June 2022

Judgment of the Athens Court of First Instance on the annulment of a payment order

Decision No 4817/2022 of the Athens Single Judge Court of First Instance was issued, annulling a payment order issued following an application by a credit institution in special liquidation. The reason for the annulment was that there was no provision in any part of the credit agreement for the bank's commercial books and cards to be used as legal evidence (i.e. in the absence of the necessary procedural contract).

It is firmly established that the extract from the books kept by the bank does not constitute a document within the meaning of Articles 444 and 448 of the Code of Civil Procedure, since it is not provided for as a means of proof by those provisions or by any other provision. It is, however, a valid procedural agreement that the claim will be fully proved by such an extract. If there is no such procedural agreement and if there is no open account operating agreement, such extracts lack evidentiary value (see AP 2206/2009, EfLar 236/2013, MPTHIV 282/2018, TNP NOMOS). Therefore, to the extent that, for the issuance of a payment order, the proof of the debts of the loan agreement between the parties and the amount of the claim asserted by the bank applying for the payment order is based on the submitted extracts from its trading books, despite the lack of a procedural contract, the payment order issued on the basis of these extracts is invalid for lack of the procedural requirement of documentary evidence. 

Thus, in the present case, the Court of First Instance upheld the plea in law and annulled the payment order. The relevant part of the judgment reads as follows: 'As is evident from the aforesaid order for payment, the proof of the debit entries of the aforesaid contract between the parties and the amount of the debt claimed by the defendant against the objector was based on the extracts of the commercial books of the latter which were produced. However, that was impermissible because, as stated above, there was no such procedural contract between the parties. Consequently, the amount of EUR 89 930 awarded by the contested order for payment in favour of the defendant in respect of the loan agreement at issue is not evidenced by documents, since there is no procedural agreement in the loan agreement to prove the defendant's claim from the bank's commercial books'.