flow of life, could not prove his claims, and a decision to resist was made on the grounds that the defendant’s attorney appealed the decision to resist. 29/11/2019 15:53 ​​Created by the Supreme Court of Appeals Information Processing Center Directorate. Page 3

COURT OF APPEALS PRESIDENCY
The dispute brought before the General Assembly of Law through resistance is focused on whether the difference between the amounts written in numbers and words on the bill of exchange is contrary to the normal flow of life in terms of the concrete event, and whether the decision to resist is appropriate according to the conclusion to be reached here. It is useful to determine what legal institutions and rules are necessary and should be applied for the resolution of the dispute between the parties. In terms of the dictionary meaning, presumption is a situation, clue, indication that helps to understand and solve a complicated task or problem. In its most general sense, presumption is the inference of an unknown fact from a known fact. Therefore, presumption allows the conclusion of the existence or non-existence of another unknown event or legal situation from a known event. In general, presumptions are divided into two groups as de facto and legal. In this context, de facto presumptions help the judge to draw conclusions about uncertain events by making use of the rules of experience that emerge regarding people and life, without being bound by a rule of law. In this respect, de facto presumptions help the judge to form an opinion. As it is seen, the basis of actual presumptions is the rules of experience (rules of life experience) (Umar, B./Yılmaz, E.: Burden of Proof, İstanbul 1980, p.165 ff.; Başözen, A.: First Appearance Proof in Civil Procedure Law, Ankara 2010, p.63 ff.; Topuz, G.: Proof with Presumptions in Civil Procedure Law, Ankara 2012, pp.50, 56, 121 ff.; Alongoya, Y.: The Rule of Proof by Promissory Note Against Promissory Note and the Concept of “Ordinary Flow of Life”, In Honor of Prof. Dr. Necip Kocayusufpaşaoğlu, Ankara 2004, p.528; Kuru, B.: Legal Procedure Procedure, Volume: II, Ankara 2001, p.2006 ff.). It is accepted that the presumption of fact belongs first of all to procedural law and especially to the law of proof. Presumptions of fact are necessary in concrete disputes, they help the judge in concrete cases in order to understand whether an alleged event really happened in that manner and form. Presumptions of fact find their typical appearance in general life experiences in court practice. Their accuracy is evaluated by the judge in the concrete case (Taşpınar, S.: The Role of Presumptions of Fact in the Distribution of the Burden of Proof, AÜHFD Vol.XLV, No.1-4, p.537). As a matter of fact, the Court of Cassation also bases its decisions on the rules of experience (life experience) and generally uses the concept of “normal flow of life” on this issue (General Assembly of the Law Nos. 1979/4-1528 E., 1982/412 K., dated 21.04.1982; 2003/13-787 E., 2003/774 K., dated 17.12.2003; 2007/2-331 E., 2007/332 K., dated 06.06.2007; 2010/19-590 E., 2010/640 K., dated 08.12.2010 and 2012/8-365 E, 2012/561 K.; (Decisions dated 28.03.2014 and numbered 2013/21-2219 E., 2014/411 K.) After the evidence is presented and accepted as a means of proof by the judge, the evaluation of the evidence comes to the agenda. As a rule (except for the exceptions specified in the law), the judge will evaluate the evidence freely. In this context, the appreciation of evidence represents a stage where the judge’s conscientious opinion is essential (Konuralp, H.: Zorlanan Sınırları of the Rules of Proof in Civil Procedure Law, Ankara 1999, p.46 ff.). On the other hand, the provisions of both the Turkish Commercial Code No. 6762 (eTTK) and the Turkish Commercial Code No. 6102 (TTK) regarding bills of exchange are based on the bill of exchange principle. The law includes the common provisions of bills of exchange under the title of bill of exchange; regarding bills and checks, it has only referred to common provisions (eTTK. Art. 690, 730, TTK Art. 778,818). Article 588 of the same law, which should also be applied to bills with the reference of Article 690 of the TTK, states that; “If the policy amount is shown both in words and in figures and there is a difference between the two amounts, the amount shown in words shall be taken into account. 29/11/2019 15:53 ​​Created by the Supreme Court Information Processing Center Directorate. Page 4

COURT OF APPEALS PRESIDENCY

The bill of exchange amount is stated only in words or only in numbers several times and if there is a difference between the amounts, the lowest amount is considered valid.” As can be seen, the bill of exchange amount may be stated only in words or only in words, or it may be stated both in words and in numbers. If the amounts stated in words and numbers do not coincide and are different, the bill of exchange is deemed to have been drawn on the amount stated in words (Doğanay, İ.: Commentary on the Turkish Commercial Code, Volume II, İstanbul 2004, pp.1791,1792). When the explanations made above, the way the material and legal facts between the parties occur in terms of the scope of the file, the principles of foreign exchange law and the concept of the ordinary course of life are evaluated as a whole; There is no dispute between the parties that the bill of exchange in question was drawn up by a person named… other than the creditor and the debtor, that the amounts of the bill written in figures and words and the names of the creditor and debtor were written by this person in a single transaction, and that there was no alteration in the bill of exchange. However, the defendant’s claim that he gave TL 900,000.00, which cannot be explained by the plaintiff’s financial situation, to the plaintiff who bought a flat from him for a total of TL 67,000.00 by taking a loan from the bank, in cash without any collateral is contrary to the normal flow of life (general life experiences), the person who relies on the normal flow of life is no longer obliged to prove his claim, as of 2009 when the promissory note was prepared, a money of TL 900,000.00 usually changed hands through banks, in accordance with the Law No. 5083 on the Currency of the Republic of Turkey and the Council of Ministers Decision issued within this scope, the use of YTL was abandoned as of 01.01.2009 and the expression TL was used again, therefore, due to the confusion of concepts during the preparation of the promissory note, the amount shown in writing on the promissory note was a thousand times more than the amount shown in numbers, considering that the previous decision of the court regarding the acceptance of the negative determination case at hand It is appropriate to resist the decision. For the reasons explained, the local court decision is in accordance with the procedure and law and the decision to resist should be approved.

RESULT: For the reasons explained above, it was unanimously decided on 18.06.2019 to reject the appeal objections of the defendant’s attorney and to APPROVE the decision to resist, to collect the fee (46,104.00 TL) listed below from the appellant, and to be able to correct the decision within fifteen days from the notification of the decision in accordance with Article 440 of the same Law.