2016.ANA METIN ingilizce.01

attachment becomes definite, this condition is deemed fulfilled in the

event the debtor avoids to declare its assets, or does not declare its

assets in their entirety, and the declared assets do not cover the total

amount of the receivable, interest, and expenses. If the declared assets

cover the total amount of the receivable, interests and enforcement

expenses, this condition is not fulfilled even if the debtor did not

declare its assets in their entirety.

Pursuant to Article 177/2 of the EBL, suspension of the payments

is another ground for a direct bankruptcy case. Suspension of the pay-

ments means the permanent and general non-payment of the debts by

the debtor. Although it is similar to insolvency, suspension of payment

is different than insolvency; in the case of suspension of the payments,

the debtor does not have enough cash to pay its debts, regardless of its

assets. The debtor may explicitly declare that it has suspended its pay-

ments. Additionally, there are several indicators of suspension of pay-

ments, such as existence of numerous pending enforcement proceed-

ings against the debtor and non-payment of due debts. However, if the

debtor requests arrangement of debts with the creditors does not mean

that the debtor has suspended its payments. Accordingly, if the

enforcement court grants an arrangement period to the debtor, the

enforcement proceedings shall be suspended during this period, but

such suspension shall not be deemed as “suspension of payments” in

terms of a direct bankruptcy case. The Court of Cassation also consid-

ers the suspension of payments as a reason for the direct bankruptcy

case

: “

In accordance with the documents in the file, the evidences that

the decision is based on and in particular art. 177/2 of the EBL, it is

concluded that the suspension of the payments is a reason for direct

bankruptcy case; that the debtor, as the defendant, did not make any

payments as it is understood from the enforcement files; that the trustee

appointed to the company has declared before the court that they

will make the payment, and that the suspension of payments has

been determined by the expert report; thus, it is decided that (…) the

decision that is in compliance with the procedure and law is

APPROVED.

”

MISCELLANEOUS

387

Court of Cassation 19

Civil Chamber, Date 11.03.2004, No E. 2003/7969, K. 2004/2562