NEWSLETTER-2020-metin

277 CIVIL PROCEDURE LAW an provisional measure had been granted. The local court decided that application to mediate is a pre-condition before bringing the action for restitution of the cheque; thus, refused the case on the grounds of absence of the pre-condition under Article 115/2 of the CPC, since the mandatory mediation procedures had not been completed. Upon the appeal of the plaintiff, the 5th Civil Chamber of the Regional Court of Appeal of Bursa concluded that the action for res- titution of the cheque is an absolute commercial case, due to the fact that it is regulated under Article 792 of the TCC, entitled “ The Cheque That Got out of Hand ” . Moreover, it is stated that the negative declara- tory action contains the claim of a receivable by emphasizing that it would turn into the action for restitution ex officio in the event of the payment of the debt. All of these issues were evaluated collectively, and the appeal was dismissed with prejudice on the grounds that the case is subject to mandatory mediation, and this pre-condition has not been fulfilled. The Opinion of the Court The Court criticizes the assessments of the local court and the regional court of appeal on the action for restitution of the cheque. Pursuant to the Court, the claim in the action for restitution under Ar- ticle 792 of the TCC is not the claim for receivable or compensation involving monetary payment, but for the return of the cheque that is a negotiable instrument. Within this scope, the plaintiff demands that the defendant return the cheque, of which the plaintiff alleges that the bearer holds wrongfully. As a result of these evaluations, the Court concludes that application to mediate is not a pre-condition before bringing an action for restitution of the cheque. It is emphasized that the subject of the negative declaratory ac- tion is related to a certain amount of receivable since the claim of the plaintiff requires a declaration as to whether the parties are debtor or creditor. In consequence of this evaluation, the Court decided that the negative declaratory action is subject to mandatory mediation under Article 5/A of the TCC.