Civil Case (Ashdod) 72424-05-23 Opel Balance (2006) Ltd. v. Sara Kahlon

Judgment

Is the defendant liable for the payment of a check that she gave to the contractor, and in the name of the payee, the name of the plaintiff, a non-bank financing company, was also recorded, even though she claimed that she did not receive consideration from the contractor for the check? The main dispute relates to the scope of the debt of the deductor of the check towards the drawer and the possibility that he will be entitled to the status of a proper holder of a check drawn for the beneficiary only?

Background and arguments of the parties

1. In August 2021, the defendant and her husband Gideon entered into an agreement with Hai Towers Maor 2010 Ltd. (hereinafter: the Company), a company controlled by Aharon Ben Elisha (hereinafter: the Contractor), in an agreement for the provision of construction services on a plot that they purchased in parallel with the engagement with the Company.  After payments were made to the contractor in a considerable amount, in May 2022, the defendant gave the contractor an additional payment, the check that is the subject of the lawsuit - a check in the amount of ILS 250, 000 The date of its repayment 1.10.22.

There is no dispute that the defendant signed the check and delivered it to the contractor, who was the one who filled in the details in the check, and wrote in the name of the payee: "Chai Maor Towers and/or Opel Balance", this is a check drawn for the beneficiary only.  According to the defendant, on the date she delivered the check, the contractor filled out only the details of the company as payee and did not register the plaintiff's name as the payee.

On May 3, 2022, the contractor contacted the plaintiff and executed a discounting transaction in which he delivered the deferred check and according to the plaintiff received consideration in the sum of ILS 225, 000 by bank transfer.  On the date of repayment, the plaintiff presented the check for repayment and the check was forfeited because a cancellation order had been received.

2. The plaintiff, who submitted the check for execution in Execution Case No. 529383-11-22 (as debtor No. 2 the contractor was included as guarantor of the check), claims that she is in proper possession of the check and therefore overcomes the defendant's defense arguments, including the claim of failure of consideration in the relationship between her and the contractor, a claim which in her opinion has not been proven.

The defendant objected to the execution of the check on the grounds of failure of consideration, on the basis of the claim that the check was delivered in light of the contractor's undertaking to carry out future construction work, and in fact he performed a sting trick on the defendant and other customers of the company, and fled abroad at the end of September 2022, leaving debts to many creditors.