The loss, theft or destruction of a cheque leaves the holder unable to exercise the right embodied in the negotiable instrument, even though the underlying claim survives. Turkish law addresses this through the “cancellation action for loss of a cheque” (çek zayii nedeniyle iptal davası) under Law No. 6102, the Turkish Commercial Code (TCC). This article sets out the legal basis, the conditions for the action, the applicable procedure, and the current higher-court case law on the subject, with direct citations to decision texts.
Legal Basis
The TCC contains no provision dealing exclusively with the cancellation of a lost cheque; instead, it refers to the provisions on the cancellation of a bill of exchange (poliçe). Under TCC art. 818/1-(s), the provisions on cancellation of a bill of exchange in TCC arts. 757 to 763 and art. 764/1 apply by analogy to cheques. The TCC regulates the cancellation of negotiable instruments generally in arts. 651-652, cancellation of instruments made out to a named person in art. 657, cancellation of bearer instruments in arts. 661-669, and the cancellation procedure for bills of exchange in arts. 757-765. In practice, courts have also referred to TCC art. 669, art. 711, and, by reference under art. 730/20, art. 676.
Nature of the Action, and the Competent and Authorized Court
A cancellation action for loss of a cheque is a non-contentious proceeding brought without a respondent. Because of this nature, the decision rendered does not have the effect of a final and binding judgment (res judicata) in the ordinary sense.
The competent court is the Commercial Court of First Instance (Asliye Ticaret Mahkemesi), under TCC art. 757/1. The authorized (venue) court is the court of the place of payment of the cheque or the domicile of the holder, under the same provision. The 11th Civil Chamber of the Court of Cassation (Yargıtay), in its decision dated 07.01.2014, Case No. 2013/18067, Decision No. 2014/155, confirmed the non-contentious, respondent-less nature of the proceeding and held that this nature also has consequences for venue — namely, that the address of the applicant is likewise an authorized venue.
Conditions for the Action and Standing to Sue
The right to seek cancellation of a cheque for loss is granted exclusively to the payee or the legitimate holder. The drawer of the cheque has neither this right nor standing to bring the action. In its decision dated 16.05.2024, Case No. 2024/604, Decision No. 2024/863, the 13th Civil Chamber of the Istanbul Regional Court of Appeal (Bölge Adliye Mahkemesi) emphasized that this right may be exercised exclusively by the “holder from whom the cheque passed out of possession involuntarily.”
For the action to be brought, the cheque must have left the possession of the plaintiff payee or holder against that person’s will, and the current whereabouts of the cheque must be unknown. Loss of possession may occur for various reasons, such as theft, misplacement, dispossession, destruction by fire, or damage rendering the instrument illegible.
Burden of Proof and Required Information and Documents
Cancellation actions do not require full and conclusive proof; it is sufficient for the plaintiff to submit evidence showing it is highly probable that they are the holder of the cheque and that the instrument was lost while in their possession. In its decision dated 19.10.2023, Case No. 2023/1568, Decision No. 2023/1597, the 13th Civil Chamber of the Istanbul Regional Court of Appeal set out this standard as follows: “The person seeking cancellation for loss must submit evidence suitable to prove that it is ‘highly probable’ that they are the holder of the cheque and that the cheque was lost.”
In practice, the plaintiff is expected to submit a copy of the cheque, or to provide clear information about its essential contents (drawer, drawee bank, branch, serial number, date of issue, place of issue, and amount).
Interim Order Prohibiting Payment
To prevent damage that would be difficult or impossible to remedy, the court — at the preliminary examination stage or during the proceedings — issues an order prohibiting payment under TCC art. 757, preventing the drawee bank from paying the cheque, and notifies the drawee bank accordingly.
In practice, courts issuing this interim order may require the plaintiff to deposit security, typically calculated at around 15% of the cheque amount; if the security is not deposited, the payment prohibition cannot be ordered. The payment prohibition generally remains in force until the cancellation decision becomes final.
Publication Procedure and Statutory Waiting Periods
Under TCC arts. 760, 761 and 762, a formal publication process is carried out so that anyone holding the cheque may present it to the court:
- Publication is made through the Turkish Trade Registry Gazette (Türkiye Ticaret Sicili Gazetesi).
- The notice is published three times, at one-week intervals.
- The statutory waiting period is, as a rule, at least three months (and at most one year), calculated in practice from the date of the first publication or from the maturity date of the cheque (the issue date or final payment date).
- The court sends an official inquiry to the drawee bank to determine whether the cheque has been presented for payment.
Both in its decision of 19.10.2023, Case No. 2023/1568, Decision No. 2023/1597, and in its decision of 16.05.2024, Case No. 2024/604, Decision No. 2024/863, the 13th Civil Chamber of the Istanbul Regional Court of Appeal held that a cancellation decision requires that publication in compliance with TCC arts. 760 and 762 has taken place and that the cheque has not been presented within the statutory three-month period.
Consequences and Scope of the Decision
Where, despite the proper three-fold publication and the statutory three-month waiting period, the cheque is not presented to the court, has not been submitted to the drawee bank for payment, and no third party claiming to be the legitimate holder has applied to the court — and these conditions are met cumulatively — the action is granted and the cheque is cancelled for loss.
Under TCC art. 652, since the right embodied in a negotiable instrument is bound to the instrument itself, a rights-holder who obtains a cancellation decision acquires the right to assert that right without the instrument, or to request that a new negotiable instrument be issued. Because the decision is a non-contentious, respondent-less judicial act, judgments typically include protective wording reserving the rights and interests of good-faith third parties. The previously ordered payment prohibition remains in force until the cancellation decision becomes final.
Current Case Law of the Court of Cassation and the Regional Court of Appeal
The 13th Civil Chamber of the Istanbul Regional Court of Appeal, in its decision dated 19.10.2023, Case No. 2023/1568, Decision No. 2023/1597, confirmed that standing to sue belongs exclusively to the holder, holding: “The right to bring a cancellation action for loss of a cheque belongs to the holder; the person seeking cancellation for loss must submit evidence suitable to prove that it is ‘highly probable’ that they are the holder of the cheque and that the cheque was lost.” The same decision emphasized that the authorized court is determined based on the place of payment of the cheque or the domicile of the holder, that publication compliant with TCC arts. 760 and 762 must be made in the Trade Registry Gazette, and that cancellation must be ordered if the cheque is not presented within the statutory three-month period.
The 13th Civil Chamber of the Istanbul Regional Court of Appeal, in its decision dated 16.05.2024, Case No. 2024/604, Decision No. 2024/863, held in the same vein that the person entitled to bring the action is the “holder from whom the cheque passed out of possession involuntarily,” that the court must order an interim payment prohibition, that publication compliant with TCC arts. 760 and 762 must be made, and that cancellation must be ordered if the cheque is not presented within the statutory three-month period. The 11th Civil Chamber of the Court of Cassation, in its decision dated 07.01.2014, Case No. 2013/18067, Decision No. 2014/155, held that cancellation claims for loss of a cheque constitute a non-contentious, respondent-less judicial matter, and that, in this context, the applicant’s own address is likewise an authorized venue.
Conclusion
The cancellation action for loss of a cheque is a non-contentious, respondent-less judicial proceeding built on the TCC’s provisions concerning cancellation of a bill of exchange, applied by reference. Only the payee or the legitimate holder may bring the action; the competent court is the Commercial Court of First Instance, and the authorized court is that of the place of payment of the cheque or the domicile of the holder. The process concludes with an interim order prohibiting payment, three publications in the Turkish Trade Registry Gazette, and, following the statutory waiting period of at least three months during which the cheque is not presented, a decision cancelling the cheque. Settled case law of the Court of Cassation and the Regional Courts of Appeal requires that each of these evidentiary and procedural elements be fully satisfied before the rights-holder may assert their right without the instrument.
This article is for general informational purposes only; for legal matters specific to your situation, please consult a lawyer.
