At the same time, I clarified my position that in this case the plaintiff should have brought evidence to prove her claim, and after examining the evidence, I found that the amount of the claim was not substantiated and was not proven.
In these circumstances - despite the fact that the basis of the claim is checks and its cause of action is promissory notes, and even though the defendant did not bring sufficient evidence to prove her version, since I am not convinced that the filling of checks was done within the scope of authorization between the parties and the amount of the claim was not proven - the plaintiff did not prove the defendant's liability to her in respect of the checks in question. Therefore, in summary, I have reached a decision that the claim should be dismissed.
- In light of all of the above, the claims are dismissed.
Writ of Execution Cases No. 512091-03-17 and No. 516080-03-15 will be closed
Since I am of the opinion that there is a reckoning between the parties and in light of the reasons for which the claims were rejected, I oblige the plaintiff to pay the defendant the costs of the proceeding in the sum of ILS 25,000.
If a guarantee is deposited by the defendant, it will be returned to it through its counsel.
- Thus, the court in the banknote claim ruled that for the purposes of accepting the claim, the plaintiff had to prove the debt underlying the checks and ruled that the debt was not proven.
- The court also ruled that according to the plaintiff's own version, that the check for this sum of ILS 1,647,879 was completed by the plaintiff both for the debt of the goods and for the debt in respect of the concession, and in the words of the court (emphasis in my underline): "In accordance with the circumstances that have become clear as will be detailed below, the dispute between the parties is broader than the promissory note dispute. As stated, the parties also raised claims regarding a breach of an agreement relating to cooperation in a clinic in Rishon Lezion, which in practice was not clarified, and the lack of payment for a franchise agreement that was claimed to be part of the check amount in the amount of ILS 1.6 million. And as stated, an argument was also raised regarding the plaintiff's permission to fill the amounts of the checks in respect of these charges."
- Therefore, and since the court dismissed the claim in respect of the check in question, it is clear that the judgment determined that the debt was not proven, not only in relation to the goods, but also in respect of the concession. Therefore, it is clear that the judgment in the promissory note action constitutes an act of court with respect to the head of the damage in the claim here, which deals with contractual maintenance damages (in which the goods and the franchise fees are included).
- The plaintiff's arguments in her summaries, as if it is clear from the judgment in the appeal and from the hearing of the appeal that there is no act of the court, should be rejected.
- A perusal of the appeal clause and the judgment in the appeal testifies that the plaintiff's right to claim the basic transaction, which the appellate court mentioned in its remarks, is with respect to other matters that were not decided in the framework of the promissory note, i.e., not in respect of the debt of the goods and the alleged concession, and see the following that the court noted during the hearing (emphases in my underline):
"Now, everything you said earlier to prove that there was consideration or there was no consideration, all this before the cancellation. Now, once there is a cancellation, what does it mean to cancel? The meaning of cancellation is restitution. From that moment on, the appellant has no right to receive the checks in respect of the goods, but rather she has the right to receive the goods. Whether the goods are in her possession or the goods are with the respondent. In other words, whether she admitted or not, or whether these letters were sent, and in these letters she did not refer and did not say: I approve, accept, and so on, everything that my lord said - all of this is seemingly irrelevant after you decided to cancel, to act on the way of canceling a deal. If you have chosen the cancellation option, you cannot accept the cheques. You can act, sue for the damages in the basic deal."