According to Article 757 of the Turkish Commercial Code (TCC), a person who has lost a bill of exchange involuntarily may request the court to restrain the drawee from paying the bill. In its decision to restrain payment, the court allows the drawee/issuer to deposit the bill of exchange upon maturity and indicates the place of deposit. If the person who took possession of the bill of exchange is known, the court grants the petitioner a reasonable period within which to file a lawsuit for restitution. This TCC provision also applies to promissory notes and checks pursuant to Articles 778 and 818 of the TCC, making it possible to file a lawsuit for restitution for these bills of exchange.
It should be noted that the persons who may request preventive measures and the persons who may request the cancellation of a bill of exchange are regulated in parallel in the Law. Article 651 of the TCC stipulates that the person entitled to the bill of exchange may request cancellation at the time the negotiable instrument is lost or the loss is discovered. This provision is a general provision regarding the cancellation of negotiable instruments and also applies to bills of exchange. Within this framework, the person who can request a preventive measure and file a lawsuit for refund regarding bills of exchange is, as a rule, the beneficiary who has lost possession of the bill of exchange, which they acquired from the drawer through delivery. Furthermore, holders who acquired the bill of exchange through a full or white assignment endorsement may also file a lawsuit for refund. It should be noted that if the bill of exchange is lost while in the holder’s possession, they can file a lawsuit for cancellation and apply to the court for a restraining order against payment. Similarly, they can file a lawsuit for refund. Indeed, the decisions of the Court of Cassation also support this principle.
11th Civil Chamber of the Court of Cassation, Merits No: 2016/10352, Decision No: 2018/2584;
“…Since the collection endorsement is a form of representation specific to negotiable instruments, representing the authority to collect the price of the bill and to perform transactions protecting related rights, the bank, acting as the proxy holder, has the right to demand the return of the bill in the hands of a third party or to request its cancellation due to loss…”[2]
However, according to Article 651 of the TCC, the right to file a cancellation lawsuit is not granted to the drawer of bills of exchange. Therefore, the drawer cannot request cancellation. The right to request the cancellation of the bill of exchange belongs to the holder (the creditor). Indeed, the Court of Cassation precedents also suggest this.
Court of Cassation 11th Civil Chamber, Merits No: 2016/2786, Decision No: 2017/4796;
“The court ruled that the check account belonged to the plaintiff. According to the provisions of the TCC, the check drawer has no right to file a lawsuit for cancellation based on loss. The holder has a legal interest in filing a lawsuit for cancellation pursuant to Article 651/2 of the TCC. The drawer has no legal interest in obtaining a cancellation decision. Furthermore, the plaintiff’s authority to pursue a lawsuit is a prerequisite for filing a lawsuit pursuant to Article 114/e of the Civil Procedure Code. The plaintiff drawer lacks the authority to file this lawsuit on behalf of the holder, i.e., the plaintiff dismissed the case on procedural grounds pursuant to Articles 114/e, h, and 115/2 of the Civil Procedure Code. The plaintiff’s attorney appealed the decision. Based on the absence of any procedural or legal violations in the discussion and evaluation of the information and documents in the case file and the evidence relied upon in the court’s justification, all of the plaintiff’s appeals are unfounded.[3]
However, the TCC. Since the drawer of a bill of exchange and check can represent itself as the beneficiary pursuant to Articles 673 and 818, in such a case, the drawer can file a cancellation lawsuit as the beneficiary. In particular, since the drawer-beneficiary acquires the status of creditor holder in a bill of exchange accepted by the addressee, they can file a cancellation lawsuit based on loss while in possession.
On the other hand, an involuntary loss of possession is required for a refund lawsuit to be filed. According to Article 757 of the TCC, a person who loses a bill of exchange involuntarily may apply to the court for a restraining order against payment and be given a suitable period to file a refund lawsuit.
It should be noted that the statute of limitations does not eliminate the nature of a bill of exchange, and since it has a defense, it is not observed unless asserted by the debtor, and therefore, a bill of exchange that has become time-barred can also be sued for cancellation and return. The Supreme Court of Appeals explained this issue in a decision as follows:
Court of Cassation, 11th Civil Chamber, Merits No: 2016/12638, Decision No: 2018/4213;
“…One of the conditions required for requesting the cancellation of a negotiable instrument due to loss is the continued existence of the right inherent in the promissory note. However, the statute of limitations for the right in the promissory note does not preclude a decision to cancel it. Therefore, the court must evaluate whether the other conditions for cancellation are present, taking into account that the statute of limitations does not, in itself, prevent the cancellation of the check sought, and make its decision accordingly…”[4]
Furthermore, a refund lawsuit can be filed by court order to recover the bill of exchange if it is relatively lost. To file a lawsuit, the person who seized the bill of exchange, in other words, the person against whom the hostility will be directed, must be known. This is stipulated in Article 758 of the Turkish Commercial Code (TTK), which stipulates that if the person who seized the bill of exchange is known, the court will grant an appropriate period of time to file a refund lawsuit. Therefore, even if the person who seized the bill of exchange that was disposed of without consent is initially known, the person who disposed of it without consent can request the court to order preventive measures, and the process for filing a refund lawsuit can be initiated.
The competent court in the refund lawsuit is the Commercial Court of First Instance. According to Court of Cassation decisions, the competent court is the court of the defendant’s place of residence. The Court of Cassation decision on the matter reads as follows:
Court of Cassation, 11th Civil Chamber, Merits No: 2015/5017, Decision No: 2015/12023;
“The case concerns the plaintiff’s request for recovery of checks that were lost without his consent. From the file, it appears that there is no exchange relationship between the parties due to the checks at issue. Neither the Civil Procedure Code nor the Turkish Commercial Code No. 6102 contain any specific provisions regarding the competent court in check recovery cases. In this case, the case will undoubtedly be heard in the court of the defendant’s place of residence on the date of filing, which is the general jurisdictional court pursuant to Article 6 of the Civil Procedure Code. The defendant’s attorney should have filed a timely and proper jurisdictional objection, and the court should have issued a lack of jurisdiction decision based on the defendant company’s registered office being “…” However, reviewing the merits of the case and issuing a written decision was incorrect and warrants reversal.”[5]
[1] The following article was used in this study: Murat Alışkan, “Teori ve Uygulamada Kambiyo Senetlerinde İade Davası”, Marmara Hukuk Fakültesi Dergisi, 2025, C.31.
[2] 11th Civil Chamber of the Court of Cassation, Merits No: 2016/10352, Decision No: 2018/2584.
[3] Court of Cassation 11th Civil Chamber, Merits No: 2016/2786, Decision No: 2017/4796.
[4] Court of Cassation, 11th Civil Chamber, Merits No: 2016/12638, Decision No: 2018/4213.
[5] Court of Cassation, 11th Civil Chamber, Merits No: 2015/5017, Decision No: 2015/12023.