Cancellation of Cheques Lawsuit

A cheque is an important payment instrument frequently used in commercial life and is also a valuable document within the meaning of the Turkish Commercial Code. For various reasons, it may sometimes be necessary to cancel a cheque. The cancellation of a cheque is the process of nullifying the payment order of the cheque for various reasons. This situation may arise when a cheque bounces, is lost, stolen, or altered. The cancellation of a cheque is a process that has important consequences for both the drawer and the bearer of the cheque. In this blog post, we will discuss in detail what cheque cancellation is, how it is done, under what circumstances it can be requested, and its legal consequences.

What is a Cheque?

A cheque is one of the most commonly used bills of exchange in commercial life and is a reliable payment instrument that almost substitutes for cash. A cheque, which includes an unconditional order to pay a certain amount of money and meets specific formal requirements and is drawn according to the provisions stated in the Turkish Commercial Code, is considered a more secure note than a promissory note or bill of exchange. A cheque, written to a bank, does not contain a maturity date and is payable on demand. The cheque process involves three parties: the drawer who issues the cheque, the payee to whom the payment will be made, and the drawee bank on which the cheque is drawn. A cheque issued by a business on behalf of the recipient is paid at the bank on the due date, although it is often used post-dated in the market. The drawer instructs the bank to pay the cheque when the date arrives. The cheque, protected by the Turkish Commercial Code, is a valuable document guaranteed by legal provisions and maintains its importance in commercial life. The legal requirements and considerations that must be followed when issuing a cheque ensure its secure use. Therefore, a cheque offers a secure payment method for both the drawer and the payee and is frequently preferred in commercial transactions.

How Does a Cheque Become Defunct?

For a cheque to be the subject of a cancellation lawsuit, it must be defunct. A cheque becoming defunct, or in other words, being lost or stolen, can happen in various ways. Essentially, it can be defined as the cheque not being presentable to the drawee. These situations can be stated as the cheque being stolen, burned, lost, torn, or wet, etc. The cheque does not need to be completely lost or unreachable. Ultimately, we can categorize the situations of being defunct under two main headings. The first is the loss of possession of the cheque, and the second is the cheque being damaged. Regardless of how these two situations occur, the state of being defunct will come into play.

What is a Cheque Cancellation Lawsuit?

A cheque cancellation lawsuit is a type of lawsuit that aims to ensure that a defunct cheque is not paid when presented to the drawee and nullifies the cheque's payment capability. This lawsuit type is regulated under the Turkish Commercial Code (TCC) and is an important legal mechanism that protects the rights of cheque holders by preventing lost or stolen cheques from being used by malicious persons. In the event of a cheque becoming defunct, the legitimate bearer (the cheque holder or the person who acquires the cheque through endorsement) can request the cancellation of the cheque based on TCC article 651. However, certain conditions must be met to file a cheque cancellation lawsuit. First, the cheque must indeed be lost or stolen, and the right on the cheque must still exist. Additionally, the person filing the cheque cancellation lawsuit must have been the rightful owner of the cheque at the time it was lost or defunct and must not be able to regain possession of the cheque.

The process of a cheque cancellation lawsuit proceeds in accordance with the procedure specified in TCC articles 757 to 765. Before the court decides to cancel the cheque, it sends a provisional measure decision to the drawee bank to ensure the cheque is not paid if presented. Thus, even if the cheque falls into the hands of malicious persons, it cannot be cashed. If it is known who holds the cheque, the court gives the cheque holder a period to file a restitution lawsuit against the person holding the cheque. If the cheque is not presented within the specified period, the court invites the person holding the cheque to bring it to court via public notice. If the cheque is not brought despite the notice, the court decides to cancel the cheque and lifts the payment prohibition on the cheque. This process prevents the cheque from being used by malicious persons, protects the rights of the cheque holder, and contributes to maintaining a secure commercial environment.

Payment Prohibition

The payment prohibition is essentially a provisional measure decision given by the court. It is a measure imposed during the trial to prevent payment if the cheque is presented to the drawee bank by someone else in case of theft or loss of the cheque. The payment prohibition can be requested together with the cancellation lawsuit or as an independent provisional measure request from the court that is competent and authorized to hear the cancellation lawsuit. However, in this case, since the request is a provisional measure before the lawsuit, a cheque cancellation lawsuit or a restitution lawsuit must be filed after the provisional measure decision is given if it is known who holds the cheque.

Once the court decides on the payment prohibition, even if the cheque is presented to the bank, no payment will be made unless the decision is lifted.

The payment prohibition can also be requested by the legitimate bearer, just like the cancellation lawsuit.

Competent and Authorized Court

The competent court for a cheque cancellation lawsuit is the commercial court of first instance. The authorized court is either the place of payment or the place where the bearer holding the cheque resides. It is important to file the lawsuit in the competent and authorized court since decisions of lack of competence and lack of jurisdiction may prolong the process.

Cheque Cancellation Lawsuit Petition

A cheque cancellation lawsuit is a type of lawsuit to prevent potential financial losses caused by lost or stolen cheques. However, the complexity of this process can make it difficult to handle the lawsuit on your own. At this point, specialized legal counsel from an experienced lawyer is crucial for the outcome of your lawsuit and the result you are seeking. Following cheque cancellation lawsuits with a lawyer is important, and it is necessary to avoid using template petitions in this process. This is because the outcome sought, the content of the petition, and the arguments to be presented will vary for each specific case.

Each cheque cancellation lawsuit contains unique details. The way the cheque was lost, the right holders on the cheque, the amount of the cheque, and other elements can affect the course of the lawsuit. By working with an experienced lawyer in this field, the process will proceed more purposefully, and a result can be obtained in a shorter time. Thus, your lawsuit petition will be justified with specific arguments and evidence tailored to your concrete situation.

Template petitions found on the internet ignore the fact that each lawsuit is unique. Such general petitions may result in the rejection of the lawsuit as they do not reflect the specifics of the case. However, a lawsuit petition prepared by an expert lawyer will be specifically tailored to your situation and increase the chances of winning your lawsuit. Remember, taking the right steps in a cheque cancellation lawsuit is vital to prevent financial losses and protect your rights.

Importance of a Lawyer

A cheque cancellation lawsuit is a complex process that requires legal knowledge and experience. In this process, the guidance of a specialized lawyer is critically important to prevent loss of rights and increase the likelihood of the lawsuit being decided in your favor. Your lawyer will manage the process correctly, prepare the necessary documents without omissions, and represent you in the best way before the court, being well-versed in the relevant articles of the Turkish Commercial Code. Additionally, thanks to your lawyer's legal knowledge, the necessary conditions for cheque cancellation will be met, and the lawsuit will be concluded successfully. Remember, taking timely and correct steps in a cheque cancellation lawsuit is crucial to minimize financial losses and protect your legal rights. Therefore, when faced with a cheque cancellation lawsuit, working with an experienced lawyer is the best decision for the proper management of the process and the protection of your rights.

Supreme Court Decisions

A Cheque Cancellation Lawsuit Can Only Be Filed by the Legitimate Bearer.

Supreme Court 11th Civil Chamber, 25.02.2014, E: 2013/15862, K: 2014/3480.

“The plaintiff claimed that the two cheques numbered 80349054 belonging to Garanti Bank Merter Branch were lost or stolen, and therefore, it was possible for the cheques payable to the bearer to be cashed by the thief from the bank account, requesting the cancellation of the cheques due to their loss. According to the court, based on the claims and the file contents, it was determined that 'the plaintiff's right to pursue the lawsuit' as stipulated in Article 114/e of the Code of Civil Procedure was foreseen as a condition for the lawsuit, defined as 'the right to obtain a judgment on the result of the claim' in Article 53/1 of the Code of Civil Procedure. According to Articles 757 and following of the Turkish Commercial Code No. 6102, only the bearer can file a cheque cancellation lawsuit (…).”

A Cheque Cancellation Lawsuit Cannot Be Filed by the Drawer.

Supreme Court 11th Civil Chamber, 25.02.2014, E: 2013/15862, K: 2014/3480.

“According to the entire file content, it was determined that the plaintiff was the drawer of the cheque whose cancellation was requested, and according to Article 651 of the Turkish Commercial Code, only the bearer can file a cheque cancellation lawsuit, and the drawer does not have the right to file a cheque cancellation lawsuit. Therefore, the court decided to dismiss the case due to the plaintiff's lack of legal interest in filing the lawsuit pursuant to Article 114/h of the Code of Civil Procedure. Given the information and documents in the case file, the evaluation of evidence was found to be in accordance with the law, and the plaintiff's objections were dismissed as the drawer does not have the right to request cheque cancellation due to loss under Article 651 of the Turkish Commercial Code.”

Frequently Asked Questions

Can blank cheques be canceled?

No, blank cheques do not qualify as negotiable instruments. Therefore, they cannot be subject to a cancellation lawsuit. However, if there is a theft situation, you can file a criminal complaint with the prosecutor's office.

Can the drawer file a cheque cancellation lawsuit?

A cheque cancellation lawsuit can only be filed by the legitimate bearer. If the drawer files the lawsuit, the case will be dismissed.

Who can file a cheque cancellation lawsuit?

Only the legitimate bearer can file a cheque cancellation lawsuit.

Where is the cheque cancellation lawsuit filed?

A cheque cancellation lawsuit is filed in the commercial court of first instance at the place of payment or the residence of the legitimate bearer. If there is no commercial court of first instance in that place, the lawsuit can be filed in the civil court of first instance.

Can the payee file a cheque cancellation lawsuit?

Yes, the payee can file a lawsuit. However, the payee must be the legitimate bearer to file a cancellation lawsuit.

Can the endorser file a cheque cancellation lawsuit?

Yes, the endorser can file a lawsuit. However, the endorser must be the legitimate bearer to file a cancellation lawsuit.

What happens if the cheque is found during the cancellation lawsuit?

If the cheque is found or brought to the court by the person holding it after the lawsuit is filed, and the person bringing it is not the legitimate bearer (i.e., not the plaintiff), the court will give the plaintiff a period to file a restitution lawsuit. If the lawsuit is not filed within this period, the cheque will be returned to the person who brought it to the court.

Can a cheque be canceled?

Yes, a cheque can be canceled through a lawsuit if it is defunct.

Which court handles cheque cancellation requests?

Cheque cancellation lawsuits can be requested from the commercial court of first instance at the place of payment or the residence of the legitimate bearer.

What is the announcement period for cheque cancellation?

The limitation period for cheques is three years from the end of the presentation period. The announcement period given by the court can be up to three years from the end of the presentation period. By law, the announcement must be made three times at different times determined by the court.

What is the cost of the cheque cancellation announcement?

The cost of the cheque cancellation announcement depends on the fee for the announcement made for the cancellation of the cheque. The announcement fee is paid by the person filing the cheque cancellation lawsuit due to the loss or defunct nature of the cheque. The fee varies according to the amount of the cheque, the places where the announcement will be published, the length of the announcement text, and other factors. This fee is usually charged once, and the announcement is published three times.

How can you check the announcement of the cheque cancellation?

You can check whether the announcement has been published in the Official Gazette by visiting the “Free Gazette Query” section on the website of the Turkish Trade Registry Gazette Directorate at www.ticaretsicil.gov.tr. Additionally, this information can be obtained by consulting the Chamber of Commerce in person.

Is a lawyer mandatory for a cheque cancellation lawsuit?

No, a lawyer is not mandatory for a cheque cancellation lawsuit. However, it is essential to follow the processes correctly and avoid loss of rights, making it crucial to handle the case with a lawyer.

Is a witness required in a cheque cancellation lawsuit?

The claim that the cheque was taken out of possession without consent can be proven by any evidence, including witnesses.

How does a cheque cancellation lawsuit conclude?

If a cheque cancellation lawsuit is filed considering the specific details of the case, a decision can be made in favor of the cancellation of the cheque. Otherwise, the cheque cannot be canceled.

What happens after a cheque cancellation lawsuit?

If the cheque cancellation lawsuit is accepted, the cheque will be canceled.

Is there an appeal process for a cheque cancellation lawsuit?

If the amount in dispute exceeds the limit specified in Article 362 of the Code of Civil Procedure, parties can appeal the decision of the appellate court within two weeks from the notification of the appellate decision. However, appeals cannot be filed against appellate decisions below this limit.