Professional Documents
Culture Documents
Banking CASES
Banking CASES
Fidelity Savings and Mortgage Bank vs. Cenzon, 184 SCRA 141 (1990) ................................................................................. 4
Cancio vs. Court of Appeals, 154 SCRA 731 (1987)............................................................................................................... 12
Salvacion vs. Central Bank, 278 SCRA 27 (1997)................................................................................................................... 19
Simex International (Manila), Inc. vs. Court of Appeals, 183 SCRA 360 (1990).................................................................... 39
Bank of the Philippine Islands vs. Intermediate Appellate Court, 206 SCRA 408 (1992)...................................................... 46
Bank of the Philippine Islands vs. Court of Appeals, 326 SCRA 641 (2000) .......................................................................... 52
Consolidated Bank and Trust Corporation vs. Court of Appeals, 410 SCRA 562 (2003)....................................................... 64
Philippine Banking Corporation vs. Court of Appeals, 419 SCRA 487 (2004) ....................................................................... 79
Samsung Construction Company Philippines, Inc. vs. Far East Bank, 436 SCRA 402 (2004) ................................................ 85
Heirs of Eduardo Manlapat vs. Court of Appeals, 459 SCRA 412 (2005) ............................................................................ 101
Philippine National Bank vs. Pike, 470 SCRA 328 (2005) .................................................................................................... 118
Cadiz vs. Court of Appeals, 474 SCRA 232 (2005) ............................................................................................................... 141
Far East Bank and Trust Company vs. Pacilan, Jr., 465 SCRA 372 (2005)............................................................................ 153
Citibank, N.A. vs. Cabamongan, 488 SCRA 517 (2006) ....................................................................................................... 165
Citibank, N.A. vs. Sabeniano, 504 SCRA 378 (2006)............................................................................................................ 179
Demosthenes P. Agan, Jr., et al. vs. PIATCO, et al.,402 SCRA 612 (2003)........................................................................... 250
Dio vs. Japor, 463 SCRA 170 (2005) .................................................................................................................................... 348
Consolidated Bank and Trust Corporation vs. Court of Appeals, 365 SCRA 671 (2001)..................................................... 356
Macalinao vs. Bank of the Philippine Islands, G.R. No. 175490, September 17, 2009 ....................................................... 365
China Banking Corporation vs. Court of Appeals, 461 SCRA 162 (2005) ............................................................................ 376
Development Bank of the Philippines vs. Arcilla, Jr., 462 SCRA 599 (2005) ....................................................................... 381
Ejercito vs. Sandiganbayan (Special Division), 509 ............................................................................................................. 392
China Banking Corporation vs. Court of Appeals, 511 SCRA 110 (2006) ............................................................................ 412
Ana Rivera vs. People's Bank and Trust Company, 73 Phil. 546 (1942).............................................................................. 421
Vitug vs. Court of Appeals, 183 SCRA 755 (1990) ............................................................................................................... 426
Feati Bank and Trust Company vs. Court of Appeals, 196 SCRA 576 (1990) ...................................................................... 433
Transfield Philippines, Inc. vs. Luzon Hydro Corporation, 442 SCRA 307 (2004)................................................................ 453
Philippine National Bank vs. Pineda, 197 SCRA 1 (1991) .................................................................................................... 472
Insular Bank of Asia & America vs. IAC, 167 SCRA 450 (1988)............................................................................................ 480
Ong vs. Philippine Commercial International Bank, 448 SCRA 705 (2005)......................................................................... 491
International Finance Corporation vs. Imperial Textile Mills, Inc., 475 SCRA 149 (2005) .................................................. 495
JN Development Corporation vs. Philippine Export and Foreign Loan Guarantee Corporation, 468 SCRA 555 (2005)..... 507
People's Bank and Trust Co. vs. Odom, 64 Phil. 126 (1937) ............................................................................................... 515
Lopez vs. Court of Appeals, 114 SCRA 671 (1982) .............................................................................................................. 520
Manila Banking Corporation vs. Teodoro, 169 SCRA 95 (1989).......................................................................................... 535
Integrated Realty Corp. vs Philippine National Bank,174 SCRA 295 (1989) ....................................................................... 546
Yau Chu vs. Court of Appeals, 177 SCRA 793 (1989) .......................................................................................................... 562
Caltex (Philippines), Inc. vs. Court of Appeals, 212 SCRA 448 (1992) ................................................................................. 565
Allied Banking Corp. vs. Ordofiez, 192 SCRA 246 (1990) .................................................................................................... 578
Colinares vs. Court of Appeals, 339 SCRA 609 (2000)......................................................................................................... 587
Development Bank of the Philippines vs. Prudential Bank, 475 SCRA 623 (2005) ............................................................. 598
Rosario Textile Mills vs. Home Bankers Savings and Trust Company, 462 SCRA 88 (2005) ............................................... 610
Vintola vs. IBAA, 150 SCRA 578 (1987) ............................................................................................................................... 618
People vs. Nitafan, 207 SCRA 726 (1992)............................................................................................................................ 624
Torres vs. Limjap, 56 Phil. 141 (1931) ................................................................................................................................. 630
People's Bank and Trust Co. vs. Dahican Lumber Company, 20 SCRA 84 (1967) ............................................................... 636
Belgian Catholic Missionaries vs. Magallanes Press, 49 Phil. 647 (1926) ........................................................................... 650
Acme Shoe, Rubber and Plastic Corp. vs. Court of Appeals, 260 SCRA 714 (1996)............................................................ 658
Ong Liong Tiak vs. Luneta Motor Co., 66 Phil. 459 (1938) .................................................................................................. 664
Prudential Bank vs. Alviar, 464 SCRA 353 (2005)................................................................................................................ 668
Cuyco vs. Cuyco, 487 SCRA 693 (2006) ............................................................................................................................... 679
Garrido vs. Tuason, 24 SCRA 727 (1968)............................................................................................................................. 690
Magna Financial Services Group, Inc. vs. Colarina, 477 SCRA 245(2005) ........................................................................... 693
Register of Deeds vs. China Banking Corporation, 4 SCRA 1145 (1962)............................................................................. 703
Paderes vs. Court of Appeals, 463 SCRA 504 (2005)........................................................................................................... 708
Banco Filipino Savings and Mortgage Bank vs. Court of Appeals, 463 SCRA 64 (2005) ..................................................... 729
Bukidnon Doctors' Hospital, Inc. vs. Metropolitan Bank & Trust Co., 463 SCRA 222 (2005).............................................. 740
Tanchan vs. Allied Banking Corporation, 571 SCRA 512 (2008).......................................................................................... 754
Onapal Philippines Commodities, Inc. vs. Court of Appeals, 218 SCRA 281 (1993) ........................................................... 771
First Philippine International Bank vs. Court of Appeals, 252 SCRA 259 (1996)................................................................. 782
Fidelity Savings and Mortgage Bank vs. Cenzon, 184 SCRA 141
(1990)
Republic
SUPREME
Manila
of
the
Philippines
COURT
SECOND DIVISION
G.R. No. L-46208 April 5, 1990
FIDELITY
SAVINGS
AND
MORTGAGE
BANK,
petitioner,
vs.
HON. PEDRO D. CENZON, in his capacity as Presiding Judge of the Court
of First Instance of Manila (Branch XL) and SPOUSES TIMOTEO AND
OLIMPIA SANTIAGO, respondents.
Agapito S. Fajardo and Marino E. Eslao for petitioner.
Leovillo C. Agustin Law Offices for private respondents.
REGALADO, J.:
The instant petition seeks the review, on pure questions of law, of the
decision rendered by the Court of First Instance of Manila (now Regional
Trial Court), Branch XL, on December 3, 1976 in Civil Case No. 84800, 1
ordering herein petitioner to pay private respondents the following amounts:
(a) P90,000.00 with accrued interest in accordance with Exhibits
A and B until fully paid;
(b) P30,000,00 as exemplary damages; and
(c) P10,000.00 as and for attorney's fees.
The payment by the defendant Fidelity Savings and Mortgage
Bank of the aforementioned sums of money shall be subject to
the Bank Liquidation Rules and Regulations embodied in the
Order of the Court of First Instance of Manila, Branch XIII, dated
were raised only during the testimony of the bank examiner of the Central
Bank, 10 but no documentary evidence was ever presented in support
thereof. Hence, it was error for the lower court to impose exemplary
damages upon petitioner bank since, in contracts, such sanction requires
that the offending party acted in a wanton, fraudulent, reckless, oppressive
or malevolent manner. 11 Neither does this case present the situation where
attorney's fees may be awarded. 12
In the absence of fraud, bad faith, malice or wanton attitude, petitioner bank
may, therefore, not be held responsible for damages which may be
reasonably attributed to the non-performance of the obligation. 13
Consequently, we reiterate that under the premises and pursuant to the
aforementioned provisions of law, it is apparent that private respondents are
not justifiably entitled to the payment of moral and exemplary damages and
attorney's fees.
While we tend to agree with petitioner bank that private respondents' claims
should he been filed in the liquidation proceedings in Civil Case No. 86005,
entitled "In Re: Liquidation of the Fidelity Savings and Mortgage Bank,"
pending before Branch XIII of the then Court of First Instance of Manila, we
do not believe that the decision rendered in the instant case would be
violative of the legal provisions on preference and concurrence of credits.
As the trial court puts it:
. . . But this order of payment should not be understood as raising
these deposits to the category of preferred credits of the
defendant Fidelity Savings and Mortgage Bank but shall be paid
in accordance with the Bank Liquidation Rules and Regulations
embodied in the Order of the. Court of First Instance of Manila,
Branch XIII dated October 3, 1972 (Exh. 3). . . . 14
WHEREFORE, the judgment appealed from is hereby MODIFIED.
Petitioner Fidelity Savings and Mortgage Bank is hereby declared liable to
pay private respondents Timoteo and Olimpia Santiago the sum of
P90,000.00, with accrued interest in accordance with the terms of Savings
Account Deposit No. 16-0536 (Exhibit A) and Certificate of Time Deposit
No. 0210 (Exhibit B) until February 18, 1969. The awards for moral and
exemplary damages, and attorney's fees are hereby DELETED. No costs.
SO ORDERED.
of
the
Philippines
COURT
MELENCIO-HERRERA, J.:
Before us is petitioner's Motion for Reconsideration of this Court's
Resolution of August 11, 1986, which denied for lack of merit her Petition for
Review on certiorari of respondent Court of Tax Appeals' (CTA) Decision in
C.T.A. Case No. 3398.
During the pendency of this case, or on April 23, 1986, petitioner had
passed away and her legal heirs were ordered substituted in her stead and
Jose Cancio, Jr., was appointed guardian ad-litem for the minors Ma. Irene
and Roberto, both surnamed Cancio, in this Court's Resolution of August
11, 1986.
There is no substantial dispute on the background facts and the evidentiary
aspects Vol the controversy, summarized in said
Decision as follows:
The records show that claimant Mrs. Rosa Cancio bearing
Philippine Passport No. 11797799 while clearing through the PreBoarding (AVSECOM) Area of MIA with her husband and three
(3) children to board PR 306 for Hongkong in the morning of June
12, 1981, was apprehended with One Hundred Two Thousand
Nine Hundred Dollars (US$102,900.00) in cash, six hundred
Similarly, Central bank Circular No. 534, issued on July 19, 1976, reiterates
and provides in Sec. 3 thereof as follows:
Sec. 3. Unless specifically authorized by the Central Bank or
allowed under existing international agreements or Central Bank
regulations, no person shall take or transmit or attempt to take or
transmit foreign exchange, in any form out of the Philippines only,
through other persons, through the mails, or through international
carriers.
The provisions of this Section shall not apply to tourists and nonresident temporary visitors who are taking or sending out of the
Philippines their own foreign exchange brought in by them.
However, peculiar to the present controversy is the fact that, as stated
previously, petitioner is a foreign currency depositor. Relevant and
applicable to her is the following provision of the "Foreign Currency Deposit
Act of the Philip pines" (Republic Act No. 6426, as amended), which took
effect upon its approval on April 4,1972:
SEC. 5. Withdrawability and transferability of deposits. There
shall be no restriction on the withdrawal by the depositor of his
deposit or on the transferability of the same abroad except those
arising from the contract between the depositor and the bank.11
(Emphasis Ours).
Under the foregoing provision, the transferability abroad of foreign currency
deposits is unrestricted. Only one exception is provided for therein, which is,
any restriction " from the contract between the depositor and the bank."
Neither is a Central Bank authority required for the transferability abroad of
foreign currency deposits.
Attention is called, however, to the implementing rules and regulations to
said Republic Act 6426, as embodied in CB Circular No. 343 issued on April
24, 1972, which provides:
SEC. 11. Withdrawability and Liquidity of Deposits.
a. x x x x x x x x x
b. Subject only to the terms of the contract between the bank and
the depositor, the latter shall have a general license to withdraw
his deposit, notwithstanding any change in policy or regulations.
xxx xxx xxx
(Emphaisis supplied)
Respondent Court has taken the position that the foregoing provision its the
right of the depositor to that of withdrawal and withholds from him the right
of transferability abroad. That is not so. Circular-Letter, dated August 3,
1978, issued by the Central Bank reads in explicit terms:
TO: ALL BANKS AUTHORIZED TO ACCEPT FOREIGN CURRENCY
DEPOSITS UNDER THE PROVISIONS OF RA 6426, AS AMENDED AND
PRESIDENTIAL DECREE NO. 1035.
Effective immediately, the banks authorized to accept foreign
currency deposits under the provisions of RA 6426, as amended,
and PD 1035 and as implemented by Central Bank Circular 343
and 547, are hereby instructed to advise their foreign currency
depositors who are withdrawing funds for travel purposes to carry
with them the certificate of withdrawal that the banks shall issue.
The travellers shall present the certifications to the Customs and
Central Bank personnel at the MIA, if requested.
The banks shall issue a uniform certification, as follows:
___________________
Date
TO WHOM IT MAY CONCERN:
This certifies that ________________________whose signature
appears below has withdrawn today, the amount of
____________in cash (US$ _______________) and Travellers
Check (US$___________________________) against his/her
foreign currency account maintained with us.
In fine, Central Bank Circulars Nos. 265 and 534 requiring prior Central
Bank authority for the taking out of the country of foreign currency should
not be made to encompass foreign currency depositors whose rights are
expressly defined and guaranteed in a special law, the Foreign Currency
Deposit Act (RA 6426, as amended). As a foreign currency depositor,
therefore, petitioner cannot be adjudged to have violated the aforestated
Central Bank Circulars. It follows that neither is there room for the
application of Section 2530(f) of the Tariff and Customs Code, as amended,
which provides for the forfeiture of any article and other objects, the
exportation of which is effected or attempted contrary to law.
This is not to condone petitioner's failure to declare the foreign currency she
was carrying out of the country but just to stress that the Foreign Currency
Deposit Act grants petitioner the right of transferability of her funds abroad
except that she was not advised by her bank to secure, and consequently
was unable to present, the necessary certificate of withdrawal from said
bank.
ACCORDINGLY, the Decision of respondent Court of Tax Appeals is
hereby SET ASIDE in so far as it upheld the forfeiture by respondent
Commissioner of Customs of the sums of US$102,900.00 in cash, and
US$600.00 in traveller's checks, which amounts should now be returned to
petitioner's heirs, but AFFIRMED in so far as it reversed the forfeiture by the
same official of the sum of P1,500.00. No costs.
SO ORDERED.
of
the
Philippines
COURT
EN BANC
S.
Osmena
Admiral
Carolino
Avenue
Village
AGAPITO
S.
FAJARDO
Meanwhile, on April 10, 1989, the trial court granted petitioners' motion for
leave to serve summons by publication in the Civil Case No. 89-3214
entitled "Karen Salvacion, et al. vs. Greg Bartelli y Northcott." Summons
with the complaint was a published in the Manila Times once a week for
three consecutive weeks. Greg Bartelli failed to file his answer to the
complaint and was declared in default on August 7, 1989. After hearing the
case ex-parte, the court rendered judgment in favor of petitioners on March
29, 1990, the dispositive portion of which reads:
biscuit and coke. She was raped for the second time at about
12:00 to 2:00 p.m. In the evening, they had rice for dinner which
defendant had stored downstairs; it was he who cooked the rice
that is why it looks like "lugaw". For the third time, Karen was
raped again during the night. During those three times defendant
succeeded in inserting his sex organ but she could not say
whether the organ was inserted wholly.
Karen did not see any firearm or any bladed weapon. The
defendant did not tie her hands and feet nor put a tape on her
mouth anymore but she did not cry for help for fear that she might
be killed; besides, all the windows and doors were closed. And
even if she shouted for help, nobody would hear her. She was so
afraid that if somebody would hear her and would be able to call
the police, it was still possible that as she was still inside the
house, defendant might kill her. Besides, the defendant did not
leave that Sunday, ruling out her chance to call for help. At
nighttime he slept with her again. (TSN, Aug. 15, 1989, pp. 12-14)
On February 6, 1989, Monday, Karen was raped three times,
once in the morning for thirty minutes after a breakfast of biscuits;
again in the afternoon; and again in the evening. At first, Karen
did not know that there was a window because everything was
covered by a carpet, until defendant opened the window for
around fifteen minutes or less to let some air in, and she found
that the window was covered by styrofoam and plywood. After
that, he again closed the window with a hammer and he put the
styrofoam, plywood, and carpet back. (Id., pp. 14-15)
That Monday evening, Karen had a chance to call for help,
although defendant left but kept the door closed. She went to the
bathroom and saw a small window covered by styrofoam and she
also spotted a small hole. She stepped on the bowl and she cried
for help through the hole. She cried: "Maawa no po kayo so akin.
Tulungan n'yo akong makalabas dito. Kinidnap ako!" Somebody
heard her. It was a woman, probably a neighbor, but she got
angry and said she was "istorbo". Karen pleaded for help and the
woman told her to sleep and she will call the police. She finally fell
asleep but no policeman came. (TSN, Aug. 15, 1989, pp. 15-16)
She woke up at 6:00 o'clock the following morning, and she saw
defendant in bed, this time sleeping. She waited for him to wake
up. When he woke up, he again got some food but he always kept
the door locked. As usual, she was merely fed with biscuit and
coke. On that day, February 7, 1989, she was again raped three
times. The first at about 6:30 to 7:00 a.m., the second at about
8:30 9:00, and the third was after lunch at 12:00 noon. After he
had raped her for the second time he left but only for a short
while. Upon his return, he caught her shouting for help but he did
not understand what she was shouting about. After she was
raped the third time, he left the house. (TSN, Aug. 15, 1989, pp.
16-17) She again went to the bathroom and shouted for help.
After shouting for about five minutes, she heard many voices. The
voices were asking for her name and she gave her name as
Karen Salvacion. After a while, she heard a voice of a woman
saying they will just call the police. They were also telling her to
change her clothes. She went from the bathroom to the room but
she did not change her clothes being afraid that should the
neighbors call for the police and the defendant see her in different
clothes, he might kill her. At that time she was wearing a T-shirt of
the American because the latter washed her dress. (Id., p. 16)
Afterwards, defendant arrived and he opened the door. He asked
her if she had asked for help because there were many policemen
outside and she denied it. He told her to change her clothes, and
she did change to the one she was wearing on Saturday. He
instructed her to tell the police that she left home and willingly;
then he went downstairs but he locked the door. She could hear
people conversing but she could not understand what they were
saying. (Id., p. 19)
When she heard the voices of many people who were conversing
downstairs, she knocked repeatedly at the door as hard as she
could. She heard somebody going upstairs and when the door
was opened, she saw a policeman. The policeman asked her
name and the reason why she was there. She told him she was
kidnapped. Downstairs, he saw about five policemen in uniform
and the defendant was talking to them. "Nakikipag-areglo po sa
mga pulis," Karen added. "The policeman told him to just explain
at the precinct. (Id., p. 20)
They went out of the house and she saw some of her neighbors in
front of the house. They rode the car of a certain person she
called Kuya Boy together with defendant, the policeman, and two
of her neighbors whom she called Kuya Bong Lacson and one
Ate Nita. They were brought to Sub-Station I and there she was
investigated by a policeman. At about 2:00 a.m., her father
arrived, followed by her mother together with some of their
neighbors. Then they were brought to the second floor of the
police headquarters. (Id., p. 21)
At the headquarters, she was asked several questions by the
investigator. The written statement she gave to the police was
marked as Exhibit A. Then they proceeded to the National Bureau
of Investigation together with the investigator and her parents. At
the NBI, a doctor, a medico-legal officer, examined her private
parts. It was already 3:00 in the early morning of the following day
when they reached the NBI. (TSN, Aug. 15, 1989, p. 22) The
findings of the medico-legal officer has been marked as Exhibit B.
She was studying at the St. Mary's Academy in Pasay City at the
time of the incident but she subsequently transferred to Apolinario
Mabini, Arellano University, situated along Taft Avenue, because
she was ashamed to be the subject of conversation in the school.
She first applied for transfer to Jose Abad Santos, Arellano
University along Taft Avenue near the Light Rail Transit Station
but she was denied admission after she told the school the true
reason for her transfer. The reason for their denial was that they
might be implicated in the case. (TSN, Aug. 15, 1989, p. 46)
xxx xxx xxx
After the incident, Karen has changed a lot. She does not play
with her brother and sister anymore, and she is always in a state
of shock; she has been absent-minded and is ashamed even to
go out of the house. (TSN, Sept. 12, 1989, p. 10) She appears to
be restless or sad, (Id., p. 11) The father prays for P500,000.00
moral damages for Karen for this shocking experience which
probably, she would always recall until she reaches old age, and
he is not sure if she could ever recover from this experience.
(TSN, Sept. 24, 1989, pp. 10-11)
Pursuant to an Order granting leave to publish notice of decision, said
notice was published in the Manila Bulletin once a week for three
consecutive weeks. After the lapse of fifteen (15) days from the date of the
last publication of the notice of judgment and the decision of the trial court
had become final, petitioners tried to execute on Bartelli's dollar deposit with
China Banking Corporation. Likewise, the bank invoked Section 113 of
Central Bank Circular No. 960.
Thus, petitioners decided to seek relief from this Court.
The issues raised and the arguments articulated by the parties boil down to
two:
May this Court entertain the instant petition despite the fact that original
jurisdiction in petitions for declaratory relief rests with the lower court?
Should Section 113 of Central Bank Circular No. 960 and Section 8 of R.A.
6426, as amended by P.D. 1246, otherwise known as the Foreign Currency
Deposit Act be made applicable to a foreign transient?
Petitioners aver as heretofore stated that Section 113 of Central Bank
Circular No. 960 providing that "Foreign currency deposits shall be exempt
from attachment, garnishment, or any other order or process of any court,
legislative body, government agency or any administrative body
whatsoever." should be adjudged as unconstitutional on the grounds that:
1.) it has taken away the right of petitioners to have the bank deposit of
defendant Greg Bartelli y Northcott garnished to satisfy the judgment
rendered in petitioners' favor in violation of substantive due process
guaranteed by the Constitution; 2.) it has given foreign currency depositors
an undue favor or a class privilege in violation of the equal protection clause
of the Constitution; 3.) it has provided a safe haven for criminals like the
herein respondent Greg Bartelli y Northcott since criminals could escape
civil liability for their wrongful acts by merely converting their money to a
foreign currency and depositing it in a foreign currency deposit account with
an authorized bank; and 4.) The Monetary Board, in issuing Section 113 of
Central Bank Circular No. 960 has exceeded its delegated quasi-legislative
power when it took away: a.) the plaintiffs substantive right to have the claim
money, could not, however get the award of damages because of this
unreasonable law. This questioned law, therefore makes futile the favorable
judgment and award of damages that she and her parents fully deserve. As
stated by the trial court in its decision,
Indeed, after hearing the testimony of Karen, the Court believes
that it was undoubtedly a shocking and traumatic experience she
had undergone which could haunt her mind for a long, long time,
the mere recall of which could make her feel so humiliated, as in
fact she had been actually humiliated once when she was refused
admission at the Abad Santos High School, Arellano University,
where she sought to transfer from another school, simply because
the school authorities of the said High School learned about what
happened to her and allegedly feared that they might be
implicated in the case.
xxx xxx xxx
The reason for imposing exemplary or corrective damages is due
to the wanton and bestial manner defendant had committed the
acts of rape during a period of serious illegal detention of his
hapless victim, the minor Karen Salvacion whose only fault was in
her being so naive and credulous to believe easily that defendant,
an American national, could not have such a bestial desire on her
nor capable of committing such a heinous crime. Being only 12
years old when that unfortunate incident happened, she has
never heard of an old Filipino adage that in every forest there is a
snake, . . . . 4
If Karen's sad fate had happened to anybody's own kin, it would be difficult
for him to fathom how the incentive for foreign currency deposit could be
more important than his child's rights to said award of damages; in this
case, the victim's claim for damages from this alien who had the gall to
wrong a child of tender years of a country where he is a mere visitor. This
further illustrates the flaw in the questioned provisions.
It is worth mentioning that R.A. No. 6426 was enacted in 1983 or at a time
when the country's economy was in a shambles; when foreign investments
were minimal and presumably, this was the reason why said statute was
enacted. But the realities of the present times show that the country has
recovered economically; and even if not, the questioned law still denies
those entitled to due process of law for being unreasonable and oppressive.
The intention of the questioned law may be good when enacted. The law
failed to anticipate the iniquitous effects producing outright injustice and
inequality such as the case before us.
It has thus been said that
But I also know, 5 that laws and institutions must go hand in hand
with the progress of the human mind. As that becomes more
developed, more enlightened, as new discoveries are made, new
truths are disclosed and manners and opinions change with the
change of circumstances, institutions must advance also, and
keep pace with the times. . . We might as well require a man to
wear still the coat which fitted him when a boy, as civilized society
to remain ever under the regimen of their barbarous ancestors.
In his Comment, the Solicitor General correctly opined, thus:
The present petition has far-reaching implications on the right of a
national to obtain redress for a wrong committed by an alien who
takes refuge under a law and regulation promulgated for a
purpose which does not contemplate the application thereof
envisaged by the alien. More specifically, the petition raises the
question whether the protection against attachment, garnishment
or other court process accorded to foreign currency deposits by
PD No. 1246 and CB Circular No. 960 applies when the deposit
does not come from a lender or investor but from a mere transient
or tourist who is not expected to maintain the deposit in the bank
for long.
The resolution of this question is important for the protection of
nationals who are victimized in the forum by foreigners who are
merely passing through.
xxx xxx xxx
. . . Respondents China Banking Corporation and Central Bank of
the Philippines refused to honor the writ of execution issued in
of
the
Philippines
COURT
FIRST DIVISION
G.R. No. 88013 March 19, 1990
SIMEX INTERNATIONAL (MANILA), INCORPORATED, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and TRADERS ROYAL BANK,
respondents.
Don P. Porcuincula for petitioner.
San Juan, Gonzalez, San Agustin & Sinense for private respondent.
CRUZ, J.:
We are concerned in this case with the question of damages, specifically
moral and exemplary damages. The negligence of the private respondent
has already been established. All we have to ascertain is whether the
petitioner is entitled to the said damages and, if so, in what amounts.
The parties agree on the basic facts. The petitioner is a private corporation
engaged in the exportation of food products. It buys these products from
various local suppliers and then sells them abroad, particularly in the United
States, Canada and the Middle East. Most of its exports are purchased by
the petitioner on credit.
The petitioner was a depositor of the respondent bank and maintained a
checking account in its branch at Romulo Avenue, Cubao, Quezon City. On
May 25, 1981, the petitioner deposited to its account in the said bank the
amount of P100,000.00, thus increasing its balance as of that date to
P190,380.74. 1 Subsequently, the petitioner issued several checks against
its deposit but was suprised to learn later that they had been dishonored for
insufficient funds.
The dishonored checks are the following:
1. Check No. 215391 dated May 29, 1981, in favor of California
Manufacturing Company, Inc. for P16,480.00:
2. Check No. 215426 dated May 28, 1981, in favor of the Bureau
of Internal Revenue in the amount of P3,386.73:
3. Check No. 215451 dated June 4, 1981, in favor of Mr. Greg
Pedreo in the amount of P7,080.00;
4. Check No. 215441 dated June 5, 1981, in favor of Malabon
Longlife Trading Corporation in the amount of P42,906.00:
5. Check No. 215474 dated June 10, 1981, in favor of Malabon
Longlife Trading Corporation in the amount of P12,953.00:
6. Check No. 215477 dated June 9, 1981, in favor of Sea-Land
Services, Inc. in the amount of P27,024.45:
7. Check No. 215412 dated June 10, 1981, in favor of Baguio
Country Club Corporation in the amount of P4,385.02: and
8. Check No. 215480 dated June 9, 1981, in favor of Enriqueta
Bayla in the amount of P6,275.00. 2
As a consequence, the California Manufacturing Corporation sent on June
9, 1981, a letter of demand to the petitioner, threatening prosecution if the
dishonored check issued to it was not made good. It also withheld delivery
of the order made by the petitioner. Similar letters were sent to the petitioner
by the Malabon Long Life Trading, on June 15, 1981, and by the G. and U.
Enterprises, on June 10, 1981. Malabon also canceled the petitioner's credit
line and demanded that future payments be made by it in cash or certified
check. Meantime, action on the pending orders of the petitioner with the
other suppliers whose checks were dishonored was also deferred.
The petitioner complained to the respondent bank on June 10, 1981. 3
Investigation disclosed that the sum of P100,000.00 deposited by the
petitioner on May 25, 1981, had not been credited to it. The error was
rectified on June 17, 1981, and the dishonored checks were paid after they
were re-deposited. 4
In its letter dated June 20, 1981, the petitioner demanded reparation from
the respondent bank for its "gross and wanton negligence." This demand
was not met. The petitioner then filed a complaint in the then Court of First
Instance of Rizal claiming from the private respondent moral damages in the
sum of P1,000,000.00 and exemplary damages in the sum of P500,000.00,
plus 25% attorney's fees, and costs.
After trial, Judge Johnico G. Serquinia rendered judgment holding that moral
and exemplary damages were not called for under the circumstances.
However, observing that the plaintiff's right had been violated, he ordered
the defendant to pay nominal damages in the amount of P20,000.00 plus
P5,000.00 attorney's fees and costs. 5 This decision was affirmed in toto by
the respondent court. 6
The respondent court found with the trial court that the private respondent
was guilty of negligence but agreed that the petitioner was nevertheless not
entitled to moral damages. It said:
The essential ingredient of moral damages is proof of bad faith
(De Aparicio vs. Parogurga, 150 SCRA 280). Indeed, there was
the omission by the defendant-appellee bank to credit appellant's
deposit of P100,000.00 on May 25, 1981. But the bank rectified its
records. It credited the said amount in favor of plaintiff-appellant in
less than a month. The dishonored checks were eventually paid.
These circumstances negate any imputation or insinuation of
malicious, fraudulent, wanton and gross bad faith and negligence
on the part of the defendant-appellant.
It is this ruling that is faulted in the petition now before us.
This Court has carefully examined the facts of this case and finds that it
cannot share some of the conclusions of the lower courts. It seems to us
that the negligence of the private respondent had been brushed off rather
lightly as if it were a minor infraction requiring no more than a slap on the
wrist. We feel it is not enough to say that the private respondent rectified its
records and credited the deposit in less than a month as if this were
sufficient repentance. The error should not have been committed in the first
place. The respondent bank has not even explained why it was committed
at all. It is true that the dishonored checks were, as the Court of Appeals put
it, "eventually" paid. However, this took almost a month when, properly, the
checks should have been paid immediately upon presentment.
As the Court sees it, the initial carelessness of the respondent bank,
aggravated by the lack of promptitude in repairing its error, justifies the grant
of moral damages. This rather lackadaisical attitude toward the complaining
depositor constituted the gross negligence, if not wanton bad faith, that the
respondent court said had not been established by the petitioner.
We also note that while stressing the rectification made by the respondent
bank, the decision practically ignored the prejudice suffered by the
petitioner. This was simply glossed over if not, indeed, disbelieved. The fact
is that the petitioner's credit line was canceled and its orders were not acted
upon pending receipt of actual payment by the suppliers. Its business
declined. Its reputation was tarnished. Its standing was reduced in the
business community. All this was due to the fault of the respondent bank
which was undeniably remiss in its duty to the petitioner.
Article 2205 of the Civil Code provides that actual or compensatory
damages may be received "(2) for injury to the plaintiff s business standing
or commercial credit." There is no question that the petitioner did sustain
actual injury as a result of the dishonored checks and that the existence of
the loss having been established "absolute certainty as to its amount is not
required." 7 Such injury should bolster all the more the demand of the
petitioner for moral damages and justifies the examination by this Court of
the validity and reasonableness of the said claim.
We agree that moral damages are not awarded to penalize the defendant
but to compensate the plaintiff for the injuries he may have suffered. 8 In the
case at bar, the petitioner is seeking such damages for the prejudice
sustained by it as a result of the private respondent's fault. The respondent
court said that the claimed losses are purely speculative and are not
supported by substantial evidence, but if failed to consider that the amount
of such losses need not be established with exactitude precisely because of
their nature. Moral damages are not susceptible of pecuniary estimation.
Article 2216 of the Civil Code specifically provides that "no proof of
pecuniary loss is necessary in order that moral, nominal, temperate,
What is especially deplorable is that, having been informed of its error in not
crediting the deposit in question to the petitioner, the respondent bank did
not immediately correct it but did so only one week later or twenty-three
days after the deposit was made. It bears repeating that the record does not
contain any satisfactory explanation of why the error was made in the first
place and why it was not corrected immediately after its discovery. Such
ineptness comes under the concept of the wanton manner contemplated in
the Civil Code that calls for the imposition of exemplary damages.
After deliberating on this particular matter, the Court, in the exercise of its
discretion, hereby imposes upon the respondent bank exemplary damages
in the amount of P50,000.00, "by way of example or correction for the public
good," in the words of the law. It is expected that this ruling will serve as a
warning and deterrent against the repetition of the ineptness and
indefference that has been displayed here, lest the confidence of the public
in the banking system be further impaired.
ACCORDINGLY, the appealed judgment is hereby MODIFIED and the
private respondent is ordered to pay the petitioner, in lieu of nominal
damages, moral damages in the amount of P20,000.00, and exemplary
damages in the amount of P50,000.00 plus the original award of attorney's
fees in the amount of P5,000.00, and costs.
SO ORDERED.
of
the
Philippines
COURT
FIRST DIVISION
GRIO-AQUINO, J.:
In a decision dated September 3, 1984, the Intermediate Appellate Court
(now Court of Appeals) in AC-G.R. CV No. 69178 entitled, "Arthur A.
Canlas, et al., Plaintiff-Appellees vs. Commercial Bank and Trust Company
of the Philippines, Defendant-Appellant," reduced to P105,000 the P465,000
damage-award of the trial court to the private respondents for an error of a
bank teller which resulted in the dishonor of two small checks which the
private respondents had issued against their joint current account. This
petition for review of that decision was filed by the Bank.
The respondent spouses, Arthur and Vivienne Canlas, opened a joint
current account No. 210-520-73 on April 25, 1977 in the Quezon City
branch of the Commercial Bank and Trust Company of the Philippines
(CBTC) with an initial deposit of P2,250. Prior thereto, Arthur Canlas had an
existing separate personal checking account No. 210-442-41 in the same
branch.
When the respondent spouses opened their joint current account, the "new
accounts" teller of the bank pulled out from the bank's files the old and
existing signature card of respondent Arthur Canlas for Current Account No.
210-442-41 for use as I D and reference. By mistake, she placed the old
personal account number of Arthur Canlas on the deposit slip for the new
joint checking account of the spouses so that the initial deposit of P2,250 for
the joint checking account was miscredited to Arthur's personal account (p.
9, Rollo). The spouses subsequently deposited other amounts in their joint
account.
However, when respondent Vivienne Canlas issued a check for Pl,639.89 in
April 1977 and another check for P1,160.00 on June 1, 1977, one of the
checks was dishonored by the bank for insufficient funds and a penalty of
P20 was deducted from the account in both instances. In view of the
overdrawings, the bank tried to call up the spouses at the telephone number
which they had given in their application form, but the bank could not
contact them because they actually reside in Porac, Pampanga. The city
address and telephone number which they gave to the bank belonged to
Mrs. Canlas' parents.
On December 15, 1977, the private respondents filed a complaint for
damages against CBTC in the Court of First Instance of Pampanga (p. 113,
Rollo).
On February 27, 1978, the bank filed a motion to dismiss the complaint for
improper venue. The motion was denied.
During the pendency of the case, the Bank of the Philippine Islands (BPI)
and CBTC were merged. As the surviving corporation under the merger
agreement and under Section 80 (5) of the Corporation Code of the
Philippines, BPI took over the prosecution and defense of any pending
claims, actions or proceedings by and against CBTC.
On May 5, 1981, the Regional Trial Court of Pampanga rendered a decision
against BPI, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered
defendant to pay the plaintiff the following:
1. P 5,000.00 as actual damages;
sentencing
SO ORDERED.
of
the
Philippines
COURT
FIRST DIVISION
G.R. No. 112392
BANK
OF
THE
PHILIPPINE
ISLANDS,
petitioner,
vs.
COURT OF APPEALS and BENJAMIN C. NAPIZA, respondents.
YNARES-SANTIAGO, J.:
This is a petition for review on certiorari of the Decision1 of the Court of
Appeals in CA-G.R. CV No. 37392 affirming in toto that of the Regional Trial
Court of Makati, Branch 139,2 which dismissed the complaint filed by
petitioner Bank of the Philippine Islands against private respondent
Benjamin C. Napiza for sum of money.
On September 3, 1987, private respondent deposited in Foreign Currency
Deposit Unit (FCDU) Savings Account No. 028-1873 which he maintained in
petitioner bank's Buendia Avenue Extension Branch, Continental Bank
Manager's Check No. 000147574 dated August 17, 1984, payable to "cash"
in the amount of Two Thousand Five Hundred Dollars ($2,500.00) and duly
endorsed by private respondent on its dorsal side.5 It appears that the check
belonged to a certain Henry who went to the office of private respondent
and requested him to deposit the check in his dollar account by way of
accommodation and for the purpose of clearing the same. Private
respondent acceded, and agreed to deliver to Chan a signed blank
withdrawal slip, with the understanding that as soon as the check is cleared,
both of them would go to the bank to withdraw the amount of the check
upon private respondent's presentation to the bank of his passbook.
Using the blank withdrawal slip given by private respondent to Chan, on
October 23, 1984, one Ruben Gayon, Jr. was able to withdraw the amount
of $2,541.67 from FCDU Savings Account No. 028-187. Notably, the
xxx
xxx
that the mere deposit of a check in private respondent's account did not
mean that the check was already private respondent's property. The check
still had to be cleared and its proceeds can only be withdrawn upon
presentation of a passbook in accordance with the bank's rules and
regulations. Furthermore, petitioner's contention that private respondent
warranted the check's genuineness by endorsing it is untenable for it would
render useless the clearance requirement. Likewise, the requirement of
presentation of a passbook to ascertain the propriety of the accounting
reflected would be a meaningless exercise. After all, these requirements are
designed to protect the bank from deception or fraud.
The Court of Appeals cited the case of Roman Catholic Bishop of Malolos,
Inc. v. IAC,14 where this Court stated that a personal check is not legal
tender or money, and held that the check deposited in this case must be
cleared before its value could be properly transferred to private
respondent's account.
Without filing a motion for the reconsideration of the Court of Appeals'
Decision, petitioner filed this petition for review on certiorari, raising the
following issues:
1. WHETHER OR NOT RESPONDENT NAPIZA IS LIABLE UNDER
HIS WARRANTIES AS A GENERAL INDORSER.
2. WHETHER OR NOT A CONTRACT OF AGENCY WAS CREATED
BETWEEN RESPONDENT NAPIZA AND RUBEN GAYON.
3. WHETHER OR NOT PETITIONER WAS GROSSLY NEGLIGENT
IN ALLOWING THE WITHDRAWAL.
Petitioner claims that private respondent, having affixed his signature at the
dorsal side of the check, should be liable for the amount stated therein in
accordance with the following provision of the Negotiable Instruments Law
(Act No. 2031):
Sec. 66. Liability of general indorser. Every indorser who indorses
without qualification, warrants to all subsequent holders in due course
(a) The matters and things mentioned in subdivisions (a), (b), and (c)
of the next preceding section; and
(b) That the instrument is at the time of his indorsement, valid and
subsisting.
And, in addition, he engages that on due presentment, it shall be
accepted or paid, or both, as the case may be, according to its tenor,
and that if it be dishonored, and the necessary proceedings on
dishonor be duly taken, he will pay the amount thereof to the holder, or
to any subsequent indorser who may be compelled to pay it.
Sec. 65, on the other hand, provides for the following warranties of a person
negotiating an instrument by delivery or by qualified indorsement: (a) that
the instrument is genuine and in all respects what it purports to be; (b) that
he has a good title to it, and (c) that all prior parties had capacity to
contract.15 In People v. Maniego,16 this Court described the liabilities of an
indorser as follows:
Appellant's contention that as mere indorser, she may not be liable on
account of the dishonor of the checks indorsed by her, is likewise
untenable. Under the law, the holder or last indorsee of a negotiable
instrument has the right "to enforce payment of the instrument for the
full amount thereof against all parties liable thereon. Among the
"parties liable thereon." Is an indorser of the instrument, i.e., "a person
placing his signature upon an instrument otherwise than as a maker,
drawer or acceptor * * unless he clearly indicated by appropriate words
his intention to be bound in some other capacity." Such an indorser
"who indorses without qualification," inter alia "engages that on due
presentment, * * (the instrument) shall be accepted or paid, or both, as
the case may be, according to its tenor, and that if it be dishonored,
and the necessary proceedings on dishonor be duly taken, he will pay
the amount thereof to the holder, or any subsequent indorser who may
be compelled to pay it." Maniego may also be deemed an
"accommodation party" in the light of the facts, i.e., a person "who has
signed the instrument as maker, drawer, acceptor, or indorser, without
receiving value thereof, and for the purpose of lending his name to
some other person." As such, she is under the law "liable on the
instrument to a holder for value, notwithstanding such holder at the
time of taking the instrument knew * * (her) to be only an
accommodation party," although she has the right, after paying the
holder, to obtain reimbursement from the party accommodated, "since
the relation between them is in effect that of principal and surety, the
accommodation party being the surety.
It is thus clear that ordinarily private respondent may be held liable as an
indorser of the check or even as an accommodation party.17 However, to
hold private respondent liable for the amount of the check he deposited by
the strict application of the law and without considering the attending
circumstances in the case would result in an injustice and in the erosion of
the public trust in the banking system. The interest of justice thus demands
looking into the events that led to the encashment of the check.
Petitioner asserts that by signing the withdrawal slip, private respondent
"presented the opportunity for the withdrawal of the amount in question."
Petitioner relied "on the genuine signature on the withdrawal slip, the
personality of private respondent's son and the lapse of more than fifty (50)
days from date of deposit of the Continental Bank draft, without the same
being returned yet."18 We hold, however, that the propriety of the withdrawal
should be gauged by compliance with the rules thereon that both petitioner
bank and its depositors are duty-bound to observe.
In the passbook that petitioner issued to private respondent, the following
rules on withdrawal of deposits appear:
4. Withdrawals must be made by the depositor personally but in some
exceptional circumstances, the Bank may allow withdrawal by another
upon the depositor's written authority duly authenticated; and neither a
deposit nor a withdrawal will be permitted except upon the presentation
of the depositor's savings passbook, in which the amount deposited
withdrawn shall be entered only by the Bank.
5. Withdrawals may be made by draft, mail or telegraphic transfer in
currency of the account at the request of the depositor in writing on the
withdrawal slip or by authenticated cable. Such request must indicate
the name of the payee/s, amount and the place where the funds are to
be paid. Any stamp, transmission and other charges related to such
withdrawals shall be for the account of the depositor and shall be paid
by him/her upon demand. Withdrawals may also be made in the form
of travellers checks and in pesos. Withdrawals in the form of notes/bills
are allowed subject however, to their (availability).
Moreover, the withdrawal slip contains a boxed warning that states: "This
receipt must be signed and presented with the corresponding foreign
currency savings passbook by the depositor in person. For withdrawals thru
a representative, depositor should accomplish the authority at the back."
The requirement of presentation of the passbook when withdrawing an
amount cannot be given mere lip service even though the person making
the withdrawal is authorized by the depositor to do so. This is clear from
Rule No. 6 set out by petitioner so that, for the protection of the bank's
interest and as a reminder to the depositor, the withdrawal shall be entered
in the depositor's passbook. The fact that private respondent's passbook
was not presented during the withdrawal is evidenced by the entries therein
showing that the last transaction that he made with the bank was on
September 3, 1984, the date he deposited the controversial check in the
amount of $2,500.00.22
In allowing the withdrawal, petitioner likewise overlooked another rule that is
printed in the passbook. Thus:
2. All deposits will be received as current funds and will be repaid in
the same manner; provided, however, that deposits of drafts, checks,
money orders, etc. will be accented as subject to collection only and
credited to the account only upon receipt of the notice of final payment.
Collection charges by the Bank's foreign correspondent in effecting
such collection shall be for the account of the depositor. If the account
has sufficient balance, the collection shall be debited by the Bank
against the account. If, for any reason, the proceeds of the deposited
checks, drafts, money orders, etc., cannot be collected or if the Bank is
required to return such proceeds, the provisional entry therefor made
by the Bank in the savings passbook and its records shall be deemed
automatically cancelled regardless of the time that has elapsed, and
whether or not the defective items can be returned to the depositor;
and the Bank is hereby authorized to execute immediately the
necessary corrections, amendments or changes in its record, as well
as on the savings passbook at the first opportunity to reflect such
cancellation. (Emphasis and underlining supplied.)
As correctly held by the Court of Appeals, in depositing the check in his
name, private respondent did not become the outright owner of the amount
stated therein. Under the above rule, by depositing the check with petitioner,
of
the
Philipppines
COURT
FIRST DIVISION
[G.R. No. 138569. September 11, 2003]
THE CONSOLIDATED BANK and TRUST CORPORATION, Petitioner, vs.
COURT OF APPEALS and L.C. DIAZ and COMPANY, CPAs,
Respondents.
DECISION
CARPIO, J.:
The Case
Before us is a petition for review of the Decision[1] of the Court of Appeals
dated 27 October 1998 and its Resolution dated 11 May 1999. The assailed
decision reversed the Decision[2] of the Regional Trial Court of Manila,
Branch 8, absolving petitioner Consolidated Bank and Trust Corporation,
now known as Solidbank Corporation (Solidbank), of any liability. The
questioned resolution of the appellate court denied the motion for
reconsideration of Solidbank but modified the decision by deleting the award
of exemplary damages, attorneys fees, expenses of litigation and cost of
suit.
The Facts
Solidbank is a domestic banking corporation organized and existing under
Philippine laws. Private respondent L.C. Diaz and Company, CPAs (L.C.
Diaz), is a professional partnership engaged in the practice of accounting.
Sometime in March 1976, L.C. Diaz opened a savings account with
Solidbank, designated as Savings Account No. S/A 200-16872-6.
On 14 August 1991, L.C. Diaz through its cashier, Mercedes Macaraya
(Macaraya), filled up a savings (cash) deposit slip for P990 and a savings
(checks) deposit slip for P50. Macaraya instructed the messenger of L.C.
Diaz, Ismael Calapre (Calapre), to deposit the money with Solidbank.
Macaraya also gave Calapre the Solidbank passbook.
Calapre went to Solidbank and presented to Teller No. 6 the two deposit
slips and the passbook. The teller acknowledged receipt of the deposit by
returning to Calapre the duplicate copies of the two deposit slips. Teller No.
6 stamped the deposit slips with the words DUPLICATE and SAVING
TELLER 6 SOLIDBANK HEAD OFFICE. Since the transaction took time
and Calapre had to make another deposit for L.C. Diaz with Allied Bank, he
left the passbook with Solidbank. Calapre then went to Allied Bank. When
Calapre returned to Solidbank to retrieve the passbook, Teller No. 6
informed him that somebody got the passbook.[3] Calapre went back to L.C.
Diaz and reported the incident to Macaraya.
Macaraya immediately prepared a deposit slip in duplicate copies with a
check of P200,000. Macaraya, together with Calapre, went to Solidbank and
presented to Teller No. 6 the deposit slip and check. The teller stamped the
words DUPLICATE and SAVING TELLER 6 SOLIDBANK HEAD OFFICE
on the duplicate copy of the deposit slip. When Macaraya asked for the
passbook, Teller No. 6 told Macaraya that someone got the passbook but
she could not remember to whom she gave the passbook. When Macaraya
asked Teller No. 6 if Calapre got the passbook, Teller No. 6 answered that
someone shorter than Calapre got the passbook. Calapre was then
standing beside Macaraya.
Teller No. 6 handed to Macaraya a deposit slip dated 14 August 1991 for
the deposit of a check for P90,000 drawn on Philippine Banking Corporation
(PBC). This PBC check of L.C. Diaz was a check that it had long closed.[4]
PBC subsequently dishonored the check because of insufficient funds and
because the signature in the check differed from PBCs specimen signature.
Failing to get back the passbook, Macaraya went back to her office and
reported the matter to the Personnel Manager of L.C. Diaz, Emmanuel
Alvarez.
The following day, 15 August 1991, L.C. Diaz through its Chief Executive
Officer, Luis C. Diaz (Diaz), called up Solidbank to stop any transaction
using the same passbook until L.C. Diaz could open a new account.[5] On
the same day, Diaz formally wrote Solidbank to make the same request. It
was also on the same day that L.C. Diaz learned of the unauthorized
withdrawal the day before, 14 August 1991, of P300,000 from its savings
account. The withdrawal slip for the P300,000 bore the signatures of the
authorized signatories of L.C. Diaz, namely Diaz and Rustico L. Murillo. The
signatories, however, denied signing the withdrawal slip. A certain Noel
Tamayo received the P300,000.
In an Information[6] dated 5 September 1991, L.C. Diaz charged its
messenger, Emerano Ilagan (Ilagan) and one Roscon Verdazola with Estafa
through Falsification of Commercial Document. The Regional Trial Court of
Manila dismissed the criminal case after the City Prosecutor filed a Motion
to Dismiss on 4 August 1992.
On 24 August 1992, L.C. Diaz through its counsel demanded from
Solidbank the return of its money. Solidbank refused.
On 25 August 1992, L.C. Diaz filed a Complaint[7] for Recovery of a Sum of
Money against Solidbank with the Regional Trial Court of Manila, Branch 8.
After trial, the trial court rendered on 28 December 1994 a decision
absolving Solidbank and dismissing the complaint.
L.C. Diaz then appealed[8] to the Court of Appeals. On 27 October 1998,
the Court of Appeals issued its Decision reversing the decision of the trial
court.
On 11 May 1999, the Court of Appeals issued its Resolution denying the
motion for reconsideration of Solidbank. The appellate court, however,
modified its decision by deleting the award of exemplary damages and
attorneys fees.
The Ruling of the Trial Court
In absolving Solidbank, the trial court applied the rules on savings account
written on the passbook. The rules state that possession of this book shall
raise the presumption of ownership and any payment or payments made by
the bank upon the production of the said book and entry therein of the
withdrawal shall have the same effect as if made to the depositor
personally.[9]
At the time of the withdrawal, a certain Noel Tamayo was not only in
possession of the passbook, he also presented a withdrawal slip with the
signatures of the authorized signatories of L.C. Diaz. The specimen
signatures of these persons were in the signature cards. The teller stamped
the withdrawal slip with the words Saving Teller No. 5. The teller then
passed on the withdrawal slip to Genere Manuel (Manuel) for
authentication. Manuel verified the signatures on the withdrawal slip. The
withdrawal slip was then given to another officer who compared the
signatures on the withdrawal slip with the specimen on the signature cards.
The trial court concluded that Solidbank acted with care and observed the
rules on savings account when it allowed the withdrawal of P300,000 from
the savings account of L.C. Diaz.
The trial court pointed out that the burden of proof now shifted to L.C. Diaz
to prove that the signatures on the withdrawal slip were forged. The trial
court admonished L.C. Diaz for not offering in evidence the National Bureau
of Investigation (NBI) report on the authenticity of the signatures on the
withdrawal slip for P300,000. The trial court believed that L.C. Diaz did not
offer this evidence because it is derogatory to its action.
Another provision of the rules on savings account states that the depositor
must keep the passbook under lock and key.[10] When another person
presents the passbook for withdrawal prior to Solidbanks receipt of the
notice of loss of the passbook, that person is considered as the owner of the
passbook. The trial court ruled that the passbook presented during the
questioned transaction was now out of the lock and key and presumptively
ready for a business transaction.[11]
Solidbank did not have any participation in the custody and care of the
passbook. The trial court believed that Solidbanks act of allowing the
withdrawal of P300,000 was not the direct and proximate cause of the loss.
The trial court held that L.C. Diazs negligence caused the unauthorized
withdrawal. Three facts establish L.C. Diazs negligence: (1) the possession
of the passbook by a person other than the depositor L.C. Diaz; (2) the
presentation of a signed withdrawal receipt by an unauthorized person; and
(3) the possession by an unauthorized person of a PBC check long closed
by L.C. Diaz, which check was deposited on the day of the fraudulent
withdrawal.
The trial court debunked L.C. Diazs contention that Solidbank did not follow
the precautionary procedures observed by the two parties whenever L.C.
Diaz withdrew significant amounts from its account. L.C. Diaz claimed that a
letter must accompany withdrawals of more than P20,000. The letter must
presumptively its owner. If the tellers give the passbook to the wrong
person, they would be clothing that person presumptive ownership of the
passbook, facilitating unauthorized withdrawals by that person. For failing to
return the passbook to Calapre, the authorized representative of L.C. Diaz,
Solidbank and Teller No. 6 presumptively failed to observe such high
degree of diligence in safeguarding the passbook, and in insuring its return
to the party authorized to receive the same.
In culpa contractual, once the plaintiff proves a breach of contract, there is a
presumption that the defendant was at fault or negligent. The burden is on
the defendant to prove that he was not at fault or negligent. In contrast, in
culpa aquiliana the plaintiff has the burden of proving that the defendant
was negligent. In the present case, L.C. Diaz has established that Solidbank
breached its contractual obligation to return the passbook only to the
authorized representative of L.C. Diaz. There is thus a presumption that
Solidbank was at fault and its teller was negligent in not returning the
passbook to Calapre. The burden was on Solidbank to prove that there was
no negligence on its part or its employees.
Solidbank failed to discharge its burden. Solidbank did not present to the
trial court Teller No. 6, the teller with whom Calapre left the passbook and
who was supposed to return the passbook to him. The record does not
indicate that Teller No. 6 verified the identity of the person who retrieved the
passbook. Solidbank also failed to adduce in evidence its standard
procedure in verifying the identity of the person retrieving the passbook, if
there is such a procedure, and that Teller No. 6 implemented this procedure
in the present case.
Solidbank is bound by the negligence of its employees under the principle of
respondeat superior or command responsibility. The defense of exercising
the required diligence in the selection and supervision of employees is not a
complete defense in culpa contractual, unlike in culpa aquiliana.[25]
The bank must not only exercise high standards of integrity and
performance, it must also insure that its employees do likewise because this
is the only way to insure that the bank will comply with its fiduciary duty.
Solidbank failed to present the teller who had the duty to return to Calapre
the passbook, and thus failed to prove that this teller exercised the high
standards of integrity and performance required of Solidbanks employees.
withdrawals of large amounts are made does not direct Solidbank to call up
L.C. Diaz.
There is no law mandating banks to call up their clients whenever their
representatives withdraw significant amounts from their accounts. L.C. Diaz
therefore had the burden to prove that it is the usual practice of Solidbank to
call up its clients to verify a withdrawal of a large amount of money. L.C.
Diaz failed to do so.
Teller No. 5 who processed the withdrawal could not have been put on
guard to verify the withdrawal. Prior to the withdrawal of P300,000, the
impostor deposited with Teller No. 6 the P90,000 PBC check, which later
bounced. The impostor apparently deposited a large amount of money to
deflect suspicion from the withdrawal of a much bigger amount of money.
The appellate court thus erred when it imposed on Solidbank the duty to call
up L.C. Diaz to confirm the withdrawal when no law requires this from banks
and when the teller had no reason to be suspicious of the transaction.
Solidbank continues to foist the defense that Ilagan made the withdrawal.
Solidbank claims that since Ilagan was also a messenger of L.C. Diaz, he
was familiar with its teller so that there was no more need for the teller to
verify the withdrawal. Solidbank relies on the following statements in the
Booking and Information Sheet of Emerano Ilagan:
xxx Ilagan also had with him (before the withdrawal) a forged check of PBC
and indicated the amount of P90,000 which he deposited in favor of L.C.
Diaz and Company. After successfully withdrawing this large sum of money,
accused Ilagan gave alias Rey (Noel Tamayo) his share of the loot. Ilagan
then hired a taxicab in the amount of P1,000 to transport him (Ilagan) to his
home province at Bauan, Batangas. Ilagan extravagantly and lavishly spent
his money but a big part of his loot was wasted in cockfight and horse
racing. Ilagan was apprehended and meekly admitted his guilt.[28]
(Emphasis supplied.)
L.C. Diaz refutes Solidbanks contention by pointing out that the person who
withdrew the P300,000 was a certain Noel Tamayo. Both the trial and
appellate courts stated that this Noel Tamayo presented the passbook with
the withdrawal slip.
We uphold the finding of the trial and appellate courts that a certain Noel
Tamayo withdrew the P300,000. The Court is not a trier of facts. We find no
justifiable reason to reverse the factual finding of the trial court and the
Court of Appeals. The tellers who processed the deposit of the P90,000
check and the withdrawal of the P300,000 were not presented during trial to
substantiate Solidbanks claim that Ilagan deposited the check and made the
questioned withdrawal. Moreover, the entry quoted by Solidbank does not
categorically state that Ilagan presented the withdrawal slip and the
passbook.
Doctrine of Last Clear Chance
The doctrine of last clear chance states that where both parties are
negligent but the negligent act of one is appreciably later than that of the
other, or where it is impossible to determine whose fault or negligence
caused the loss, the one who had the last clear opportunity to avoid the loss
but failed to do so, is chargeable with the loss.[29] Stated differently, the
antecedent negligence of the plaintiff does not preclude him from recovering
damages caused by the supervening negligence of the defendant, who had
the last fair chance to prevent the impending harm by the exercise of due
diligence.[30]
We do not apply the doctrine of last clear chance to the present case.
Solidbank is liable for breach of contract due to negligence in the
performance of its contractual obligation to L.C. Diaz. This is a case of culpa
contractual, where neither the contributory negligence of the plaintiff nor his
last clear chance to avoid the loss, would exonerate the defendant from
liability.[31] Such contributory negligence or last clear chance by the plaintiff
merely serves to reduce the recovery of damages by the plaintiff but does
not exculpate the defendant from his breach of contract.[32]
Mitigated Damages
Under Article 1172, liability (for culpa contractual) may be regulated by the
courts, according to the circumstances. This means that if the defendant
exercised the proper diligence in the selection and supervision of its
employee, or if the plaintiff was guilty of contributory negligence, then the
courts may reduce the award of damages. In this case, L.C. Diaz was guilty
of contributory negligence in allowing a withdrawal slip signed by its
authorized signatories to fall into the hands of an impostor. Thus, the liability
of Solidbank should be reduced.
In Philippine Bank of Commerce v. Court of Appeals,[33] where the Court
held the depositor guilty of contributory negligence, we allocated the
damages between the depositor and the bank on a 40-60 ratio. Applying the
same ruling to this case, we hold that L.C. Diaz must shoulder 40% of the
actual damages awarded by the appellate court. Solidbank must pay the
other 60% of the actual damages.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with
MODIFICATION. Petitioner Solidbank Corporation shall pay private
respondent L.C. Diaz and Company, CPAs only 60% of the actual damages
awarded by the Court of Appeals. The remaining 40% of the actual
damages shall be borne by private respondent L.C. Diaz and Company,
CPAs. Proportionate costs.
SO ORDERED.
of
the
Philippines
COURT
THIRD DIVISION
G.R. No. 133710
PHILIPPINE
BANKING
CORPORATION,
petitioner,
vs.
COURT OF APPEALS and AMALIO L. SARMIENTO, doing business under
the firm name "A.L. SARMIENTO CONSTRUCTION," respondents.
DECISION
CORONA, J.:
Before us is a petition for review seeking the reversal of the decision of the
Court of Appeals1 dated October 22, 1997, which affirmed with modification
the decision of the Regional Trial Court, Branch 20, Makati City, dismissing
the complaint filed by petitioner Philippine Banking Corporation against
private respondent Amalio L. Sarmiento, as well as the resolution of the
Court of the Appeals dated May 14, 1998 denying petitioners motion for
reconsideration.
The facts follow.
Amalio L. Sarmiento, registered owner of A.L. Sarmiento Construction,
applied for a loan from Philippine Banking Corporation in the sum of
P4,126,000, evidenced by promissory note no. 626-84. Pursuant thereto,
Sarmiento obligated himself to pay the amount with interest at the rate of
29% per annum. Additionally, it was stipulated that if payment was not made
upon maturity of the loan, penalty charges of 1% per month and 25% of the
total amount due would be charged against him. Sarmiento signed the
aforesaid promissory note together with the disclosure statement on
loan/credit transaction provided by the bank.
Petitioner contends that the appellate court incorrectly upheld the trial
courts misinterpretation of the clear import of the entries in the bank
statement. Said document showed that the proceeds of the loan obtained by
respondent Sarmiento under promissory note no. 626-64 had been credited
to his current account no. 1025-00815-0 maintained at petitioners New
Manila Branch in the name of A.L. Sarmiento Construction. Petitioner further
alleges that its cause of action against respondent Sarmiento was
predicated upon actionable documents, the due execution and authenticity
of which respondent admitted. Thus, no proof was required of petitioner to
establish the contents of the said documents because such judicial
admissions of respondent created a prima facie case in petitioners favor.
We disagree.
It is undisputed that respondent Sarmiento signed the promissory note and
the accompanying disclosure statement on loan/credit transaction. But said
pieces of evidence proved only the existence of such documents. There
was even no question as to that because respondent Sarmiento himself
admitted the due execution thereof. The important issue was whether or not
respondent Sarmiento actually received the proceeds of the subject loan so
as to make him liable therefor, a matter which should have been ventilated
before the trial court.
The trial court did in fact make a finding that the documentary evidence of
petitioner failed to prove anything showing that respondent indeed received
the proceeds of the loan. The Court of Appeals affirmed the conclusions of
the trial court and declared:
A pre-existing obligation, it may be conceded, constitutes value and
may, of and by itself, serve as valuable and sufficient consideration for
a contract such as the loan sued upon. As an essential element of a
contract, however, the same should have been satisfactorily proved by
the appellant particularly when, as in the instant case, the absence of
consideration was precisely put in issue by the pleadings and was
buttressed by both oral and documentary evidence. Having failed in
this material respect, the appellants withdrawal of the amount
supposedly credited to the appellees account was understandably
interpreted by the court a quo as a termination/cancellation of the loan
the latter applied for. Considering further that contracts without
consideration do not exist in contemplation of law and produce no
effect whatsoever (Article 1352, Civil Code of the Philippines), the trial,
likewise, correctly dismissed the appellants case.5 (emphasis
supplied)
A statement in a written instrument regarding the payment of consideration
is merely in the nature of a receipt and may be contradicted.6 Respondent
Sarmiento denied having received the proceeds of the loan and in fact
presented evidence showing that on the day petitioner claimed to have
credited the subject amount, it was again debited or withdrawn by petitioner,
admittedly upon the instruction of the officials from petitioners head office.
Petitioner attempted to controvert this fact by claiming that the proceeds of
the loan were applied to respondents previous obligations to the bank. But
we find nothing in the records showing that respondent had other
obligations to which the proceeds of the loan could or should have been
applied. Moreover, petitioner failed to explain just exactly what said
obligations were or to what extent the purported proceeds were applied in
satisfaction thereof. What appeared clearly was that the proceeds of the
loan were deposited then withdrawn the same day by petitioner itself, thus
negating its claim that respondent actually received it. Petitioner therefore
failed to establish its case against respondent Sarmiento.
Be that as it may, the general rule is that only questions of law may be
raised in a petition for review on certiorari. The appellate jurisdiction of this
Court in cases brought to it from the Court of Appeals is limited to reviewing
and correcting the errors of law committed by the latter, the findings of fact
of the Court of Appeals being final and conclusive. In other words, the
power of this Court is limited to determining whether the legal conclusions
drawn from the findings of fact are correct. Barring a showing that the
findings of fact complained of are totally devoid of support in the records,
such determination must stand for the Court is neither expected nor
required to examine or refute the oral and documentary evidence submitted
by the parties.7
Finally, the award of litigation expenses in the sum of P20,000 should be
deleted for lack of legal basis.
WHEREFORE, the instant petition for certiorari is hereby DENIED. The
assailed decision and resolution of the Court of Appeals are AFFIRMED,
subject to the MODIFICATION that the award of P20,000 as litigation
expenses is hereby deleted.
SO ORDERED.
of
the
Philippines
COURT
SECOND DIVISION
G.R. No. 129015
DECISION
TINGA, J.:
Called to fore in the present petition is a classic textbook question if a
bank pays out on a forged check, is it liable to reimburse the drawer from
whose account the funds were paid out? The Court of Appeals, in reversing
a trial court decision adverse to the bank, invoked tenuous reasoning to
acquit the bank of liability. We reverse, applying time-honored principles of
law.
The salient facts follow.
Plaintiff Samsung Construction Company Philippines, Inc. ("Samsung
Construction"), while based in Bian, Laguna, maintained a current account
with defendant Far East Bank and Trust Company1 ("FEBTC") at the latters
Bel-Air, Makati branch.2 The sole signatory to Samsung Constructions
account was Jong Kyu Lee ("Jong"), its Project Manager,3 while the checks
remained in the custody of the companys accountant, Kyu Yong Lee
("Kyu").4
the police station and consulted with his lawyers.9 Subsequently, a criminal
case for qualified theft was filed against Sempio before the Laguna court.10
In a letter dated 6 May 1992, Samsung Construction, through counsel,
demanded that FEBTC credit to it the amount of Nine Hundred Ninety Nine
Thousand Five Hundred Pesos (P999,500.00), with interest.11 In response,
FEBTC said that it was still conducting an investigation on the matter.
Unsatisfied, Samsung Construction filed a Complaint on 10 June 1992 for
violation of Section 23 of the Negotiable Instruments Law, and prayed for
the payment of the amount debited as a result of the questioned check plus
interest, and attorneys fees.12 The case was docketed as Civil Case No. 9261506 before the Regional Trial Court ("RTC") of Manila, Branch 9.13
During the trial, both sides presented their respective expert witnesses to
testify on the claim that Jongs signature was forged. Samsung Corporation,
which had referred the check for investigation to the NBI, presented Senior
NBI Document Examiner Roda B. Flores. She testified that based on her
examination, she concluded that Jongs signature had been forged on the
check. On the other hand, FEBTC, which had sought the assistance of the
Philippine National Police (PNP),14 presented Rosario C. Perez, a document
examiner from the PNP Crime Laboratory. She testified that her findings
showed that Jongs signature on the check was genuine.15
Confronted with conflicting expert testimony, the RTC chose to believe the
findings of the NBI expert. In a Decision dated 25 April 1994, the RTC held
that Jongs signature on the check was forged and accordingly directed the
bank to pay or credit back to Samsung Constructions account the amount
of Nine Hundred Ninety Nine Thousand Five Hundred Pesos (P999,500.00),
together with interest tolled from the time the complaint was filed, and
attorneys fees in the amount of Fifteen Thousand Pesos (P15,000.00).
FEBTC timely appealed to the Court of Appeals. On 28 November 1996, the
Special Fourteenth Division of the Court of Appeals rendered a Decision,16
reversing the RTC Decision and absolving FEBTC from any liability. The
Court of Appeals held that the contradictory findings of the NBI and the PNP
created doubt as to whether there was forgery.17 Moreover, the appellate
court also held that assuming there was forgery, it occurred due to the
negligence of Samsung Construction, imputing blame on the accountant
Kyu for lack of care and prudence in keeping the checks, which if observed
would have prevented Sempio from gaining access thereto.18 The Court of
Appeals invoked the ruling in PNB v. National City Bank of New York19 that,
if a loss, which must be borne by one or two innocent persons, can be
traced to the neglect or fault of either, such loss would be borne by the
negligent party, even if innocent of intentional fraud.20
Samsung Construction now argues that the Court of Appeals had seriously
misapprehended the facts when it overturned the RTCs finding of forgery. It
also contends that the appellate court erred in finding that it had been
negligent in safekeeping the check, and in applying the equity principle
enunciated in PNB v. National City Bank of New York.
Since the trial court and the Court of Appeals arrived at contrary findings on
questions of fact, the Court is obliged to examine the record to draw out the
correct conclusions. Upon examination of the record, and based on the
applicable laws and jurisprudence, we reverse the Court of Appeals.
Section 23 of the Negotiable Instruments Law states:
When a signature is forged or made without the authority of the person
whose signature it purports to be, it is wholly inoperative, and no right
to retain the instrument, or to give a discharge therefor, or to enforce
payment thereof against any party thereto, can be acquired through or
under such signature, unless the party against whom it is sought to
enforce such right is precluded from setting up the forgery or want of
authority. (Emphasis supplied)
The general rule is to the effect that a forged signature is "wholly
inoperative," and payment made "through or under such signature" is
ineffectual or does not discharge the instrument.21 If payment is made, the
drawee cannot charge it to the drawers account. The traditional justification
for the result is that the drawee is in a superior position to detect a forgery
because he has the makers signature and is expected to know and
compare it.22 The rule has a healthy cautionary effect on banks by
encouraging care in the comparison of the signatures against those on the
signature cards they have on file. Moreover, the very opportunity of the
drawee to insure and to distribute the cost among its customers who use
checks makes the drawee an ideal party to spread the risk to insurance.23
Brady, in his treatise The Law of Forged and Altered Checks, elucidates:
handwriting experts from the NBI and the PNP, both agencies of the
government.
xxx
These contradictory findings create doubt on whether there was indeed
a forgery. In the case of Tenio-Obsequio v. Court of Appeals, 230
SCRA 550, the Supreme Court held that forgery cannot be presumed;
it must be proved by clear, positive and convincing evidence.
This reasoning is pure sophistry. Any litigator worth his or her salt would
never allow an opponents expert witness to stand uncontradicted, thus the
spectacle of competing expert witnesses is not unusual. The trier of fact will
have to decide which version to believe, and explain why or why not such
version is more credible than the other. Reliance therefore cannot be placed
merely on the fact that there are colliding opinions of two experts, both
clothed with the presumption of official duty, in order to draw a conclusion,
especially one which is extremely crucial. Doing so is tantamount to a
jurisprudential cop-out.
Much is expected from the Court of Appeals as it occupies the penultimate
tier in the judicial hierarchy. This Court has long deferred to the appellate
court as to its findings of fact in the understanding that it has the appropriate
skill and competence to plough through the minutiae that scatters the factual
field. In failing to thoroughly evaluate the evidence before it, and relying
instead on presumptions haphazardly drawn, the Court of Appeals was
sadly remiss. Of course, courts, like humans, are fallible, and not every error
deserves a stern rebuke. Yet, the appellate courts error in this case
warrants special attention, as it is absurd and even dangerous as a
precedent. If this rationale were adopted as a governing standard by every
court in the land, barely any actionable claim would prosper, defeated as it
would be by the mere invocation of the existence of a contrary "expert"
opinion.
On the other hand, the RTC did adjudge the testimony of the NBI expert as
more credible than that of the PNP, and explained its reason behind the
conclusion:
After subjecting the evidence of both parties to a crucible of analysis,
the court arrived at the conclusion that the testimony of the NBI
(45) with the previous stroke. The difference is glaring, and indeed, the
PNP examiner was confronted with the inconsistency in point no. 6.
Q: Now, in this questioned document point no. 6, the "s" stroke is
directly upwards.
A: Yes, sir.
Q: Now, can you look at all these standard signature (sic) were (sic)
point 6 is repeated or the last stroke "s" is pointing directly upwards?
A: There is none in the standard signature, sir.37
Again, the PNP examiner downplayed the uniqueness of the final stroke in
the questioned signature as a mere variation,38 the same excuse she
proffered for the other marked differences noted by the Court and the
counsel for petitioner.39
There is no reason to doubt why the RTC gave credence to the testimony of
the NBI examiner, and not the PNP experts. The NBI expert, Rhoda Flores,
clearly qualifies as an expert witness. A document examiner for fifteen
years, she had been promoted to the rank of Senior Document Examiner
with the NBI, and had held that rank for twelve years prior to her testimony.
She had placed among the top five examinees in the Competitive Seminar
in Question Document Examination, conducted by the NBI Academy, which
qualified her as a document examiner.40 She had trained with the Royal
Hongkong Police Laboratory and is a member of the International
Association for Identification.41 As of the time she testified, she had
examined more than fifty to fifty-five thousand questioned documents, on an
average of fifteen to twenty documents a day.42 In comparison, PNP
document examiner Perez admitted to having examined only around five
hundred documents as of her testimony.43
In analyzing the signatures, NBI Examiner Flores utilized the scientific
comparative examination method consisting of analysis, recognition,
comparison and evaluation of the writing habits with the use of instruments
such as a magnifying lense, a stereoscopic microscope, and varied lighting
substances. She also prepared enlarged photographs of the signatures in
order to facilitate the necessary comparisons.44 She compared the
questioned signature as against ten (10) other sample signatures of Jong.
negligence was the cause for the forgery. Employers do not possess the
preternatural gift of cognition as to the evil that may lurk within the hearts
and minds of their employees. The Courts pronouncement in PCI Bank v.
Court of Appeals53 applies in this case, to wit:
[T]he mere fact that the forgery was committed by a drawer-payors
confidential employee or agent, who by virtue of his position had
unusual facilities for perpetrating the fraud and imposing the forged
paper upon the bank, does not entitle the bank to shift the loss to the
drawer-payor, in the absence of some circumstance raising estoppel
against the drawer.54
Admittedly, the record does not clearly establish what measures Samsung
Construction employed to safeguard its blank checks. Jong did testify that
his accountant, Kyu, kept the checks inside a "safety box,"55 and no contrary
version was presented by FEBTC. However, such testimony cannot prove
that the checks were indeed kept in a safety box, as Jongs testimony on
that point is hearsay, since Kyu, and not Jong, would have the personal
knowledge as to how the checks were kept.
Still, in the absence of evidence to the contrary, we can conclude that there
was no negligence on Samsung Constructions part. The presumption
remains that every person takes ordinary care of his concerns,56 and that
the ordinary course of business has been followed.57 Negligence is not
presumed, but must be proven by him who alleges it.58 While the complaint
was lodged at the instance of Samsung Construction, the matter it had to
prove was the claim it had alleged - whether the check was forged. It cannot
be required as well to prove that it was not negligent, because the legal
presumption remains that ordinary care was employed.
Thus, it was incumbent upon FEBTC, in defense, to prove the negative fact
that Samsung Construction was negligent. While the payee, as in this case,
may not have the personal knowledge as to the standard procedures
observed by the drawer, it well has the means of disputing the presumption
of regularity. Proving a negative fact may be "a difficult office,"59 but
necessarily so, as it seeks to overcome a presumption in law. FEBTC was
unable to dispute the presumption of ordinary care exercised by Samsung
Construction, hence we cannot agree with the Court of Appeals finding of
negligence.
transact business with them. They have the obligation to treat their
clients account meticulously and with the highest degree of care,
considering the fiduciary nature of their relationship. The diligence
required of banks, therefore, is more than that of a good father of a
family.76
Given the circumstances, extraordinary diligence dictates that FEBTC
should have ascertained from Jong personally that the signature in the
questionable check was his.
Still, even if the bank performed with utmost diligence, the drawer whose
signature was forged may still recover from the bank as long as he or she is
not precluded from setting up the defense of forgery. After all, Section 23 of
the Negotiable Instruments Law plainly states that no right to enforce the
payment of a check can arise out of a forged signature. Since the drawer,
Samsung Construction, is not precluded by negligence from setting up the
forgery, the general rule should apply. Consequently, if a bank pays a
forged check, it must be considered as paying out of its funds and cannot
charge the amount so paid to the account of the depositor.77 A bank is
liable, irrespective of its good faith, in paying a forged check.78
WHEREFORE, the Petition is GRANTED. The Decision of the Court of
Appeals dated 28 November 1996 is REVERSED, and the Decision of the
Regional Trial Court of Manila, Branch 9, dated 25 April 1994 is
REINSTATED. Costs against respondent.
SO ORDERED.
of
the
Philippines
COURT
SECOND DIVISION
G.R. No. 125585
June 8, 2005
Upon learning of their right to the subject lot, the Cruzes immediately tried to
confront petitioners on the mortgage and obtain the surrender of the OCT.
The Cruzes, however, were thwarted in their bid to see the heirs. On the
advice of the Bureau of Lands, NCR Office, they brought the matter to the
barangay captain of Barangay Panghulo, Obando, Bulacan. During the
hearing, petitioners were informed that the Cruzes had a legal right to the
property covered by OCT and needed the OCT for the purpose of securing
a separate title to cover the interest of Ricardo. Petitioners, however, were
unwilling to surrender the OCT.14
Having failed to physically obtain the title from petitioners, in July 1989, the
Cruzes instead went to RBSP which had custody of the owners duplicate
certificate of the OCT, earlier surrendered as a consequence of the
mortgage. Transacting with RBSPs manager, Jose Salazar (Salazar), the
Cruzes sought to borrow the owners duplicate certificate for the purpose of
photocopying the same and thereafter showing a copy thereof to the
Register of Deeds. Salazar allowed the Cruzes to bring the owners
duplicate certificate outside the bank premises when the latter showed the
Kasulatan.15 The Cruzes returned the owners duplicate certificate on the
same day after having copied the same. They then brought the copy of the
OCT to Register of Deeds Jose Flores (Flores) of Meycauayan and showed
the same to him to secure his legal opinion as to how the Cruzes could
legally protect their interest in the property and register the same.16 Flores
suggested the preparation of a subdivision plan to be able to segregate the
area purchased by Ricardo from Eduardo and have the same covered by a
separate title.17
Thereafter, the Cruzes solicited the opinion of Ricardo Arandilla (Arandilla),
Land Registration Officer, Director III, Legal Affairs Department, Land
Registration Authority at Quezon City, who agreed with the advice given by
Flores.18 Relying on the suggestions of Flores and Arandilla, the Cruzes
hired two geodetic engineers to prepare the corresponding subdivision plan.
The subdivision plan was presented to the Land Management Bureau,
Region III, and there it was approved by a certain Mr. Pambid of said office
on 21 July 1989.
After securing the approval of the subdivision plan, the Cruzes went back to
RBSP and again asked for the owners duplicate certificate from Salazar.
The Cruzes informed him that the presentation of the owners duplicate
certificate was necessary, per advise of the Register of Deeds, for the
cancellation of the OCT and the issuance in lieu thereof of two separate
titles in the names of Ricardo and Eduardo in accordance with the approved
subdivision plan.19 Before giving the owners duplicate certificate, Salazar
required the Cruzes to see Atty. Renato Santiago (Atty. Santiago), legal
counsel of RBSP, to secure from the latter a clearance to borrow the title.
Atty. Santiago would give the clearance on the condition that only Cruzes
put up a substitute collateral, which they did.20 As a result, the Cruzes got
hold again of the owners duplicate certificate.
After the Cruzes presented the owners duplicate certificate, along with the
deeds of sale and the subdivision plan, the Register of Deeds cancelled the
OCT and issued in lieu thereof TCT No. T-9326-P(M) covering 603 square
meters of Lot No. 2204 in the name of Ricardo and TCT No. T-9327-P(M)
covering the remaining 455 square meters in the name of Eduardo.21
On 9 August 1989, the Cruzes went back to the bank and surrendered to
Salazar TCT No. 9327-P(M) in the name of Eduardo and retrieved the title
they had earlier given as substitute collateral. After securing the new
separate titles, the Cruzes furnished petitioners with a copy of TCT No.
9327-P(M) through the barangay captain and paid the real property tax for
1989.22
The Cruzes also sent a formal letter to Guillermo Reyes, Jr., Director,
Supervision Sector, Department III of the Central Bank of the Philippines,
inquiring whether they committed any violation of existing bank laws under
the circumstances. A certain Zosimo Topacio, Jr. of the Supervision Sector
sent a reply letter advising the Cruzes, since the matter is between them
and the bank, to get in touch with the bank for the final settlement of the
case.23
In October of 1989, Banaag went to RBSP, intending to tender full payment
of the mortgage obligation. It was only then that he learned of the dealings
of the Cruzes with the bank which eventually led to the subdivision of the
subject lot and the issuance of two separate titles thereon. In exchange for
the full payment of the loan, RBSP tried to persuade petitioners to accept
TCT No. T-9327-P(M) in the name of Eduardo.24
As a result, three (3) cases were lodged, later consolidated, with the trial
court, all involving the issuance of the TCTs, to wit:
(1) Civil Case No. 650-M-89, for reconveyance with damages filed by
the heirs of Eduardo Manlapat against Consuelo Cruz, Rosalina CruzBautista, Rural Bank of San Pascual, Jose Salazar and Jose Flores, in
his capacity as Deputy Registrar, Meycauayan Branch of the Registry
of Deeds of Bulacan;
(2) Civil Case No. 141-M-90 for damages filed by Jose Salazar against
Consuelo Cruz, et. [sic] al.; and
(3) Civil Case No. 644-M-89, for declaration of nullity of title with
damages filed by Rural Bank of San Pascual, Inc. against the spouses
Ricardo Cruz and Consuelo Cruz, et al.25
After trial of the consolidated cases, the RTC of Malolos rendered a decision
in favor of the heirs of Eduardo, the dispositive portion of which reads:
WHEREFORE, premised from the foregoing, judgment is hereby rendered:
1.Declaring Transfer Certificates of Title Nos. T-9326-P(M) and T9327-P(M) as void ab initio and ordering the Register of Deeds,
Meycauayan Branch to cancel said titles and to restore Original
Certificate of Title No. P-153(M) in the name of plaintiffs predecessorin-interest Eduardo Manlapat;
2.-Ordering the defendants Rural Bank of San Pascual, Jose Salazar,
Consuelo Cruz and Rosalina Cruz-Bautista, to pay the plaintiffs Heirs
of Eduardo Manlapat, jointly and severally, the following:
a)P200,000.00 as moral damages;
b)P50,000.00 as exemplary damages;
c)P20,000.00 as attorneys fees; and
d)the costs of the suit.
3.Dismissing the counterclaims.
SO ORDERED."26
The trial court found that petitioners were entitled to the reliefs of
reconveyance and damages. On this matter, it ruled that petitioners were
warning that he should deal with his future transactions more carefully and
in the strictest sense as a responsible government official.29
Aggrieved by the decision of the trial court, RBSP, Salazar and the Cruzes
appealed to the Court of Appeals. The appellate court, however, reversed
the decision of the RTC. The decretal text of the decision reads:
THE FOREGOING CONSIDERED, the appealed decision is hereby
reversed and set aside, with costs against the appellees.
SO ORDERED.30
The appellate court ruled that petitioners were not bona fide mortgagors
since as early as 1954 or before the 1981 mortgage, Eduardo already sold
to Ricardo a portion of the subject lot with an area of 553 square meters.
This fact, the Court of Appeals noted, is even supported by a document of
sale signed by Eduardo Jr. and Engracia Aniceto, the surviving spouse of
Eduardo, and registered with the Register of Deeds of Bulacan. The
appellate court also found that on 18 March 1981, for the second time,
Eduardo sold to Ricardo a separate area containing 50 square meters, as a
road right-of-way.31 Clearly, the OCT was issued only after the first sale. It
also noted that the title was given to the Cruzes by RBSP voluntarily, with
knowledge even of the banks counsel.32 Hence, the imposition of damages
cannot be justified, the Cruzes themselves being the owners of the property.
Certainly, Eduardo misled the bank into accepting the entire area as a
collateral since the 603-square meter portion did not anymore belong to
him. The appellate court, however, concluded that there was no conspiracy
between the bank and Salazar.33
Hence, this petition for review on certiorari.
Petitioners ascribe errors to the appellate court by asking the following
questions, to wit: (a) can a mortgagor be compelled to receive from the
mortgagee a smaller portion of the originally encumbered title partitioned
during the subsistence of the mortgage, without the knowledge of, or
authority derived from, the registered owner; (b) can the mortgagee
question the veracity of the registered title of the mortgagor, as noted in the
owners duplicate certificate, and thus, deliver the certificate to such third
persons, invoking an adverse, prior, and unregistered claim against the
registered title of the mortgagor; (c) can an adverse prior claim against a
(Cruzes)
own
Consonant with law and justice, the ultimate denouement of the property
dispute lies in the determination of the respective bases of the warring
claims. Here, as in other legal disputes, what is written generally deserves
credence.
A careful perusal of the evidence on record reveals that the Cruzes have
sufficiently proven their claim of ownership over the portion of Lot No. 2204
with an area of 553 square meters. The duly notarized instrument of
conveyance was executed in 1954 to which no less than Eduardo was a
signatory. The execution of the deed of sale was rendered beyond doubt by
Eduardos admission in his Sinumpaang Salaysay dated 24 April 1963.35
These documents make the affirmance of the right of the Cruzes
ineluctable. The apparent irregularity, however, in the obtention of the
owners duplicate certificate from the bank, later to be presented to the
Register of Deeds to secure the issuance of two new TCTs in place of the
OCT, is another matter.
Petitioners argue that the 1954 deed of sale was not annotated on the OCT
which was issued in 1976 in favor of Eduardo; thus, the Cruzes claim of
ownership based on the sale would not hold water. The Court is not
persuaded.
Registration is not a requirement for validity of the contract as between the
parties, for the effect of registration serves chiefly to bind third persons.36
The principal purpose of registration is merely to notify other persons not
parties to a contract that a transaction involving the property had been
entered into. Where the party has knowledge of a prior existing interest
which is unregistered at the time he acquired a right to the same land, his
knowledge of that prior unregistered interest has the effect of registration as
to him.37
Further, the heirs of Eduardo cannot be considered third persons for
purposes of applying the rule. The conveyance shall not be valid against
any person unless registered, except (1) the grantor, (2) his heirs and
devisees, and (3) third persons having actual notice or knowledge thereof.38
Not only are petitioners the heirs of Eduardo, some of them were actually
parties to the Kasulatan executed in favor of Ricardo. Thus, the annotation
of the adverse claim of the Cruzes on the OCT is no longer required to bind
the heirs of Eduardo, petitioners herein.
Petitioners
had
no
mortgage over disputed portion
right
to
constitute
The requirements of a valid mortgage are clearly laid down in Article 2085 of
the New Civil Code, viz:
ART. 2085. The following requisites are essential to the contracts of pledge
and mortgage:
(1) That they be constituted to secure the fulfillment of a principal
obligation;
(2) That the pledgor or mortgagor be the absolute owner of the thing
pledged or mortgaged;
(3) That the persons constituting the pledge or mortgage have the free
disposal of their property, and in the absence thereof, that they be
legally authorized for the purpose.
Third persons who are not parties to the principal obligation may secure the
latter by pledging or mortgaging their own property. (emphasis supplied)
For a person to validly constitute a valid mortgage on real estate, he must
be the absolute owner thereof as required by Article 2085 of the New Civil
Code.39 The mortgagor must be the owner, otherwise the mortgage is
void.40 In a contract of mortgage, the mortgagor remains to be the owner of
the property although the property is subjected to a lien.41 A mortgage is
regarded as nothing more than a mere lien, encumbrance, or security for a
debt, and passes no title or estate to the mortgagee and gives him no right
or claim to the possession of the property.42 In this kind of contract, the
property mortgaged is merely delivered to the mortgagee to secure the
fulfillment of the principal obligation.43 Such delivery does not empower the
mortgagee to convey any portion thereof in favor of another person as the
right to dispose is an attribute of ownership.44 The right to dispose includes
the right to donate, to sell, to pledge or mortgage. Thus, the mortgagee, not
being the owner of the property, cannot dispose of the whole or part thereof
nor cause the impairment of the security in any manner without violating the
foregoing rule.45 The mortgagee only owns the mortgage credit, not the
property itself.46
Petitioners submit as an issue whether a mortgagor may be compelled to
receive from the mortgagee a smaller portion of the lot covered by the
originally encumbered title, which lot was partitioned during the subsistence
of the mortgage without the knowledge or authority of the mortgagor as
registered owner. This formulation is disingenuous, baselessly assuming, as
it does, as an admitted fact that the mortgagor is the owner of the
mortgaged property in its entirety. Indeed, it has not become a salient issue
in this case since the mortgagor was not the owner of the entire mortgaged
property in the first place.
Issuance of OCT No. P-153(M), improper
It is a glaring fact that OCT No. P-153(M) covering the property mortgaged
was in the name of Eduardo, without any annotation of any prior disposition
or encumbrance. However, the property was sufficiently shown to be not
entirely owned by Eduardo as evidenced by the Kasulatan. Readily
apparent upon perusal of the records is that the OCT was issued in 1976,
long after the Kasulatan was executed way back in 1954. Thus, a portion of
the property registered in Eduardos name arising from the grant of free
patent did not actually belong to him. The utilization of the Torrens system
to perpetrate fraud cannot be accorded judicial sanction.
Time and again, this Court has ruled that the principle of indefeasibility of a
Torrens title does not apply where fraud attended the issuance of the title,
as was conclusively established in this case. The Torrens title does not
furnish a shied for fraud.47 Registration does not vest title. It is not a mode of
acquiring ownership but is merely evidence of such title over a particular
property. It does not give the holder any better right than what he actually
has, especially if the registration was done in bad faith. The effect is that it is
as if no registration was made at all.48 In fact, this Court has ruled that a
decree of registration cut off or extinguished a right acquired by a person
when such right refers to a lien or encumbrance on the landnot to the right
of ownership thereofwhich was not annotated on the certificate of title
issued thereon.49
Issuance
of
and T-9327-P(M), Valid
TCT
Nos.
T-9326-P(M)
The validity of the issuance of two TCTs, one for the portion sold to the
predecessor-in-interest of the Cruzes and the other for the portion retained
by petitioners, is readily apparent from Section 53 of the Presidential Decree
(P.D.) No. 1529 or the Property Registration Decree. It provides:
SEC 53. Presentation of owners duplicate upon entry of new certificate.
No voluntary instrument shall be registered by the Register of Deeds, unless
the owners duplicate certificate is presented with such instrument, except in
cases expressly provided for in this Decree or upon order of the court, for
cause shown.
The production of the owners duplicate certificate, whenever any voluntary
instrument is presented for registration, shall be conclusive authority from
the registered owner to the Register of Deeds to enter a new certificate or to
make a memorandum of registration in accordance with such instrument,
and the new certificate or memorandum shall be binding upon the registered
owner and upon all persons claiming under him, in favor of every purchaser
for value and in good faith.
In all cases of registration procured by fraud, the owner may pursue all his
legal and equitable remedies against the parties to such fraud without
prejudice, however, to the rights of any innocent holder of the decree of
registration on the original petition or application, any subsequent
registration procured by the presentation of a forged duplicate certificate of
title, or a forged deed or instrument, shall be null and void. (emphasis
supplied)
Petitioners argue that the issuance of the TCTs violated the third paragraph
of Section 53 of P.D. No. 1529. The argument is baseless. It must be noted
that the provision speaks of forged duplicate certificate of title and forged
deed or instrument. Neither instance obtains in this case. What the Cruzes
presented before the Register of Deeds was the very genuine owners
duplicate certificate earlier deposited by Banaag, Eduardos attorney-in-fact,
with RBSP. Likewise, the instruments of conveyance are authentic, not
forged. Section 53 has never been clearer on the point that as long as the
owners duplicate certificate is presented to the Register of Deeds together
with the instrument of conveyance, such presentation serves as conclusive
authority to the Register of Deeds to issue a transfer certificate or make a
memorandum of registration in accordance with the instrument.
The records of the case show that despite the efforts made by the Cruzes in
persuading the heirs of Eduardo to allow them to secure a separate TCT on
the claimed portion, their ownership being amply evidenced by the
Kasulatan and Sinumpaang Salaysay where Eduardo himself
acknowledged the sales in favor of Ricardo, the heirs adamantly rejected
the notion of separate titling. This prompted the Cruzes to approach the
bank manager of RBSP for the purpose of protecting their property right.
They succeeded in persuading the latter to lend the owners duplicate
certificate. Despite the apparent irregularity in allowing the Cruzes to get
hold of the owners duplicate certificate, the bank officers consented to the
Cruzes plan to register the deeds of sale and secure two new separate
titles, without notifying the heirs of Eduardo about it.
Further, the law on the matter, specifically P.D. No. 1529, has no explicit
requirement as to the manner of acquiring the owners duplicate for
purposes of issuing a TCT. This led the Register of Deeds of Meycauayan
as well as the Central Bank officer, in rendering an opinion on the legal
feasibility of the process resorted to by the Cruzes. Section 53 of P.D. No.
1529 simply requires the production of the owners duplicate certificate,
whenever any voluntary instrument is presented for registration, and the
same shall be conclusive authority from the registered owner to the Register
of Deeds to enter a new certificate or to make a memorandum of
registration in accordance with such instrument, and the new certificate or
memorandum shall be binding upon the registered owner and upon all
persons claiming under him, in favor of every purchaser for value and in
good faith.
Quite interesting, however, is the contention of the heirs of Eduardo that the
surreptitious lending of the owners duplicate certificate constitutes fraud
within the ambit of the third paragraph of Section 53 which could nullify the
eventual issuance of the TCTs. Yet we cannot subscribe to their position.
Impelled by the inaction of the heirs of Eduardo as to their claim, the Cruzes
went to the bank where the property was mortgaged. Through its manager
and legal officer, they were assured of recovery of the claimed parcel of
land since they are the successors-in-interest of the real owner thereof.
Relying on the bank officers opinion as to the legality of the means sought
to be employed by them and the suggestion of the Central Bank officer that
the matter could be best settled between them and the bank, the Cruzes
pursued the titling of the claimed portion in the name of Ricardo. The
Register of Deeds eventually issued the disputed TCTs.
The Cruzes resorted to such means to protect their interest in the property
that rightfully belongs to them only because of the bank officers
acquiescence thereto. The Cruzes could not have secured a separate TCT
in the name of Ricardo without the banks approval. Banks, their business
being impressed with public interest, are expected to exercise more care
and prudence than private individuals in their dealings, even those involving
registered lands.50 The highest degree of diligence is expected, and high
standards of integrity and performance are even required of it.51
Indeed, petitioners contend that the mortgagee cannot question the veracity
of the registered title of the mortgagor as noted in the owners duplicate
certificate, and, thus, he cannot deliver the certificate to such third persons
invoking an adverse, prior, and unregistered claim against the registered
title of the mortgagor. The strength of this argument is diluted by the
peculiar factual milieu of the case.
A mortgagee can rely on what appears on the certificate of title presented
by the mortgagor and an innocent mortgagee is not expected to conduct an
exhaustive investigation on the history of the mortgagors title. This rule is
strictly applied to banking institutions. A mortgagee-bank must exercise due
diligence before entering into said contract. Judicial notice is taken of the
standard practice for banks, before approving a loan, to send
representatives to the premises of the land offered as collateral and to
investigate who the real owners thereof are.52
Banks, indeed, should exercise more care and prudence in dealing even
with registered lands, than private individuals, as their business is one
affected with public interest. Banks keep in trust money belonging to their
depositors, which they should guard against loss by not committing any act
of negligence that amounts to lack of good faith. Absent good faith, banks
would be denied the protective mantle of the land registration statute, Act
496, which extends only to purchasers for value and good faith, as well as
to mortgagees of the same character and description.53 Thus, this Court
clarified that the rule that persons dealing with registered lands can rely
solely on the certificate of title does not apply to banks.54
Bank Liable for Nominal Damages
Of deep concern to this Court, however, is the fact that the bank lent the
owners duplicate of the OCT to the Cruzes when the latter presented the
instruments of conveyance as basis of their claim of ownership over a
portion of land covered by the title. Simple rationalization would dictate that
a mortgagee-bank has no right to deliver to any stranger any property
entrusted to it other than to those contractually and legally entitled to its
possession. Although we cannot dismiss the banks acknowledgment of the
Cruzes claim as legitimized by instruments of conveyance in their
possession, we nonetheless cannot sanction how the bank was inveigled to
do the bidding of virtual strangers. Undoubtedly, the banks cooperative
stance facilitated the issuance of the TCTs. To make matters worse, the
bank did not even notify the heirs of Eduardo. The conduct of the bank is as
dangerous as it is unthinkably negligent. However, the aspect does not
impair the right of the Cruzes to be recognized as legitimate owners of their
portion of the property.
Undoubtedly, in the absence of the banks participation, the Register of
Deeds could not have issued the disputed TCTs. We cannot find fault on the
part of the Register of Deeds in issuing the TCTs as his authority to issue
the same is clearly sanctioned by law. It is thus ministerial on the part of the
Register of Deeds to issue TCT if the deed of conveyance and the original
owners duplicate are presented to him as there appears on theface of the
instruments no badge of irregularity or nullity.55 If there is someone to blame
for the shortcut resorted to by the Cruzes, it would be the bank itself whose
manager and legal officer helped the Cruzes to facilitate the issuance of the
TCTs.1avvphi1
The bank should not have allowed complete strangers to take possession of
the owners duplicate certificate even if the purpose is merely for
photocopying for a danger of losing the same is more than imminent. They
should be aware of the conclusive presumption in Section 53. Such act
constitutes manifest negligence on the part of the bank which would
necessarily hold it liable for damages under Article 1170 and other relevant
provisions of the Civil Code.56
In the absence of evidence, the damages that may be awarded may be in
the form of nominal damages. Nominal damages are adjudicated in order
that a right of the plaintiff, which has been violated or invaded by the
defendant, may be vindicated or recognized, and not for the purpose of
indemnifying the plaintiff for any loss suffered by him.57 This award rests on
the mortgagors right to rely on the banks observance of the highest
diligence in the conduct of its business. The act of RBSP of entrusting to
respondents the owners duplicate certificate entrusted to it by the
mortgagor without even notifying the mortgagor and absent any prior
investigation on the veracity of respondents claim and character is a patent
failure to foresee the risk created by the act in view of the provisions of
Section 53 of P.D. No. 1529. This act runs afoul of every banks mandate to
observe the highest degree of diligence in dealing with its clients. Moreover,
a mortgagor has also the right to be afforded due process before deprivation
or diminution of his property is effected as the OCT was still in the name of
Eduardo. Notice and hearing are indispensable elements of this right which
the bank miserably ignored.
Under the circumstances, the Court believes the award of P50,000.00 as
nominal damages is appropriate.
Five-Year
Prohibition
or encumbrance under the Public Land Act
against
alienation
One vital point. Apparently glossed over by the courts below and the parties
is an aspect which is essential, spread as it is all over the record and
intertwined with the crux of the controversy, relating as it does to the validity
of the dispositions of the subject property and the mortgage thereon.
Eduardo was issued a title in 1976 on the basis of his free patent
application. Such application implies the recognition of the public dominion
character of the land and, hence, the five (5)-year prohibition imposed by
the Public Land Act against alienation or encumbrance of the land covered
by a free patent or homestead58 should have been considered.
The deed of sale covering the fifty (50)-square meter right of way executed
by Eduardo on 18 March 1981 is obviously covered by the proscription, the
free patent having been issued on 8 October 1976. However, petitioners
may recover the portion sold since the prohibition was imposed in favor of
the free patent holder. In Philippine National Bank v. De los Reyes,59 this
Court ruled squarely on the point, thus:
While the law bars recovery in a case where the object of the contract is
contrary to law and one or both parties acted in bad faith, we cannot here
apply the doctrine of in pari delicto which admits of an exception, namely,
that when the contract is merely prohibited by law, not illegal per se, and the
prohibition is designed for the protection of the party seeking to recover, he
is entitled to the relief prayed for whenever public policy is enhanced
thereby. Under the Public Land Act, the prohibition to alienate is predicated
on the fundamental policy of the State to preserve and keep in the family of
the homesteader that portion of public land which the State has gratuitously
given to him, and recovery is allowed even where the land acquired under
the Public Land Act was sold and not merely encumbered, within the
prohibited period.60
The sale of the 553 square meter portion is a different story. It was executed
in 1954, twenty-two (22) years before the issuance of the patent in 1976.
Apparently, Eduardo disposed of the portion even before he thought of
applying for a free patent. Where the sale or transfer took place before the
filing of the free patent application, whether by the vendor or the vendee, the
prohibition should not be applied. In such situation, neither the prohibition
nor the rationale therefor which is to keep in the family of the patentee that
portion of the public land which the government has gratuitously given him,
by shielding him from the temptation to dispose of his landholding, could be
relevant. Precisely, he had disposed of his rights to the lot even before the
government could give the title to him.
The mortgage executed in favor of RBSP is also beyond the pale of the
prohibition, as it was forged in December 1981 a few months past the period
of prohibition.
WHEREFORE, the Decision of the Court of Appeals is AFFIRMED, subject
to the modifications herein. Respondent Rural Bank of San Pascual is
hereby ORDERED to PAY petitioners Fifty Thousand Pesos (P50,000.00)
by way of nominal damages. Respondents Consuelo Cruz and Rosalina
DE C I S I O N
CHICO-NAZARIO, J.:
This petition for review on certiorari under Rule 45 of the 1997 Rules of
Civil Procedure, as amended, seeks to reverse the Decision[1] dated 19
December 2002, and the Resolution[2] dated 02 April 2003, both of the
Court of Appeals, in CA-G.R. CV No. 59389, which affirmed with
modification the Decision[3] rendered by the Regional Trial Court (RTC),
Branch 07 of Manila, dated 10 January 1997, in Civil Case No. 94-68821 in
favor of herein respondent Norman Pike (Pike).
Davasol; that complainant Pike also discovered that Davasol made two (2)
unauthorized withdrawals from his U.S. Dollar Savings Account No. 0265704591-0, both times at the PNB Buendia branch on the following dates:
DATE
31 March 1993
05 April 1993
TOTAL
AMOUNT
$3,500.00
4,000.00
$7,500.00
Sir:
In connection with the request of my sister, Mrs.
Josephine P. Balmaceda for the hold-order on my dollar
savings passbook No. 265-704591-0, I am now
requesting your good office to lift the same so I can
withdraw the remaining balance of my passbook which
was reported lost sometime in March of this year.
I also promise not to hold responsible the bank
and its officers for the withdrawal made on my dollar
savings passbook on March 19 and April 5, 1993
respectively as a result of the lost (sic) of my passbook.
Sgd. NORMAN Y. PIKE
Depositor
Philippine Passport
No. H918022
Issued at Manila on
Sept. 6, 1990
Place of Issuance
The trial court, in its decision dated 10 January 1997, made the
following findings of fact:
2.
3.
I.
WHETHER OR NOT THE PRINCIPLE OF ESTOPPEL
WAS NOT PROPERLY APPLIED IN THIS CASE;
II.
WHETHER
OR
NOT
RESPONDENT
HAVE
SUBSTANTIALLY PROVEN THAT THE SIGNATURES
APPEARING ON THE TWO (2) QUESTIONED PRESIGNED WITHDRAWAL SLIP FORMS ARE ALL
FORGERIES IN ACCORDANCE WITH SECTION 22,
RULE 132 OF THE REVISED RULES OF COURT; and
III.
are questions of fact and not of law. Inexorably, these issues call
for an inquiry into the facts and evidence on record. This, as we
have so often held, we cannot do.
Q:
A:
Q:
When it (sic)
immediately?
was
(sic)
presented
to
you
A:
Yes, sir.
Q:
A:
Q:
A:
Received.
Q:
A:
Q:
A:
Yes, sir.
Q:
A:
Yes, sir.
Q:
A:
Q:
in
the
Rules
and
A:
Q:
A:
Q:
A:
Yes, sir.
Q:
A:
Yes, sir.
Q:
A:
Yes, sir.
Q:
A:
Q:
A:
Yes, sir.
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Maybe.
Q:
A:
Q:
Yes or no?
A:
No, sir.
Q:
A:
Yes, sir.
Q:
A:
Yes, sir.
Q:
A:
Q:
His appearance?
A:
COURT:
Answer. You are familiar with his physical
appearance?
A:
By his own testimony, the witness negated the very reason for
the banks bizarre accommodation of the alleged verbal request
of respondent Pike that he was a valued client. From the
aforequoted, it appears that the witness, Lorenzo Bal, was not
even reasonably familiar with respondent Pike, yet, he was ready,
willing and able to accommodate the verbal request of said
depositor. Worse still, the witness still approved the withdrawal
transaction without asking for any proof of identification for the
reason that: 1) Davasol was in possession of a pre-signed
withdrawal slip; and 2) the witness recognized the signature of
respondent Pike even after admitting that he did not bother to
counter check the signature on the slip with the specimen
signature card of respondent Pike and that he met respondent
Pike just once so that he cannot seem to recall what the latter
looks like. The ensuing quoted testimony of the same witness will
justify a finding of negligence amounting to bad faith, to wit:
Q:
A:
Yes, sir.
Q:
A:
Q:
A:
Q:
Yes, sir.
Why did you not require then that Mr. Pike instead
sign the authorization portion and that the name of
Joy Manuel Dabasol appear thereon with his
signature?
. . .
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
And how did you know then that it was Joy Dabasol
who was making the withdrawal on April 5?
A:
Because the
presented to me.
presigned
withdrawal
Q:
A:
slip
was
. . .
Q:
A:
Q:
A:
Yes.
Q:
A:
Q:
A:
Q:
A:
of the people in the honesty and efficiency of banks. Thus, the law imposes
on banks a high degree of obligation to treat the accounts of its depositors
with meticulous care, always having in mind the fiduciary nature of banking.
Section 2 of Republic Act No. 8791,[25] which took effect on 13 June 2000,
makes a categorical declaration that the State recognizes the fiduciary
nature of banking that requires high standards of integrity and
performance.[26]
Though passed long after the unauthorized withdrawals in this case, the
aforequoted provision is a statutory affirmation of Supreme Court decisions
already in esse at the time of such withdrawals. We elucidated in the 1990
case of Simex International, Inc. v. Court of Appeals,[27] that the bank is
under obligation to treat the accounts of its depositors with meticulous care,
always having in mind the fiduciary nature of their relationship.[28]
SO ORDERED.
PUNO, J.,
- versus- Chairman,
AUSTRIA-MARTINEZ,
CALLEJO, SR.
COURT OF APPEALS, and TINGA, and
PHILIPPINE COMMERCIAL CHICO-NAZARIO, JJ.
INTERNATIONAL BANK
(Now EQUITABLE PCIBANK),
Respondents. Promulgated:
October 25, 2005
x -------------------------------------------------------------x
DECISION
TINGA, J.:
Employees who abuse their position for fiduciary gain cannot be shielded
from the consequences of their wrongdoing even on account of the bank's
operational laxities that may have provided the gateway for their
shenanigans. Their misconduct provides the bank with cause for the
termination of their employment.
The facts follow.
Petitioners Romeo Cadiz (Cadiz'), Carlito Bongkingki (Bongkingki') and
Prisco Gloria IV (Gloria') were employed as signature verifier, bookkeeper,
and foreign currency denomination clerk/bookkeeper-reliever, respectively,
in the main office branch (MOB) of Philippine Commercial International
Bank (respondent bank).
Petitioners lodged a complaint before the labor arbiter for illegal dismissal
on 18 September 1989. Labor Arbiter Ernesto S. Dinopol adjudged that
petitioners were illegally dismissed and ordered their reinstatement and
payment of backwages. This conclusion was based on the notices of
dismissal, which, to the mind of the labor arbiter, was couched in general
terms and without explaining how the rules were violated. The labor arbiter
also attributed petitioners' acts in fraudulently coding several deposit slips
as '1511 (immediately withdrawable) as mere procedural inadequacies, with
the fault attributable to respondent bank for its laxity.[5]
The labor arbiter's Decision was reversed on appeal before the Second
Division of the National Labor Relations Commission (NLRC), which, in a
Decision[6] dated 30 June 1994, ordered the dismissal of the petition. In
doing so, the NLRC departed from the labor arbiter's finding of facts and
concluded that petitioners were dismissed for just cause. Dismissing
petitioners' appeal, the Court of Appeals Ninth Division similarly determined
The issues to be resolved are whether the Court of Appeals erred in not
sustaining the findings of the labor arbiter and upholding those of the NLRC
and whether the Court of Appeals erred in dismissing the petition by
ignoring petitioners' claims that they were dismissed without just cause and
due process.[9]
The general thesis as laid down by the NLRC and Court of Appeals is that
petitioners had surreptitiously diverted funds deposited by depositors to S/A
No. 1083-4 which was under their control and disposition. On the other
hand, a perusal of the labor arbiter's Decision reveals a different perspective
from which the case was approached. While the labor arbiter conceded that
petitioners Bongkingki and Gloria had miscoded several deposit slips,
rendering them immediately withdrawable, he characterized the errors as
'mere procedural inadequacies' which were preventable had management
exercised greater control over its employees.[13]
The labor arbiter also evaluated the bank's claim that Cadiz had reimbursed
the amount of $600 to the aggrieved depositor Alqueza while making it
appear that it was Alfiscar who had actually made the refund. In disbelieving
this claim, the Labor Arbiter concluded that 'it is unthinkable for a lowly bank
employee to impose his will upon his high and mighty employer.[14]
The labor arbiter ruled that the notices of dismissal served on petitioners
was insufficient as it failed to specifically delineate how petitioners had
violated the internal rules of the bank. However, the notices do cite the rules
which petitioners had violated and refer to the fact that such violations
occurred relating to S/A No. 1083-4 account of Sonia Alfiscar and/or
Rosalinda Alqueza.
In the instant case, records show that respondent bank complied with the
two-notice rule prescribed in Article 277(b) of the Labor Code.[16]
Petitioners were given all avenues to present their side and disprove the
allegations of respondent bank. An informal meeting was held between the
branch manager of MOB, the three petitioners and Mr. Gener, the VicePresident of the PCIB Employees Union. As per report, petitioners admitted
having used Alfiscar's account to divert funds intended for other accounts. A
special audit investigation was conducted to determine the extent of the
fraudulent transactions. Based on the results of the investigation,
respondent bank sent show-cause memoranda to petitioners, asking them
to explain their lapses, under pain of disciplinary action. The memoranda,
which constitute the first notice, specified the various questionable acts
committed by petitioners.
All told, we hold that the factual appreciation and conclusions rendered by
the labor arbiter are not worthy of adoption by this Court. In contrast, from
the factual determinations made by the NLRC and the Court of Appeals, we
accept the following facts as proven:
1.
2.
3.
The various deposit slips, covering the said checks, did not
bear the machine validation of any of the tellers-in-charge.
4.
5.
6.
7.
8.
In view of these findings, petitioners were served with showcause memoranda asking them to explain the lapses.
9.
by no means voluntary. PCIB however does not rebut the allegations that
Bongkingki and Cadiz were assigned to sensitive positions within the bank
after their compulsory reinstatement. This may be so, but the fact that PCIB
lost no time in removing the employees from the plantilla after the NLRC
reversed the labor arbiter's Decision hardly evinces any continuing trust and
confidence on the part of the bank, as maintained by petitioners. Moreover,
considering that these reinstated employees were, for the meantime, regular
employees of the bank, it is within the discretion of PCIB to reassign them
as it sees fit, taking into account the circumstances.
Moreover, it would simply be temerarious for the Court to sanction the
reinstatement of bank employees who have clearly engaged in anomalous
banking practices. The particular fiduciary responsibilities reposed on banks
and its employees cannot be emphasized enough. The fiduciary nature of
banking[22] is enshrined in Republic Act No. 8791 or the General Banking
Law of 2000. Section 2 of the law specifically says that the State recognizes
the 'fiduciary nature of banking that requires high standards of integrity and
performance.[23] The bank must not only exercise 'high standards of
integrity and performance, it must also ensure that its employees do
likewise because this is the only way to ensure that the bank will comply
with its fiduciary duty.[24]
All given, we affirm the conclusion that petitioners were dismissed for just
cause. Loss of trust and confidence is one of the just causes for termination
by employer under Article 282 of the Labor Code. The breach of trust must
be willful, meaning it must be done intentionally, knowingly, and purposely,
without justifiable excuse.[25] Ideally, loss of confidence applies only to
cases involving employees occupying positions of trust and confidence or to
those situations where the employee is routinely charged with the care and
custody of the employer's money or property.[26] Utmost trust and
confidence are deemed to have been reposed on petitioners by virtue of the
nature of their work.
The facts as established, as well as the need to assert the public interest in
safeguarding against bank fraud, militate against the present petition.
SO ORDERED.
Far East Bank and Trust Company vs. Pacilan, Jr., 465 SCRA
372 (2005)
Republic
SUPREME
Manila
of
the
Philippines
COURT
SECOND DIVISION
DECISION
Before the Court is the petition for review on certiorari filed by Far East Bank
and Trust Company (now Bank of the Philippines Islands) seeking the
reversal of the Decision[1] dated August 30, 2002 of the Court of Appeals
(CA) in CA-G.R. CV No. 36627 which ordered it, together with its branch
accountant, Roger Villadelgado, to pay respondent Themistocles Pacilan,
Jr.[2] the total sum of P100,000.00 as moral and exemplary damages. The
assailed decision affirmed with modification that of the Regional Trial Court
(RTC) of Negros Occidental, Bacolod City, Branch 54, in Civil Case No.
4908. Likewise sought to be reversed and set aside is the Resolution dated
January 17, 2003 of the appellate court, denying petitioner bank's motion for
reconsideration.
Upon its presentment on the said date, Check No. 2434886 was dishonored
by petitioner bank. The next day, or on April 5, 1988, the respondent
deposited to his current account the amount of P800.00. The said amount
was accepted by petitioner bank; hence, increasing the balance of the
respondent's deposit to P1,051.43.
Subsequently, when the respondent verified with petitioner bank about the
dishonor of Check No. 2434866, he discovered that his current account was
closed on the ground that it was 'improperly handled. The records of
petitioner bank disclosed that between the period of March 30, 1988 and
April 5, 1988, the respondent issued four checks, to wit: Check No. 2480416
for P6,000.00; Check No. 2480419 for P50.00; Check No. 2434880 for
P680.00 and; Check No. 2434886 for P680.00, or a total amount of
P7,410.00. At the time, however, the respondent's current account with
petitioner bank only had a deposit of P6,981.43. Thus, the total amount of
the checks presented for payment on April 4, 1988 exceeded the balance of
the respondent's deposit in his account. For this reason, petitioner bank,
through its branch accountant, Villadelgado, closed the respondent's current
account effective the evening of April 4, 1988 as it then had an overdraft of
P428.57. As a consequence of the overdraft, Check No. 2434886 was
dishonored.
On April 18, 1988, the respondent wrote to petitioner bank complaining that
the closure of his account was unjustified. When he did not receive a reply
from petitioner bank, the respondent filed with the RTC of Negros
Occidental, Bacolod City, Branch 54, a complaint for damages against
petitioner bank and Villadelgado. The case was docketed as Civil Case No.
4908. The respondent, as complainant therein, alleged that the closure of
his current account by petitioner bank was unjustified because on the first
banking hour of April 5, 1988, he already deposited an amount sufficient to
fund his checks. The respondent pointed out that Check No. 2434886, in
particular, was delivered to petitioner bank at the close of banking hours on
April 4, 1988 and, following normal banking procedure, it (petitioner bank)
had until the last clearing hour of the following day, or on April 5, 1988, to
honor the check or return it, if not funded. In disregard of this banking
procedure and practice, however, petitioner bank hastily closed the
respondent's current account and dishonored his Check No. 2434886.
The respondent further alleged that prior to the closure of his current
account, he had issued several other postdated checks. The petitioner
bank's act of closing his current account allegedly preempted the deposits
that he intended to make to fund those checks. Further, the petitioner bank's
act exposed him to criminal prosecution for violation of Batas Pambansa
Blg. 22.
According to the respondent, the indecent haste that attended the closure of
his account was patently malicious and intended to embarrass him. He
claimed that he is a Cashier of Prudential Bank and Trust Company, whose
branch office is located just across that of petitioner bank, and a prominent
and respected leader both in the civic and banking communities. The
alleged malicious acts of petitioner bank besmirched the respondent's
reputation and caused him 'social humiliation, wounded feelings,
insurmountable worries and sleepless nights' entitling him to an award of
damages.
They showed that the respondent had improperly and irregularly handled his
current account. For example, in 1986, the respondent's account was
overdrawn 156 times, in 1987, 117 times and in 1988, 26 times. In all these
instances, the account was overdrawn due to the issuance of checks
against insufficient funds. The respondent had also signed several checks
with a different signature from the specimen on file for dubious reasons.
When the respondent made the deposit on April 5, 1988, it was obviously to
cover for issuances made the previous day against an insufficiently funded
account. When his Check No. 2434886 was presented for payment on April
4, 1988, he had already incurred an overdraft; hence, petitioner bank
rightfully dishonored the same for insufficiency of funds.
After due proceedings, the court a quo rendered judgment in favor of the
respondent as it ordered the petitioner bank and Villadelgado, jointly and
severally, to pay the respondent the amounts of P100,000.00 as moral
damages and P50,000.00 as exemplary damages and costs of suit. In so
ruling, the court a quo also cited petitioner bank's rules and regulations
which state that 'a charge of P10.00 shall be levied against the depositor for
any check that is taken up as a returned item due to insufficiency of funds'
on the date of receipt from the clearing office even if said check is honored
and/or covered by sufficient deposit the following banking day. The same
rules and regulations also provide that 'a check returned for insufficiency of
funds for any reason of similar import may be subsequently recleared for
one more time only, subject to the same charges.
According to the court a quo, following these rules and regulations, the
respondent, as depositor, had the right to put up sufficient funds for a check
that was taken as a returned item for insufficient funds the day following the
receipt of said check from the clearing office. In fact, the said check could
still be recleared for one more time. In previous instances, petitioner bank
notified the respondent when he incurred an overdraft and he would then
deposit sufficient funds the following day to cover the overdraft. Petitioner
bank thus acted unjustifiably when it immediately closed the respondent's
account on April 4, 1988 and deprived him of the opportunity to reclear his
check or deposit sufficient funds therefor the following day.
PREMISES
CONSIDERED,
judgment
is
1.
2.
3.
SO ORDERED.[4]
On appeal, the CA rendered the Decision dated August 30, 2002, affirming
with modification the decision of the court a quo.
The appellate court substantially affirmed the factual findings of the court a
quo as it held that petitioner bank unjustifiably closed the respondents'
account notwithstanding that its' own rules' and regulations
allow that a check returned for insufficiency of funds or any reason of similar
import, may be subsequently recleared for one more time, subject to
standard charges. Like the court a quo, the appellate court observed that in
several instances in previous years, petitioner bank would inform the
respondent when he incurred an overdraft and allowed him to make a timely
deposit to fund the checks that were initially dishonored for insufficiency of
funds. However, on April 4, 1988, petitioner bank immediately closed the
respondent's account without even notifying him that he had incurred an
overdraft. Even when they had already closed his account on April 4, 1988,
petitioner bank still accepted the deposit that the respondent made on April
5, 1988, supposedly to cover his checks.
Echoing the reasoning of the court a quo, the CA declared that even as it
may be conceded that petitioner bank had reserved the right to close an
account for repeated overdrafts by the respondent, the exercise of that right
must never be despotic or arbitrary. That petitioner bank chose to close the
account outright and return the check, even after accepting a deposit
sufficient to cover the said check, is contrary to its duty to handle the
respondent's account with utmost fidelity. The exercise of the right is not
absolute and good faith, at least, is required. The manner by which
petitioner bank closed the account of the respondent runs afoul of Article 19
of the Civil Code which enjoins every person, in the exercise of his rights, 'to
give every one his due, and observe honesty and good faith.
Petitioner bank sought the reconsideration of the said decision but in the
assailed Resolution dated January 17, 2003, the appellate court denied its
motion. Hence, the recourse to this Court.
regular demand deposit which reserves to the bank 'the right to close an
account if the depositor frequently draws checks against insufficient funds
and/or uncollected deposits. The same rules and regulations also provide
that 'the depositor is not entitled, as a matter of right, to overdraw on this
deposit and the bank reserves the right at any time to return checks of the
depositor which are drawn against insufficient funds or for any reason.
It cites the numerous instances that the respondent had overdrawn his
account and those instances where he deliberately signed checks using a
signature different from the specimen on file. Based on these facts,
petitioner bank was constrained to close the respondent's account for
improper and irregular handling and returned his Check No. 2434886 which
was presented to the bank for payment on April 4, 1988.
'Petitioner bank further posits that there is no law or rule which gives the
respondent a legal right to make good his check or to deposit the
corresponding amount to cover said check within 24 hours after the same is
dishonored or returned by the bank for having been drawn against
insufficient funds. It vigorously denies having violated Article 19 of the Civil
Code as it insists that it acted in good faith and in accordance with the
pertinent banking rules and regulations.
A perusal of the respective decisions of the court a quo and the appellate
court show that the award of damages in the respondent's favor was
anchored mainly on Article 19 of the Civil Code which, quoted anew below,
reads:
Art. 19. Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due,
and observe honesty and good faith.
The elements of abuse of rights are the following: (a) the existence of a
legal right or duty; (b) which is exercised in bad faith; and (c) for the sole
intent of prejudicing or injuring another.[7] Malice or bad faith is at the core
of the said provision.[8] The law always presumes good faith and any
person who seeks to be awarded damages due to acts of another has the
burden of proving that the latter acted in bad faith or with ill-motive.[9] Good
faith refers to the state of the mind which is manifested by the acts of the
individual concerned. It consists of the intention to abstain from taking an
unconscionable and unscrupulous advantage of another.[10] Bad faith does
not simply connote bad judgment or simple negligence, dishonest purpose
or some moral obliquity and conscious doing of a wrong, a breach of known
duty due to some motives or interest or ill-will that partakes of the nature of
fraud.[11] Malice connotes ill-will or spite and speaks not in response to
duty. It implies an intention to do ulterior and unjustifiable harm. Malice is
bad faith or bad motive.[12]
Undoubtedly, petitioner bank has the right to close the account of the
respondent based on the following provisions of its Rules and Regulations
Governing the Establishment and Operation of Regular Demand Deposits:
10)
12) '
However, it is clearly understood that the depositor is not
entitled, as a matter of right, to overdraw on this deposit and
the bank reserves the right at any time to return checks of the
depositor which are drawn against insufficient funds or for any
other reason.
The facts, as found by the court a quo and the appellate court, do not
establish that, in the exercise of this right, petitioner bank committed an
abuse thereof. Specifically, the second and third elements for abuse of
rights are not attendant in the present case. The evidence presented by
petitioner bank negates the existence of bad faith or malice on its part in
closing the respondent's account on April 4, 1988 because on the said date
the same was already overdrawn. The respondent issued four checks, all
due on April 4, 1988, amounting to P7,410.00 when the balance of his
current account deposit was only P6,981.43. Thus, he incurred an overdraft
of P428.57 which resulted in the dishonor of his Check No. 2434886.
Further, petitioner bank showed that in 1986, the current account of the
respondent was overdrawn 156 times due to his issuance of checks against
insufficient funds.[13] In 1987, the said account was overdrawn 117 times
for the same
reason.[14] Again, in 1988, 26 times.[15] There were also several instances
when the respondent issued checks deliberately using a signature different
from his specimen signature on file with petitioner bank.[16] All these
circumstances taken together justified the petitioner bank's closure of the
respondent's account on April 4, 1988 for 'improper handling.
It is observed that nowhere under its rules and regulations is petitioner bank
required to notify the respondent, or any depositor for that matter, of the
closure of the account for frequently drawing checks against insufficient
funds. No malice or bad faith could be imputed on petitioner bank for so
acting since the records bear out that the respondent had indeed been
improperly and irregularly handling his account not just a few times but
hundreds of times. Under the circumstances, petitioner bank could not be
faulted for exercising its right in accordance with the express rules and
regulations governing the current accounts of its depositors. Upon the
Neither the fact that petitioner bank accepted the deposit made by the
respondent the day following the closure of his account constitutes bad faith
or malice on the part of petitioner bank. The same could be characterized as
simple negligence by its personnel. Said act, by itself, is not constitutive of
bad faith.
The respondent had thus failed to discharge his burden of proving bad faith
on the part of petitioner bank or that it was motivated by ill-will or spite in
closing his account on April 4, 1988 and in inadvertently accepting his
deposit on April 5, 1988.
Further, it has not been shown that these acts were done by petitioner bank
with the sole intention of prejudicing and injuring the respondent. It is
conceded that the respondent may have suffered damages as a result of
the closure of his current account. However, there is a material distinction
between damages and injury. The Court had the occasion to explain the
distinction between damages and injury in this wise:
Injury is the illegal invasion of a legal right; damage is the loss,
hurt or harm which results from the injury; and damages are the
recompense or compensation awarded for the damage suffered.
Thus, there can be damage without injury in those instances in
which the loss or harm was not the result of a violation of a legal
duty. In such cases, the consequences must be borne by the
injured person alone, the law affords no remedy for damages
resulting from an act which does not amount to a legal injury or
wrong. These situations are often called damnum absque injuria.
In other words, in order that a plaintiff may maintain an action for
the injuries of which he complains, he must establish that such
injuries resulted from a breach of duty which the defendant owed
to the plaintiff ' a concurrence of injury to the plaintiff and legal
SO ORDERED.
of
the
Philippines
COURT
FIRST DIVISION
G.R. No. 146918
May 2, 2006
CITIBANK,
N.A.,
Petitioner,
vs.
SPS. LUIS and CARMELITA CABAMONGAN and their sons
LUISCABAMONGAN, JR. and LITO CABAMONGAN, Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for review on certiorari of the Decision1 dated
January 26, 2001 and the Resolution2 dated July 30, 2001 of the Court of
Appeals (CA) in CA-G.R. CV No. 59033.
The factual background of the case is as follows:
On August 16, 1993, spouses Luis and Carmelita Cabamongan opened a
joint "and/or" foreign currency time deposit in trust for their sons Luis, Jr.
and Lito at the Citibank, N.A., Makati branch, with Reference No. 6022214372, in the amount of $55,216.69 for a term of 182 days or until
February 14, 1994, at 2.5625 per cent interest per annum.3 Prior to maturity,
or on November 10, 1993, a person claiming to be Carmelita went to the
Makati branch and pre-terminated the said foreign currency time deposit by
presenting a passport, a Bank of America Versatele Card, an ATM card and
a Mabuhay Credit Card.4 She filled up the necessary forms for pretermination of deposits with the assistance of Account Officer Yeye San
Pedro. While the transaction was being processed, she was casually
interviewed by San Pedro about her personal circumstances and investment
plans.5 Since the said person failed to surrender the original Certificate of
Deposit, she had to execute a notarized release and waiver document in
favor of Citibank, pursuant to Citibank's internal procedure, before the
money was released to her.6 The release and waiver document7 was not
notarized on that same day but the money was nonetheless given to the
person withdrawing.8 The transaction lasted for about 40 minutes.9
After said person left, San Pedro realized that she left behind an
identification card.10 Thus, San Pedro called up Carmelita's listed address at
No. 48 Ranger Street, Moonwalk Village, Las Pinas, Metro Manila on the
same day to have the card picked up.11 Marites, the wife of Lito, received
San Pedro's call and was stunned by the news that Carmelita preterminated
her foreign currency time deposit because Carmelita was in the United
States at that time.12 The Cabamongan spouses work and reside in
California. Marites made an overseas call to Carmelita to inform her about
what happened.13 The Cabamongan spouses were shocked at the news. It
seems that sometime between June 10 and 16, 1993, an unidentified
person broke in at the couple's residence at No. 3268 Baldwin Park
Boulevard, Baldwin Park, California. Initially, they reported that only
Carmelita's jewelry box was missing, but later on, they discovered that other
items, such as their passports, bank deposit certificates, including the
subject foreign currency deposit, and identification cards were also
missing.14 It was only then that the Cabamongan spouses realized that their
passports and bank deposit certificates were lost.15
Through various overseas calls, the Cabamongan spouses informed
Citibank, thru San Pedro, that Carmelita was in the United States and did
not preterminate their deposit and that the person who did so was an
impostor who could have also been involved in the break-in of their
California residence. San Pedro told the spouses to submit the necessary
documents to support their claim but Citibank concluded nonetheless that
Carmelita indeed preterminated her deposit. In a letter dated September 16,
1994, the Cabamongan spouses, through counsel, made a formal demand
upon Citibank for payment of their preterminated deposit in the amount of
$55,216.69 with legal interests.16 In a letter dated November 28, 1994,
Citibank, through counsel, refused the Cabamongan spouses' demand for
payment, asserting that the subject deposit was released to Carmelita upon
proper identification and verification.17
On January 27, 1995, the Cabamongan spouses filed a complaint against
Citibank before the Regional Trial Court of Makati for Specific Performance
with Damages, docketed as Civil Case No 95-163 and raffled to Branch 150
(RTC).18
In its Answer dated April 20, 1995, Citibank insists that it was not negligent
of its duties since the subject deposit was released to Carmelita only upon
proper identification and verification.19
At the pre-trial conference the parties failed to arrive at an amicable
settlement.20 Thus, trial on the merits ensued.
degree of care, considering the nature of their relationship. Banks are under
the obligation to treat the accounts of their depositors with meticulous care.
This is the reason for their established procedure of requiring several
specimen signatures and recent picture from potential depositors. For every
transaction, the depositor's signature is passed upon by personnel to check
and countercheck possible irregularities and therefore must bear the blame
when they fail to detect the forgery or discrepancy.25
Despite the favorable decision, the Cabamongan spouses filed on October
1, 1997 a motion to partially reconsider the decision by praying for an
increase of the amount of the damages awarded.26 Citibank opposed the
motion.27 On November 19, 1997, the RTC granted the motion for partial
reconsideration and amended the dispositive portion of the decision as
follows:
From the foregoing, and considering all the evidence laid down by the
parties, the dispositive portion of the court's decision dated July 1, 1997 is
hereby amended and/or modified to read as follows:
WHEREFORE, defendant Citibank, N.A., is hereby ordered to pay the
plaintiffs the following:
1) the principal amount of their foreign currency deposit (Reference
No. 6022214372) amounting to $55,216.69 or its Philippine currency
equivalent (at the time of its actual payment or execution) plus legal
interest from Aug. 16, 1993 until fully paid.
2) moral damages in the amount of P200,000.00;
3) exemplary damages in the amount of P100,000.00;
4) attorney's fees of P100,000.00;
5) litigation expenses of P200,000.00;
6) cost of suit.
SO ORDERED.28
The CA, however, disagreed with the damages awarded by the RTC. It held
that, insofar as the date from which legal interest of 12% is to run, it should
be counted from September 16, 1994 when extrajudicial demand was
made. As to moral damages, the CA reduced it to P100,000.00 and deleted
the awards of exemplary damages and litigation expenses. Thus, the
dispositive portion of the CA decision reads:
WHEREFORE, the decision of the trial court dated 01 July 1997, and its
order dated 19 November 1997, are hereby AFFIRMED with the
MODIFICATION that the legal interest for actual damages awarded in the
amount of $55,216.69 shall run from 16 September 1994; exemplary
damages amounting to P100,000.00 and litigation expenses amounting to
P200,000.00 are deleted; and moral damages is reduced to P100,000.00.
Costs against defendant.
SO ORDERED.31
The Cabamongan spouses filed a motion for partial reconsideration on the
matter of the award of damages in the decision.32 On July 30, 2001, the
CA granted in part said motion and modified its decision as follows:
1. The actual damages in amount of $55,216.69, representing the
amount of appellees' foreign currency time deposit shall earn an
interest of 2.5625% for the period 16 August 1993 to 14 February
1994, as stipulated in the contract;
2. From 16 September 1994 until full payment, the amount of
$55,216.69 shall earn interest at the legal rate of 12% per annum, and;
3. The award of moral damages is reduced to P50,000.00.33
Dissatisfied, both parties filed separate petitions for review on certiorari with
this Court. The Cabamongan spouses' petition, docketed as G.R. No.
149234, was denied by the Court per its Resolution dated October 17,
2001.34 On the other hand, Citibank's petition was given due course by the
Court per Resolution dated December 10, 2001 and the parties were
required to submit their respective memoranda.35
Citibank poses the following errors for resolution:
contract period from August 16, 1993 to February 14, 1993; thereafter, 12%
should apply. They further contend that the RTC's award of exemplary
damages of P100,000.00 should be maintained. They submit that the CA
erred in treating the award of litigation expenses as lawyer's fees since they
have shown that they incurred actual expenses in litigating their claim
against Citibank. They also contend that the CA erred in reducing the award
of moral damages in view of the degree of mental anguish and emotional
fears, anxieties and nervousness suffered by them.37
Subsequently, Citibank, thru a new counsel, submitted a Supplemental
Memorandum,38 wherein it posits that, assuming that it was negligent, the
Cabamongan spouses were guilty of contributory negligence since they
failed to notify Citibank that they had migrated to the United States and were
residents thereat and after having been victims of a burglary, they should
have immediately assessed their loss and informed Citibank of the
disappearance of the bank certificate, their passports and other
identification cards, then the fraud would not have been perpetuated and the
losses avoided. It further argues that since the Cabamongan spouses are
guilty of contributory negligence, the doctrine of last clear chance is
inapplicable.
Citibank's assertion that the Cabamongan spouses are guilty of contributory
negligence and non-application of the doctrine of last clear chance cannot
pass muster since these contentions were raised for the first time only in
their Supplemental Memorandum. Indeed, the records show that said
contention were neither pleaded in the petition for review and the
memorandum nor in Citibank's Answer to the complaint or in its appellant's
brief filed with the CA. To consider the alleged facts and arguments raised
belatedly in a supplemental pleading to herein petition for review at this very
late stage in the proceedings would amount to trampling on the basic
principles of fair play, justice and due process.391avvphil.net
The Court has repeatedly emphasized that, since the banking business is
impressed with public interest, of paramount importance thereto is the trust
and confidence of the public in general. Consequently, the highest degree of
diligence40 is expected,41 and high standards of integrity and performance
are even required, of it.42 By the nature of its functions, a bank is "under
obligation to treat the accounts of its depositors with meticulous care,43
always having in mind the fiduciary nature of their relationship."44
In this case, it has been sufficiently shown that the signatures of Carmelita
in the forms for pretermination of deposits are forgeries. Citibank, with its
signature verification procedure, failed to detect the forgery. Its negligence
consisted in the omission of that degree of diligence required of banks. The
Court has held that a bank is "bound to know the signatures of its
customers; and if it pays a forged check, it must be considered as making
the payment out of its own funds, and cannot ordinarily charge the amount
so paid to the account of the depositor whose name was forged."45 Such
principle equally applies here.
Citibank cannot label its negligence as mere mistake or human error. Banks
handle daily transactions involving millions of pesos.46 By the very nature of
their works the degree of responsibility, care and trustworthiness expected
of their employees and officials is far greater than those of ordinary clerks
and employees.47 Banks are expected to exercise the highest degree of
diligence in the selection and supervision of their employees.48
The Court agrees with the observation of the CA that Citibank, thru Account
Officer San Pedro, openly courted disaster when despite noticing
discrepancies in the signature and photograph of the person claiming to be
Carmelita and the failure to surrender the original certificate of time deposit,
the pretermination of the account was allowed. Even the waiver document
was not notarized, a procedure meant to protect the bank. For not observing
the degree of diligence required of banking institutions, whose business is
impressed with public interest, Citibank is liable for damages.
As to the interest rate, Citibank avers that the claim of the Cabamongan
spouses does not constitute a loan or forbearance of money and therefore,
the interest rate of 6%, not 12%, applies.
The Court does not agree.
The time deposit subject matter of herein petition is a simple loan. The
provisions of the New Civil Code on simple loan govern the contract
between a bank and its depositor. Specifically, Article 1980 thereof
categorically provides that ". . . savings . . . deposits of money in banks and
similar institutions shall be governed by the provisions concerning simple
loan." Thus, the relationship between a bank and its depositor is that of a
debtor-creditor, the depositor being the creditor as it lends the bank money,
and the bank is the debtor which agrees to pay the depositor on demand.
decision of the RTC and the latter failed to elaborate, explain and justify the
same.
Article 2208 of the New Civil Code enumerates the instances where such
may be awarded and, in all cases, it must be reasonable, just and equitable
if the same were to be granted. Attorney's fees as part of damages are not
meant to enrich the winning party at the expense of the losing litigant. They
are not awarded every time a party prevails in a suit because of the policy
that no premium should be placed on the right to litigate.55 The award of
attorney's fees is the exception rather than the general rule. As such, it is
necessary for the court to make findings of facts and law that would bring
the case within the exception and justify the grant of such award. The matter
of attorney's fees cannot be mentioned only in the dispositive portion of the
decision.56 They must be clearly explained and justified by the trial court in
the body of its decision. Consequently, the award of attorney's fees should
be deleted.
WHEREFORE, the instant petition is PARTIALLY GRANTED. The assailed
Decision and Resolution are AFFIRMED with MODIFICATIONS, as follows:
1. The interest shall be computed as follows:
a. The actual damages in principal amount of $55,216.69,
representing the amount of foreign currency time deposit shall
earn interest at the stipulated rate of 2.5625% for the period
August 16, 1993 to February 14, 1994;
b. From February 15, 1994 to September 15, 1994, the principal
amount of $55,216.69 and the interest earned as of February 14,
1994 shall earn interest at the rate then prevailing granted by
Citibank;
c. From September 16, 1994 until full payment, the principal
amount of $55,216.69 and the interest earned as of September
15, 1994, shall earn interest at the legal rate of 12% per annum;
2. The award of attorney's fees is DELETED.
No pronouncement as to costs.
SO ORDERED.
of
the
Philippines
COURT
FIRST DIVISION
G.R. No. 156132
DECISION
CHICO-NAZARIO, J.:
Before this Court is a Petition for Review on Certiorari,1 under Rule 45 of the
Revised Rules of Court, of the Decision2 of the Court of Appeals in CA-G.R.
CV No. 51930, dated 26 March 2002, and the Resolution,3 dated 20
November 2002, of the same court which, although modifying its earlier
Decision, still denied for the most part the Motion for Reconsideration of
herein petitioners.
Petitioner Citibank, N.A. (formerly known as the First National City Bank) is
a banking corporation duly authorized and existing under the laws of the
United States of America and licensed to do commercial banking activities
and perform trust functions in the Philippines.
Petitioner Investor's Finance Corporation, which did business under the
name and style of FNCB Finance, was an affiliate company of petitioner
Citibank, specifically handling money market placements for its clients. It is
now, by virtue of a merger, doing business as part of its successor-ininterest, BPI Card Finance Corporation. However, so as to consistently
establish its identity in the Petition at bar, the said petitioner shall still be
referred to herein as FNCB Finance.4
Respondent Modesta R. Sabeniano was a client of both petitioners Citibank
and FNCB Finance. Regrettably, the business relations among the parties
subsequently went awry.
On 8 August 1985, respondent filed a Complaint5 against petitioners,
docketed as Civil Case No. 11336, before the Regional Trial Court (RTC) of
Makati City. Respondent claimed to have substantial deposits and money
market placements with the petitioners, as well as money market
placements with the Ayala Investment and Development Corporation
(AIDC), the proceeds of which were supposedly deposited automatically
and directly to respondent's accounts with petitioner Citibank. Respondent
alleged that petitioners refused to return her deposits and the proceeds of
her money market placements despite her repeated demands, thus,
compelling respondent to file Civil Case No. 11336 against petitioners for
"Accounting, Sum of Money and Damages." Respondent eventually filed an
Amended Complaint6 on 9 October 1985 to include additional claims to
deposits and money market placements inadvertently left out from her
original Complaint.
In their joint Answer7 and Answer to Amended Complaint,8 filed on 12
September 1985 and 6 November 1985, respectively, petitioners admitted
that respondent had deposits and money market placements with them,
including dollar accounts in the Citibank branch in Geneva, Switzerland
(Citibank-Geneva). Petitioners further alleged that the respondent later
obtained several loans from petitioner Citibank, for which she executed
Promissory Notes (PNs), and secured by (a) a Declaration of Pledge of her
dollar accounts in Citibank-Geneva, and (b) Deeds of Assignment of her
money market placements with petitioner FNCB Finance. When respondent
failed to pay her loans despite repeated demands by petitioner Citibank, the
latter exercised its right to off-set or compensate respondent's outstanding
loans with her deposits and money market placements, pursuant to the
Declaration of Pledge and the Deeds of Assignment executed by
respondent in its favor. Petitioner Citibank supposedly informed respondent
Sabeniano of the foregoing compensation through letters, dated 28
September 1979 and 31 October 1979. Petitioners were therefore surprised
when six years later, in 1985, respondent and her counsel made repeated
Court of Appeals Decision only on 29 April 2002, her counsel neither had
enough time to file a motion for reconsideration of the said Decision with the
Court of Appeals, nor a Petition for Certiorari with this Court. Yet, the Motion
failed to state the exact extension period respondent was requesting for.
Since this Court did not act upon respondent's Motion for Extension of Time
to file her Petition for Review, then the period for appeal continued to run
and still expired on 3 May 2002.14 Respondent failed to file any Petition for
Review within the prescribed period for appeal and, hence, this Court issued
a Resolution,15 dated 13 November 2002, in which it pronounced that
G.R. No. 152985 (Modesta R. Sabeniano vs. Court of Appeals, et al.).
It appearing that petitioner failed to file the intended petition for
review on certiorari within the period which expired on May 3, 2002,
the Court Resolves to DECLARE THIS CASE TERMINATED and
DIRECT the Division Clerk of Court to INFORM the parties that the
judgment sought to be reviewed has become final and executory.
The said Resolution was duly recorded in the Book of Entries of Judgments
on 3 January 2003.
G.R. No. 156132
Meanwhile, petitioners filed with the Court of Appeals a Motion for
Reconsideration of its Decision in CA-G.R. CV No. 51930, dated 26 March
2002. Acting upon the said Motion, the Court of Appeals issued the
Resolution,16 dated 20 November 2002, modifying its Decision of 26 March
2002, as follows
WHEREFORE, premises considered, the instant Motion for
Reconsideration is PARTIALLY GRANTED as Sub-paragraph (V)
paragraph 3 of the assailed Decision's dispositive portion is hereby
ordered DELETED.
The challenged 26 March 2002 Decision of the Court is AFFIRMED
with MODIFICATION.
Assailing the Decision and Resolution of the Court of Appeals in CA-G.R.
CV No. 51930, dated 26 March 2002 and 20 November 2002, respectively,
petitioners filed the present Petition, docketed as G.R. No. 156132. The
Petition was initially denied17 by this Court for failure of the petitioners to
present during the trial cannot render a valid decision since he can rely
on the transcript of stenographic notes taken during the trial as basis of
his decision.
Accused-appellant's contention that the trial judge did not have the
opportunity to observe the conduct and demeanor of the witnesses
since he was not the same judge who conducted the hearing is also
untenable. While it is true that the trial judge who conducted the
hearing would be in a better position to ascertain the truth and falsity of
the testimonies of the witnesses, it does not necessarily follow that a
judge who was not present during the trial cannot render a valid and
just decision since the latter can also rely on the transcribed
stenographic notes taken during the trial as the basis of his decision.
(People vs. De Paz, 212 SCRA 56, 63 [1992])
At any rate, the test to determine the value of the testimony of the
witness is whether or not such is in conformity with knowledge and
consistent with the experience of mankind (People vs. Morre, 217
SCRA 219 [1993]). Further, the credibility of witnesses can also be
assessed on the basis of the substance of their testimony and the
surrounding circumstances (People v. Gonzales, 210 SCRA 44
[1992]). A critical evaluation of the testimony of the prosecution
witnesses reveals that their testimony accords with the aforementioned
tests, and carries with it the ring of truth end perforce, must be given
full weight and credit.
Irrefragably, by reason alone that the judge who penned the RTC Decision
was not the same judge who heard the case and received the evidence
therein would not render the findings in the said Decision erroneous and
unreliable. While the conduct and demeanor of witnesses may sway a trial
court judge in deciding a case, it is not, and should not be, his only
consideration. Even more vital for the trial court judge's decision are the
contents and substance of the witnesses' testimonies, as borne out by the
TSNs, as well as the object and documentary evidence submitted and made
part of the records of the case.
This Court proceeds to making its own findings of fact.
Since the Decision of the Court of Appeals in CA-G.R. CV No. 51930, dated
26 March 2002, has become final and executory as to the respondent, due
to her failure to interpose an appeal therefrom within the reglementary
period, she is already bound by the factual findings in the said Decision.
Likewise, respondent's failure to file, within the reglementary period, a
Motion for Reconsideration or an appeal of the Resolution of the Court of
Appeals in the same case, dated 20 November 2002, which modified its
earlier Decision by deleting paragraph 3(v) of its dispositive portion, ordering
petitioners to return to respondent the proceeds of her money market
placement with AIDC, shall already bar her from questioning such
modification before this Court. Thus, what is for review before this Court is
the Decision of the Court of Appeals, dated 26 March 2002, as modified by
the Resolution of the same court, dated 20 November 2002.
Respondent alleged that she had several deposits and money market
placements with petitioners. These deposits and money market placements,
as determined by the Court of Appeals in its Decision, dated 26 March
2002, and as modified by its Resolution, dated 20 November 2002, are as
follows
Deposit/Placement
Dollar deposit with Citibank-Geneva
Amount
$
149,632.99
Money market placement with Citibank, P
evidenced by Promissory Note (PN) No. 318,897.34
23356 (which cancels and supersedes PN
No. 22526), earning 14.5% interest per
annum (p.a.)
Money market placement with Citibank, P
evidenced by PN No. 23357 (which cancels 203,150.00
and supersedes PN No. 22528), earning
14.5% interest p.a.
Money market placement with FNCB P
Finance, evidenced by PN No. 5757 (which 500,000.00
cancels and supersedes PN No. 4952),
earning 17% interest p.a.
Money market placement with FNCB P
Finance, evidenced by PN No. 5758 (which 500,000.00
Interest
Cancels Maturity Date Amount
PN No.
(mm/dd/yyyy)
(mm/dd/yyyy) (P)
(p.a.)
12/06/1976 20773 None 01/13/1977 500,000.00 16%
01/14/1977 21686 20773 02/08/1977 508,444.44 15%
02/09/1977 22526 21686 03/16/1977 313,952.59 153/4%
22528 21686 03/16/1977 200,000.00 153/4%
03/17/1977 23356 22526 04/20/1977 318,897.34 141/2%
23357 22528 04/20/1977 203,150.00 141/2%
PN
No.
Court:
Better present the documents.
Atty. Mabasa:
Yes, your Honor, that is why your Honor.
Atty. Mabasa:
Q Now, basing on the notes that you prepared, Mr. Witness, and
according to you basing also on your personal recollection about all the
transactions involved between Modesta Sabeniano and defendant City
Bank [sic] in this case. Now, would you tell us what happened to the
money market placements of Modesta Sabeniano that you have earlier
identified in Exhs. "47" and "48"?
A The transactions which I said earlier were terminated and booked to
time deposits.
Q And you are saying time deposits with what bank?
A With First National Citibank.
Q Is it the same bank as Citibank, N.A.?
A Yes, sir.
Q And how much was the amount booked as time deposit with
defendant Citibank?
A In the amount of P500,000.00.
Q And outside this P500,000.00 which you said was booked out of the
proceeds of Exhs. "47" and "48", were there other time deposits
opened by Mrs. Modesta Sabeniano at that time.
A Yes, she also opened another time deposit for P600,000.00.
Q So all in all Mr. Witness, sometime in April of 1978 Mrs. Modesta
Sabeneano [sic] had time deposit placements with Citibank in the
tenure, this Court is reluctant to give much weight to the testimonies of Mr.
Pujeda and Mr. Tan regarding the payment of PNs No. 23356 and 23357
and the use by respondent of the proceeds thereof for opening TD
accounts. This Court finds it implausible that they should remember, after all
these years, this particular transaction with respondent involving her PNs
No. 23356 and 23357 and TD accounts. Both witnesses did not give any
reason as to why, from among all the clients they had dealt with and all the
transactions they had processed as officers of petitioner Citibank, they
specially remembered respondent and her PNs No. 23356 and 23357. Their
testimonies likewise lacked details on the circumstances surrounding the
payment of the two PNs and the opening of the time deposit accounts by
respondent, such as the date of payment of the two PNs, mode of payment,
and the manner and context by which respondent relayed her instructions to
the officers of petitioner Citibank to use the proceeds of her two PNs in
opening the TD accounts.
Moreover, while there are documentary evidences to support and trace
respondent's money market placements with petitioner Citibank, from the
original PN No. 20773, rolled-over several times to, finally, PNs No. 23356
and 23357, there is an evident absence of any documentary evidence on
the payment of these last two PNs and the use of the proceeds thereof by
respondent for opening TD accounts. The paper trail seems to have ended
with the copies of PNs No. 23356 and 23357. Although both Mr. Pujeda and
Mr. Tan said that they based their testimonies, not just on their memories
but also on the documents on file, the supposed documents on which they
based those portions of their testimony on the payment of PNs No. 23356
and 23357 and the opening of the TD accounts from the proceeds thereof,
were never presented before the courts nor made part of the records of the
case. Respondent's money market placements were of substantial amounts
consisting of the principal amount of P500,000.00, plus the interest it
should have earned during the years of placement and it is difficult for this
Court to believe that petitioner Citibank would not have had documented the
payment thereof.
When Mr. Pujeda testified before the RTC on 6 February 1990,39 petitioners'
counsel attempted to present in evidence a document that would
supposedly support the claim of petitioner Citibank that the proceeds of PNs
No. 23356 and 23357 were used by respondent to open one of her two TD
accounts in the amount of P500,000.00. Respondent's counsel objected to
the presentation of the document since it was a mere "xerox" copy, and was
blurred and hardly readable. Petitioners' counsel then asked for a
continuance of the hearing so that they can have time to produce a better
document, which was granted by the court. However, during the next
hearing and continuance of Mr. Pujeda's testimony on 12 March 1990,
petitioners' counsel no longer referred to the said document.
As respondent had established a prima facie case that petitioner Citibank is
obligated to her for the amounts stated in PNs No. 23356 and 23357, and
as petitioner Citibank failed to present sufficient proof of payment of the said
PNs and the use by the respondent of the proceeds thereof to open her TD
accounts, this Court finds that PNs No. 23356 and 23357 are still
outstanding and petitioner Citibank is still liable to respondent for the
amounts stated therein.
The significance of this Court's declaration that PNs No. 23356 and 23357
are still outstanding becomes apparent in the light of petitioners' next
contentions that respondent used the proceeds of PNs No. 23356 and
23357, together with additional money, to open TD Accounts No. 17783 and
17784 with petitioner Citibank; and, subsequently, respondent preterminated these TD accounts and transferred the proceeds thereof,
amounting to P1,100,000.00, to petitioner FNCB Finance for money market
placements. While respondent's money market placements with petitioner
FNCB Finance may be traced back with definiteness to TD Accounts No.
17783 and 17784, there is only flimsy and unsubstantiated connection
between the said TD accounts and the supposed proceeds paid from PNs
No. 23356 and 23357. With PNs No. 23356 and 23357 still unpaid, then
they represent an obligation of petitioner Citibank separate and distinct from
the obligation of petitioner FNCB Finance arising from respondent's money
market placements with the latter.
Money market placements with petitioner FNCB Finance
According to petitioners, respondent's TD Accounts No. 17783 and 17784,
in the total amount of P1,100,000.00, were supposed to mature on 15
March 1978. However, respondent, through a letter dated 28 April 1977,40
pre-terminated the said TD accounts and transferred all the proceeds
thereof to petitioner FNCB Finance for money market placement. Pursuant
to her instructions, TD Accounts No. 17783 and 17784 were pre-terminated
and petitioner Citibank (then still named First National City Bank) issued
Manager's Checks (MC) No. 19925341 and 19925142 for the amounts of
P500,000.00 and P600,00.00, respectively. Both MCs were payable to
Citifinance (which, according to Mr. Pujeda,43 was one with and the same as
petitioner FNCB Finance), with the additional notation that "A/C MODESTA
R. SABENIANO." Typewritten on MC No. 199253 is the phrase "Ref.
Proceeds of TD 17783," and on MC No. 199251 is a similar phrase, "Ref.
Proceeds of TD 17784." These phrases purportedly established that the
MCs were paid from the proceeds of respondent's pre-terminated TD
accounts with petitioner Citibank. Upon receipt of the MCs, petitioner FNCB
Finance deposited the same to its account with Feati Bank and Trust Co.,
as evidenced by the rubber stamp mark of the latter found at the back of
both MCs. In exchange, petitioner FNCB Finance booked the amounts
received as money market placements, and accordingly issued PNs No.
4952 and 4962, for the amounts of P500,000.00 and P600,000.00,
respectively, payable to respondent's savings account with petitioner
Citibank, S/A No. 25-13703-4, upon their maturity on 1 June 1977. Once
again, respondent rolled-over several times the principal amounts of her
money market placements with petitioner FNCB Finance, as follows
Date
Interest
PN Cancels Maturity Date Amount
No. PN No.
(mm/dd/yyyy)
(mm/dd/yyyy) (P)
(p.a.)
04/29/1977 4952 None 06/01/1977 500,000.00 17%
4962 None 06/01/1977 600,000.00 17%
06/02/1977 5757 4952
08/31/1977 500,000.00 17%
5758 4962
08/31/1977 500,000.00 17%
08/31/1977 8167 5757
08/25/1978 500,000.00 14%
8169 5752
08/25/1978 500,000.00 14%
As presented by the petitioner FNCB Finance, respondent rolled-over only
the principal amounts of her money market placements as she chose to
receive the interest income therefrom. Petitioner FNCB Finance also
pointed out that when PN No. 4962, with principal amount of P600,000.00,
matured on 1 June 1977, respondent received a partial payment of the
principal which, together with the interest, amounted to P102,633.33;44 thus,
only the amount of P500,000.00 from PN No. 4962 was rolled-over to PN
No. 5758.
Based on the foregoing records, the principal amounts of PNs No. 5757 and
5758, upon their maturity, were rolled over to PNs No. 8167 and 8169,
respectively. PN No. 816745 expressly canceled and superseded PN No.
5757, while PN No. 816946 also explicitly canceled and superseded PN No.
5758. Thus, it is patently erroneous for the Court of Appeals to still award to
respondent the principal amounts and interests covered by PNs No. 5757
and 5758 when these were already canceled and superseded. It is now
incumbent upon this Court to determine what subsequently happened to
PNs No. 8167 and 8169.
Petitioner FNCB Finance presented four checks as proof of payment of the
principal amounts and interests of PNs No. 8167 and 8169 upon their
maturity. All the checks were payable to respondent's savings account with
petitioner Citibank, with the following details
of Check Amount
Notation
No.
(P)
(mm/dd/yyyy)
09/01/1978 76962 12,833.34 Interest
payment
on
PN#08167
09/01/1978 76961 12,833.34 Interest
payment
on
PN#08169
09/05/1978 77035 500,000.00 Full payment of
principal
on
PN#08167
which
is
hereby
cancelled
09/05/ 1978 77034 500,000.00 Full payment of
principal
on
PN#08169
which
is
hereby
cancelled
Date
Issuance
Then again, Checks No. 77035 and 77034 were later returned to petitioner
FNCB Finance together with a memo,47 dated 6 September 1978, from Mr.
Tan of petitioner Citibank, to a Mr. Bobby Mendoza of petitioner FNCB
Finance. According to the memo, the two checks, in the total amount of
P1,000,000.00, were to be returned to respondent's account with
instructions to book the said amount in money market placements for one
more year. Pursuant to the said memo, Checks No. 77035 and 77034 were
invested by petitioner FNCB Finance, on behalf of respondent, in money
market placements for which it issued PNs No. 20138 and 20139. The PNs
each covered P500,000.00, to earn 11% interest per annum, and to mature
on 3 September 1979.
On 3 September 1979, petitioner FNCB Finance issued Check No. 100168,
pay to the order of "Citibank N.A. A/C Modesta Sabeniano," in the amount
of P1,022,916.66, as full payment of the principal amounts and interests of
both PNs No. 20138 and 20139 and, resultantly, canceling the said PNs.48
Respondent actually admitted the issuance and existence of Check No.
100168, but with the qualification that the proceeds thereof were turned over
to petitioner Citibank.49 Respondent did not clarify the circumstances
attending the supposed turn over, but on the basis of the allegations of
petitioner Citibank itself, the proceeds of PNs No. 20138 and 20139,
amounting to P1,022,916.66, was used by it to liquidate respondent's
outstanding loans. Therefore, the determination of whether or not
respondent is still entitled to the return of the proceeds of PNs No. 20138
and 20139 shall be dependent on the resolution of the issues raised as to
the existence of the loans and the authority of petitioner Citibank to use the
proceeds of the said PNs, together with respondent's other deposits and
money market placements, to pay for the same.
Savings and current accounts with petitioner Citibank
Respondent presented and submitted before the RTC deposit slips and
bank statements to prove deposits made to several of her accounts with
petitioner Citibank, particularly, Accounts No. 00484202, 59091, and 472751, which would have amounted to a total of P3,812,712.32, had there
been no withdrawals or debits from the said accounts from the time the said
deposits were made.
Although the RTC and the Court of Appeals did not make any definitive
findings as to the status of respondent's savings and current accounts with
petitioner Citibank, the Decisions of both the trial and appellate courts
effectively recognized only the P31,079.14 coming from respondent's
savings account which was used to off-set her alleged outstanding loans
with petitioner Citibank.50
Since both the RTC and the Court of Appeals had consistently recognized
only the P31,079.14 of respondent's savings account with petitioner
Citibank, and that respondent failed to move for reconsideration or to appeal
this particular finding of fact by the trial and appellate courts, it is already
binding upon this Court. Respondent is already precluded from claiming any
greater amount in her savings and current accounts with petitioner Citibank.
Thus, this Court shall limit itself to determining whether or not respondent is
entitled to the return of the amount of P31,079.14 should the off-set thereof
by petitioner Citibank against her supposed loans be found invalid.
Dollar accounts with Citibank-Geneva
Respondent made an effort of preparing and presenting before the RTC her
own computations of her money market placements and dollar accounts
with Citibank-Geneva, purportedly amounting to a total of United States
(US) $343,220.98, as of 23 June 1985.51 In her Memorandum filed with the
RTC, she claimed a much bigger amount of deposits and money market
placements with Citibank-Geneva, totaling US$1,336,638.65.52 However,
respondent herself also submitted as part of her formal offer of evidence the
computation of her money market placements and dollar accounts with
Citibank-Geneva as determined by the latter.53 Citibank-Geneva accounted
for respondent's money market placements and dollar accounts as follows
MODESTA
SABENIANO
==================
&/OR
US$
30'000.--
+
US$
339.06
US$
95.--
Commission (minimum)
US$
30'244.06
Total
proceeds
on
25.10.1979
US$
114'000.--
+
US$
1'358.50
US$
41.17
Commission
US$
115'317.33 Total
proceeds
25.10.1979
US$
+
US$
11'381.31
US$
US$
US$
7'309.71
US$
6'998.84
US$
310.87
total
of
accounts
both
on
current
Date
Issuance
of Date
Maturity
of Principal
Amount
Date
Release
of MC
No.
(mm/dd/yyyy) (mm/dd/yyyy)
(mm/dd/yyyy)
32935 07/20/1978 09/18/1978 P
07/20/1978 220701
400,000.00
33751 10/13/1978 12/12/1978 100,000.00 Unrecovered
33798 10/19/1978 11/03/1978 100,000.00 10/19/1978 226285
34025 11/15/1978 01/15/1979 150,000.00 11/16/1978 226439
34079 11/21/1978 01/19/1979 250,000.00 11/21/1978 226467
34192 12/04/1978 01/18/1979 100,000.00 12/05/1978 228057
34402 12/26/1978 02/23/1979 300,000.00 12/26/1978 228203
34534 01/09/1979 03/09/1979 150,000.00 01/09/1979 228270
34609 01/17/1979 03/19/1979 150,000.00 01/17/1979 228357
34740 01/30/1979 03/30/1979 220,000.00 01/30/1979 228400
Total
P
1,920,000.00
When respondent was unable to pay the first set of PNs upon their maturity,
these were rolled-over or renewed several times, necessitating the
execution by respondent of new PNs in favor of petitioner Citibank. As of 5
April 1979, respondent had the following outstanding PNs (second set),56
the principal amount of which remained at P1,920,000.00
PN No. Date
Issuance
of Date
Maturity
of Principal
Amount
(mm/dd/yyyy) (mm/dd/yyyy)
34510 01/01/1979
03/02/1979
34509 01/02/1979
34534 01/09/1979
34612 01/19/1979
34741 01/26/1979
35689 02/23/1979
35694 03/19/1979
35695 03/19/1979
356946 03/20/1979
35697 03/30/1979
Total
03/02/1979
03/09/1979
03/16/1979
03/12/1979
05/29/1979
05/29/1979
05/29/1979
05/29/1979
05/29/1979
P
400,000.00
100,000.00
150,000.00
150,000.00
100,000.00
300,000.00
150,000.00
100,000.00
250,000.00
220,000.00
P
1,920,000.00
All the PNs stated that the purpose of the loans covered thereby is "To
liquidate existing obligation," except for PN No. 34534, which stated for its
purpose "personal investment."
Respondent secured her foregoing loans with petitioner Citibank by
executing Deeds of Assignment of her money market placements with
petitioner FNCB Finance. On 2 March 1978, respondent executed in favor
of petitioner Citibank a Deed of Assignment57 of PN No. 8169, which was
issued by petitioner FNCB Finance, to secure payment of the credit and
banking facilities extended to her by petitioner Citibank, in the aggregate
principal amount of P500,000.00. On 9 March 1978, respondent executed in
favor of petitioner Citibank another Deed of Assignment,58 this time, of PN
No. 8167, also issued by petitioner FNCB Finance, to secure payment of the
credit and banking facilities extended to her by petitioner Citibank, in the
aggregate amount of P500,000.00. When PNs No. 8167 and 8169,
representing respondent's money market placements with petitioner FNCB
Finance, matured and were rolled-over to PNs No. 20138 and 20139,
respondent executed new Deeds of Assignment,59 in favor of petitioner
Citibank, on 25 August 1978. According to the more recent Deeds,
respondent assigned PNs No. 20138 and 20139, representing her rolledover money market placements with petitioner FNCB Finance, to petitioner
Citibank as security for the banking and credit facilities it extended to her, in
the aggregate principal amount of P500,000.00 per Deed.
No.
25-225928
bank which, in turn, must present it for payment against the drawee bank in
the course of normal banking hours. The crossed check cannot be
presented for payment, but it can only be deposited and the drawee bank
may only pay to another bank in the payee's or indorser's account.80 The
effect of crossing a check was described by this Court in Philippine
Commercial International Bank v. Court of Appeals81
[T]he crossing of a check with the phrase "Payee's Account Only" is a
warning that the check should be deposited in the account of the
payee. Thus, it is the duty of the collecting bank PCI Bank to ascertain
that the check be deposited in payee's account only. It is bound to
scrutinize the check and to know its depositors before it can make the
clearing indorsement "all prior indorsements and/or lack of
indorsement guaranteed."
The crossed MCs presented by petitioner Bank were indeed deposited in
several different bank accounts and cleared by the Clearing Office of the
Central Bank of the Philippines, as evidenced by the stamp marks and
notations on the said checks. The crossed MCs are already in the
possession of petitioner Citibank, the drawee bank, which was ultimately
responsible for the payment of the amount stated in the checks. Given that
a check is more than just an instrument of credit used in commercial
transactions for it also serves as a receipt or evidence for the drawee bank
of the cancellation of the said check due to payment,82 then, the possession
by petitioner Citibank of the said MCs, duly stamped "Paid" gives rise to the
presumption that the said MCs were already paid out to the intended payee,
who was in this case, the respondent.
This Court finds applicable herein the presumptions that private transactions
have been fair and regular,83 and that the ordinary course of business has
been followed.84 There is no question that the loan transaction between
petitioner Citibank and the respondent is a private transaction. The
transactions revolving around the crossed MCs from their issuance by
petitioner Citibank to respondent as payment of the proceeds of her loans;
to its deposit in respondent's accounts with several different banks; to the
clearing of the MCs by an independent clearing house; and finally, to the
payment of the MCs by petitioner Citibank as the drawee bank of the said
checks are all private transactions which shall be presumed to have been
fair and regular to all the parties concerned. In addition, the banks involved
checks for deposit, and the Central Bank of the Philippines, which cleared
the checks. It falls upon the respondent to overcome or dispute the
presumption that the crossed checks were issued, accepted for deposit,
cleared, and paid for by the banks involved following the ordinary course of
their business.
The mere fact that MCs No. 220701 and 226467 do not bear respondent's
signature at the back does not negate deposit thereof in her account. The
liability for the lack of indorsement on the MCs no longer fall on petitioner
Citibank, but on the bank who received the same for deposit, in this case,
BPI Cubao Branch. Once again, it must be noted that the MCs were
crossed, for payee's account only, and the payee named in both checks
was none other than respondent. The crossing of the MCs was already a
warning to BPI to receive said checks for deposit only in respondent's
account. It was up to BPI to verify whether it was receiving the crossed MCs
in accordance with the instructions on the face thereof. If, indeed, the MCs
were deposited in accounts other than respondent's, then the respondent
would have a cause of action against BPI.90
BPI further stamped its guarantee on the back of the checks to the effect
that, "All prior endorsement and/or Lack of endorsement guaranteed." Thus,
BPI became the indorser of the MCs, and assumed all the warranties of an
indorser,91 specifically, that the checks were genuine and in all respects
what they purported to be; that it had a good title to the checks; that all prior
parties had capacity to contract; and that the checks were, at the time of
their indorsement, valid and subsisting.92 So even if the MCs deposited by
BPI's client, whether it be by respondent herself or some other person,
lacked the necessary indorsement, BPI, as the collecting bank, is bound by
its warranties as an indorser and cannot set up the defense of lack of
indorsement as against petitioner Citibank, the drawee bank.93
Furthermore, respondent's bare and unsubstantiated denial of receipt of the
MCs in question and their deposit in her account is rendered suspect when
MC No. 220701 was actually deposited in Account No. 0123-0572-28 of BPI
Cubao Branch, the very same account in which MC No. 228270 (which
respondent admitted to receiving as proceeds of her loan from petitioner
Citibank), and MCs No. 228203, 228357, and 228400 (which respondent
admitted to receiving as proceeds from her money market placements) were
deposited. Likewise, MC No. 226467 was deposited in Account No. 0121-
002-43 of BPI Cubao Branch, to which MCs No. 226285 and 226439 (which
respondent admitted to receiving as proceeds from her money market
placements) were deposited. It is an apparent contradiction for respondent
to claim having received the proceeds of checks deposited in an account,
and then deny receiving the proceeds of another check deposited in the
very same account.
Another inconsistency in respondent's denial of receipt of MC No. 226467
and her deposit of the same in her account, is her presentation of Exhibit
"HHH," a provisional receipt which was supposed to prove that respondent
turned over P500,000.00 to Mr. Tan of petitioner Citibank, that the said
amount was split into three money market placements, and that MC No.
226467 represented the return on her investment from one of these
placements.94 Because of her Exhibit "HHH," respondent effectively
admitted receipt of MC No. 226467, although for reasons other than as
proceeds of a loan.
Neither can this Court give credence to respondent's contention that the
notations on the MCs, stating that they were the proceeds of particular PNs,
were not there when she received the checks and that the notations
appeared to be written by a typewriter different from that used to write the
other information on the checks. Once more, respondent's allegations were
uncorroborated by any other evidence. Her and her counsel's observation
that the notations on the MCs appear to be written by a typewriter different
from that used to write the other information on the checks hardly convinces
this Court considering that it constitutes a mere opinion on the appearance
of the notation by a witness who does not possess the necessary expertise
on the matter. In addition, the notations on the MCs were written using both
capital and small letters, while the other information on the checks were
written using capital letters only, such difference could easily confuse an
untrained eye and lead to a hasty conclusion that they were written by
different typewriters.
Respondent's testimony, that based on her experience transacting with
banks, the MCs were not supposed to include notations on the purpose for
which the checks were issued, also deserves scant consideration. While
respondent may have extensive experience dealing with banks, it still does
not qualify her as a competent witness on banking procedures and
practices. Her testimony on this matter is even belied by the fact that the
other MCs issued by petitioner Citibank (when it was still named First
National City Bank) and by petitioner FNCB Finance, the existence and
validity of which were not disputed by respondent, also bear similar
notations that state the reason for which they were issued.
Respondent presented several more pieces of evidence to substantiate her
claim that she received MCs No. 226285, 226439, 226467, 226057,
228357, and 228400, not as proceeds of her loans from petitioner Citibank,
but as the return of the principal amounts and payment of interests from her
money market placements with petitioners. Part of respondent's exhibits
were personal checks95 drawn by respondent on her account with Feati
Bank & Trust Co., which she allegedly invested in separate money market
placements with both petitioners, the returns from which were paid to her via
MCs No. 226285 and 228400. Yet, to this Court, the personal checks only
managed to establish respondent's issuance thereof, but there was nothing
on the face of the checks that would reveal the purpose for which they were
issued and that they were actually invested in money market placements as
respondent claimed.
Respondent further submitted handwritten notes that purportedly computed
and presented the returns on her money market placements, corresponding
to the amount stated in the MCs she received from petitioner Citibank.
Exhibit "HHH-1"96 was a handwritten note, which respondent attributed to
Mr. Tan of petitioner Citibank, showing the breakdown of her BPI Check for
P500,000.00 into three different money market placements with petitioner
Citibank. This Court, however, noticed several factors which render the note
highly suspect. One, it was written on the reversed side of Provisional
Receipt No. 12724 of petitioner Citibank which bore the initials of Mr. Tan
acknowledging receipt of respondent's BPI Check No. 120989 for
P500,000.00; but the initials on the handwritten note appeared to be that of
Mr. Bobby Mendoza of petitioner FNCB Finance.97 Second, according to
Provisional Receipt No. 12724, BPI Check No. 120989 for P500,000.00 was
supposed to be invested in three money market placements with petitioner
Citibank for the period of 60 days. Since all these money market placements
were made through one check deposited on the same day, 10 November
1978, it made no sense that the handwritten note at the back of Provisional
Receipt No. 12724 provided for different dates of maturity for each of the
money market placements (i.e., 16 November 1978, 17 January 1979, and
21 November 1978), and such dates did not correspond to the 60 day
placement period stated on the face of the provisional receipt. And third, the
principal amounts of the money market placements as stated in the
handwritten note P145,000.00, P145,000.00 and P242,000.00 totaled
P532,000.00, and was obviously in excess of the P500,000.00
acknowledged on the face of Provisional Receipt No. 12724.
Exhibits "III" and "III-1," the front and bank pages of a handwritten note of
Mr. Bobby Mendoza of petitioner FNCB Finance,98 also did not deserve
much evidentiary weight, and this Court cannot rely on the truth and
accuracy of the computations presented therein. Mr. Mendoza was not
presented as a witness during the trial before the RTC, so that the
document was not properly authenticated nor its contents sufficiently
explained. No one was able to competently identify whether the initials as
appearing on the note were actually Mr. Mendoza's.
Also, going by the information on the front page of the note, this Court
observes that payment of respondent's alleged money market placements
with petitioner FNCB Finance were made using Citytrust Checks; the MCs
in question, including MC No. 228057, were issued by petitioner Citibank.
Although Citytrust (formerly Feati Bank & Trust Co.), petitioner FNCB
Finance, and petitioner Citibank may be affiliates of one another, they each
remained separate and distinct corporations, each having its own financial
system and records. Thus, this Court cannot simply assume that one
corporation, such as petitioner Citibank or Citytrust, can issue a check to
discharge an obligation of petitioner FNCB Finance. It should be recalled
that when petitioner FNCB Finance paid for respondent's money market
placements, covered by its PNs No. 8167 and 8169, as well as PNs No.
20138 and 20139, petitioner FNCB Finance issued its own checks.
As a last point on this matter, if respondent truly had money market
placements with petitioners, then these would have been evidenced by PNs
issued by either petitioner Citibank or petitioner FNCB Finance,
acknowledging the principal amounts of the investments, and stating the
applicable interest rates, as well as the dates of their of issuance and
maturity. After respondent had so meticulously reconstructed her other
money market placements with petitioners and consolidated the
documentary evidence thereon, she came surprisingly short of offering
similar details and substantiation for these particular money market
placements.
Since this Court is satisfied that respondent indeed received the proceeds of
the first set of PNs, then it proceeds to analyze her evidence of payment
thereof.
In support of respondent's assertion that she had already paid whatever
loans she may have had with petitioner Citibank, she presented as evidence
Provisional Receipts No. 19471, dated 11 August 1978, and No. 12723,
dated 10 November 1978, both of petitioner Citibank and signed by Mr. Tan,
for the amounts of P500,744.00 and P500,000.00, respectively. While these
provisional receipts did state that Mr. Tan, on behalf of petitioner Citibank,
received respondent's checks as payment for her loans, they failed to
specifically identify which loans were actually paid. Petitioner Citibank was
able to present evidence that respondent had executed several PNs in the
years 1978 and 1979 to cover the loans she secured from the said bank.
Petitioner Citibank did admit that respondent was able to pay for some of
these PNs, and what it identified as the first and second sets of PNs were
only those which remained unpaid. It thus became incumbent upon
respondent to prove that the checks received by Mr. Tan were actually
applied to the PNs in either the first or second set; a fact that, unfortunately,
cannot be determined from the provisional receipts submitted by respondent
since they only generally stated that the checks received by Mr. Tan were
payment for respondent's loans.
Mr. Tan, in his deposition, further explained that provisional receipts were
issued when payment to the bank was made using checks, since the checks
would still be subject to clearing. The purpose for the provisional receipts
was merely to acknowledge the delivery of the checks to the possession of
the bank, but not yet of payment.99 This bank practice finds legitimacy in the
pronouncement of this Court that a check, whether an MC or an ordinary
check, is not legal tender and, therefore, cannot constitute valid tender of
payment. In Philippine Airlines, Inc. v. Court of Appeals, 100 this Court
elucidated that:
Since a negotiable instrument is only a substitute for money and not
money, the delivery of such an instrument does not, by itself, operate
as payment (Sec. 189, Act 2031 on Negs. Insts.; Art. 1249, Civil Code;
Bryan Landon Co. v. American Bank, 7 Phil. 255; Tan Sunco, v.
Santos, 9 Phil. 44; 21 R.C.L. 60, 61). A check, whether a manager's
check or ordinary check, is not legal tender, and an offer of a check in
time and the fact sought to be established from them is only the
general result of the whole; and
(d) When the original is a public record in the custody of a public officer
or is recorded in a public office.
As the afore-quoted provision states, the best evidence rule applies only
when the subject of the inquiry is the contents of the document. The scope
of the rule is more extensively explained thus
But even with respect to documentary evidence, the best evidence rule
applies only when the content of such document is the subject of the
inquiry. Where the issue is only as to whether such document was
actually executed, or exists, or on the circumstances relevant to or
surrounding its execution, the best evidence rule does not apply and
testimonial evidence is admissible (5 Moran, op. cit., pp. 76-66; 4
Martin, op. cit., p. 78). Any other substitutionary evidence is likewise
admissible without need for accounting for the original.
Thus, when a document is presented to prove its existence or
condition it is offered not as documentary, but as real, evidence. Parol
evidence of the fact of execution of the documents is allowed
(Hernaez, et al. vs. McGrath, etc., et al., 91 Phil 565). x x x 115
In Estrada v. Desierto,116 this Court had occasion to rule that
It is true that the Court relied not upon the original but only copy of the
Angara Diary as published in the Philippine Daily Inquirer on February
4-6, 2001. In doing so, the Court, did not, however, violate the best
evidence rule. Wigmore, in his book on evidence, states that:
"Production of the original may be dispensed with, in the trial court's
discretion, whenever in the case in hand the opponent does not bona
fide dispute the contents of the document and no other useful purpose
will be served by requiring production.24
"x x x x
"In several Canadian provinces, the principle of unavailability has been
abandoned, for certain documents in which ordinarily no real dispute
arised. This measure is a sensible and progressive one and deserves
universal adoption (post, sec. 1233). Its essential feature is that a copy
may be used unconditionally, if the opponent has been given an
opportunity to inspect it." (Emphasis supplied.)
This Court did not violate the best evidence rule when it considered and
weighed in evidence the photocopies and microfilm copies of the PNs, MCs,
and letters submitted by the petitioners to establish the existence of
respondent's loans. The terms or contents of these documents were never
the point of contention in the Petition at bar. It was respondent's position
that the PNs in the first set (with the exception of PN No. 34534) never
existed, while the PNs in the second set (again, excluding PN No. 34534)
were merely executed to cover simulated loan transactions. As for the MCs
representing the proceeds of the loans, the respondent either denied receipt
of certain MCs or admitted receipt of the other MCs but for another purpose.
Respondent further admitted the letters she wrote personally or through her
representatives to Mr. Tan of petitioner Citibank acknowledging the loans,
except that she claimed that these letters were just meant to keep up the
ruse of the simulated loans. Thus, respondent questioned the documents as
to their existence or execution, or when the former is admitted, as to the
purpose for which the documents were executed, matters which are,
undoubtedly, external to the documents, and which had nothing to do with
the contents thereof.
Alternatively, even if it is granted that the best evidence rule should apply to
the evidence presented by petitioners regarding the existence of
respondent's loans, it should be borne in mind that the rule admits of the
following exceptions under Rule 130, Section 5 of the revised Rules of Court
Citibank from the account officer in its Marketing Department, to the preprocessor, to the signature verifier, back to the pre-processor, then to the
processor for booking.117 The original PNs were seen by Ms. Dondoyano,
the processor, who recorded them in the General Ledger. Mr. Pujeda
personally saw the original MCs, proving respondent's receipt of the
proceeds of her loans from petitioner Citibank, when he helped Attys. Cleofe
and Fernandez, the bank's legal counsels, to reconstruct the records of
respondent's loans. The original MCs were presented to Atty. Cleofe who
used the same during the preliminary investigation of the case, sometime in
years 1986-1987. The original MCs were subsequently turned over to the
Control and Investigation Division of petitioner Citibank.118
It was only petitioner FNCB Finance who claimed that they lost the original
copies of the PNs when it moved to a new office. Citibank did not make a
similar contention; instead, it explained that the original copies of the PNs
were returned to the borrower upon liquidation of the loan, either through
payment or roll-over. Petitioner Citibank proffered the excuse that they were
still looking for the documents in their storage or warehouse to explain the
delay and difficulty in the retrieval thereof, but not their absence or loss. The
original documents in this case, such as the MCs and letters, were
destroyed and, thus, unavailable for presentation before the RTC only on 7
October 1987, when a fire broke out on the 7th floor of the office building of
petitioner Citibank. There is no showing that the fire was intentionally set.
The fire destroyed relevant documents, not just of the present case, but also
of other cases, since the 7th floor housed the Control and Investigation
Division, in charge of keeping the necessary documents for cases in which
petitioner Citibank was involved.
The foregoing would have been sufficient to allow the presentation of
photocopies or microfilm copies of the PNs, MCs, and letters by the
petitioners as secondary evidence to establish the existence of respondent's
loans, as an exception to the best evidence rule.
The impact of the Decision of the Court of Appeals in the Dy case
In its assailed Decision, the Court of Appeals made the following
pronouncement
Besides, We find the declaration and conclusions of this Court in CAG.R. CV No. 15934 entitled Sps. Dr. Ricardo L. Dy and Rosalind O. Dy
forged, they were approved by the signature verifier since the signature
cards against which they were compared to were also forged. Neither the
RTC nor the Court of Appeals, however, categorically declared Mr. Tan
personally responsible for the forgeries, which, in the narration of the facts,
were more likely committed by Caedo.
In the Petition at bar, respondent dealt with Mr. Tan directly, there was no
third party involved who could have perpetrated any fraud or forgery in her
loan transactions. Although respondent attempted to raise suspicion as to
the authenticity of her signatures on certain documents, these were nothing
more than naked allegations with no corroborating evidence; worse, even
her own allegations were replete with inconsistencies. She could not even
establish in what manner or under what circumstances the fraud or forgery
was committed, or how Mr. Tan could have been directly responsible for the
same.
While the Court of Appeals can take judicial notice of the Decision of its
Third Division in the Dy case, it should not have given the said case much
weight when it rendered the assailed Decision, since the former does not
constitute a precedent. The Court of Appeals, in the challenged Decision,
did not apply any legal argument or principle established in the Dy case but,
rather, adopted the findings therein of wrongdoing or misconduct on the part
of herein petitioner Citibank and Mr. Tan. Any finding of wrongdoing or
misconduct as against herein petitioners should be made based on the
factual background and pieces of evidence submitted in this case, not those
in another case.
It is apparent that the Court of Appeals took judicial notice of the Dy case
not as a legal precedent for the present case, but rather as evidence of
similar acts committed by petitioner Citibank and Mr. Tan. A basic rule of
evidence, however, states that, "Evidence that one did or did not do a
certain thing at one time is not admissible to prove that he did or did not do
the same or similar thing at another time; but it may be received to prove a
specific intent or knowledge, identity, plan, system, scheme, habit, custom
or usage, and the like."120 The rationale for the rule is explained thus
The rule is founded upon reason, public policy, justice and judicial
convenience. The fact that a person has committed the same or similar
acts at some prior time affords, as a general rule, no logical guaranty
that he committed the act in question. This is so because, subjectively,
a man's mind and even his modes of life may change; and, objectively,
the conditions under which he may find himself at a given time may
likewise change and thus induce him to act in a different way. Besides,
if evidence of similar acts are to be invariably admitted, they will give
rise to a multiplicity of collateral issues and will subject the defendant
to surprise as well as confuse the court and prolong the trial.121
The factual backgrounds of the two cases are so different and unrelated that
the Dy case cannot be used to prove specific intent, knowledge, identity,
plan, system, scheme, habit, custom or usage on the part of petitioner
Citibank or its officer, Mr. Tan, to defraud respondent in the present case.
IV
The liquidation of respondent's outstanding loans were valid in so far as
petitioner Citibank used respondent's savings account with the bank and her
money market placements with petitioner FNCB Finance; but illegal and
void in so far as petitioner Citibank used respondent's dollar accounts with
Citibank-Geneva.
Savings Account with petitioner Citibank
Compensation is a recognized mode of extinguishing obligations. Relevant
provisions of the Civil Code provides
Art. 1278. Compensation shall take place when two persons, in their
own right, are creditors and debtors of each other.
Art. 1279. In order that compensation may be proper, it is necessary;
(1) That each one of the obligors be bound principally, and that he be
at the same time a principal creditor of the other;
(2) That both debts consist in a sum of money, or if the things due are
consumable, they be of the same kind, and also of the same quality if
the latter has been stated;
(3) That the two debts be due;
(4) That they be liquidated and demandable;
bound principally, and that he be at the same time a principal creditor of the
other, was not met.
What petitioner Citibank actually did was to exercise its rights to the
proceeds of respondent's money market placements with petitioner FNCB
Finance by virtue of the Deeds of Assignment executed by respondent in its
favor.
The Court of Appeals did not consider these Deeds of Assignment because
of petitioners' failure to produce the original copies thereof in violation of the
best evidence rule. This Court again finds itself in disagreement in the
application of the best evidence rule by the appellate court.
To recall, the best evidence rule, in so far as documentary evidence is
concerned, requires the presentation of the original copy of the document
only when the context thereof is the subject of inquiry in the case.
Respondent does not question the contents of the Deeds of Assignment.
While she admitted the existence and execution of the Deeds of
Assignment, dated 2 March 1978 and 9 March 1978, covering PNs No.
8169 and 8167 issued by petitioner FNCB Finance, she claimed, as
defense, that the loans for which the said Deeds were executed as security,
were already paid. She denied ever executing both Deeds of Assignment,
dated 25 August 1978, covering PNs No. 20138 and 20139. These are
again issues collateral to the contents of the documents involved, which
could be proven by evidence other than the original copies of the said
documents.
Moreover, the Deeds of Assignment of the money market placements with
petitioner FNCB Finance were notarized documents, thus, admissible in
evidence. Rule 132, Section 30 of the Rules of Court provides that
SEC. 30. Proof of notarial documents. Every instrument duly
acknowledged or proved and certified as provided by law, may be
presented in evidence without further proof, the certificate of
acknowledgement being prima facie evidence of the execution of the
instrument or document involved.
Significant herein is this Court's elucidation in De Jesus v. Court of
Appeals,124 which reads
virtue of her money market placements with the latter. According to Article
2118 of the Civil Code
ART. 2118. If a credit has been pledged becomes due before it is
redeemed, the pledgee may collect and receive the amount due. He
shall apply the same to the payment of his claim, and deliver the
surplus, should there be any, to the pledgor.
PNs No. 20138 and 20139 matured on 3 September 1979, without them
being redeemed by respondent, so that petitioner Citibank collected from
petitioner FNCB Finance the proceeds thereof, which included the principal
amounts and interests earned by the money market placements, amounting
to P1,022,916.66, and applied the same against respondent's outstanding
loans, leaving no surplus to be delivered to respondent.
Dollar accounts with Citibank-Geneva
Despite the legal compensation of respondent's savings account and the
total application of the proceeds of PNs No. 20138 and 20139 to
respondent's outstanding loans, there still remained a balance of
P1,069,847.40. Petitioner Citibank then proceeded to applying respondent's
dollar accounts with Citibank-Geneva against her remaining loan balance,
pursuant to a Declaration of Pledge supposedly executed by respondent in
its favor.
Certain principles of private international law should be considered herein
because the property pledged was in the possession of an entity in a foreign
country, namely, Citibank-Geneva. In the absence of any allegation and
evidence presented by petitioners of the specific rules and laws governing
the constitution of a pledge in Geneva, Switzerland, they will be presumed
to be the same as Philippine local or domestic laws; this is known as
processual presumption.131
Upon closer scrutiny of the Declaration of Pledge, this Court finds the same
exceedingly suspicious and irregular.
First of all, it escapes this Court why petitioner Citibank took care to have
the Deeds of Assignment of the PNs notarized, yet left the Declaration of
Pledge unnotarized. This Court would think that petitioner Citibank would
take greater cautionary measures with the preparation and execution of the
The pledge right herewith constituted shall secure all claims which the
Bank now has or in the future acquires against Citibank, N.A., Manila
(full name and address of the Debtor), regardless of the legal cause or
the transaction (for example current account, securities transactions,
collections, credits, payments, documentary credits and collections)
which gives rise thereto, and including principal, all contractual and
penalty interest, commissions, charges, and costs.
The pledge, therefore, made no sense, the pledgor and pledgee being the
same entity. Was a mistake made by whoever filled-out the form? Yes, it
could be a possibility. Nonetheless, considering the value of such a
document, the mistake as to a significant detail in the pledge could only be
committed with gross carelessness on the part of petitioner Citibank, and
raised serious doubts as to the authenticity and due execution of the same.
The Declaration of Pledge had passed through the hands of several bank
officers in the country and abroad, yet, surprisingly and implausibly, no one
noticed such a glaring mistake.
Lastly, respondent denied that it was her signature on the Declaration of
Pledge. She claimed that the signature was a forgery. When a document is
assailed on the basis of forgery, the best evidence rule applies
Basic is the rule of evidence that when the subject of inquiry is the
contents of a document, no evidence is admissible other than the
original document itself except in the instances mentioned in Section 3,
Rule 130 of the Revised Rules of Court. Mere photocopies of
documents are inadmissible pursuant to the best evidence rule. This is
especially true when the issue is that of forgery.
As a rule, forgery cannot be presumed and must be proved by clear,
positive and convincing evidence and the burden of proof lies on the
party alleging forgery. The best evidence of a forged signature in an
instrument is the instrument itself reflecting the alleged forged
signature. The fact of forgery can only be established by a comparison
between the alleged forged signature and the authentic and genuine
signature of the person whose signature is theorized upon to have
been forged. Without the original document containing the alleged
forged signature, one cannot make a definitive comparison which
would establish forgery. A comparison based on a mere xerox copy or
appeal before the Court of Appeals, did not raise in issue the absence of
such.
While it is true that the general rule is that only errors which have been
stated in the assignment of errors and properly argued in the brief shall be
considered, this Court has also recognized exceptions to the general rule,
wherein it authorized the review of matters, even those not assigned as
errors in the appeal, if the consideration thereof is necessary in arriving at a
just decision of the case, and there is a close inter-relation between the
omitted assignment of error and those actually assigned and discussed by
the appellant.140 Thus, the Court of Appeals did not err in awarding the
damages when it already made findings that would justify and support the
said award.
Although this Court appreciates the right of petitioner Citibank to effect legal
compensation of respondent's local deposits, as well as its right to the
proceeds of PNs No. 20138 and 20139 by virtue of the notarized Deeds of
Assignment, to partly extinguish respondent's outstanding loans, it finds that
petitioner Citibank did commit wrong when it failed to pay and properly
account for the proceeds of respondent's money market placements,
evidenced by PNs No. 23356 and 23357, and when it sought the remittance
of respondent's dollar accounts from Citibank-Geneva by virtue of a highlysuspect Declaration of Pledge to be applied to the remaining balance of
respondent's outstanding loans. It bears to emphasize that banking is
impressed with public interest and its fiduciary character requires high
standards of integrity and performance.141 A bank is under the obligation to
treat the accounts of its depositors with meticulous care whether such
accounts consist only of a few hundred pesos or of millions of pesos.142 The
bank must record every single transaction accurately, down to the last
centavo, and as promptly as possible.143 Petitioner Citibank evidently failed
to exercise the required degree of care and transparency in its transactions
with respondent, thus, resulting in the wrongful deprivation of her property.
Respondent had been deprived of substantial amounts of her investments
and deposits for more than two decades. During this span of years,
respondent had found herself in desperate need of the amounts wrongfully
withheld from her. In her testimony144 before the RTC, respondent narrated
Q By the way Mrs. Witness will you kindly tell us again, you said before
that you are a businesswoman, will you tell us again what are the
businesses you are engaged into [sic]?
A I am engaged in real estate. I am the owner of the Modesta Village 1
and 2 in San Mateo, Rizal. I am also the President and Chairman of
the Board of Macador [sic] Co. and Business Inc. which operates the
Macador [sic] International Palace Hotel. I am also the President of the
Macador [sic] International Palace Hotel, and also the Treasures Home
Industries, Inc. which I am the Chairman and president of the Board
and also operating affiliated company in the name of Treasures Motor
Sales engaged in car dealers [sic] like Delta Motors, we are the
dealers of the whole Northern Luzon and I am the president of the
Disto Company, Ltd., based in Hongkong licensed in Honkong [sic]
and now operating in Los Angeles, California.
Q What is the business of that Disto Company Ltd.?
A Disto Company, Ltd., is engaged in real estate and construction.
Q Aside from those businesses are you a member of any national or
community organization for social and civil activities?
A Yes sir.
Q What are those?
A I am the Vice-President of thes [sic] Subdivision Association of the
Philippines in 1976, I am also an officer of the Chamber of Real
Estate Business Association; I am also an officer of the Chatholic [sic]
Women's League and I am also a member of the CMLI, I forgot the
definition.
Q How about any political affiliation or government position held if any?
A I was also a candidate for Mayo last January 30, 1980.
Q Where?
A In Dagupan City, Pangasinan.
Q What else?
currency using the exchange rate at the time of payment, plus the stipulated
interest for each of the fiduciary placements and current accounts involved,
beginning 26 October 1979;
3. Petitioner Citibank is ORDERED to pay respondent moral damages in the
amount of Three Hundred Thousand Pesos (P300,000.00); exemplary
damages in the amount of Two Hundred Fifty Thousand Pesos
(P250,000.00); and attorney's fees in the amount of Two Hundred
Thousand Pesos (P200,000.00); and
4. Respondent is ORDERED to pay petitioner Citibank the balance of her
outstanding loans, which, from the respective dates of their maturity to 5
September 1979, was computed to be in the sum of One Million Sixty-Nine
Thousand Eight Hundred Forty-Seven Pesos and Forty Centavos
(P1,069,847.40), inclusive of interest. These outstanding loans shall
continue to earn interest, at the rates stipulated in the corresponding PNs,
from 5 September 1979 until payment thereof.
SO ORDERED.
of
the
Philippines
COURT
EN BANC
G.R. No. 155001
May 5, 2003
5.0%
7.5%
10.0%
The PBAC then proceeded with the opening of the second envelope of the
Paircargo Consortium which contained its Technical Proposal.
On October 3, 1996, AEDC reiterated its objections, particularly with respect
to Paircargo's financial capability, in view of the restrictions imposed by
Section 21-B of the General Banking Act and Sections 1380 and 1381 of the
Manual Regulations for Banks and Other Financial Intermediaries. On
October 7, 1996, AEDC again manifested its objections and requested that
it be furnished with excerpts of the PBAC meeting and the accompanying
technical evaluation report where each of the issues they raised were
addressed.
On October 16, 1996, the PBAC opened the third envelope submitted by
AEDC and the Paircargo Consortium containing their respective financial
proposals. Both proponents offered to build the NAIA Passenger Terminal III
for at least $350 million at no cost to the government and to pay the
government: 5% share in gross revenues for the first five years of operation,
7.5% share in gross revenues for the next ten years of operation, and 10%
share in gross revenues for the last ten years of operation, in accordance
with the Bid Documents. However, in addition to the foregoing, AEDC
offered to pay the government a total of P135 million as guaranteed
payment for 27 years while Paircargo Consortium offered to pay the
government a total of P17.75 billion for the same period.
Thus, the PBAC formally informed AEDC that it had accepted the price
proposal submitted by the Paircargo Consortium, and gave AEDC 30
working days or until November 28, 1996 within which to match the said bid,
otherwise, the project would be awarded to Paircargo.
As AEDC failed to match the proposal within the 30-day period, then DOTC
Secretary Amado Lagdameo, on December 11, 1996, issued a notice to
Paircargo Consortium regarding AEDC's failure to match the proposal.
On February 27, 1997, Paircargo Consortium incorporated into Philippine
International Airport Terminals Co., Inc. (PIATCO).
AEDC subsequently protested the alleged undue preference given to
PIATCO and reiterated its objections as regards the prequalification of
PIATCO.
On April 11, 1997, the DOTC submitted the concession agreement for the
second-pass approval of the NEDA-ICC.
On April 16, 1997, AEDC filed with the Regional Trial Court of Pasig a
Petition for Declaration of Nullity of the Proceedings, Mandamus and
Injunction against the Secretary of the DOTC, the Chairman of the PBAC,
the voting members of the PBAC and Pantaleon D. Alvarez, in his capacity
as Chairman of the PBAC Technical Committee.
On April 17, 1997, the NEDA-ICC conducted an ad referendum to facilitate
the approval, on a no-objection basis, of the BOT agreement between the
DOTC and PIATCO. As the ad referendum gathered only four (4) of the
required six (6) signatures, the NEDA merely noted the agreement.
On July 9, 1997, the DOTC issued the notice of award for the project to
PIATCO.
On July 12, 1997, the Government, through then DOTC Secretary Arturo T.
Enrile, and PIATCO, through its President, Henry T. Go, signed the
"Concession Agreement for the Build-Operate-and-Transfer Arrangement of
the Ninoy Aquino International Airport Passenger Terminal III" (1997
Concession Agreement). The Government granted PIATCO the franchise to
operate and maintain the said terminal during the concession period and to
collect the fees, rentals and other charges in accordance with the rates or
schedules stipulated in the 1997 Concession Agreement. The Agreement
provided that the concession period shall be for twenty-five (25) years
commencing from the in-service date, and may be renewed at the option of
the Government for a period not exceeding twenty-five (25) years. At the
end of the concession period, PIATCO shall transfer the development
facility to MIAA.
On November 26, 1998, the Government and PIATCO signed an Amended
and Restated Concession Agreement (ARCA). Among the provisions of the
1997 Concession Agreement that were amended by the ARCA were: Sec.
1.11 pertaining to the definition of "certificate of completion"; Sec. 2.05
pertaining to the Special Obligations of GRP; Sec. 3.02 (a) dealing with the
exclusivity of the franchise given to the Concessionaire; Sec. 4.04
concerning the assignment by Concessionaire of its interest in the
Development Facility; Sec. 5.08 (c) dealing with the proceeds of
Concessionaire's insurance; Sec. 5.10 with respect to the temporary take-
over of operations by GRP; Sec. 5.16 pertaining to the taxes, duties and
other imposts that may be levied on the Concessionaire; Sec. 6.03 as
regards the periodic adjustment of public utility fees and charges; the entire
Article VIII concerning the provisions on the termination of the contract; and
Sec. 10.02 providing for the venue of the arbitration proceedings in case a
dispute or controversy arises between the parties to the agreement.
Subsequently, the Government and PIATCO signed three Supplements to
the ARCA. The First Supplement was signed on August 27, 1999; the
Second Supplement on September 4, 2000; and the Third Supplement on
June 22, 2001 (collectively, Supplements).
The First Supplement to the ARCA amended Sec. 1.36 of the ARCA
defining "Revenues" or "Gross Revenues"; Sec. 2.05 (d) of the ARCA
referring to the obligation of MIAA to provide sufficient funds for the upkeep,
maintenance, repair and/or replacement of all airport facilities and
equipment which are owned or operated by MIAA; and further providing
additional special obligations on the part of GRP aside from those already
enumerated in Sec. 2.05 of the ARCA. The First Supplement also provided
a stipulation as regards the construction of a surface road to connect NAIA
Terminal II and Terminal III in lieu of the proposed access tunnel crossing
Runway 13/31; the swapping of obligations between GRP and PIATCO
regarding the improvement of Sales Road; and the changes in the
timetable. It also amended Sec. 6.01 (c) of the ARCA pertaining to the
Disposition of Terminal Fees; Sec. 6.02 of the ARCA by inserting an
introductory paragraph; and Sec. 6.02 (a) (iii) of the ARCA referring to the
Payments of Percentage Share in Gross Revenues.
The Second Supplement to the ARCA contained provisions concerning the
clearing, removal, demolition or disposal of subterranean structures
uncovered or discovered at the site of the construction of the terminal by the
Concessionaire. It defined the scope of works; it provided for the procedure
for the demolition of the said structures and the consideration for the same
which the GRP shall pay PIATCO; it provided for time extensions,
incremental and consequential costs and losses consequent to the
existence of such structures; and it provided for some additional obligations
on the part of PIATCO as regards the said structures.
"honor (PIATCO) contracts which the Executive Branch's legal offices have
concluded (as) null and void."5
Respondent PIATCO filed its Comments to the present petitions on
November 7 and 27, 2002. The Office of the Solicitor General and the Office
of the Government Corporate Counsel filed their respective Comments in
behalf of the public respondents.
On December 10, 2002, the Court heard the case on oral argument. After
the oral argument, the Court then resolved in open court to require the
parties to file simultaneously their respective Memoranda in amplification of
the issues heard in the oral arguments within 30 days and to explore the
possibility of arbitration or mediation as provided in the challenged
contracts.
In their consolidated Memorandum, the Office of the Solicitor General and
the Office of the Government Corporate Counsel prayed that the present
petitions be given due course and that judgment be rendered declaring the
1997 Concession Agreement, the ARCA and the Supplements thereto void
for being contrary to the Constitution, the BOT Law and its Implementing
Rules and Regulations.
On March 6, 2003, respondent PIATCO informed the Court that on March 4,
2003 PIATCO commenced arbitration proceedings before the International
Chamber of Commerce, International Court of Arbitration (ICC) by filing a
Request for Arbitration with the Secretariat of the ICC against the
Government of the Republic of the Philippines acting through the DOTC and
MIAA.
In the present cases, the Court is again faced with the task of resolving
complicated issues made difficult by their intersecting legal and economic
implications. The Court is aware of the far reaching fall out effects of the
ruling which it makes today. For more than a century and whenever the
exigencies of the times demand it, this Court has never shirked from its
solemn duty to dispense justice and resolve "actual controversies involving
rights which are legally demandable and enforceable, and to determine
whether or not there has been grave abuse of discretion amounting to lack
or excess of jurisdiction."6 To be sure, this Court will not begin to do
otherwise today.
Petitioners in both cases raise the argument that the PIATCO Contracts
contain stipulations which directly contravene numerous provisions of the
Constitution, specific provisions of the BOT Law and its Implementing Rules
and Regulations, and public policy. Petitioners contend that the DOTC and
the MIAA, by entering into said contracts, have committed grave abuse of
discretion amounting to lack or excess of jurisdiction which can be remedied
only by a writ of prohibition, there being no plain, speedy or adequate
remedy in the ordinary course of law.
In particular, petitioners assail the provisions in the 1997 Concession
Agreement and the ARCA which grant PIATCO the exclusive right to
operate a commercial international passenger terminal within the Island of
Luzon, except those international airports already existing at the time of the
execution of the agreement. The contracts further provide that upon the
commencement of operations at the NAIA IPT III, the Government shall
cause the closure of Ninoy Aquino International Airport Passenger
Terminals I and II as international passenger terminals. With respect to
existing concession agreements between MIAA and international airport
service providers regarding certain services or operations, the 1997
Concession Agreement and the ARCA uniformly provide that such services
or operations will not be carried over to the NAIA IPT III and PIATCO is
under no obligation to permit such carry over except through a separate
agreement duly entered into with PIATCO.8
With respect to the petitioning service providers and their employees, upon
the commencement of operations of the NAIA IPT III, they allege that they
will be effectively barred from providing international airline airport services
at the NAIA Terminals I and II as all international airlines and passengers
will be diverted to the NAIA IPT III. The petitioning service providers will thus
be compelled to contract with PIATCO alone for such services, with no
assurance that subsisting contracts with MIAA and other international
airlines will be respected. Petitioning service providers stress that despite
the very competitive market, the substantial capital investments required
and the high rate of fees, they entered into their respective contracts with
the MIAA with the understanding that the said contracts will be in force for
the stipulated period, and thereafter, renewed so as to allow each of the
petitioning service providers to recoup their investments and obtain a
reasonable return thereon.
jurisdiction with this Court with respect to a special civil action for prohibition
and hence, following the rule on hierarchy of courts, resort must first be had
before the trial courts.
After a thorough study and careful evaluation of the issues involved, this
Court is of the view that the crux of the instant controversy involves
significant legal questions. The facts necessary to resolve these legal
questions are well established and, hence, need not be determined by a trial
court.
The rule on hierarchy of courts will not also prevent this Court from
assuming jurisdiction over the cases at bar. The said rule may be relaxed
when the redress desired cannot be obtained in the appropriate courts or
where exceptional and compelling circumstances justify availment of a
remedy within and calling for the exercise of this Court's primary
jurisdiction.19
It is easy to discern that exceptional circumstances exist in the cases at bar
that call for the relaxation of the rule. Both petitioners and respondents
agree that these cases are of transcendental importance as they involve the
construction and operation of the country's premier international airport.
Moreover, the crucial issues submitted for resolution are of first impression
and they entail the proper legal interpretation of key provisions of the
Constitution, the BOT Law and its Implementing Rules and Regulations.
Thus, considering the nature of the controversy before the Court, procedural
bars may be lowered to give way for the speedy disposition of the instant
cases.
Legal Effect of the Commencement
of Arbitration Proceedings by
PIATCO
There is one more procedural obstacle which must be overcome. The Court
is aware that arbitration proceedings pursuant to Section 10.02 of the ARCA
have been filed at the instance of respondent PIATCO. Again, we hold that
the arbitration step taken by PIATCO will not oust this Court of its
jurisdiction over the cases at bar.
capability required under the BOT Law and the Bid Documents. They allege
that in computing the ability of the Paircargo Consortium to meet the
minimum equity requirements for the project, the entire net worth of Security
Bank, a member of the consortium, should not be considered.
PIATCO relies, on the other hand, on the strength of the Memorandum
dated October 14, 1996 issued by the DOTC Undersecretary Primitivo C.
Cal stating that the Paircargo Consortium is found to have a combined net
worth of P3,900,000,000.00, sufficient to meet the equity requirements of
the project. The said Memorandum was in response to a letter from Mr.
Antonio Henson of AEDC to President Fidel V. Ramos questioning the
financial capability of the Paircargo Consortium on the ground that it does
not have the financial resources to put up the required minimum equity of
P2,700,000,000.00. This contention is based on the restriction under R.A.
No. 337, as amended or the General Banking Act that a commercial bank
cannot invest in any single enterprise in an amount more than 15% of its net
worth. In the said Memorandum, Undersecretary Cal opined:
The Bid Documents, as clarified through Bid Bulletin Nos. 3 and 5,
require that financial capability will be evaluated based on total
financial capability of all the member companies of the [Paircargo]
Consortium. In this connection, the Challenger was found to have a
combined net worth of P3,926,421,242.00 that could support a project
costing approximately P13 Billion.
It is not a requirement that the net worth must be "unrestricted." To
impose that as a requirement now will be nothing less than unfair.
The financial statement or the net worth is not the sole basis in
establishing financial capability. As stated in Bid Bulletin No. 3,
financial capability may also be established by testimonial letters
issued by reputable banks. The Challenger has complied with this
requirement.
To recap, net worth reflected in the Financial Statement should not be
taken as the amount of the money to be used to answer the required
thirty percent (30%) equity of the challenger but rather to be used in
establishing if there is enough basis to believe that the challenger can
comply with the required 30% equity. In fact, proof of sufficient equity is
required as one of the conditions for award of contract (Section 12.1
IRR of the BOT Law) but not for pre-qualification (Section 5.4 of the
same document).23
Under the BOT Law, in case of a build-operate-and-transfer
arrangement, the contract shall be awarded to the bidder "who, having
satisfied the minimum financial, technical, organizational and legal
standards" required by the law, has submitted the lowest bid and most
favorable terms of the project.24 Further, the 1994 Implementing Rules
and Regulations of the BOT Law provide:
Section 5.4 Pre-qualification Requirements.
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The basic rule in public bidding is that bids should be evaluated based
on the required documents submitted before and not after the opening
of bids. Otherwise, the foundation of a fair and competitive public
bidding would be defeated. Strict observance of the rules, regulations,
and guidelines of the bidding process is the only safeguard to a fair,
honest and competitive public bidding.30
Thus, if the maximum amount of equity that a bidder may invest in the
project at the time the bids are submitted falls short of the minimum
amounts required to be put up by the bidder, said bidder should be properly
disqualified. Considering that at the pre-qualification stage, the maximum
amounts which the Paircargo Consortium may invest in the project fell short
of the minimum amounts prescribed by the PBAC, we hold that Paircargo
Consortium was not a qualified bidder. Thus the award of the contract by
the PBAC to the Paircargo Consortium, a disqualified bidder, is null and
void.
While it would be proper at this juncture to end the resolution of the instant
controversy, as the legal effects of the disqualification of respondent
PIATCO's predecessor would come into play and necessarily result in the
nullity of all the subsequent contracts entered by it in pursuance of the
project, the Court feels that it is necessary to discuss in full the pressing
issues of the present controversy for a complete resolution thereof.
II
Is the 1997 Concession Agreement valid?
Petitioners and public respondents contend that the 1997 Concession
Agreement is invalid as it contains provisions that substantially depart from
the draft Concession Agreement included in the Bid Documents. They
maintain that a substantial departure from the draft Concession Agreement
is a violation of public policy and renders the 1997 Concession Agreement
null and void.
PIATCO maintains, however, that the Concession Agreement attached to
the Bid Documents is intended to be a draft, i.e., subject to change,
alteration or modification, and that this intention was clear to all participants,
including AEDC, and DOTC/MIAA. It argued further that said intention is
expressed in Part C (6) of Bid Bulletin No. 3 issued by the PBAC which
states:
6. Amendments to the Draft Concessions Agreement
Amendments to the Draft Concessions Agreement shall be issued from
time to time. Said amendments shall only cover items that would not
materially affect the preparation of the proponent's proposal.
By its very nature, public bidding aims to protect the public interest by giving
the public the best possible advantages through open competition. Thus:
Competition must be legitimate, fair and honest. In the field of
government contract law, competition requires, not only `bidding upon
a common standard, a common basis, upon the same thing, the same
subject matter, the same undertaking,' but also that it be legitimate, fair
and honest; and not designed to injure or defraud the government.31
An essential element of a publicly bidded contract is that all bidders must be
on equal footing. Not simply in terms of application of the procedural rules
and regulations imposed by the relevant government agency, but more
importantly, on the contract bidded upon. Each bidder must be able to bid
on the same thing. The rationale is obvious. If the winning bidder is allowed
to later include or modify certain provisions in the contract awarded such
that the contract is altered in any material respect, then the essence of fair
competition in the public bidding is destroyed. A public bidding would indeed
be a farce if after the contract is awarded, the winning bidder may modify
the contract and include provisions which are favorable to it that were not
previously made available to the other bidders. Thus:
It is inherent in public biddings that there shall be a fair competition
among the bidders. The specifications in such biddings provide the
common ground or basis for the bidders. The specifications should,
accordingly, operate equally or indiscriminately upon all bidders.32
The same rule was restated by Chief Justice Stuart of the Supreme Court of
Minnesota:
The law is well settled that where, as in this case, municipal authorities
can only let a contract for public work to the lowest responsible bidder,
the proposals and specifications therefore must be so framed as to
permit free and full competition. Nor can they enter into a contract with
the best bidder containing substantial provisions beneficial to him, not
included or contemplated in the terms and specifications upon which
the bids were invited.33
In fact, in the PBAC Bid Bulletin No. 3 cited by PIATCO to support its
argument that the draft concession agreement is subject to amendment, the
pertinent portion of which was quoted above, the PBAC also clarified that
"[s]aid amendments shall only cover items that would not materially affect
the preparation of the proponent's proposal."
While we concede that a winning bidder is not precluded from modifying or
amending certain provisions of the contract bidded upon, such changes
must not constitute substantial or material amendments that would alter the
basic parameters of the contract and would constitute a denial to the other
bidders of the opportunity to bid on the same terms. Hence, the
determination of whether or not a modification or amendment of a contract
bidded out constitutes a substantial amendment rests on whether the
contract, when taken as a whole, would contain substantially different terms
and conditions that would have the effect of altering the technical and/or
financial proposals previously submitted by other bidders. The alterations
and modifications in the contract executed between the government and the
winning bidder must be such as to render such executed contract to be an
entirely different contract from the one that was bidded upon.
In the case of Caltex (Philippines), Inc. v. Delgado Brothers, Inc.,34 this
Court quoted with approval the ruling of the trial court that an amendment to
a contract awarded through public bidding, when such subsequent
amendment was made without a new public bidding, is null and void:
The Court agrees with the contention of counsel for the plaintiffs that
the due execution of a contract after public bidding is a limitation upon
the right of the contracting parties to alter or amend it without another
public bidding, for otherwise what would a public bidding be good for if
after the execution of a contract after public bidding, the contracting
parties may alter or amend the contract, or even cancel it, at their will?
Public biddings are held for the protection of the public, and to give the
public the best possible advantages by means of open competition
between the bidders. He who bids or offers the best terms is awarded
the contract subject of the bid, and it is obvious that such protection
and best possible advantages to the public will disappear if the parties
to a contract executed after public bidding may alter or amend it
without another previous public bidding.35
Hence, the question that comes to fore is this: is the 1997 Concession
Agreement the same agreement that was offered for public bidding, i.e., the
draft Concession Agreement attached to the Bid Documents? A close
comparison of the draft Concession Agreement attached to the Bid
Documents and the 1997 Concession Agreement reveals that the
documents differ in at least two material respects:
a. Modification on the Public
Utility Revenues and Non-Public
Utility Revenues that may be
collected by PIATCO
The fees that may be imposed and collected by PIATCO under the draft
Concession Agreement and the 1997 Concession Agreement may be
classified into three distinct categories: (1) fees which are subject to periodic
adjustment of once every two years in accordance with a prescribed
parametric formula and adjustments are made effective only upon written
approval by MIAA; (2) fees other than those included in the first category
which maybe adjusted by PIATCO whenever it deems necessary without
need for consent of DOTC/MIAA; and (3) new fees and charges that may be
imposed by PIATCO which have not been previously imposed or collected
at the Ninoy Aquino International Airport Passenger Terminal I, pursuant to
Administrative Order No. 1, Series of 1993, as amended. The glaring
distinctions between the draft Concession Agreement and the 1997
Concession Agreement lie in the types of fees included in each category
and the extent of the supervision and regulation which MIAA is allowed to
exercise in relation thereto.
For fees under the first category, i.e., those which are subject to periodic
adjustment in accordance with a prescribed parametric formula and
effective only upon written approval by MIAA, the draft Concession
Agreement includes the following:36
(1) aircraft parking fees;
xxx
xxx
Moreover, with respect to the third category of fees that may be imposed
and collected by PIATCO, i.e., new fees and charges that may be imposed
by PIATCO which have not been previously imposed or collected at the
Ninoy Aquino International Airport Passenger Terminal I, under Section 6.03
of the draft Concession Agreement MIAA has reserved the right to regulate
the same under the same conditions that MIAA may regulate fees under the
first category, i.e., periodic adjustment of once every two years in
accordance with a prescribed parametric formula and effective only upon
written approval by MIAA. However, under the 1997 Concession
Agreement, adjustment of fees under the third category is not subject to
MIAA regulation.
With respect to terminal fees that may be charged by PIATCO,41 as shown
earlier, this was included within the category of "Public Utility Revenues"
under the 1997 Concession Agreement. This classification is significant
because under the 1997 Concession Agreement, "Public Utility Revenues"
are subject to an "Interim Adjustment" of fees upon the occurrence of
certain extraordinary events specified in the agreement.42 However, under
the draft Concession Agreement, terminal fees are not included in the types
of fees that may be subject to "Interim Adjustment."43
Finally, under the 1997 Concession Agreement, "Public Utility Revenues,"
except terminal fees, are denominated in US Dollars44 while payments to
the Government are in Philippine Pesos. In the draft Concession
Agreement, no such stipulation was included. By stipulating that "Public
Utility Revenues" will be paid to PIATCO in US Dollars while payments by
PIATCO to the Government are in Philippine currency under the 1997
Concession Agreement, PIATCO is able to enjoy the benefits of
depreciations of the Philippine Peso, while being effectively insulated from
the detrimental effects of exchange rate fluctuations.
When taken as a whole, the changes under the 1997 Concession
Agreement with respect to reduction in the types of fees that are subject to
MIAA regulation and the relaxation of such regulation with respect to other
fees are significant amendments that substantially distinguish the draft
Concession Agreement from the 1997 Concession Agreement. The 1997
Concession Agreement, in this respect, clearly gives PIATCO more
favorable terms than what was available to other bidders at the time the
contract was bidded out. It is not very difficult to see that the changes in the
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Facility and assume the Attendant Liabilities, or (ii) allow the Unpaid
Creditors, if qualified, to be substituted as concessionaire and operator
of the Development Facility in accordance with the terms and
conditions hereof, or designate a qualified operator acceptable to GRP
to operate the Development Facility, likewise under the terms and
conditions of this Agreement; Provided that if at the end of the 180-day
period GRP shall not have served the Unpaid Creditors and
Concessionaire written notice of its choice, GRP shall be deemed to
have elected to take over the Development Facility with the
concomitant assumption of Attendant Liabilities.
(c) If GRP should, by written notice, allow the Unpaid Creditors to be
substituted as concessionaire, the latter shall form and organize a
concession company qualified to take over the operation of the
Development Facility. If the concession company should elect to
designate an operator for the Development Facility, the concession
company shall in good faith identify and designate a qualified operator
acceptable to GRP within one hundred eighty (180) days from receipt
of GRP's written notice. If the concession company, acting in good faith
and with due diligence, is unable to designate a qualified operator
within the aforesaid period, then GRP shall at the end of the 180-day
period take over the Development Facility and assume Attendant
Liabilities.
The term "Attendant Liabilities" under the 1997 Concession Agreement is
defined as:
Attendant Liabilities refer to all amounts recorded and from time to time
outstanding in the books of the Concessionaire as owing to Unpaid
Creditors who have provided, loaned or advanced funds actually used
for the Project, including all interests, penalties, associated fees,
charges, surcharges, indemnities, reimbursements and other related
expenses, and further including amounts owed by Concessionaire to
its suppliers, contractors and sub-contractors.
Under the above quoted portions of Section 4.04 in relation to the definition
of "Attendant Liabilities," default by PIATCO of its loans used to finance the
NAIA IPT III project triggers the occurrence of certain events that leads to
the assumption by the Government of the liability for the loans. Only in one
instance may the Government escape the assumption of PIATCO's
parameters which every awardee of a contract bidded out must conform to,
requirements of financing and borrowing notwithstanding. Thus, upon a
concrete showing that, as in this case, the contract signed by the
government and the contract-awardee is an entirely different contract from
the contract bidded, courts should not hesitate to strike down said contract
in its entirety for violation of public policy on public bidding. A strict
adherence on the principles, rules and regulations on public bidding must be
sustained if only to preserve the integrity and the faith of the general public
on the procedure.
Public bidding is a standard practice for procuring government contracts for
public service and for furnishing supplies and other materials. It aims to
secure for the government the lowest possible price under the most
favorable terms and conditions, to curtail favoritism in the award of
government contracts and avoid suspicion of anomalies and it places all
bidders in equal footing.47 Any government action which permits any
substantial variance between the conditions under which the bids are invited
and the contract executed after the award thereof is a grave abuse of
discretion amounting to lack or excess of jurisdiction which warrants proper
judicial action.
In view of the above discussion, the fact that the foregoing substantial
amendments were made on the 1997 Concession Agreement renders the
same null and void for being contrary to public policy. These amendments
convert the 1997 Concession Agreement to an entirely different agreement
from the contract bidded out or the draft Concession Agreement. It is not
difficult to see that the amendments on (1) the types of fees or charges that
are subject to MIAA regulation or control and the extent thereof and (2) the
assumption by the Government, under certain conditions, of the liabilities of
PIATCO directly translates concrete financial advantages to PIATCO that
were previously not available during the bidding process. These
amendments cannot be taken as merely supplements to or implementing
provisions of those already existing in the draft Concession Agreement. The
amendments discussed above present new terms and conditions which
provide financial benefit to PIATCO which may have altered the technical
and financial parameters of other bidders had they known that such terms
were available.
III
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xxx
.
Section 1.06. Attendant Liabilities
Attendant Liabilities refer to all amounts recorded and from time to time
outstanding in the books of the Concessionaire as owing to Unpaid
Creditors who have provided, loaned or advanced funds actually used
for the Project, including all interests, penalties, associated fees,
charges, surcharges, indemnities, reimbursements and other related
expenses, and further including amounts owed by Concessionaire to
its suppliers, contractors and sub-contractors.48
It is clear from the above-quoted provisions that Government, in the event
that PIATCO defaults in its loan obligations, is obligated to pay "all amounts
recorded and from time to time outstanding from the books" of PIATCO
which the latter owes to its creditors.49 These amounts include "all interests,
penalties,
associated
fees,
charges,
surcharges,
indemnities,
50
reimbursements and other related expenses." This obligation of the
Government to pay PIATCO's creditors upon PIATCO's default would arise
if the Government opts to take over NAIA IPT III. It should be noted,
however, that even if the Government chooses the second option, which is
to allow PIATCO's unpaid creditors operate NAIA IPT III, the Government is
still at a risk of being liable to PIATCO's creditors should the latter be unable
to designate a qualified operator within the prescribed period.51 In effect,
whatever option the Government chooses to take in the event of PIATCO's
failure to fulfill its loan obligations, the Government is still at a risk of
assuming PIATCO's outstanding loans. This is due to the fact that the
Government would only be free from assuming PIATCO's debts if the
unpaid creditors would be able to designate a qualified operator within the
period provided for in the contract. Thus, the Government's assumption of
liability is virtually out of its control. The Government under the
circumstances provided for in the 1997 Concession Agreement is at the
mercy of the existence, availability and willingness of a qualified operator.
The above contractual provisions constitute a direct government guarantee
which is prohibited by law.
One of the main impetus for the enactment of the BOT Law is the lack of
government funds to construct the infrastructure and development projects
necessary for economic growth and development. This is why private sector
resources are being tapped in order to finance these projects. The BOT law
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
It is clear from the foregoing that the ARCA provides for a direct guarantee
by the government to pay PIATCO's loans not only to its Senior Lenders but
all other entities who provided PIATCO funds or services upon PIATCO's
default in its loan obligation with its Senior Lenders. The fact that the
Government's obligation to pay PIATCO's lenders for the latter's obligation
would only arise after the Senior Lenders fail to appoint a qualified nominee
or transferee does not detract from the fact that, should the conditions as
stated in the contract occur, the ARCA still obligates the Government to pay
any and all amounts owed by PIATCO to its lenders in connection with NAIA
IPT III. Worse, the conditions that would make the Government liable for
PIATCO's debts is triggered by PIATCO's own default of its loan obligations
to its Senior Lenders to which loan contracts the Government was never a
party to. The Government was not even given an option as to what course
of action it should take in case PIATCO defaulted in the payment of its
senior loans. The Government, upon PIATCO's default, would be merely
notified by the Senior Lenders of the same and it is the Senior Lenders who
are authorized to appoint a qualified nominee or transferee. Should the
Senior Lenders fail to make such an appointment, the Government is then
automatically obligated to "directly deal and negotiate" with the Senior
Lenders regarding NAIA IPT III. The only way the Government would not be
liable for PIATCO's debt is for a qualified nominee or transferee to be
appointed in place of PIATCO to continue the construction, operation and
maintenance of NAIA IPT III. This "pre-condition", however, will not take the
contract out of the ambit of a direct guarantee by the government as the
existence, availability and willingness of a qualified nominee or transferee is
totally out of the government's control. As such the Government is virtually
at the mercy of PIATCO (that it would not default on its loan obligations to
its Senior Lenders), the Senior Lenders (that they would appoint a qualified
nominee or transferee or agree to some other arrangement with the
Government) and the existence of a qualified nominee or transferee who is
able and willing to take the place of PIATCO in NAIA IPT III.
The proscription against government guarantee in any form is one of the
policy considerations behind the BOT Law. Clearly, in the present case, the
ARCA obligates the Government to pay for all loans, advances and
obligations arising out of financial facilities extended to PIATCO for the
implementation of the NAIA IPT III project should PIATCO default in its loan
obligations to its Senior Lenders and the latter fails to appoint a qualified
nominee or transferee. This in effect would make the Government liable for
PIATCO's loans should the conditions as set forth in the ARCA arise. This is
a form of direct government guarantee.
The BOT Law and its implementing rules provide that in order for an
unsolicited proposal for a BOT project may be accepted, the following
conditions must first be met: (1) the project involves a new concept in
technology and/or is not part of the list of priority projects, (2) no direct
government guarantee, subsidy or equity is required, and (3) the
government agency or local government unit has invited by publication other
interested parties to a public bidding and conducted the same.56 The failure
to meet any of the above conditions will result in the denial of the proposal.
It is further provided that the presence of direct government guarantee,
subsidy or equity will "necessarily disqualify a proposal from being treated
and accepted as an unsolicited proposal."57 The BOT Law clearly and
strictly prohibits direct government guarantee, subsidy and equity in
unsolicited proposals that the mere inclusion of a provision to that effect is
fatal and is sufficient to deny the proposal. It stands to reason therefore that
if a proposal can be denied by reason of the existence of direct government
guarantee, then its inclusion in the contract executed after the said proposal
has been accepted is likewise sufficient to invalidate the contract itself. A
prohibited provision, the inclusion of which would result in the denial of a
proposal cannot, and should not, be allowed to later on be inserted in the
contract resulting from the said proposal. The basic rules of justice and fair
play alone militate against such an occurrence and must not, therefore, be
countenanced particularly in this instance where the government is exposed
to the risk of shouldering hundreds of million of dollars in debt.
This Court has long and consistently adhered to the legal maxim that those
that cannot be done directly cannot be done indirectly.58 To declare the
PIATCO contracts valid despite the clear statutory prohibition against a
direct government guarantee would not only make a mockery of what the
BOT Law seeks to prevent -- which is to expose the government to the risk
of incurring a monetary obligation resulting from a contract of loan between
the project proponent and its lenders and to which the Government is not a
party to -- but would also render the BOT Law useless for what it seeks to
achieve - to make use of the resources of the private sector in the
"financing, operation and maintenance of infrastructure and development
projects"59 which are necessary for national growth and development but
V
Regulation of Monopolies
A monopoly is "a privilege or peculiar advantage vested in one or more
persons or companies, consisting in the exclusive right (or power) to carry
on a particular business or trade, manufacture a particular article, or control
the sale of a particular commodity."66 The 1987 Constitution strictly
regulates monopolies, whether private or public, and even provides for their
prohibition if public interest so requires. Article XII, Section 19 of the 1987
Constitution states:
Sec. 19. The state shall regulate or prohibit monopolies when the
public interest so requires. No combinations in restraint of trade or
unfair competition shall be allowed.
Clearly, monopolies are not per se prohibited by the Constitution but may be
permitted to exist to aid the government in carrying on an enterprise or to
aid in the performance of various services and functions in the interest of
the public.67 Nonetheless, a determination must first be made as to whether
public interest requires a monopoly. As monopolies are subject to abuses
that can inflict severe prejudice to the public, they are subject to a higher
level of State regulation than an ordinary business undertaking.
In the cases at bar, PIATCO, under the 1997 Concession Agreement and
the ARCA, is granted the "exclusive right to operate a commercial
international passenger terminal within the Island of Luzon" at the NAIA IPT
III.68 This is with the exception of already existing international airports in
Luzon such as those located in the Subic Bay Freeport Special Economic
Zone ("SBFSEZ"), Clark Special Economic Zone ("CSEZ") and in Laoag
City.69 As such, upon commencement of PIATCO's operation of NAIA IPT
III, Terminals 1 and 2 of NAIA would cease to function as international
passenger terminals. This, however, does not prevent MIAA to use
Terminals 1 and 2 as domestic passenger terminals or in any other manner
as it may deem appropriate except those activities that would compete with
NAIA IPT III in the latter's operation as an international passenger
terminal.70 The right granted to PIATCO to exclusively operate NAIA IPT III
would be for a period of twenty-five (25) years from the In-Service Date71
and renewable for another twenty-five (25) years at the option of the
government.72 Both the 1997 Concession Agreement and the ARCA further
xxx
xxx
In fine, the efficient functioning of NAIA IPT III is imbued with public interest.
The provisions of the 1997 Concession Agreement and the ARCA did not
strip government, thru the MIAA, of its right to supervise the operation of the
whole NAIA complex, including NAIA IPT III. As the primary government
agency tasked with the job,79 it is MIAA's responsibility to ensure that
whoever by contract is given the right to operate NAIA IPT III will do so
within the bounds of the law and with due regard to the rights of third parties
and above all, the interest of the public.
VI
CONCLUSION
In sum, this Court rules that in view of the absence of the requisite financial
capacity of the Paircargo Consortium, predecessor of respondent PIATCO,
the award by the PBAC of the contract for the construction, operation and
maintenance of the NAIA IPT III is null and void. Further, considering that
the 1997 Concession Agreement contains material and substantial
amendments, which amendments had the effect of converting the 1997
Concession Agreement into an entirely different agreement from the
contract bidded upon, the 1997 Concession Agreement is similarly null and
void for being contrary to public policy. The provisions under Sections
4.04(b) and (c) in relation to Section 1.06 of the 1997 Concession
Agreement and Section 4.04(c) in relation to Section 1.06 of the ARCA,
which constitute a direct government guarantee expressly prohibited by,
among others, the BOT Law and its Implementing Rules and Regulations
are also null and void. The Supplements, being accessory contracts to the
ARCA, are likewise null and void.
WHEREFORE, the 1997 Concession Agreement, the Amended and
Restated Concession Agreement and the Supplements thereto are set
aside for being null and void.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Ynares-Santiago, Sandoval-Gutierrez,
Martinez,
Corona,
and
Carpio-Morales,
JJ.,
Vitug,
J.,
see
separate
(dissenting)
Panganiban,
J.,
please
see
separate
Quisumbing, J., no jurisdiction, please see separate opinion of J.
Austriaconcur.
opinion.
opinion.
Vitug in
which
he
concurs.
Carpio,
J.,
no
part.
Callejo, Sr., J., also concur in the separate opinion of J. Panganiban.
Azcuna, J., joins the separate opinion of J. Vitug.
SEPARATE OPINIONS
VITUG, J.:
This Court is bereft of jurisdiction to hear the petitions at bar. The
Constitution provides that the Supreme Court shall exercise original
jurisdiction over, among other actual controversies, petitions for certiorari,
prohibition, mandamus, quo warranto, and habeas corpus.1 The cases in
question, although denominated to be petitions for prohibition, actually pray
for the nullification of the PIATCO contracts and to restrain respondents
from implementing said agreements for being illegal and unconstitutional.
Section 2, Rule 65 of the Rules of Court states:
"When the proceedings of any tribunal, corporation, board, officer or
person, whether exercising judicial, quasi-judicial or ministerial
functions, are without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and
there is no appeal or any other plain, speedy and adequate remedy in
the ordinary course of law, a person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty and
praying that judgment be rendered commanding the respondent to
desist from further proceedings in the action or matter specified
therein, or otherwise granting such incidental reliefs as law and justice
may require."
The rule is explicit. A petition for prohibition may be filed against a tribunal,
corporation, board, officer or person, exercising judicial, quasi-judicial or
ministerial functions. What the petitions seek from respondents do not
involve judicial, quasi-judicial or ministerial functions. In prohibition, only
legal issues affecting the jurisdiction of the tribunal, board or officer involved
may be resolved on the basis of undisputed facts.2 The parties allege,
respectively, contentious evidentiary facts. It would be difficult, if not
PANGANIBAN, J.:
The five contracts for the construction and the operation of Ninoy Aquino
International Airport (NAIA) Terminal III, the subject of the consolidated
Petitions before the Court, are replete with outright violations of law, public
policy and the Constitution. The only proper thing to do is declare them all
null and void ab initio and let the chips fall where they may. Fiat iustitia ruat
coelum.
The facts leading to this controversy are already well presented in the
ponencia. I shall not burden the readers with a retelling thereof. Instead, I
will cut to the chase and directly address the two sets of gut issues:
1. The first issue is procedural: Does the Supreme Court have original
jurisdiction to hear and decide the Petitions? Corollarily, do petitioners have
locus standi and should this Court decide the cases without any mandatory
referral to arbitration?
2. The second one is substantive in character: Did the subject contracts
violate the Constitution, the laws, and public policy to such an extent as to
render all of them void and inexistent?
My answer to all the above questions is a firm "Yes."
The
Procedural
Jurisdiction, Standing and Arbitration
Issue:
Definitely and surely, the issues involved in these Petitions are clearly of
transcendental importance and of national interest. The subject contracts
pertain to the construction and the operation of the country's premiere
international airport terminal - an ultramodern world-class public utility that
will play a major role in the country's economic development and serve to
project a positive image of our country abroad. The five build-operate-&transfer (BOT) contracts, while entailing the investment of billions of pesos
in capital and the availment of several hundred millions of dollars in loans,
contain provisions that tend to establish a monopoly, require the
disbursements of public funds sans appropriations, and provide government
guarantees in violation of statutory prohibitions, as well as other provisions
equally offensive to law, public policy and the Constitution. Public interest
will inevitably be affected thereby.
Thus, objections to these Petitions, grounded upon (a) the hierarchy of
courts, (b) the need for arbitration prior to court action, and (c) the alleged
lack of sufficient personality, standing or interest, being in the main
procedural matters, must now be set aside, as they have been in past
cases. This Court must be permitted to perform its constitutional duty of
determining whether the other agencies of government have acted within
the limits of the Constitution and the laws, or if they have gravely abused the
discretion entrusted to them.1
Hierarchy of Courts
The Court has, in the past, held that questions relating to gargantuan
government contracts ought to be settled without delay.2 This holding
applies with greater force to the instant cases. Respondent Piatco is partly
correct in averring that petitioners can obtain relief from the regional trial
courts via an action to annul the contracts.
Nevertheless, the unavoidable consequence of having to await the rendition
and the finality of any such judgment would be a prolonged state of
uncertainty that would be prejudicial to the nation, the parties and the
general public. And, in light of the feared loss of jobs of the petitioning
workers, consequent to the inevitable pretermination of contracts of the
petitioning service providers that will follow upon the heels of the impending
opening of NAIA Terminal III, the need for relief is patently urgent, and
therefore, direct resort to this Court through the special civil action of
prohibition is thus justified.3
Contrary to Piatco's argument that the resolution of the issues raised in the
Petitions will require delving into factual questions,4 I submit that their
disposition ultimately turns on questions of law.5 Further, many of the
significant and relevant factual questions can be easily addressed by an
examination of the documents submitted by the parties. In any event, the
Petitions raise some novel questions involving the application of the
amended BOT Law, which this Court has seen fit to tackle.
Arbitration
Should the dispute be referred to arbitration prior to judicial recourse?
Respondent Piatco claims that Section 10.02 of the Amended and Restated
Concession Agreement (ARCA) provides for arbitration under the auspices
of the International Chamber of Commerce to settle any dispute or
controversy or claim arising in connection with the Concession Agreement,
its amendments and supplements. The government disagrees, however,
insisting that there can be no arbitration based on Section 10.02 of the
ARCA, since all the Piatco contracts are void ab initio. Therefore, all
contractual provisions, including Section 10.02 of the ARCA, are likewise
void, inexistent and inoperative. To support its stand, the government cites
Chavez v. Presidential Commission on Good Government:6 "The void
agreement will not be rendered operative by the parties' alleged
Issue:
From the Outset, the Bidding Process Was Flawed and Tainted
After studying the documents submitted and arguments advanced by the
parties, I have no doubt that, right at the outset, Piatco was not qualified to
participate in the bidding process for the Terminal III project, but was
nevertheless permitted to do so. It even won the bidding and was helped
along by what appears to be a series of collusive and corrosive acts.
The build-operate-and-transfer (BOT) project for the NAIA Passenger
Terminal III comes under the category of an "unsolicited proposal," which is
the subject of Section 4-A of the BOT Law.10 The unsolicited proposal was
originally submitted by the Asia's Emerging Dragon Corporation (AEDC) to
the Department of Transportation and Communications (DOTC) and the
Manila International Airport Authority (MIAA), which reviewed and approved
the proposal.
The draft of the concession agreement as negotiated between AEDC and
DOTC/MIAA was endorsed to the National Economic Development
Authority (NEDA-ICC), which in turn reviewed it on the basis of its scope,
economic viability, financial indicators and risks; and thereafter approved it
for bidding.
The DOTC/MIAA then prepared the Bid Documents, incorporating therein
the negotiated Draft Concession Agreement, and published invitations for
public bidding, i.e., for the submission of comparative or competitive
proposals. Piatco's predecessor-in-interest, the Paircargo Consortium, was
the only company that submitted a competitive bid or price challenge.
At this point, I must emphasize that the law requires the award of a BOT
project to the bidder that has satisfied the minimum requirements; and met
xxx
xxx
that the members are jointly and severally responsible for the obligations of
the project proponent under the contract.
The purpose of having a definite and firm timetable for the submission of the
aforementioned requirements is not only to prevent delays in the project
implementation, but also to expose and weed out unqualified proponents,
who might have unceremoniously slipped through the earlier prequalification
process, by compelling them to put their money where their mouths are, so
to speak.
Nevertheless, this provision can be easily circumvented by merely
postponing the actual issuance of the Notice of Award, in order to give the
favored proponent sufficient time to comply with the requirements. Hence, to
avert or minimize the manipulation of the post-bidding process, the IRR not
only set out the precise sequence of events occurring between the
completion of the evaluation of the technical bids and the issuance of the
Notice of Award, but also specified the timetables for each such event.
Definite allowable extensions of time were provided for, as were the
consequences of a failure to meet a particular deadline.
In particular, Section 9.1 of the 1994 IRR prescribed that within 30 calendar
days from the time the second-stage evaluation shall have been completed,
the Committee must come to a decision whether or not to award the
contract and, within 7 days therefrom, the Notice of Award must be
approved by the head of agency or local government unit (LGU) concerned,
and its issuance must follow within another 7 days thereafter.
Section 9.2 of the IRR set the procedure applicable to projects involving
substantial government undertakings as follows: Within 7 days after the
decision to award is made, the draft contract shall be submitted to the ICC
for clearance on a no-objection basis. If the draft contract includes
government undertakings already previously approved, then the submission
shall be for information only.
However, should there be additional or new provisions different from the
original government undertakings, the draft shall have to be reviewed and
approved. The ICC has 15 working days to act thereon, and unless
otherwise specified, its failure to act on the contract within the specified time
frame signifies that the agency or LGU may proceed with the award. The
head of agency or LGU shall approve the Notice of Award within seven days
of the clearance by the ICC on a no-objection basis, and the Notice itself
has to be issued within seven days thereafter.
The highly regulated time-frames within which the agents of government
were to act evinced the intent to impose upon them the duty to act
expeditiously throughout the process, to the end that the project be
prosecuted and implemented without delay. This regulated scenario was
likewise intended to discourage collusion and substantially reduce the
opportunity for agents of government to abuse their discretion in the course
of the award process.
Despite the clear timetables set out in the IRR, several lengthy and stillunexplained delays occurred in the award process, as can be observed
from the presentation made by the counsel for public respondents,19 quoted
hereinbelow:
"11 Dec. 1996 - The Paircargo Joint Venture was informed by the
PBAC that AEDC failed to match and that negotiations preparatory to
Notice of Award should be commenced. This was the decision to
award that should have commenced the running of the 7-day period to
approve the Notice of Award, as per Section 9.1 of the IRR, or to
submit the draft contract to the ICC for approval conformably with
Section 9.2.
"01 April 1997 - The PBAC resolved that a copy of the final draft of the
Concession Agreement be submitted to the NEDA for clearance on a
no-objection basis. This resolution came more than 3 months too late
as it should have been made on the 20th of December 1996 at the
latest.
"16 April 1997 - The PBAC resolved that the period of signing the
Concession Agreement be extended by 15 days.
"18 April 1997 - NEDA approved the Concession Agreement. Again
this is more than 3 months too late as the NEDA's decision should
have been released on the 16th of January 1997 or fifteen days after it
should have been submitted to it for review.
"09 July 1997 - The Notice of Award was issued to PIATCO. Following
the provisions of the IRR, the Notice of Award should have been
7. Section 1.29 of the DCA provides that the terminal fees, aircraft
tacking fees, aircraft parking fees, check-in counter fees and other fees
are to be quoted and paid in Philippine pesos. But per Section 1.33 of
the CA, all the aforesaid fees save the terminal fee are denominated in
US Dollars.
8. Under Section 8.07 of the DCA, the term attendant liabilities refers
to liabilities pertinent to NAIA Terminal III, such as payment of lease
rentals and performance of other obligations under the Land Lease
Agreement; the obligations under the Tenant Agreements; and
payment of all taxes, fees, charges and assessments of whatever kind
that may be imposed on NAIA Terminal III or parts thereof. But in
Section 1.06 of the CA, Attendant Liabilities refers to unpaid debts of
Piatco: "All amounts recorded and from time to time outstanding in the
books of (Piatco) as owing to Unpaid Creditors who have provided,
loaned or advanced funds actually used for the Project, including all
interests, penalties, associated fees, charges, surcharges, indemnities,
reimbursements and other related expenses, and further including
amounts owed by [Piatco] to its suppliers, contractors and
subcontractors."
9. Per Sections 8.04 and 8.06 of the DCA, government may, on
account of the contractors breach, rescind the contract and select one
of four options: (a) take over the terminal and assume all its attendant
liabilities; (b) allow the contractor's creditors to assign the Project to
another entity acceptable to DOTC/MIAA; (c) pay the contractor rent
for the facilities and equipment the DOTC may utilize; or (d) purchase
the terminal at a price established by independent appraisers.
Depending on the option selected, government may take immediate
possession and control of the terminal and its operations. Government
will be obligated to compensate the contractor for the "equivalent or
proportionate contract costs actually disbursed," but only where
government is the one in breach of the contract. But under Section
8.06(a) of the CA, whether on account of Piatco's breach of contract or
its inability to pay its creditors, government is obliged to either (a) take
over Terminal III and assume all of Piatco's debts or (b) permit the
qualified unpaid creditors to be substituted in place of Piatco or to
designate a new operator. And in the event of government's breach of
Section 4-A of the BOT Law specifically refers to a "lower price proposal" by
a competing bidder; and to the right of the original proponent "to match the
price" of the challenger. Thus, only the price proposals are in play. The
terms, conditions and stipulations in the contract for which public bidding
has been concluded are understood to remain intact and not be subject to
further negotiation. Otherwise, the very essence of public bidding will be
destroyed - there will be no basis for an exact comparison between bids.
Moreover, Piatco misinterpreted the meaning behind PBAC Bid Bulletin No.
3. The phrase amendments . . . from time to time refers only to those
amendments to the draft concession agreement issued by the PBAC prior to
the submission of the price challenge; it certainly does not include or permit
amendments negotiated for and introduced after the bidding process, has
been terminated.
Piatco's Concession Agreement Was Further Amended, (ARCA) Again
Without Public Bidding
Not satisfied with the Concession Agreement, Piatco - once more without
bothering with public bidding - negotiated with government for still more
substantial changes. The result was the Amended and Restated
Concession Agreement (ARCA) executed on November 26, 1998. The
following changes were introduced:
1. The definition of Attendant Liabilities was further amended with the
result that the unpaid loans of Piatco, for which government may be
required to answer, are no longer limited to only those loans recorded
in Piatco's books or loans whose proceeds were actually used in the
Terminal III project.30
2. Although the contract may be terminated due to breach by Piatco, it
will not be liable to pay the government any Liquidated Damages if a
new operator is designated to take over the operation of the terminal.31
3. The Liquidated Damages which government becomes liable for in
case of its breach of contract were substantially increased.32
4. Government's right to appoint a comptroller for Piatco in case the
latter encounters liquidity problems was deleted.33
14. Amounts due from and payable by government under the contract
were made payable on demand - net of taxes, levies, imposts, duties,
charges or fees of any kind except as required by law.43
15. The Parametric Formula in the contract, which is utilized to
compute for adjustments/increases to the public utility revenues (i.e.,
aircraft parking and tacking fees, check-in counter fee and terminal
fee), was revised to permit Piatco to input its more costly short-term
borrowing rates instead of the longer-terms rates in the computations
for adjustments, with the end result that the changes will redound to its
greater financial benefit.
16. The Certificate of Completion simply deleted the successful
performance-testing of the terminal facility in accordance with defined
performance standards as a pre-condition for government's
acceptance of the terminal facility.44
In sum, the foregoing revisions and amendments as embodied in the ARCA
constitute very material alterations of the terms and conditions of the CA,
and give further manifestly undue advantage to Piatco at the expense of
government. Piatco claims that the changes to the CA were necessitated by
the demands of its foreign lenders. However, no proof whatsoever has been
adduced to buttress this claim.
In any event, it is quite patent that the sum total of the aforementioned
changes resulted in drastically weakening the position of government to a
degree that seems quite excessive, even from the standpoint of a
businessperson who regularly transacts with banks and foreign lenders, is
familiar with their mind-set, and understands what motivates them. On the
other hand, whatever it was that impelled government officials concerned to
accede to those grossly disadvantageous changes, I can only hazard a
guess.
There is no question in my mind that the ARCA was unauthorized and illegal
for lack of public bidding and for being patently disadvantageous to
government.
The Three Supplements Imposed New Obligations on Government, Also
Without Prior Public Bidding
The Second Supplement ("SS") was executed between the government and
Piatco on September 4, 2000. It calls for Piatco, acting not as
concessionaire of NAIA Terminal III but as a public works contractor, to
undertake - in the government's stead - the clearing, removal, demolition
and disposal of improvements, subterranean obstructions and waste
materials at the project site.57
The scope of the works, the procedures involved, and the obligations of the
contractor are provided for in Parts II and III of the SS. Section 4.1 sets out
the compensation to be paid, listing specific rates per cubic meter of
materials for each phase of the work - excavation, leveling, removal and
disposal, backfilling and dewatering. The amounts collectible by Piatco are
to be offset against the Annual Guaranteed Payments it must pay
government.
Though denominated as Second Supplement, it was nothing less than an
entirely new public works contract. Yet it, too, did not undergo any public
bidding, for which reason it is also void and inoperative.
Not surprisingly, Piatco had to subcontract the works to a certain Wintrack
Builders, a firm reputedly owned by a former high-ranking DOTC official. But
that is another story altogether.
The Third Supplement Is Likewise Void and Inexistent
The Third Supplement ("TS"), executed between the government and Piatco
on June 22, 2001, passed on to the government certain obligations of Piatco
as Terminal III concessionaire, with respect to the surface road connecting
Terminals II and III.
By way of background, at the inception of and forming part of the NAIA
Terminal III project was the proposed construction of an access tunnel
crossing Runway 13/31, which. would connect Terminal III to Terminal II.
The Bid Documents in Section 4.1.2.3[B][i] declared that the said access
tunnel was subject to further negotiation; but for purposes of the bidding, the
proponent should submit a bid for it as well. Therefore, the tunnel was
supposed to be part and parcel of the Terminal III project.
However, in Section 5 of the First Supplement, the parties declared that the
access tunnel was not economically viable at that time. In lieu thereof, the
parties agreed that a surface access road (now called the T2-T3 Road) was
to be constructed by Piatco to connect the two terminals. Since it was
plainly in substitution of the tunnel, the surface road construction should
likewise be considered part and parcel of the same project, and therefore
part of Piatco's obligation as well. While the access tunnel was estimated to
cost about P800 million, the surface road would have a price tag in the
vicinity of about P100 million, thus producing significant savings for Piatco.
Yet, the Third Supplement, while confirming that Piatco would construct the
T2-T3 Road, nevertheless shifted to government some of the obligations
pertaining to the former, as follows:
1. Government is now obliged to remove at its own expense all
tenants, squatters, improvements and/or waste materials on the site
where the T2-T3 road is to be constructed.58 There was no similar
obligation on the part of government insofar as the access tunnel was
concerned.
2. Should government fail to carry out its obligation as above
described, Piatco may undertake it on government's behalf, subject to
the terms and conditions (including compensation payments)
contained in the Second Supplement.59
3. MIAA will answer for the operation, maintenance and repair of the
T2-T3 Road.60
The TS depends upon and is intended to supplement the ARCA as well as
the First Supplement, both of which are void and inexistent and not capable
of being ratified or amended. It follows that the TS is likewise void, inexistent
and inoperative. And even if, hypothetically speaking, both ARCA and FS
are valid, still, the Third Supplement - imposing as it does significant new
obligations upon government - would in effect alter the terms and
stipulations of the ARCA in material respects, thus necessitating another
public bidding. Since the TS was not subjected to public bidding, it is
consequently utterly void as well. At any rate, the TS created new monetary
obligations on the part of government, for which there were no prior
appropriations. Hence it follows that the same is void ab initio.
In patiently tracing the progress of the Piatco contracts from their inception
up to the present, I noted that the whole process was riddled with significant
lapses, if not outright irregularity and wholesale violations of law and public
policy. The rationale of beginning at the beginning, so to speak, will become
evident when the question of what to do with the five Piatco contracts is
discussed later on.
In the meantime, I shall take up specific, provisions or changes in the
contracts and highlight the more prominent objectionable features.
Government Directly Guarantees Piatco Debts
Certainly the most discussed provision in the parties' arguments is the one
creating an unauthorized, direct government guarantee of Piatco's
obligations in favor of the lenders.
Section 4-A of the BOT Law as amended states that unsolicited proposals,
such as the NAIA Terminal III Project, may be accepted by government
provided inter alia that no direct government guarantee, subsidy or equity is
required. In short, such guarantee is prohibited in unsolicited proposals.
Section 2(n) of the same legislation defines direct government guarantee as
"an agreement whereby the government or any of its agencies or local
government units (will) assume responsibility for the repayment of debt
directly incurred by the project proponent in implementing the project in
case of a loan default."
Both the CA and the ARCA have provisions that undeniably create such
prohibited government guarantee. Section 4.04 (c)(iv) to (vi) of the ARCA,
which is similar to Section 4.04 of the CA, provides thus:
"(iv) that if Concessionaire is in default under a payment obligation
owed to the Senior Lenders, and as a result thereof the Senior Lenders
have become entitled to accelerate the Senior Loans, the Senior
Lenders shall have the right to notify GRP of the same . . .;
(v) . . . the Senior Lenders may after written notification to GRP,
transfer the Concessionaire's rights and obligations to a transferee . . .;
(vi) if the Senior Lenders . . . are unable to . . . effect a transfer . . .,
then GRP and the Senior Lenders shall endeavor . . . to enter into any
other arrangement relating to the Development Facility . . . If no
agreement relating to the Development Facility is arrived at by GRP
and the Senior Lenders within the said 180-day period, then at the end
This principle was clearly violated in the Piatco Contracts. The ARCA
stipulates that government is to pay termination compensation to Piatco
even when termination is initiated by government for the following causes:
"(i) Failure of Concessionaire to finish the Works in all material
respects in accordance with the Tender Design and the Timetable;
(ii) Commission by Concessionaire of a material breach of this
Agreement . . .;
(iii) . . . a change in control of Concessionaire arising from the sale,
assignment, transfer or other disposition of capital stock which results
in an ownership structure violative of statutory or constitutional
limitations;
(iv) A pattern of continuing or repeated non-compliance, willful
violation, or non-performance of other terms and conditions hereof
which is hereby deemed a material breach of this Agreement . . ."62
As if that were not bad enough, the ARCA also inserted into Section 8.01
the phrase "Subject to Section 4.04." The effect of this insertion is that in
those instances where government may terminate the contract on account
of Piatco's breach, and it is nevertheless required under the ARCA to make
termination compensation to Piatco even though unauthorized by law, such
compensation is to be equivalent to the payment amount guaranteed by
government - either a) the Appraised Value of the terminal facility or (b) the
aggregate of the Attendant Liabilities, whichever amount is greater!
Clearly, this condition is not in line with Section 7 of the BOT Law. That
provision permits a project proponent to recover the actual expenses it
incurred in the prosecution of the project plus a reasonable rate of return not
in excess of that provided in the contract; or to be compensated for the
equivalent or proportionate contract cost as defined in the contract, in case
the government is in default on certain major contractual obligations.
Furthermore, in those instances where such termination compensation is
authorized by the BOT Law, it is indispensable that the interest of
government be duly insured. Section 5.08 the ARCA mandates insurance
coverage for the terminal facility; but all insurance policies are to be
assigned, and all proceeds are payable, to the Senior Lenders. In brief, the
interest being secured by such coverage is that of the Senior Lenders, not
that of government. This can hardly be considered compliance with law.
In essence, the ARCA provisions on termination compensation result in
another unauthorized government guarantee, this time in favor of Piatco.
A Prohibited Direct Government Subsidy, Which at the Same Time Is an
Assault on the National Honor
Still another contractual provision offensive to law and public policy is
Section 8.01(d) of the ARCA, which is a "bolder and badder" version of
Section 8.04(d) of the CA.
It will be recalled that Section 4-A of the BOT Law as amended prohibits not
only direct government guarantees, but likewise a direct government
subsidy for unsolicited proposals. Section 13.2. b. iii. of the 1999 IRR
defines a direct government subsidy as encompassing "an agreement
whereby the Government . . . will . . . postpone any payments due from the
proponent."
Despite the statutory ban, Section 8.01 (d) of the ARCA provides thus:
"(d) The provisions of Section 8.01(a) notwithstanding, and for the
purpose of preventing a disruption of the operations in the Terminal
and/or Terminal Complex, in the event that at any time Concessionaire
is of the reasonable opinion that it shall be unable to meet a payment
obligation owed to the Senior Lenders, Concessionaire shall give
prompt notice to GRP, through DOTC/MIAA and to the Senior Lenders.
In such circumstances, the Senior Lenders (or the Senior Lenders'
Representative) may ensure that after making provision for
administrative expenses and depreciation, the cash resources of
Concessionaire shall first be used and applied to meet all payment
obligations owed to the Senior Lenders. Any excess cash, after
meeting such payment obligations, shall be earmarked for the payment
of all sums payable by Concessionaire to GRP under this Agreement.
If by reason of the foregoing GRP should be unable to collect in full all
payments due to GRP under this Agreement, then the unpaid balance
shall be payable within a 90-day grace period counted from the
relevant due date, with interest per annum at the rate equal to the
average 91-day Treasury Bill Rate as of the auction date immediately
The aforesaid provision rouses mixed emotions - shame and disgust at the
parties' (especially the government officials') docile submission and abject
servitude and surrender to the imperious and excessive demands of the
foreign lenders, on the one hand; and vehement outrage at the affront to the
sovereignty of the Republic and to the national honor, on the other. It is
indeed time to put an end to such an unbearable, dishonorable situation.
The Piatco Contracts Unarguably Violate Constitutional Injunctions
I will now discuss the manner in which the Piatco Contracts offended the
Constitution.
The Exclusive Right Granted to Piatco to Operate a Public Utility Is
Prohibited by the Constitution
While Section 2.02 of the ARCA spoke of granting to Piatco "a franchise to
operate and maintain the Terminal Complex," Section 3.02(a) of the same
ARCA granted to Piatco, for the entire term of the concession agreement,
"the exclusive right to operate a commercial international passenger
terminal within the Island of Luzon" with the exception of those three
terminals already existing63 at the time of execution of the ARCA.
Section 11 of Article XII of the Constitution prohibits the grant of a
"franchise, certificate, or any other form of authorization for the operation of
a public utility" that is "exclusive in character."
In its Opinion No. 078, Series of 1995, the Department of justice held that
"the NAIA Terminal III which . . . is a 'terminal for public use' is a public
utility." Consequently, the constitutional prohibition against the exclusivity of
a franchise applies to the franchise for the operation of NAIA Terminal III as
well.
What was granted to Piatco was not merely a franchise, but an "exclusive
right" to operate an international passenger terminal within the "Island of
Luzon." What this grant effectively means is that the government is now
estopped from exercising its inherent power to award any other person
another franchise or a right to operate such a public utility, in the event
public interest in Luzon requires it. This restriction is highly detrimental to
government and to the public interest. Former Secretary of Justice
Hernando B. Perez expressed this point well in his Memorandum for the
President dated 21 May 2002:
"Section 3.02 on 'Exclusivity'
"This provision gives to PIATCO (the Concessionaire) the exclusive
right to operate a commercial international airport within the Island of
Luzon with the exception of those already existing at the time of the
execution of the Agreement, such as the airports at Subic, Clark and
Laoag City. In the case of the Clark International Airport, however, the
provision restricts its operation beyond its design capacity of 850,000
passengers per annum and the operation of new terminal facilities
therein until after the new NAIA Terminal III shall have consistently
reached or exceeded its design capacity of ten (10) million passenger
capacity per year for three (3) consecutive years during the concession
period.
"This is an onerous and disadvantageous provision. It effectively grants
PIATCO a monopoly in Luzon and ties the hands of government in the
matter of developing new airports which may be found expedient and
necessary in carrying out any future plan for an inter-modal
transportation system in Luzon.
"Additionally, it imposes an unreasonable restriction on the operation of
the Clark International Airport which could adversely affect the
operation and development of the Clark Special Economic Zone to the
economic prejudice of the local constituencies that are being benefited
by its operation." (Emphasis supplied)
While it cannot be gainsaid that an enterprise that is a public utility may
happen to constitute a monopoly on account of the very nature of its
business and the absence of competition, such a situation does not
however constitute justification to violate the constitutional prohibition and
grant an exclusive franchise or exclusive right to operate a public utility.
Piatco's contention that the Constitution does not actually prohibit
monopolies is beside the point. As correctly argued,64 the existence of a
monopoly by a public utility is a situation created by circumstances that do
not encourage competition. This situation is different from the grant of a
franchise to operate a public utility, a privilege granted by government. Of
course, the grant of a franchise may result in a monopoly. But making such
franchise exclusive is what is expressly proscribed by the Constitution.
Actually, the aforementioned Section 3.02 of the ARCA more than just
guaranteed exclusivity; it also guaranteed that the government will not
improve or expand the facilities at Clark - and in fact is required to put a cap
on the latter's operations - until after Terminal III shall have been operated
at or beyond its peak capacity for three consecutive years.65 As counsel for
public respondents pointed out, in the real world where the rate of influx of
international passengers can fluctuate substantially from year to year, it may
take many years before Terminal III sees three consecutive years'
operations at peak capacity. The Diosdado Macapagal International Airport
may thus end up stagnating for a long time. Indeed, in order to ensure
greater profits for Piatco, the economic progress of a region has had to be
sacrificed.
The Piatco Contracts Violate the Time Limitation on Franchises
Section 11 of Article XII of the Constitution also provides that "no franchise,
certificate or any other form of authorization for the operation of a public
utility shall be . . . for a longer period than fifty years." After all, a franchise
held for an unreasonably long time would likely give rise to the same evils
as a monopoly.
The Piatco Contracts have come up with an innovative way to circumvent
the prohibition and obtain an extension. This fact can be gleaned from
Section 8.03(b) of the ARCA, which I quote thus:
"Sec. 8.03. Termination Procedure and Consequences of Termination.
a) x x x
xxx
xxx
groundhandlers for Terminal III. Aside from the Philippine Airlines, the other
accredited entities are the Philippine Airport and Ground Services
Globeground, Inc. ("PAGSGlobeground") and the Orbit Air Systems, Inc.
("Orbit"). PAGSGlobeground is a wholly-owned subsidiary of the Philippine
Airport and Ground Services, Inc. or PAGS,73 while Orbit is a wholly-owned
subsidiary of Friendship Holdings, Inc.,74 which is in turn owned 80 percent
by PAGS.75 PAGS is a service provider owned 60 percent by the Cheng
Family;76 it is a stockholder of 35 percent of Piatco77 and is the latter's
designated contractor-operator for NAIA Terminal III.78
Such entry into and domination of the airport-related services sector appear
to be very much in line with the following provisions contained in the First
Addendum to the Piatco Shareholders Agreement,79 executed on July 6,
1999, which appear to constitute a sort of master plan to create a monopoly
and combinations in restraint of trade:
"11. The Shareholders shall ensure:
a. x x x
xxx
x x x.;
b. That (Phil. Airport and Ground Services, Inc.) PAGS and/or its
designated Affiliates shall, at all times during the Concession Period,
be exclusively authorized by (PIATCO) to engage in the provision of
ground-handling, catering and fueling services within the Terminal
Complex.
c. That PAIRCARGO and/or its designated Affiliate shall, during the
Concession Period, be the only entities authorized to construct and
operate a warehouse for all cargo handling and related services within
the Site."
Precisely, proscribed by our Constitution are the monopoly and the restraint
of trade being fostered by the Piatco Contracts through the erection of
barriers to the entry of other service providers into Terminal III. In Tatad v.
Secretary of the Department of Energy,80 the Court ruled:
". . . [S]ection 19 of Article XII of the Constitution . . . mandates: 'The
State shall regulate or prohibit monopolies when the public interest so
requires. No combinations in restraint of trade or unfair competition
shall be allowed.'
xxx
xxx
NAIA.87 The bottom line is that, as of the In-Service Date, Terminal III will be
the only terminal where the business of providing airport-related services to
international airlines and passengers may be conducted at all.
Consequently, government through the DOTC/MIAA will be compelled to
cease honoring existing contracts with service providers after the In-Service
Date, as they cannot be allowed to operate in Terminal III.
In short, the CA and the ARCA obligate and constrain government to break
its existing contracts with these service providers.
Notably, government is not in a position to require Piatco to accommodate
the displaced service providers, and it would be unrealistic to think that
these service providers can perform their service contracts in some other
international airport outside Luzon. Obviously, then, these displaced service
providers are - to borrow a quaint expression - up the river without a paddle.
In plainer terms, they will have lost their businesses entirely, in the blink of
an eye.
What we have here is a set of contractual provisions that impair the
obligation of contracts and contravene the constitutional prohibition against
deprivation of property without due process of law.88
Moreover, since the displaced service providers, being unable to operate,
will be forced to close shop, their respective employees - among them
Messrs. Agan and Lopez et al. - have very grave cause for concern, as they
will find themselves out of employment and bereft of their means of
livelihood. This situation comprises still another violation of the constitution
prohibition against deprivation of property without due process.
True, doing business at the NAIA may be viewed more as a privilege than
as a right. Nonetheless, where that privilege has been availed of by the
petitioners-in-intervention service providers for years on end, a situation
arises, similar to that in American Inter-fashion v. GTEB.89 We held therein
that a privilege enjoyed for seven years "evolved into some form of property
right which should not be removed x x x arbitrarily and without due process."
Said pronouncement is particularly relevant and applicable to the situation
at bar because the livelihood of the employees of petitioners-intervenors are
at stake.
The
Piatco
Contracts
Violate
Constitutional
Against Deprivation of Liberty Without Due Process
Prohibition
The Piatco Contracts by locking out existing service providers from entry
into Terminal III and restricting entry of future service providers, thereby
infringed upon the freedom - guaranteed to and heretofore enjoyed by
international airlines - to contract with local service providers of their choice,
and vice versa.
Both the service providers and their client airlines will be deprived of the
right to liberty, which includes the right to enter into all contracts,90 and/or
the right to make a contract in relation to one's business.91
By
Creating
New
Financial
Obligations
for
Government,
Supplements
to
the
ARCA
Violate
the
Constitutional
Ban on Disbursement of Public Funds Without Valid Appropriation
Clearly prohibited by the Constitution is the disbursement of public funds out
of the treasury, except in pursuance of an appropriation made by law.92 The
immediate effect of this constitutional ban is that all the various agencies of
government are constrained to limit their expenditures to the amounts
appropriated by law for each fiscal year; and to carefully count their cash
before taking on contractual commitments. Giving flesh and form to the
injunction of the fundamental law, Sections 46 and 47 of Executive Order
292, otherwise known as the Administrative Code of 1987, provide as
follows:
"Sec. 46. Appropriation Before Entering into Contract. - (1) No contract
involving the expenditure of public funds shall be entered into unless
there is an appropriation therefor, the unexpended balance of which,
free of other obligations, is sufficient to cover the proposed
expenditure; and . .
"Sec. 47. Certificate Showing Appropriation to Meet Contract. - Except
in the case of a contract for personal service, for supplies for current
consumption or to be carried in stock not exceeding the estimated
consumption for three (3) months, or banking transactions of
government-owned or controlled banks, no contract involving the
expenditure of public funds by any government agency shall be
entered into or authorized unless the proper accounting official of the
agency concerned shall have certified to the officer entering into the
obligation that funds have been duly appropriated for the purpose and
that the amount necessary to cover the proposed contract for the
current calendar year is available for expenditure on account thereof,
subject to verification by the auditor concerned. The certificate signed
by the proper accounting official and the auditor who verified it, shall be
attached to and become an integral part of the proposed contract, and
the sum so certified shall not thereafter be available for expenditure for
any other purpose until the obligation of the government agency
concerned under the contract is fully extinguished."
Referring to the aforequoted provisions, this Court has held that "(I)t is quite
evident from the tenor of the language of the law that the existence of
appropriations and the availability of funds are indispensable pre-requisites
to or conditions sine qua non for the execution of government contracts. The
obvious intent is to impose such conditions as a priori requisites to the
validity of the proposed contract."93
Notwithstanding the constitutional ban, statutory mandates and
Jurisprudential precedents, the three Supplements to the ARCA, which were
not approved by NEDA, imposed on government the additional burden of
spending public moneys without prior appropriation.
In the First Supplement ("FS") dated August 27, 1999, the following
requirements were imposed on the government:
To construct, maintain and keep in good repair and operating
condition all airport support services, facilities, equipment and
infrastructure owned and/or operated by MIAA, which are not part of
the Project or which are located outside the Site, even though
constructed by Concessionaire - including the access road connecting
Terminals II and III and the taxilane, taxiways and runways
To obligate the MIAA to provide funding for the upkeep, maintenance
and repair of the airports and facilities owned or operated by it and by
third persons under its control in order to ensure compliance with
international standards; and holding MIAA liable to Piatco for the
latter's losses, expenses and damages as well as for the latter's liability
to third persons, in case MIAA fails to perform such obligations; in
addition, MIAA will also be liable for the incremental and consequential
Providing thru MIAA the land required by Piatco for the taxilane
and one taxiway, at no cost to Piatco
Implementing the government's existing storm drainage master
plan
Coordinating with DPWH the financing, implementation and
completion of the following works before the In-Service Date:
three left-turning overpasses (Edsa to Tramo St., Tramo to
Andrews Ave., and Manlunas Road to Sales Ave.) and a road
upgrade and improvement program involving widening, repair and
resurfacing of Sales Road, Andrews Avenue and Manlunas Road;
improvement of Nichols Interchange; and removal of squatters
along Andrews Avenue
Dealing directly with BCDA and the Philippine Air Force in
acquiring additional land or right of way for the road upgrade and
improvement program
Requiring government to work for the immediate reversion to
MIAA of the Nayong Pilipino National Park, in order to permit the
building of the second west parallel taxiway
funds - a development that would not have come about, were it not for the
Supplements. Very clever but very illegal!
EPILOGUE
What Do We Do Now?
In the final analysis, there remains but one ultimate question, which I raised
during the Oral Argument on December 10, 2002: What do we do with the
Piatco Contracts and Terminal III?96 (Feeding directly into the resolution of
the decisive question is the other nagging issue: Why should we bother with
determining the legality and validity of these contracts, when the Terminal
itself has already been built and is practically complete?)
Prescinding from all the foregoing disquisition, I find that all the Piatco
contracts, without exception, are void ab initio, and therefore inoperative.
Even the very process by which the contracts came into being - the bidding
and the award - has been riddled with irregularities galore and blatant
violations of law and public policy, far too many to ignore. There is thus no
conceivable way, as proposed by some, of saving one (the original
Concession Agreement) while junking all the rest.
Neither is it possible to argue for the retention of the Draft Concession
Agreement (referred to in the various pleadings as the Contract Bidded Out)
as the contract that should be kept in force and effect to govern the
situation, inasmuch as it was never executed by the parties. What Piatco
and the government executed was the Concession Agreement which is
entirely different from the Draft Concession Agreement.
Ultimately, though, it would be tantamount to an outrageous, grievous and
unforgivable mutilation of public policy and an insult to ourselves if we opt to
keep in place a contract - any contract - for to do so would assume that we
agree to having Piatco continue as the concessionaire for Terminal III.
Despite all the insidious contraventions of the Constitution, law and public
policy Piatco perpetrated, keeping Piatco on as concessionaire and even
rewarding it by allowing it to operate and profit from Terminal III - instead of
imposing upon it the stiffest sanctions permissible under the laws - is
unconscionable.
It is no exaggeration to say that Piatco may not really mind which contract
we decide to keep in place. For all it may care, we can do just as well
without one, if we only let it continue and operate the facility. After all, the
real money will come not from building the Terminal, but from actually
operating it for fifty or more years and charging whatever it feels like, without
any competition at all. This scenario must not be allowed to happen.
If the Piatco contracts are junked altogether as I think they should be,
should not AEDC automatically be considered the winning bidder and
therefore allowed to operate the facility? My answer is a stone-cold 'No'.
AEDC never won the bidding, never signed any contract, and never built
any facility. Why should it be allowed to automatically step in and benefit
from the greed of another?
Should government pay at all for reasonable expenses incurred in the
construction of the Terminal? Indeed it should, otherwise it will be unjustly
enriching itself at the expense of Piatco and, in particular, its funders,
contractors and investors - both local and foreign. After all, there is no
question that the State needs and will make use of Terminal III, it being part
and parcel of the critical infrastructure and transportation-related programs
of government.
In Melchor v. Commission on Audit,97 this Court held that even if the
contract therein was void, the principle of payment by quantum meruit was
found applicable, and the contractor was allowed to recover the reasonable
value of the thing or services rendered (regardless of any agreement as to
the supposed value), in order to avoid unjust enrichment on the part of
government. The principle of quantum meruit was likewise applied in Eslao
v. Commission on Audit,98 because to deny payment for a building almost
completed and already occupied would be to permit government to unjustly
enrich itself at the expense of the contractor. The same principle was
applied in Republic v. Court of Appeals.99
One possible practical solution would be for government - in view of the
nullity of the Piatco contracts and of the fact that Terminal III has already
been built and is almost finished - to bid out the operation of the facility
under the same or analogous principles as build-operate-and-transfer
projects. To be imposed, however, is the condition that the winning bidder
must pay the builder of the facility a price fixed by government based on
quantum meruit; on the real, reasonable - not inflated - value of the built
facility.
How the payment or series of payments to the builder, funders, investors
and contractors will be staggered and scheduled, will have to be built into
the bids, along with the annual guaranteed payments to government. In this
manner, this whole sordid mess could result in something truly beneficial for
all, especially for the Filipino people.
WHEREFORE, I vote to grant the Petitions and to declare the subject
contracts NULL and VOID.
of
the
Philippines
COURT
FIRST DIVISION
[G.R. No. 154129. July 8, 2005]
TERESITA DIO, Petitioner, vs.SPOUSES VIRGILIO and LUZ ROCES
JAPOR and MARTA[1] JAPOR, Respondents.
DECISION
QUISUMBING, J.:
For review on certiorari is the Decision,[2] dated February 22, 2002, of the
Court of Appeals, in the consolidated cases CA-G.R. CV No. 51521 and
CA-G.R. SP No. 40457. The decretal portion read:
WHEREFORE, premises considered, in CA-G.R. CV No. 51521, the
decision of the trial court is AFFIRMED with MODIFICATION. Judgment is
rendered as follows:
1. Declaring the Real Estate Mortgage to be valid;
2. Fixing the interest at 12% per annum and an additional 1% penalty
charge per month such that plaintiffs-appellants' contractual obligation
under the deed of real estate mortgage would amount to P1,252,674.00;
3. Directing defendant-appellee Dio to give the surplus of P2,247,326.00 to
plaintiffs-appellants; and
4. Affirming the dissolution of the writ of preliminary injunction previously
issued by the trial court.
No pronouncement as to costs.
The Petition in CA-G.R. SP No. 40457 is DENIED for being moot and
academic.
SO ORDERED.[3]
Equally assailed in this petition is the Resolution,[4] dated July 2, 2002, of
the appellate court, denying Teresita Dio's Motion for Partial
Reconsideration of March 19, 2002 and the Spouses Japor and Marta
Japor's Motion for Reconsideration dated March 20, 2002.
The antecedent facts are as follows:
Herein respondents Spouses Virgilio Japor and Luz Roces Japor were the
owners of an 845.5 square-meter residential lot including its improvements,
situated in Barangay Ibabang Mayao, Lucena City, as shown by Transfer
Certificate of Title (TCT) No. T-39514. Adjacent to the Japor's lot is another
lot owned by respondent Marta Japor, which consisted of 325.5 square
meters and titled under TCT No. T-15018.
On August 23, 1982, the respondents obtained a loan of P90,000 from the
Quezon Development Bank (QDB), and as security therefor, they
mortgaged the lots covered by TCT Nos. T-39514 and T-15018 to QDB, as
evidenced by a Deed of Real Estate Mortgage duly executed by and
between the respondents and QDB.
On December 6, 1983, respondents and QDB amended the Deed of Real
Estate Mortgage increasing respondents' loan to P128,000.
The respondents failed to pay their aforesaid loans. However, before the
bank could foreclose on the mortgage, respondents, thru their broker, one
Lucia G. Orian, offered to mortgage their properties to petitioner Teresita
Dio. Petitioner prepared a Deed of Real Estate Mortgage, whereby
respondents mortgaged anew the two properties already mortgaged with
QDB to secure the timely payment of a P350,000 loan that respondents had
from petitioner Dio. The Deed of Real Estate Mortgage, though dated
January 1989, was actually executed on February 13, 1989 and notarized
on February 17, 1989.
Under the terms of the deed, respondents agreed to pay the petitioner
interest at the rate of five percent (5%) a month, within a period of two
months or until April 14, 1989. In the event of default, an additional interest
equivalent to five percent (5%) of the amount then due, for every month of
delay, would be charged on them.
Virgilio Japor, Luz Japor and Marta Japor or the latter's substituted heir or
heirs, as the case may be;
3. Dissolving the writ of preliminary injunction previously issued by this
Court; and
4. To pay the cost of this suit.
SO ORDERED.[7]
On January 17, 1996, respondents filed their notice of appeal. On April 26,
1996, they also filed a Petition for Temporary Restraining Order And/Or
Mandatory Injunction in Aid of Appellate Jurisdiction with the Court of
Appeals.
On May 8, 1996, petitioner Dio as the sole bidder in an auction purchased
the properties for P3,500,000.
On May 9, 1996, the Court of Appeals denied respondents' application for a
temporary restraining order.[8]
On October 9, 1996, the appellate court consolidated CA-G.R. CV No.
51521 and CA-G.R. SP No. 40457.
As stated at the outset, the appellate court affirmed the decision of the trial
court with respect to the validity of the Deed of Real Estate Mortgage, but
modified the interest and penalty rates for being unconscionable and
exorbitant.
Before us, petitioner assigns the following errors allegedly committed by the
appellate court:
I
THE ALLEGED INIQUITY OF THE STIPULATED INTEREST AND
PENALTY WAS NOT RAISED BEFORE THE TRIAL COURT NOR
ASSIGNED AS AN ERROR IN RESPONDENTS' APPEAL.
II
reduced the interest rate to 12% per annum and the penalty rate to 1% per
month, in accordance with Article 2227[18] of the Civil Code.
But were respondents entitled to the 'surplus' of P2,247,326[19] as a result
of the overpricing in the auction?
We note that the 'surplus' was the result of the computation by the Court of
Appeals of respondents' outstanding liability based on a reduced interest
rate of 12% per annum and the reduced penalty rate of 1% per month. The
court a quo then proceeded to apply our ruling in Sulit v. Court of
Appeals,[20] to the effect that in case of surplus in the purchase price, the
mortgagee is liable for such surplus as actually comes into his hands, but
where he sells on credit instead of cash, he must still account for the
proceeds as if the price were paid in cash, for such surplus stands in the
place of the land itself with respect to liens thereon or vested rights therein
particularly those of the mortgagor or his assigns.
In the instant case, however, there is no 'surplus' to speak of. In adjusting
the interest and penalty rates to equitable and conscionable levels, what the
Court did was merely to reflect the true price of the land in the foreclosure
sale. The amount of the petitioner's bid merely represented the true amount
of the mortgage debt. No surplus in the purchase price was thus created to
which the respondents as the mortgagors have a vested right.
WHEREFORE, the Decision dated February 22, 2002, of the Court of
Appeals in the consolidated cases CA-G.R. CV No. 51521 and CA-G.R. SP
No. 40457 is hereby AFFIRMED with MODIFICATION. The interest rate for
the subject loan owing to QDB, or whoever is now the party mortgagee, is
hereby fixed at five percent (5%) for the first two (2) months following the
date of execution of the Deed of Real Estate Mortgage, and twelve percent
(12%) for the succeeding period. The penalty rate thereafter shall be fixed at
one percent (1%) per month. Petitioner Teresita Dio is declared free of any
obligation to return to the respondents, the Spouses Virgilio Japor and Luz
Roces Japor and Marta Japor, any surplus in the foreclosure sale price.
There being no surplus, after the court below had applied our ruling in
Sulit,[21] respondents could not legally claim any overprice from the
petitioner, much less the amount of P2,247,326.00.
SO ORDERED.
of
the
Philippines
COURT
FIRST DIVISION
G.R. No. 114286
Claiming that respondents failed to turn over the goods covered by the trust
receipt or the proceeds thereof, petitioner filed a complaint for sum of
money with application for preliminary attachment3 before the Regional Trial
Court of Manila. In answer to the complaint, respondents averred that the
transaction between them was a simple loan and not a trust receipt
transaction, and that the amount claimed by petitioner did not take into
account payments already made by them. Respondent Lim also denied any
personal liability in the subject transactions. In a Supplemental Answer,
respondents prayed for reimbursement of alleged overpayment to petitioner
of the amount of P490,228.90.
At the pre-trial conference, the parties agreed on the following issues:
1) Whether or not the transaction involved is a loan transaction or a
trust receipt transaction;
2) Whether or not the interest rates charged against the defendants by
the plaintiff are proper under the letter of credit, trust receipt and under
existing rules or regulations of the Central Bank;
3) Whether or not the plaintiff properly applied the previous payment of
P300,456.27 by the defendant corporation on July 13, 1982 as
payment for the latters account; and
4) Whether or not the defendants are personally liable under the
transaction sued for in this case.4
On September 17, 1990, the trial court rendered its Decision,5 dismissing
the Complaint and ordering petitioner to pay respondents the following
amounts under their counterclaim: P490,228.90 representing overpayment
of respondent Corporation, with interest thereon at the legal rate from July
26, 1988 until fully paid; P10,000.00 as attorney's fees; and costs.
Both parties appealed to the Court of Appeals, which partially modified the
Decision by deleting the award of attorney's fees in favor of respondents
and, instead, ordering respondent Corporation to pay petitioner P37,469.22
as and for attorney's fees and litigation expenses.
Hence, the instant petition raising the following issues:
leaving the determination thereof at the sole will and control of petitioner.
1wphi1.nt
While it may be acceptable, for practical reasons given the fluctuating
economic conditions, for banks to stipulate that interest rates on a loan not
be fixed and instead be made dependent upon prevailing market conditions,
there should always be a reference rate upon which to peg such variable
interest rates. An example of such a valid variable interest rate was found in
Polotan, Sr. v. Court of Appeals. 10 In that case, the contractual provision
stating that "if there occurs any change in the prevailing market rates, the
new interest rate shall be the guiding rate in computing the interest due on
the outstanding obligation without need of serving notice to the Cardholder
other than the required posting on the monthly statement served to the
Cardholder"11 was considered valid. The aforequoted provision was upheld
notwithstanding that it may partake of the nature of an escalation clause,
because at the same time it provides for the decrease in the interest rate in
case the prevailing market rates dictate its reduction. In other words, unlike
the stipulation subject of the instant case, the interest rate involved in the
Polotan case is designed to be based on the prevailing market rate. On the
other hand, a stipulation ostensibly signifying an agreement to "any increase
or decrease in the interest rate," without more, cannot be accepted by this
Court as valid for it leaves solely to the creditor the determination of what
interest rate to charge against an outstanding loan.
Petitioner has also failed to convince us that its transaction with respondent
Corporation is really a trust receipt transaction instead of merely a simple
loan, as found by the lower court and the Court of Appeals.
The recent case of Colinares v. Court of Appeals 12 appears to be
foursquare with the facts obtaining in the case at bar. There, we found that
inasmuch as the debtor received the goods subject of the trust receipt
before the trust receipt itself was entered into, the transaction in question
was a simple loan and not a trust receipt agreement. Prior to the date of
execution of the trust receipt, ownership over the goods was already
transferred to the debtor. This situation is inconsistent with what normally
obtains in a pure trust receipt transaction, wherein the goods belong in
ownership to the bank and are only released to the importer in trust after the
loan is granted.
of
the
Philippines
COURT
THIRD DIVISION
G.R. No. 175490
ILEANA
DR.
MACALINAO,
vs.
BANK OF THE PHILIPPINE ISLANDS, Respondent.
Petitioner,
DECISION
VELASCO, JR., J.:
The Case
Before us is a Petition for Review on Certiorari under Rule 45 of the Rules
of Court seeking to reverse and set aside the June 30, 2006 Decision1 of
the Court of Appeals (CA) and its November 21, 2006 Resolution2 denying
petitioners motion for reconsideration.
The Facts
Petitioner Ileana Macalinao was an approved cardholder of BPI Mastercard,
one of the credit card facilities of respondent Bank of the Philippine Islands
(BPI).3 Petitioner Macalinao made some purchases through the use of the
said credit card and defaulted in paying for said purchases. She
subsequently received a letter dated January 5, 2004 from respondent BPI,
demanding payment of the amount of one hundred forty-one thousand five
hundred eighteen pesos and thirty-four centavos (PhP 141,518.34), as
follows:
Statement
Date
Previous
Balance
10/27/2002 94,843.70
Purchases Penalty
(Payments) Interest
559.72
Finance Balance
Charges Due
3,061.99 98,456.41
11/27/2002 98,465.41
(15,000)
2,885.61 86,351.02
12/31/2002 86,351.02
30,308.80
259.05
2,806.41 119,752.28
1/27/2003
119,752.28
618.23
3,891.07 124,234.58
2/27/2003
124,234.58
990.93
4,037.62 129,263.13
3/27/2003
3,616.05 115,177.90
4/27/2003
115,177.90
644.26
3,743.28 119,565.44
5/27/2003
3,571.71 113,540.10
6/29/2003
113,540.10
7/27/2003
8,362.50
(7,000.00)
323.57
3,607.32 118,833.49
118,833.49
608.07
3,862.09 123,375.65
8/27/2003
123,375.65
9/28/2003
128,435.56
141,518.34
10/28/2003
11/28/2003
12/28/2003
1/27/2004
Under the Terms and Conditions Governing the Issuance and Use of the
BPI Credit and BPI Mastercard, the charges or balance thereof remaining
unpaid after the payment due date indicated on the monthly Statement of
Accounts shall bear interest at the rate of 3% per month and an additional
penalty fee equivalent to another 3% per month. Particularly:
8. PAYMENT OF CHARGES BCC shall furnish the Cardholder a monthly
Statement of Account (SOA) and the Cardholder agrees that all charges
made through the use of the CARD shall be paid by the Cardholder as
stated in the SOA on or before the last day for payment, which is twenty
(20) days from the date of the said SOA, and such payment due date may
be changed to an earlier date if the Cardholders account is considered
overdue and/or with balances in excess of the approved credit limit, or to
such other date as may be deemed proper by the CARD issuer with notice
to the Cardholder on the same monthly SOA. If the last day fall on a
Saturday, Sunday or a holiday, the last day for the payment automatically
becomes the last working day prior to said payment date. However,
notwithstanding the absence or lack of proof of service of the SOA of the
Cardholder, the latter shall pay any and all charges made through the use of
the CARD within thirty (30) days from date or dates thereof. Failure of the
Cardholder to pay the charges made through the CARD within the payment
period as stated in the SOA or within thirty (30) days from actual date or
dates of purchase whichever occur earlier, shall render him in default
without the necessity of demand from BCC, which the Cardholder expressly
waives. The charges or balance thereof remaining unpaid after the payment
due date indicated on the monthly Statement of Accounts shall bear interest
at the rate of 3% per month for BPI Express Credit, BPI Gold Mastercard
and an additional penalty fee equivalent to another 3% of the amount due
for every month or a fraction of a months delay. PROVIDED that if there
occurs any change on the prevailing market rates, BCC shall have the
option to adjust the rate of interest and/or penalty fee due on the
outstanding obligation with prior notice to the cardholder. The Cardholder
hereby authorizes BCC to correspondingly increase the rate of such interest
[in] the event of changes in the prevailing market rates, and to charge
additional service fees as may be deemed necessary in order to maintain its
service to the Cardholder. A CARD with outstanding balance unpaid after
thirty (30) days from original billing statement date shall automatically be
suspended, and those with accounts unpaid after ninety (90) days from said
original billing/statement date shall automatically be cancel (sic), without
prejudice to BCCs right to suspend or cancel any card anytime and for
whatever reason. In case of default in his obligation as provided herein,
Cardholder shall surrender his/her card to BCC and in addition to the
interest and penalty charges aforementioned , pay the following liquidated
damages and/or fees (a) a collection fee of 25% of the amount due if the
account is referred to a collection agency or attorney; (b) service fee for
every dishonored check issued by the cardholder in payment of his account
without prejudice, however, to BCCs right of considering Cardholders
account, and (c) a final fee equivalent to 25% of the unpaid balance,
exclusive of litigation expenses and judicial cost, if the payment of the
account is enforced though court action. Venue of all civil suits to enforce
this Agreement or any other suit directly or indirectly arising from the
relationship between the parties as established herein, whether arising from
crimes, negligence or breach thereof, shall be in the process of courts of the
3. Cost of suit.
SO ORDERED.11
Only petitioner Macalinao and her husband appealed to the Regional Trial
Court (RTC) of Makati City, their recourse docketed as Civil Case No. 041153. In its Decision dated October 14, 2004, the RTC affirmed in toto the
decision of the MeTC and held:
In any event, the sum of P141,518.34 adjudged by the trial court appeared
to be the result of a recomputation at the reduced rate of 2% per month.
Note that the total amount sought by the plaintiff-appellee was P154,608.75
exclusive of finance charge of 3.25% per month and late payment charge of
6% per month.
WHEREFORE, the appealed decision is hereby affirmed in toto.
No pronouncement as to costs.
SO ORDERED.12
Unconvinced, petitioner Macalinao filed a petition for review with the CA,
which was docketed as CA-G.R. SP No. 92031. The CA affirmed with
modification the Decision of the RTC:
WHEREFORE, the appealed decision is AFFIRMED but MODIFIED with
respect to the total amount due and interest rate. Accordingly, petitioners
are jointly and severally ordered to pay respondent Bank of the Philippine
Islands the following:
1. The amount of One Hundred Twenty Six Thousand Seven Hundred
Six Pesos and Seventy Centavos plus interest and penalty charges of
3% per month from January 5, 2004 until fully paid;
2. P10,000.00 as and by way of attorneys fees; and
3. Cost of Suit.
SO ORDERED.13
Although sued jointly with her husband, petitioner Macalinao was the only
one who filed the petition before the CA since her husband already passed
away on October 18, 2005.14
In its assailed decision, the CA held that the amount of PhP 141,518.34 (the
amount sought to be satisfied in the demand letter of respondent BPI) is
clearly not the result of the re-computation at the reduced interest rate as
previous higher interest rates were already incorporated in the said amount.
Thus, the said amount should not be made as basis in computing the total
obligation of petitioner Macalinao. Further, the CA also emphasized that
respondent BPI should not compound the interest in the instant case absent
a stipulation to that effect. The CA also held, however, that the MeTC erred
in modifying the amount of interest rate from 3% monthly to only 2%
considering that petitioner Macalinao freely availed herself of the credit card
facility offered by respondent BPI to the general public. It explained that
contracts of adhesion are not invalid per se and are not entirely prohibited.
Petitioner Macalinaos motion for reconsideration was denied by the CA in
its Resolution dated November 21, 2006. Hence, petitioner Macalinao is
now before this Court with the following assigned errors:
I.
THE REDUCTION OF INTEREST RATE, FROM 9.25% TO 2%, SHOULD
BE UPHELD SINCE THE STIPULATED RATE OF INTEREST WAS
UNCONSCIONABLE AND INIQUITOUS, AND THUS ILLEGAL.
II.
THE COURT OF APPEALS ARBITRARILY MODIFIED THE REDUCED
RATE OF INTEREST FROM 2% TO 3%, CONTRARY TO THE TENOR OF
ITS OWN DECISION.
III.
THE COURT A QUO, INSTEAD OF PROCEEDING WITH A
RECOMPUTATION, SHOULD HAVE DISMISSED THE CASE FOR
FAILURE OF RESPONDENT BPI TO PROVE THE CORRECT AMOUNT
OF PETITIONERS OBLIGATION, OR IN THE ALTERNATIVE,
REMANDED THE CASE TO THE LOWER COURT FOR RESPONDENT
BPI TO PRESENT PROOF OF THE CORRECT AMOUNT THEREOF.
Our Ruling
The petition is partly meritorious.
The Interest Rate and Penalty Charge of 3% Per Month or 36% Per Annum
Should Be Reduced to 2% Per Month or 24% Per Annum
In its Complaint, respondent BPI originally imposed the interest and penalty
charges at the rate of 9.25% per month or 111% per annum. This was
declared as unconscionable by the lower courts for being clearly excessive,
and was thus reduced to 2% per month or 24% per annum. On appeal, the
CA modified the rate of interest and penalty charge and increased them to
3% per month or 36% per annum based on the Terms and Conditions
Governing the Issuance and Use of the BPI Credit Card, which governs the
transaction between petitioner Macalinao and respondent BPI.
In the instant petition, Macalinao claims that the interest rate and penalty
charge of 3% per month imposed by the CA is iniquitous as the same
translates to 36% per annum or thrice the legal rate of interest.15 On the
other hand, respondent BPI asserts that said interest rate and penalty
charge are reasonable as the same are based on the Terms and Conditions
Governing the Issuance and Use of the BPI Credit Card.16
We find for petitioner. We are of the opinion that the interest rate and
penalty charge of 3% per month should be equitably reduced to 2% per
month or 24% per annum.
Indeed, in the Terms and Conditions Governing the Issuance and Use of the
BPI Credit Card, there was a stipulation on the 3% interest rate.
Nevertheless, it should be noted that this is not the first time that this Court
has considered the interest rate of 36% per annum as excessive and
unconscionable. We held in Chua vs. Timan:17
The stipulated interest rates of 7% and 5% per month imposed on
respondents loans must be equitably reduced to 1% per month or 12% per
annum. We need not unsettle the principle we had affirmed in a plethora of
cases that stipulated interest rates of 3% per month and higher are
excessive, iniquitous, unconscionable and exorbitant. Such stipulations are
void for being contrary to morals, if not against the law. While C.B. Circular
No. 905-82, which took effect on January 1, 1983, effectively removed the
ceiling on interest rates for both secured and unsecured loans, regardless of
maturity, nothing in the said circular could possibly be read as granting carte
blanche authority to lenders to raise interest rates to levels which would
either enslave their borrowers or lead to a hemorrhaging of their assets.
(Emphasis supplied.)
Since the stipulation on the interest rate is void, it is as if there was no
express contract thereon. Hence, courts may reduce the interest rate as
reason and equity demand.18
The same is true with respect to the penalty charge. Notably, under the
Terms and Conditions Governing the Issuance and Use of the BPI Credit
Card, it was also stated therein that respondent BPI shall impose an
additional penalty charge of 3% per month. Pertinently, Article 1229 of the
Civil Code states:
Art. 1229. The judge shall equitably reduce the penalty when the principal
obligation has been partly or irregularly complied with by the debtor. Even if
there has been no performance, the penalty may also be reduced by the
courts if it is iniquitous or unconscionable.
In exercising this power to determine what is iniquitous and unconscionable,
courts must consider the circumstances of each case since what may be
iniquitous and unconscionable in one may be totally just and equitable in
another.19
In the instant case, the records would reveal that petitioner Macalinao made
partial payments to respondent BPI, as indicated in her Billing Statements.20
Further, the stipulated penalty charge of 3% per month or 36% per annum,
in addition to regular interests, is indeed iniquitous and unconscionable.
Thus, under the circumstances, the Court finds it equitable to reduce the
interest rate pegged by the CA at 1.5% monthly to 1% monthly and penalty
charge fixed by the CA at 1.5% monthly to 1% monthly or a total of 2% per
month or 24% per annum in line with the prevailing jurisprudence and in
accordance with Art. 1229 of the Civil Code.
There Is No Basis for the Dismissal of the Case,
Much Less a Remand of the Same for Further Reception of Evidence
Petitioner Macalinao claims that the basis of the re-computation of the CA,
that is, the amount of PhP 94,843.70 stated on the October 27, 2002
Statement of Account, was not the amount of the principal obligation. Thus,
this allegedly necessitates a re-examination of the evidence presented by
the parties. For this reason, petitioner Macalinao further contends that the
dismissal of the case or its remand to the lower court would be a more
appropriate disposition of the case.
Such contention is untenable. Based on the records, the summons and a
copy of the complaint were served upon petitioner Macalinao and her
husband on May 4, 2004. Nevertheless, they failed to file their Answer
despite such service. Thus, respondent BPI moved that judgment be
rendered accordingly.21 Consequently, a decision was rendered by the
MeTC on the basis of the evidence submitted by respondent BPI. This is in
consonance with Sec. 6 of the Revised Rule on Summary Procedure, which
states:
Sec. 6. Effect of failure to answer. Should the defendant fail to answer
the complaint within the period above provided, the court, motu proprio, or
on motion of the plaintiff, shall render judgment as may be warranted by the
facts alleged in the complaint and limited to what is prayed for therein:
Provided, however, that the court may in its discretion reduce the amount of
damages and attorneys fees claimed for being excessive or otherwise
unconscionable. This is without prejudice to the applicability of Section 3(c),
Rule 10 of the Rules of Court, if there are two or more defendants. (As
amended by the 1997 Rules of Civil Procedure; emphasis supplied.)
Considering the foregoing rule, respondent BPI should not be made to
suffer for petitioner Macalinaos failure to file an answer and concomitantly,
to allow the latter to submit additional evidence by dismissing or remanding
the case for further reception of evidence. Significantly, petitioner Macalinao
herself admitted the existence of her obligation to respondent BPI, albeit
with reservation as to the principal amount. Thus, a dismissal of the case
would cause great injustice to respondent BPI. Similarly, a remand of the
case for further reception of evidence would unduly prolong the proceedings
of the instant case and render inutile the proceedings conducted before the
lower courts.
Significantly, the CA correctly used the beginning balance of PhP 94,843.70
as basis for the re-computation of the interest considering that this was the
Total
Penalty Amount
Interest
Charge Due for
(1%)
(1%)
the
Month
10/27/20 94,843.7
02
0
94,843.7
948.44
0
948.44
96,740.5
8
11/27/20 94,843.7
(15,000)
02
0
79,843.7
798.44
0
798.44
81,440.5
8
2/27/200 110,152.
3
50
92,152.5
921.53
0
921.53
93,995.5
6
4/27/200 92,152.5
3
0
92,152.5
921.53
0
921.53
93,995.5
6
82,152.5
821.53
0
821.53
83,795.5
6
8,362.50
6/29/200 82,152.5
83,515.0
(7,000.0
835.15
3
0
0
0)
835.15
85,185.3
0
7/27/200 83,515.0
3
0
83,515.0
835.15
0
835.15
85,185.3
0
8/27/200 83,515.0
3
0
83,515.0
835.15
0
835.15
85,185.3
0
9/28/200 83,515.0
3
0
83,515.0
835.15
0
835.15
85,185.3
0
10/28/20 83,515.0
03
0
83,515.0
835.15
0
835.15
85,185.3
0
11/28/20 83,515.0
03
0
83,515.0
835.15
0
835.15
85,185.3
0
12/28/20 83,515.0
03
0
83,515.0
835.15
0
835.15
85,185.3
0
1/27/200 83,515.0
4
0
83,515.0
835.15
0
835.15
85,185.3
0
TOTAL
of
the
Philippines
COURT
FIRST DIVISION
G.R. No. 153267
CHINA
BANKING
CORPORATION,
petitioner,
vs.
HON. COURT OF APPEALS and ARMED FORCES AND POLICE
SAVINGS & LOAN ASSOCIATION, INC. (AFPSLAI), respondents.
DECISION
QUISUMBING, J.:
For review is the D E C I S I O N1 dated November 23, 2001 of the Court of
Appeals in CA-G.R. SP No. 65740, affirming the Orders2 dated August 25,
2000 and April 17, 2001, of the Regional Trial Court of Quezon City, Branch
216, which denied petitioners motion to dismiss the civil action for a sum of
money filed by private respondent. Likewise impugned is the Resolution3
dated April 24, 2002 of the Court of Appeals denying petitioners motion for
reconsideration of said decision.
The antecedent facts, as summarized by the appellate court, are as follows:
On September 24, 1996, private respondent Armed Forces and Police
Savings and Loan Association, Inc. (AFPSLAI) filed a complaint for a sum of
money against petitioner China Banking Corporation (CBC) with the
Regional Trial Court of Quezon City, Branch 216.
In its Answer,4 the petitioner admitted being the registered owner of the
Home Notes, the subject matter of the complaint. These are instruments of
indebtedness issued in favor of a corporation named Fund Centrum
Finance, Inc. (FCFI) and were sold, transferred and assigned to private
respondent. Thus, the petitioner filed a Motion to Dismiss alleging that the
real party in interest was FCFI, which was not joined in the complaint, and
that petitioner was a mere trustee of FCFI.
The trial court denied the motion to dismiss. Petitioner filed a motion for
reconsideration, which the court a quo again denied. Petitioner elevated the
case to the Court of Appeals through a Petition for Certiorari and
Prohibition. The appellate court denied the petition for lack of merit. The
petitioner then brought the matter to this Court via a Petition for Certiorari,
under Rule 65. We dismissed the petition for being an improper remedy.
Petitioner filed another Motion to Dismiss, this time invoking prescription.
The lower court denied said motion to dismiss for lack of merit. It held that it
was not apparent in the complaint whether or not prescription had set in.
Thus, the trial judge directed petitioner to present its evidence. However,
petitioner instead filed a motion for reconsideration, which the trial court
denied, ratiocinating thus:
This Court finds that there are conflicting claims on the issue of whether or
not the action has already prescribed. A full blown trial is in order to
determine fully the rights of the contending parties.5
Undeterred, petitioner impugned, through a petition under Rule 65, the two
orders of the trial court claiming before the appellate court that:
RESPONDENT COURT GROSSLY ERRED OR GRAVELY ABUSED ITS
DISCRETION AMOUNTING TO LACK OF JURISDICTION IN DENYING
THE MOTION TO DISMISS AND DECLARING THAT PRESCRIPTION
HAS NOT SET IN AGAINST PRIVATE RESPONDENT.6
In its assailed Decision, the Court of Appeals dismissed the petition, ruling
that:
Since the defense of prescription under the facts obtaining did not rest on
solid ground, the trial court took a more judicious move to direct the
defendant therein, herein petitioner, to present its evidence. It is self-evident
that with the evidence of both parties adduced, the trial court could proceed
to decide on the merits of the case including prescription, and thus avoid
collateral proceedings such as the one at bar that unduly prolong the final
determination of the controversy. After all, prescription subsists as a valid
issue in the decision process. The trial court wanted precisely a definite and
Otherwise stated, a cause of action has three elements, to wit, (1) a right in
favor of the plaintiff by whatever means and under whatever law it arises or
is created; (2) an obligation on the part of the named defendant to respect
or not to violate such right; and (3) an act or omission on the part of such
defendant violative of the right of the plaintiff or constituting a breach of the
obligation of the defendant to the plaintiff.13
It bears stressing that it is only when the last element occurs that a cause of
action arises. Accordingly, a cause of action on a written contract accrues
only when an actual breach or violation thereof occurs.14
Applying the foregoing principle to the instant case, we rule that private
respondents cause of action accrued only on July 20, 1995, when its
demand for payment of the Home Notes was refused by petitioner. It was
only at that time, and not before that, when the written contract was
breached and private respondent could properly file an action in court.
The cause of action cannot be said to accrue on the uniform maturity date of
the Home Notes as petitioner posits because at that point, the third
essential element of a cause of action, namely, an act or omission on the
part of petitioner violative of the right of private respondent or constituting a
breach of the obligation of petitioner to private respondent, had not yet
occurred.
The subject Home Notes, in fact, specifically states that payment of the
principal and interest due on the notes shall be made only upon
presentation for notation and/or surrender for cancellation of the notes, thus:
Payment of the principal amount and interest due on this Note shall be
made by the Company at the principal office of the Trustee herein referred
to or at such other office or agency that the Company may designate for the
purpose, in such coin or currency of the Republic of the Philippines as at the
time of payment shall be legal tender for payment of public and private
debts, upon presentation for notation and/or surrender for cancellation of
this Note. . . .15 (Emphasis supplied.)
Thus, the maturity date of the Home Notes is not controlling as far as
accrual of cause of action is concerned. What said date indicates is the time
when the obligation matures, when payment on the Notes would
commence, subject to presentation, notation and/or cancellation of those
Notes. The date for computing when prescription of the action for collection
begins to set in is properly a function related to the date of actual demand
by the holder of the Notes for payment by the obligor, herein petitioner bank.
Since the demand was made only on July 20, 1995, while the civil action for
collection of a sum of money was filed on September 24, 1996, within a
period of not more than ten years, such action was not yet barred by
prescription.
WHEREFORE, the petition is DENIED for lack of merit. The assailed
Decision dated November 23, 2001, and the Resolution dated April 24,
2002, of the Court of Appeals are AFFIRMED. Costs against petitioner.
SO ORDERED.
of
the
Philippines
COURT
SECOND DIVISION
G.R. No. 161397
DEVELOPMENT
BANK
OF
THE
vs.
FELIPE P. ARCILLA, JR., Respondent.
PHILIPPINES,
Petitioner,
FELIPE
P.
ARCILLA,
JR.,
vs.
DEVELOPMENT BANK OF THE PHILIPPINES, Respondent.
Petitioner,
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 161426
DECISION
CALLEJO, SR., J.:
Atty. Felipe P. Arcilla, Jr. was employed by the Development Bank of the
Philippines (DBP) in October 1981. About five or six months thereafter, he
was assigned to the legal department, and thereafter, decided to avail of a
loan under the Individual Housing Project (IHP) of the bank.1 On September
12, 1983, DBP and Arcilla executed a Deed of Conditional Sale2 over a
parcel of land, as well as the house to be constructed thereon, for the price
of P160,000.00. Arcilla borrowed the said amount from DBP for the
purchase of the lot and the construction of a residential building thereon. He
obliged himself to pay the loan in 25 years, with a monthly amortization of
P1,417.91, with 9% interest per annum, to be deducted from his monthly
salary.3
DBP obliged itself to transfer the title of the property upon the payment of
the loan, including any increments thereof. It was also agreed therein that if
Monthly
Amortization
P 155,218.79 9%
1
22 yrs.
mos<
&
6,802.45 - 2
9%
21 yrs. & 10
59.41
mos.
24,342.91 - 3
9%
22 yrs.
P1,342.72
212.07
P1,690.617
=========
On July 24, 1987, Arcilla signed three Promissory Notes8 for the total
amount of P186,364.15. He was also obliged to pay service charge and
interests, as follows:
a.1 On the amount advanced or balance thereof that remains unpaid
for 30 days* or less:
i.
ii.
No 2% service charge
ii.
] -- To be computed from
] the start of the 30-day
period
Taxes
and
borrowing costs;
ii.
iii.
charge
iv. 8% penalty charge on ]
the
]
balances of the advance ]
and
service charge.
*Insurance Premiums - 30-day period to be computed from date of
advances.
Other Advances - 30-day period to be computed from date of notification.
b.
Taxes
b.2 Interest and penalty charge Interest - 7% p.a. over borrowing cost
Penalty charge 8% p.a. if unpaid
after 30 days from date of advance
However, Arcilla also agreed to the reservation by the DBP of its right to
increase (with notice to him) the "rate of interest on the loan, as well as all
other fees and charges on loans and advances pursuant to such policy as it
may adopt from time to time during the period of the loan; Provided, that the
rate of interest on the loan shall be reduced by law or by the Monetary
Board; Provided, further, that the adjustment in the rate of interest shall take
effect on or after the effectivity of the increase or decrease in the maximum
rate of interest."10
Upon his request, DBP agreed to grant Arcilla an additional cash advance of
P32,000.00. Thereafter, on May 23, 1984, a Supplement to the Conditional
Sale Agreement was executed in which DBP and Arcilla agreed on the
following terms of the loan:
Amount
Interest Rate
Terms
Per Annum
Amortization
P271.57
P32,000.00 at
P0.40/1,000.00
12.80
--14. That to further bend the back of the plaintiff, defendant rescinded the
subject deed of conditional sale on 4 December 1990 without giving due
notice to plaintiff;
15. That much later, on 10 October 1993, plaintiff received a letter from
defendant dated 19 September 1993, informing plaintiff that the subject
deed of conditional sale was already rescinded on 4 December 1990 (xerox
copy of the same is hereto attached and made an integral part hereof as
Annex "C";17
In its answer to the complaint, the DBP alleged that it substantially complied
with R.A. No. 3765 and CB Circular No. 158 because the details required in
said statements were particularly disclosed in the promissory notes, deed of
conditional sale and the required notices sent to Arcilla. In any event, its
failure to comply strictly with R.A. No. 3765 did not affect the validity and
enforceability of the subject contracts or transactions. DBP interposed a
counterclaim for the possession of the property.
On April 27, 2001, the trial court rendered judgment in favor of Arcilla and
nullified the notarial rescission of the deeds executed by the parties. The
fallo of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered in favor
of the plaintiff and against the defendant.1avvphil.zw+ Defendant is hereby
directed to furnish the disclosure statement to the plaintiff within five (5)
days upon receipt hereof in the manner and form provided by R.A. No. 3765
and submit to this Court for approval the total obligation of the plaintiff as of
this date, within ten (10) days from receipt of this order. The Notarial
Rescission (Exh. "16") dated November 27, 1990 is hereby declared null
and void. Costs against the defendant.
SO ORDERED.18
DBP appealed the decision to the Court of Appeals (CA) wherein it made
the following assignment of errors:
4.1. The trial court erred in ruling that the provision of the details of the
loan without the issuance of a "Disclosure Statement" is not
compliance with the "Truth in Lending Act;"
4.2. The trial court erred in declaring the Notarial Rescission null and
void; and
4.3. The trial court erred in denying DBP's counterclaims for recovery
of possession, back rentals and litigation expenses.19
On May 29, 2003, the CA rendered judgment setting aside and reversing
the decision of the RTC. In ordering the dismissal of the complaint, the
appellate court ruled that DBP substantially complied with R.A. No. 3765
and CB Circular No. 158. Arcilla filed a motion for reconsideration of the
decision. For its part, DBP filed a motion for partial reconsideration of the
decision, praying that Arcilla be ordered to vacate the property. However,
the appellate court denied both motions.
The parties filed separate petitions for review on certiorari with this Court.
The first petition, entitled Development Bank of the Philippines v. Court of
Appeals, was docketed as G.R. No. 161397; the second petition, entitled
Felipe Arcilla, Jr. v. Court of Appeals, was docketed as G.R. No. 161426.
The Court resolved to consolidate the two cases.
The issues raised in the two petitions are the following: a) whether or not
petitioner DBP complied with the disclosure requirement of R.A. No. 3765
and CB Circular No. 158, Series of 1978, in the execution of the deed of
conditional sale, the supplemental deed of conditional sale, as well as the
promissory notes; and b) whether or not respondent Felipe Arcilla, Jr. is
mandated to vacate the property and pay rentals for his occupation thereof
after the notarial rescission of the deed of conditional sale was rescinded by
notarial act, as well as the supplement executed by DBP.
On the first issue, Arcilla avers that under R.A. No. 3765 and CB Circular
No. 158, the DBP, as the creditor bank, was mandated to furnish him with
the requisite information in such form prescribed by the Central Bank before
the commutation of the loan transaction. He avers that the disclosure of the
details of the loan contained in the deed of conditional sale and the
supplement thereto, the promissory notes and release sheet, do not
constitute substantial compliance with the law and the CB Circular. He avers
that the required disclosure did not include the following:
[T]he percentage of Finance Charges to Total Amount Financed
(Computed in accordance with Sec. 2(i) of CB Circular 158; the Additional
Charges in case certain stipulations in the contract are not met by the
debtor; Total Non-Finance Charges; Total Finance Charges, Effective
Interest Rate, etc. 20
Arcilla further posits that the failure of DBP to comply with its obligation
under R.A. No. 3765 and CB Circular No. 158 forecloses its right to rescind
the transaction between them, and to demand compliance of his obligation
arising from said transaction. Moreover, the bank had no right to deduct the
monthly amortizations from his salary without first complying with the
mandate of R.A. No. 3765.
DBP, on the other hand, avers that all the information required by R.A. No.
3765 was already contained in the loan transaction documents. It posits that
even if it failed to comply strictly with the disclosure requirement of R.A. No.
3765, nevertheless, under Section 6(b) of the law, the validity and
enforceability of any action or transaction is not affected. It asserts that
Arcilla was estopped from invoking R.A. No. 3765 because he failed to
demand compliance with R.A. No. 3765 from the bank before the
consummation of the loan transaction, until the time his complaint was filed
with the trial court.
In its petition in G.R. No. 161397, DBP asserts that the RTC erred in not
rendering judgment on its counterclaim for the possession of the subject
property, and the liability of Arcilla for rentals while in the possession of the
property after the notarial rescission of the deeds of conditional sale. For his
part, Arcilla (in G.R. No. 161426) insists that the respondent failed to comply
with its obligation under R.A. No. 3765; hence, the notarial rescission of the
deed of conditional sale and the supplement thereof was null and void. Until
DBP complies with its obligation, he is not obliged to comply with his.
The petition of Arcilla has no merit.
Section 1 of R.A. No. 3765 provides that prior to the consummation of a
loan transaction, the bank, as creditor, is obliged to furnish a client with a
clear statement, in writing, setting forth, to the extent applicable and in
accordance with the rules and regulations prescribed by the Monetary
Board of the Central Bank of the Philippines, the following information:
(1) the cash price or delivered price of the property or service to be
acquired;
record that DBP sought to collect or collected any interest, penalty or other
charges, from Arcilla other than those disclosed in the said
deeds/documents.
The Court is convinced that Arcilla's claim of not having been furnished the
data/information required by R.A. No. 3765 and CB Circular No. 158 was
but an afterthought. Despite the notarial rescission of the conditional sale in
1990, and DBP's subsequent repeated offers to repurchase the property,
the latter maintained his silence. Arcilla filed his complaint only on February
21, 1994, or four years after the said notarial rescission. The Court finds and
so holds that the following findings and ratiocinations of the CA are correct:
After a careful perusal of the records, We find that the appellee had been
sufficiently informed of the terms and the requisite charges necessarily
included in the subject loan. It must be stressed that the Truth in Lending
Act (R.A. No. 3765), was enacted primarily "to protect its citizens from a
lack of awareness of the true cost of credit to the user by using a full
disclosure of such cost with a view of preventing the uninformed use of
credit to the detriment of the national economy" (Emata vs. Intermediate
Appellate Court, 174, SCRA 464 [1989]; Sec. 2, R.A. No. 3765). Contrary to
appellee's claim that he was not sufficiently informed of the details of the
loan, the records disclose that the required informations were readily
available in the three (3) promissory notes he executed. Precisely, the said
promissory notes were executed to apprise appellee of the remaining
balance on his loan when the same was converted into a regular housing
loan. And on its face, the promissory notes signed by no less than the
appellee readily shows all the data required by the Truth in Lending Act
(R.A. No. 3765).
Apropos, We agree with the appellant that appellee, a lawyer, would not be
so gullible or negligent as to sign documents without knowing fully well the
legal implications and consequences of his actions, and that appellee was a
former employee of appellant. As such employee, he is as well presumed
knowledgeable with matters relating to appellant's business and fully
cognizant of the terms of the loan he applied for, including the charges that
had to be paid.
It might have been different if the borrower was, say, an ordinary employee
eager to buy his first house and is easily lured into accepting onerous terms
so long as the same is payable on installments. In such cases, the Court
of
the
Philippines
COURT
EN BANC
G.R. Nos. 157294-95 November 30, 2006
Joseph
Victor
vs.
Sandiganbayan (Special
Respondents.
G.
Division)
Ejercito,
and
People
of
Petitioner,
the
Philippines,
DECISION
CARPIO MORALES, J.:
The present petition for certiorari under Rule 65 assails the Sandiganbayan
Resolutions dated February 7 and 12, 2003 denying petitioner Joseph Victor
G. Ejercitos Motions to Quash Subpoenas Duces Tecum/Ad Testificandum,
and Resolution dated March 11, 2003 denying his Motion for
Reconsideration of the first two resolutions.
The three resolutions were issued in Criminal Case No. 26558, "People of
the Philippines v. Joseph Ejercito Estrada, et al.," for plunder, defined and
penalized in R.A. 7080, "AN ACT DEFINING AND PENALIZING THE
CRIME OF PLUNDER."
In above-stated case of People v. Estrada, et al., the Special Prosecution
Panel 1 filed on January 20, 2003 before the Sandiganbayan a Request for
Issuance of Subpoena Duces Tecum for the issuance of a subpoena
directing the President of Export and Industry Bank (EIB, formerly Urban
Bank) or his/her authorized representative to produce the following
documents during the hearings scheduled on January 22 and 27, 2003:
I. For Trust Account No. 858;
1. Account Opening Documents;
If this can be done to me, it can happen to anyone. Not that anything
can still shock our family. Nor that I have anything to hide. Your
Honors.
But, I am not a lawyer and need time to consult one on a situation that
affects every bank depositor in the country and should interest the
bank itself, the Bangko Sentral ng Pilipinas, and maybe the
Ombudsman himself, who may want to investigate, not exploit, the
serious breach that can only harm the economy, a consequence that
may have been overlooked. There appears to have been deplorable
connivance.
xxxx
I hope and pray, Your Honors, that I will be given time to retain the
services of a lawyer to help me protect my rights and those of every
banking depositor. But the one I have in mind is out of the country right
now.
May I, therefore, ask your Honors, that in the meantime, the issuance
of the subpoena be held in abeyance for at least ten (10) days to
enable me to take appropriate legal steps in connection with the
prosecutions request for the issuance of subpoena concerning my
accounts. (Emphasis supplied)
From the present petition, it is gathered that the "accounts" referred to by
petitioner in his above-quoted letter are Trust Account No. 858 and Savings
Account No. 0116-17345-9. 2
In open court, the Special Division of the Sandiganbayan, through Associate
Justice Edilberto Sandoval, advised petitioner that his remedy was to file a
motion to quash, for which he was given up to 12:00 noon the following day,
January 28, 2003.
Petitioner, unassisted by counsel, thus filed on January 28, 2003 a Motion
to Quash Subpoena Duces Tecum/Ad Testificandum praying that the
subpoenas previously issued to the President of the EIB dated January 21
and January 24, 2003 be quashed. 3
In his Motion to Quash, petitioner claimed that his bank accounts are
covered by R.A. No. 1405 (The Secrecy of Bank Deposits Law) and do not
fall under any of the exceptions stated therein. He further claimed that the
specific identification of documents in the questioned subpoenas, including
details on dates and amounts, could only have been made possible by an
earlier illegal disclosure thereof by the EIB and the Philippine Deposit
Insurance Corporation (PDIC) in its capacity as receiver of the then Urban
Bank.
The disclosure being illegal, petitioner concluded, the prosecution in the
case may not be allowed to make use of the information.
Before the Motion to Quash was resolved by the Sandiganbayan, the
prosecution filed another Request for the Issuance of Subpoena Duces
Tecum/Ad Testificandum dated January 31, 2003, again to direct the
President of the EIB to produce, on the hearings scheduled on February 3
and 5, 2003, the same documents subject of the January 21 and 24, 2003
subpoenas with the exception of the Bank of Commerce MC #0256254 in
the amount of P2,000,000 as Bank of Commerce MC #0256256 in the
amount of P200,000,000 was instead requested. Moreover, the request
covered the following additional documents:
IV. For Savings Account No. 1701-00646-1:
1. Account Opening Forms;
2. Specimen Signature Card/s; and
3. Statements of Account.
The prosecution also filed a Request for the Issuance of Subpoena Duces
Tecum/Ad Testificandum bearing the same date, January 31, 2003, directed
to Aurora C. Baldoz, Vice President-CR-II of the PDIC for her to produce the
following documents on the scheduled hearings on February 3 and 5, 2003:
1. Letter of authority dated November 23, 1999 re: SPAN [Special Private
Account Number] 858;
2. Letter of authority dated January 29, 2000 re: SPAN 858;
3. Letter of authority dated April 24, 2000 re: SPAN 858;
4. Urban Bank check no. 052092 dated April 24, 2000 for the amount of
P36, 572, 315.43;
5. Urban Bank check no. 052093 dated April 24, 2000 for the amount of
P107,191,780.85; and
6. Signature Card Savings Account No. 0116-17345-9. (Underscoring
supplied)
The subpoenas prayed for in both requests were issued by the
Sandiganbayan on January 31, 2003.
On February 7, 2003, petitioner, this time assisted by counsel, filed an
Urgent Motion to Quash Subpoenae Duces Tecum/Ad Testificandum
praying that the subpoena dated January 31, 2003 directed to Aurora
Baldoz be quashed for the same reasons which he cited in the Motion to
Quash 4 he had earlier filed.
On the same day, February 7, 2003, the Sandiganbayan issued a
Resolution denying petitioners Motion to Quash Subpoenae Duces
Tecum/Ad Testificandum dated January 28, 2003.
Subsequently or on February 12, 2003, the Sandiganbayan issued a
Resolution denying petitioners Urgent Motion to Quash Subpoena Duces
Tecum/Ad Testificandum dated February 7, 2003.
Petitioners Motion for Reconsideration dated February 24, 2003 seeking a
reconsideration of the Resolutions of February 7 and 12, 2003 having been
denied by Resolution of March 11, 2003, petitioner filed the present petition.
Raised as issues are:
1. Whether petitioners Trust Account No. 858 is covered by the term
"deposit" as used in R.A. 1405;
2. Whether petitioners Trust Account No. 858 and Savings Account No.
0116-17345-9 are excepted from the protection of R.A. 1405; and
3. Whether the "extremely-detailed" information contained in the Special
Prosecution Panels requests for subpoena was obtained through a prior
Section 2 of the same law in fact even more clearly shows that the term
"deposits" was intended to be understood broadly:
SECTION 2. All deposits of whatever nature with banks or banking
institutions in the Philippines including investments in bonds issued by the
Government of the Philippines, its political subdivisions and its
instrumentalities, are hereby considered as of an absolutely confidential
nature and may not be examined, inquired or looked into by any person,
government official, bureau or office, except upon written permission of the
depositor, or in cases of impeachment, or upon order of a competent court
in cases of bribery or dereliction of duty of public officials, or in cases where
the money deposited or invested is the subject matter of the litigation.
(Emphasis and underscoring supplied)
The phrase "of whatever nature" proscribes any restrictive interpretation of
"deposits." Moreover, it is clear from the immediately quoted provision that,
generally, the law applies not only to money which is deposited but also to
those which are invested. This further shows that the law was not intended
to apply only to "deposits" in the strict sense of the word. Otherwise, there
would have been no need to add the phrase "or invested."
Clearly, therefore, R.A. 1405 is broad enough to cover Trust Account No.
858.
The protection afforded by the law is, however, not absolute, there being
recognized exceptions thereto, as above-quoted Section 2 provides. In the
present case, two exceptions apply, to wit: (1) the examination of bank
accounts is upon order of a competent court in cases of bribery or
dereliction of duty of public officials, and (2) the money deposited or
invested is the subject matter of the litigation.
Petitioner contends that since plunder is neither bribery nor dereliction of
duty, his accounts are not excepted from the protection of R.A. 1405.
Philippine National Bank v. Gancayco 7 holds otherwise:
Cases of unexplained wealth are similar to cases of bribery or dereliction of
duty and no reason is seen why these two classes of cases cannot be
excepted from the rule making bank deposits confidential. The policy as to
one cannot be different from the policy as to the other. This policy
expresses the notion that a public office is a public trust and any person
who enters upon its discharge does so with the full knowledge that his life,
so far as relevant to his duty, is open to public scrutiny.
Undoubtedly, cases for plunder involve unexplained wealth. Section 2 of
R.A. No. 7080 states so.
SECTION 2. Definition of the Crime of Plunder; Penalties. Any public
officer who, by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates, subordinates or
other persons, amasses, accumulates or acquires ill-gotten wealth through
a combination or series of overt or criminal acts as described in Section 1(d)
hereof, in the aggregate amount or total value of at least Seventy-five million
pesos (P75,000,000.00), shall be guilty of the crime of plunder and shall be
punished by life imprisonment with perpetual absolute disqualification from
holding any public office. Any person who participated with said public
officer in the commission of plunder shall likewise be punished. In the
imposition of penalties, the degree of participation and the attendance of
mitigating and extenuating circumstances shall be considered by the court.
The court shall declare any and all ill-gotten wealth and their interests and
other incomes and assets including the properties and shares of stock
derived from the deposit or investment thereof forfeited in favor of the State.
(Emphasis and underscoring supplied)
An examination of the "overt or criminal acts as described in Section 1(d)" of
R.A. No. 7080 would make the similarity between plunder and bribery even
more pronounced since bribery is essentially included among these criminal
acts. Thus Section 1(d) states:
d) "Ill-gotten wealth" means any asset, property, business enterprise or
material possession of any person within the purview of Section Two (2)
hereof, acquired by him directly or indirectly through dummies, nominees,
agents, subordinates and or business associates by any combination or
series of the following means or similar schemes.
1) Through misappropriation, conversion, misuse, or malversation of public
funds or raids on the public treasury;
2) By receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks or any other form of pecuniary benefit from any
Petitioner contends that the Court of Appeals confuses the "cause of action"
with the "subject of the action". In Yusingco v. Ong Hing Lian, petitioner
points out, this Court distinguished the two concepts.
x x x "The cause of action is the legal wrong threatened or committed, while
the object of the action is to prevent or redress the wrong by obtaining some
legal relief; but the subject of the action is neither of these since it is not the
wrong or the relief demanded, the subject of the action is the matter or thing
with respect to which the controversy has arisen, concerning which the
wrong has been done, and this ordinarily is the property or the contract and
its subject matter, or the thing in dispute."
The argument is well-taken. We note with approval the difference between
the subject of the action from the cause of action. We also find petitioners
definition of the phrase subject matter of the action is consistent with the
term subject matter of the litigation, as the latter is used in the Bank
Deposits Secrecy Act.
In Mellon Bank, N.A. v. Magsino, where the petitioner bank inadvertently
caused the transfer of the amount of US$1,000,000.00 instead of only
US$1,000.00, the Court sanctioned the examination of the bank accounts
where part of the money was subsequently caused to be deposited:
x x x Section 2 of [Republic Act No. 1405] allows the disclosure of bank
deposits in cases where the money deposited is the subject matter of the
litigation. Inasmuch as Civil Case No. 26899 is aimed at recovering the
amount converted by the Javiers for their own benefit, necessarily, an
inquiry into the whereabouts of the illegally acquired amount extends to
whatever is concealed by being held or recorded in the name of persons
other than the one responsible for the illegal acquisition."
Clearly, Mellon Bank involved a case where the money deposited was the
subject matter of the litigation since the money deposited was the very thing
in dispute. x x x" (Emphasis and underscoring supplied)
The plunder case now pending with the Sandiganbayan necessarily
involves an inquiry into the whereabouts of the amount purportedly acquired
illegally by former President Joseph Estrada.
We are continuing our search for other records and documents pertinent to
your request and we will forward to you on Friday, 23 February 2001, such
additional records and documents as we might find until then. (Attachment
"4")
The Office of the Ombudsman then requested for the mangers checks,
detailed in the Subpoena Duces Tecum dated March 7, 2001. (Attachment
"5")
PDIC again complied with the said Subpoena Duces Tecum dated March 7,
2001 and provided copies of the managers checks thus requested under
cover letter dated March 16, 2001. (Attachment "6") [14] (Emphasis in the
original)
The Sandiganbayan credited the foregoing account of respondent People.
[15] The Court finds no reason to disturb this finding of fact by the
Sandiganbayan.
The Marquez ruling notwithstanding, the above-described examination by
the Ombudsman of petitioners bank accounts, conducted before a case
was filed with a court of competent jurisdiction, was lawful.
For the Ombudsman issued the subpoenas bearing on the bank accounts of
petitioner about four months before Marquez was promulgated on June 27,
2001.
While judicial interpretations of statutes, such as that made in Marquez with
respect to R.A. No. 6770 or the Ombudsman Act of 1989, are deemed part
of the statute as of the date it was originally passed, the rule is not absolute.
Columbia Pictures, Inc. v. Court of Appeals [16] teaches:
It is consequently clear that a judicial interpretation becomes a part of the
law as of the date that law was originally passed, subject only to the
qualification that when a doctrine of this Court is overruled and a different
view is adopted, and more so when there is a reversal thereof, the new
doctrine should be applied prospectively and should not apply to parties
who relied on the old doctrine and acted in good faith. (Emphasis and
underscoring supplied)
When this Court construed the Ombudsman Act of 1989, in light of the
Secrecy of Bank Deposits Law in Marquez, that "before an in camera
inspection may be allowed there must be a pending case before a court of
competent jurisdiction", it was, in fact, reversing an earlier doctrine found in
Banco Filipino Savings and Mortgage Bank v. Purisima [17].
Banco Filipino involved subpoenas duces tecum issued by the Office of the
Ombudsman, then known as the Tanodbayan, [18] in the course of its
preliminary investigation of a charge of violation of the Anti-Graft and
Corrupt Practices Act.
While the main issue in Banco Filipino was whether R.A. 1405 precluded
the Tanodbayans issuance of subpoena duces tecum of bank records in
the name of persons other than the one who was charged, this Court, citing
P.D. 1630, [19] Section 10, the relevant part of which states:
(d) He may issue a subpoena to compel any person to appear, give sworn
testimony, or produce documentary or other evidence the Tanodbayan
deems relevant to a matter under his inquiry,
held that "The power of the Tanodbayan to issue subpoenae ad
testificandum and subpoenae duces tecum at the time in question is not
disputed, and at any rate does not admit of doubt." [20]
As the subpoenas subject of Banco Filipino were issued during a
preliminary investigation, in effect this Court upheld the power of the
Tandobayan under P.D. 1630 to issue subpoenas duces tecum for bank
documents prior to the filing of a case before a court of competent
jurisdiction.
Marquez, on the other hand, practically reversed this ruling in Banco Filipino
despite the fact that the subpoena power of the Ombudsman under R.A.
6770 was essentially the same as that under P.D. 1630. Thus Section 15 of
R.A. 6770 empowers the Office of the Ombudsman to
(8) Administer oaths, issue subpoena and subpoena duces tecum, and take
testimony in any investigation or inquiry, including the power to examine and
have access to bank accounts and records;
A comparison of this provision with its counterpart in Sec. 10(d) of P.D.
1630 clearly shows that it is only more explicit in stating that the power of
the Ombudsman includes the power to examine and have access to bank
accounts and records which power was recognized with respect to the
Tanodbayan through Banco Filipino.
The Marquez ruling that there must be a pending case in order for the
Ombudsman to validly inspect bank records in camera thus reversed a
prevailing doctrine. [21] Hence, it may not be retroactively applied.
The Ombudsmans inquiry into the subject bank accounts prior to the filing
of any case before a court of competent jurisdiction was therefore valid at
the time it was conducted.
Likewise, the Marquez ruling that "the account holder must be notified to be
present during the inspection" may not be applied retroactively to the inquiry
of the Ombudsman subject of this case. This ruling is not a judicial
interpretation either of R.A. 6770 or R.A. 1405, but a "judge-made" law
which, as People v. Luvendino [22] instructs, can only be given prospective
application:
x x x The doctrine that an uncounselled waiver of the right to counsel is not
to be given legal effect was initially a judge-made one and was first
announced on 26 April 1983 in Morales v. Enrile and reiterated on 20 March
1985 in People v. Galit. x x x
While the Morales-Galit doctrine eventually became part of Section 12(1) of
the 1987 Constitution, that doctrine affords no comfort to appellant
Luvendino for the requirements and restrictions outlined in Morales and
Galit have no retroactive effect and do not reach waivers made prior to 26
April 1983 the date of promulgation of Morales. (Emphasis supplied)
In fine, the subpoenas issued by the Ombudsman in this case were legal,
hence, invocation of the "fruit of the poisonous tree" doctrine is misplaced.
At all events, even if the challenged subpoenas are quashed, the
Ombudsman is not barred from requiring the production of the same
documents based solely on information obtained by it from sources
independent of its previous inquiry.
In particular, the Ombudsman, even before its inquiry, had already
possessed information giving him grounds to believe that (1) there are bank
accounts bearing the number "858," (2) that such accounts are in the
custody of Urban Bank, and (3) that the same are linked with the bank
accounts of former President Joseph Estrada who was then under
investigation for plunder.
Only with such prior independent information could it have been possible for
the Ombudsman to issue the February 8, 2001 subpoena duces tecum
addressed to the President and/or Chief Executive Officer of Urban Bank,
which described the documents subject thereof as follows:
(a) bank records and all documents relative thereto pertaining to all bank
accounts (Savings, Current, Time Deposit, Trust, Foreign Currency
Deposits, etc) under the account names of Jose Velarde, Joseph E.
Estrada, Laarni Enriquez, Guia Gomez, Joy Melendrez, Peach Osorio,
Rowena Lopez, Kevin or Kelvin Garcia, 727, 737, 747, 757, 777 and 858.
(Emphasis and underscoring supplied)
The information on the existence of Bank Accounts bearing number "858"
was, according to respondent People of the Philippines, obtained from
various sources including the proceedings during the impeachment of
President Estrada, related reports, articles and investigative journals. [23] In
the absence of proof to the contrary, this explanation proffered by
respondent must be upheld. To presume that the information was obtained
in violation of R.A. 1405 would infringe the presumption of regularity in the
performance of official functions.
Thus, with the filing of the plunder case against former President Estrada
before the Sandiganbayan, the Ombudsman, using the above independent
information, may now proceed to conduct the same investigation it earlier
conducted, through which it can eventually obtain the same information
previously disclosed to it by the PDIC, for it is an inescapable fact that the
bank records of petitioner are no longer protected by R.A. 1405 for the
reasons already explained above.
Since conducting such an inquiry would, however, only result in the
disclosure of the same documents to the Ombudsman, this Court, in
avoidance of what would be a time-wasteful and circuitous way of
administering justice, [24] upholds the challenged subpoenas.
Respecting petitioners claim that the Sandiganbayan violated his right to
due process as he was neither notified of the requests for the issuance of
the subpoenas nor of the grant thereof, suffice it to state that the defects
were cured when petitioner ventilated his arguments against the issuance
thereof through his earlier quoted letter addressed to the Sandiganbayan
and when he filed his motions to quash before the Sandiganbayan.
IN SUM, the Court finds that the Sandiganbayan did not commit grave
abuse of discretion in issuing the challenged subpoenas for documents
pertaining to petitioners Trust Account No. 858 and Savings Account No.
0116-17345-9 for the following reasons:
1. These accounts are no longer protected by the Secrecy of Bank Deposits
Law, there being two exceptions to the said law applicable in this case,
namely: (1) the examination of bank accounts is upon order of a competent
court in cases of bribery or dereliction of duty of public officials, and (2) the
money deposited or invested is the subject matter of the litigation. Exception
(1) applies since the plunder case pending against former President Estrada
is analogous to bribery or dereliction of duty, while exception (2) applies
because the money deposited in petitioners bank accounts is said to form
part of the subject matter of the same plunder case.
2. The "fruit of the poisonous tree" principle, which states that once the
primary source (the "tree") is shown to have been unlawfully obtained, any
secondary or derivative evidence (the "fruit") derived from it is also
inadmissible, does not apply in this case. In the first place, R.A. 1405 does
not provide for the application of this rule. Moreover, there is no basis for
applying the same in this case since the primary source for the detailed
information regarding petitioners bank accounts the investigation
previously conducted by the Ombudsman was lawful.
3. At all events, even if the subpoenas issued by the Sandiganbayan were
quashed, the Ombudsman may conduct on its own the same inquiry into the
subject bank accounts that it earlier conducted last February-March 2001,
there being a plunder case already pending against former President
Estrada. To quash the challenged subpoenas would, therefore, be pointless
since the Ombudsman may obtain the same documents by another route.
Upholding the subpoenas avoids an unnecessary delay in the administration
of justice.
WHEREFORE, the petition is DISMISSED. The Sandiganbayan Resolutions
dated February 7 and 12, 2003 and March 11, 2003 are upheld.
of
the
Philippines
COURT
FIRST DIVISION
G.R. No. 140687
CHINA
BANKING
CORPORATION,
petitioner,
vs.
THE HONORABLE COURT OF APPEALS and JOSE "JOSEPH"
GOTIANUY as substituted by ELIZABETH GOTIANUY LO, respondents.
DECISION
CHICO-NAZARIO, J.:
A Complaint for recovery of sums of money and annulment of sales of real
properties and shares of stock docketed as CEB-21445 was filed by Jose
"Joseph" Gotianuy against his son-in-law, George Dee, and his daughter,
Mary Margaret Dee, before the Regional Trial Court (RTC) of Cebu City,
Branch 58.
Jose Gotianuy accused his daughter Mary Margaret Dee of stealing, among
his other properties, US dollar deposits with Citibank N.A. amounting to not
less than P35,000,000.00 and US$864,000.00. Mary Margaret Dee received
these amounts from Citibank N.A. through checks which she allegedly
deposited at China Banking Corporation (China Bank). He likewise accused
his son-in-law, George Dee, husband of his daughter, Mary Margaret, of
transferring his real properties and shares of stock in George Dee's name
without any consideration. Jose Gotianuy, died during the pendency of the
case before the trial court.1 He was substituted by his daughter, Elizabeth
Gotianuy Lo. The latter presented the US Dollar checks withdrawn by Mary
Margaret Dee from his US dollar placement with Citibank. The details of the
said checks are:
1) CITIBANK CHECK NO. 69003194405412 dated September 29
1997 in the amount of US$5,937.52 payable to GOTIANUY: JOSE
AND/OR DEE: MARY MARGARET;
2) CITIBANK CHECK NO. 69003194405296 dated September 29
1997 in the amount of US$7,197.59 payable to GOTIANUY: JOSE
AND/OR DEE: MARY MARGARET;
3) CITIBANK CHECK NO. 69003194405414 dated September 29
1997 in the amount of US$1,198.94 payable to GOTIANUY: JOSE
AND/OR DEE: MARY MARGARET;
4) CITIBANK CHECK NO. 69003194405413 dated September 29
1997 in the amount of US$989.04 payable to GOTIANUY: JOSE
AND/OR DEE: MARY MARGARET;
5) CITIBANK CHECK NO. 69003194405297 dated October 01 1997 in
the amount of US$766,011.97 payable to GOTIANUY: JOSE AND/OR
DEE: MARY MARGARET; and
6) CITIBANK CHECK NO. 69003194405339 dated October 09 1997 in
the amount of US$83,053.10 payable to GOTIANUY: JOSE AND/OR
DEE: MARY MARGARET.2
Upon motion of Elizabeth Gotianuy Lo, the trial court3 issued a subpoena to
Cristota Labios and Isabel Yap, employees of China Bank, to testify on the
case. The Order of the trial court dated 23 February 1999, states:
Issue a subpoena ad testificandum requiring MS. ISABEL YAP and
CRISTOTA LABIOS of China Banking Corporation, Cebu Main Branch,
corner Magallanes and D. Jakosalem Sts., Cebu City, to appear in
person and to testify in the hearing of the above entitled case on March
1, 1999 at 8:30 in the morning, with regards to Citibank Checks (Exhs.
"AAA" to "AAA-5") and other matters material and relevant to the
issues of this case.4
China Bank moved for a reconsideration. Resolving the motion, the trial
court issued an Order dated 16 April 1999 and held:
The Court is of the view that as the foreign currency fund (Exhs. "AAA"
to "AAA-5") is deposited with the movant China Banking Corporation,
Cebu Main Branch, Cebu City, the disclosure only as to the name or in
whose name the said fund is deposited is not violative of the law.
Justice will be better served if the name or names of the depositor of
said fund shall be disclosed because such a disclosure is material and
important to the issues between the parties in the case at bar.
Premises considered, the motion for reconsideration is denied partly
and granted partly, in the sense that Isabel Yap and/or Cristuta Labios
are directed to appear before this Court and to testify at the trial of this
case on April 20, 1999, May 6 & 7, 1999 at 10:00 o'clock in the
morning and only for the purpose of disclosing in whose name or
names is the foreign currency fund (Exhs. "AAA" to "AAA-5") deposited
with the movant Bank and not to other matters material and relevant to
the issues in the case at bar.5
From this Order, China Bank filed a Petition for Certiorari6 with the Court of
Appeals. In a Decision7 dated 29 October 1999, the Court of Appeals
denied the petition of China Bank and affirmed the Order of the RTC.
In justifying its conclusion, the Court of Appeals ratiocinated:
From the foregoing, it is pristinely clear the law specifically
encompasses only the money or funds in foreign currency deposited in
a bank. Thus, the coverage of the law extends only to the foreign
currency deposit in the CBC account where Mary Margaret Dee
deposited the Citibank checks in question and nothing more.
It has to be pointed out that the April 16, 1999 Order of the court of
origin modified its previous February 23, 1999 Order such that the
CBC representatives are directed solely to divulge "in whose name or
names is the foreign currency fund (Exhs. "AAA" to "AAA-5") deposited
with the movant bank." It precluded inquiry on "other materials and
relevant to the issues in the case at bar." We find that the directive of
the court below does not contravene the plain language of RA 6426 as
amended by P.D. No. 1246.
The contention of petitioner that the [prescription] on absolute
confidentiality under the law in question covers even the name of the
A depositor, in cases of bank deposits, is one who pays money into the
bank in the usual course of business, to be placed to his credit and subject
to his check or the beneficiary of the funds held by the bank as trustee.18
On this score, the observations of the Court of Appeals are worth reiterating:
Furthermore, it is indubitable that the Citibank checks were drawn
against the foreign currency account with Citibank, NA. The monies
subject of said checks originally came from the late Jose Gotianuy, the
owner of the account. Thus, he also has legal rights and interests in
the CBC account where said monies were deposited. More
importantly, the Citibank checks (Exhibits "AAA" to "AAA-5") readily
demonstrate (sic) that the late Jose Gotianuy is one of the payees of
said checks. Being a co-payee thereof, then he or his estate can be
considered as a co-depositor of said checks. Ergo, since the late Jose
Gotianuy is a co-depositor of the CBC account, then his request for the
assailed subpoena is tantamount to an express permission of a
depositor for the disclosure of the name of the account holder. The
April 16, 1999 Order perforce must be sustained.19 (Emphasis
supplied.)
One more point. It must be remembered that in the complaint of Jose
Gotianuy, he alleged that his US dollar deposits with Citibank were illegally
taken from him. On the other hand, China Bank employee Cristuta Labios
testified that Mary Margaret Dee came to China Bank and deposited the
money of Jose Gotianuy in Citibank US dollar checks to the dollar account
of her sister Adrienne Chu.20 This fortifies our conclusion that an inquiry into
the said deposit at China Bank is justified. At the very least, Jose Gotianuy
as the owner of these funds is entitled to a hearing on the whereabouts of
these funds.
All things considered and in view of the distinctive circumstances attendant
to the present case, we are constrained to render a limited pro hac vice
ruling.21 Clearly it was not the intent of the legislature when it enacted the
law on secrecy on foreign currency deposits to perpetuate injustice. This
Court is of the view that the allowance of the inquiry would be in accord with
the rudiments of fair play,22 the upholding of fairness in our judicial system
and would be an avoidance of delay and time-wasteful and circuitous way of
administering justice.23
Ana Rivera vs. People's Bank and Trust Company, 73 Phil. 546
(1942)
Republic
SUPREME
Manila
of
the
Philippines
COURT
EN BANC
G.R. No. L-47757
April 7, 1942
ANA
RIVERA,
plaintiff-appellant,
vs.
PEOPLES
BANK
AND
TRUST
CO.,
defendant-appellee.
MINNIE STEPHENSON, in her capacity as administratix of the intestate
estate of EDGAR Stephenson, intervenor-appellee.
Cecilio
I.
Lim,
Chief
Public
Defender,
for
appellant.
Antonio
M.
Opisso
for
intervenor-appellee.
No appearance for appellee Peoples Bank & Trust Co.
OZAETA, J.:
The question raised in this appeal is the validity of the survivorship
agreement made by and between Edgar Stephenson, now deceased, and
Ana Rivera, appellant herein, which read as follows:
SURVIVORSHIP AGREEMENT
Know All Men by These Presents:
That we hereby agree with each other and with the PEOPLES BANK
AND TRUST COMPANY, Manila, Philippine Islands (hereinafter called
the Bank), that all moneys now or hereafter deposited by us or either of
us with the Bank in our savings account shall be deposited in and
received by the Bank with the understanding and upon the condition
that said money be deposited without consideration of its previous
ownership, and that said money and all interest thereon, if any there
be, shall be the property of both of us joint tenants, and shall be
payable to and collectible by either of us during our joint lives, and after
the death of one of us shall belong to and be the sole property of the
survivor, and shall be payable to and collectible by such survivor.
And we further covenant and agree with each other and the Bank, its
successors or assigns, that the receipt or check of either of us during
our joint lives, or the receipt or check of the survivor, for any payment
made from this account, and shall be valid and sufficient and discharge
to the Bank for such payment.
The Bank is hereby authorized to accept and deposit to this account all
checks made payable to either or both of us, when endorsed by either
or both of us or one for the other.
This is a joint and several agreement and is binding upon each of us,
our heirs, executors, administrators, and assigns.
In witness whereof we have signed our names here to this 17th day of
October, 1931.
(Sgd.) EDGAR STEPHENSON
(Sgd.)
Ana
Rivera
Address: 799 Sta. Mesa, Manila
(Sgd.)
FRED
(Sgd.)
Y.
W.
E.
Witness:
BOHLER
Cox
S. A. #4146
Ana Rivera was employed by Edgar Stephenson as housekeeper from the
year 1920 until his death on June 8, 1939. On December 24, Stephenson
opened an account in his name with the defendant Peoples Bank by
depositing therein the sum of P1,000. On October 17, 1931, when there was
a balance of P2,072 in said account, the survivorship agreement in question
was executed and the said account was transferred to the name of "Edgar
Stephenson and/or Ana Rivera." At the time of Stephenson's death Ana
Rivera held the deposit book, and there was a balance in said account of
P701. 43, which Ana Rivera claimed but which the bank refused to pay to
her upon advice of its attorneys who gave the opinion that the survivorship
agreement was of doubtful validity. Thereupon Ana Rivera instituted the
present action against the bank, and Minnie Stephenson, administratix of
the estate of the deceased, intervened and claimed the amount for the
estate, alleging that the money deposited in said account was and is the
exclusive property of the deceased.
The trial court held that the agreement in question, viewed from its effect
during the lives of the parties, was a mere power of attorney authorizing Ana
Rivera to withdraw the deposit, which power terminated upon the death of
the principal, Edgar Stephenson; but that, viewed from its effect after the
death of either of the parties, the agreement was a donation mortis causa
with reference to the balance remaining at the death of one of them, which,
not having been executed with the formalities of a testamentary disposition
as required by article 620 of the Civil Code, was of no legal effect.
The defendant bank did not appear in this Court. Counsel for the intervenorappellee in his brief contends that the survivorship agreement was a
donation mortis causa from Stephenson to Ana Rivera of the bank account
in question and that, since it was not executed with the formalities of a will, it
can have no legal effect.
We find no basis for the conclusion that the survivorship agreement was a
mere power of attorney from Stephenson to Ana Rivera, or that it is a gift
mortis causa of the bank account in question from him to her. Such
conclusion is evidently predicated on the assumption that Stephenson was
the exclusive owner of the funds deposited in the bank, which assumption
was in turn based on the facts (1) that the account was originally opened in
the name of Stephenson alone and (2) that Ana Rivera "served only as
housemaid of the deceased." But it not infrequently happens that a person
deposits money in the bank in the name of another; and in the instant case
it also appears that Ana Rivera served her master for about nineteen years
without actually receiving her salary from him. The fact that subsequently
Stephenson transferred the account to the name of himself and/or Ana
Rivera and executed with the latter the survivorship agreement in question
although there was no relation of kinship between them but only that of
master and servant, nullifies the assumption that Stephenson was the
exclusive owner of the bank account. In the absence, then, of clear proof of
the contrary, we must give full faith and credit to the certificate of deposit,
which recites in effect that the funds in question belonged to Edgar
Stephenson and Ana Rivera; that they were joint owners thereof; and that
either of them could withdraw any part or the whole of said account during
the lifetime of both, and the balance, if any, upon the death of either,
belonged to the survivor.
Is the survivorship agreement valid? Prima facie, we think it is valid. It is an
aleatory contract supported by law a lawful consideration the mutual
agreement of the joint depositors permitting either of them to withdraw the
whole deposit during their lifetime, and transferring the balance to the
survivor upon the death of one of them. The trial court said that the Civil
Code "contains no provisions sanctioning such an agreement" We think it is
covered by article 1790 of the Civil Code, which provides as follows:
ART. 1790. By an aleatory contract one of the parties binds himself, or
both reciprocally bind themselves, to give or to do something as an
equivalent for that which the other party is to give or do in case of the
occurrence of an event which is uncertain or will happen at an
indeterminate time.
(See also article 1255.)
The case of Macam vs. Gatmaitan (decided March 11, 1937), 36 Off. Gaz.,
2175, is in point. Two friends Juana Gatmaitan and Leonarda Macam, who
had lived together for some time, agreed in writing that the house of strong
materials which they bought with the money belonging to Leonarda Macam
and the Buick automobile and certain furniture which belonged to Juana
Gatmaitan shall belong to the survivor upon the death of one of them and
that "this agreement shall be equivalent to a transfer of the rights of the one
who dies first and shall be kept by the survivor." After the death of Leonarda
Macam, her executrix assailed that document on the ground that with
respect to the house the same constituted a donation mortis causa by
Leonarda Macam in favor of Juana Gatmaitan. In affirming the judgment of
the trial court absolving the defendants from the complaint this Court,
speaking through Chief Justice Avacea, said:
This court is of the opinion that Exhibit C is an aleatory contract
whereby, according to article 1790 of the civil Code, one of the parties
or both reciprocally bind themselves to give or do something as an
equivalent for that which the other party is to give or do in case of the
occurrence of an event which is uncertain or will happen at an
indeterminate time. As already stated, Leonarda was the owner of the
house and Juana of the Buick automobile and most of the furniture. By
of
the
Philippines
COURT
SECOND DIVISION
G.R. No. 82027 March 29, 1990
ROMARICO
G.
VITUG,
petitioner,
vs.
THE HONORABLE COURT OF APPEALS and ROWENA FAUSTINOCORONA, respondents.
Rufino B. Javier Law Office for petitioner.
Quisumbing, Torres & Evangelista for private respondent.
SARMIENTO, J.:
This case is a chapter in an earlier suit decided by this Court 1 involving the
probate of the two wills of the late Dolores Luchangco Vitug, who died in
New York, U. S.A., on November 10, 1980, naming private respondent
Rowena Faustino-Corona executrix. In our said decision, we upheld the
appointment of Nenita Alonte as co-special administrator of Mrs. Vitug's
estate with her (Mrs. Vitug's) widower, petitioner Romarico G. Vitug,
pending probate.
On January 13, 1985, Romarico G. Vitug filed a motion asking for authority
from the probate court to sell certain shares of stock and real properties
belonging to the estate to cover allegedly his advances to the estate in the
sum of P667,731.66, plus interests, which he claimed were personal funds.
As found by the Court of Appeals, 2 the alleged advances consisted of
P58,147.40 spent for the payment of estate tax, P518,834.27 as deficiency
estate tax, and P90,749.99 as "increment thereto." 3 According to Mr. Vitug,
he withdrew the sums of P518,834.27 and P90,749.99 from savings
account No. 35342-038 of the Bank of America, Makati, Metro Manila.
On April 12, 1985, Rowena Corona opposed the motion to sell on the
ground that the same funds withdrawn from savings account No. 35342-038
were conjugal partnership properties and part of the estate, and hence,
there was allegedly no ground for reimbursement. She also sought his
ouster for failure to include the sums in question for inventory and for
"concealment of funds belonging to the estate." 4
Vitug insists that the said funds are his exclusive property having acquired
the same through a survivorship agreement executed with his late wife and
the bank on June 19, 1970. The agreement provides:
We hereby agree with each other and with the BANK OF
AMERICAN NATIONAL TRUST AND SAVINGS ASSOCIATION
(hereinafter referred to as the BANK), that all money now or
hereafter deposited by us or any or either of us with the BANK in
our joint savings current account shall be the property of all or
both of us and shall be payable to and collectible or withdrawable
by either or any of us during our lifetime, and after the death of
either or any of us shall belong to and be the sole property of the
survivor or survivors, and shall be payable to and collectible or
withdrawable by such survivor or survivors.
We further agree with each other and the BANK that the receipt or
check of either, any or all of us during our lifetime, or the receipt
or check of the survivor or survivors, for any payment or
withdrawal made for our above-mentioned account shall be valid
and sufficient release and discharge of the BANK for such
payment or withdrawal. 5
The trial courts 6 upheld the validity of this agreement and granted "the
motion to sell some of the estate of Dolores L. Vitug, the proceeds of which
shall be used to pay the personal funds of Romarico Vitug in the total sum
of P667,731.66 ... ." 7
On the other hand, the Court of Appeals, in the petition for certiorari filed by
the herein private respondent, held that the above-quoted survivorship
agreement constitutes a conveyance mortis causa which "did not comply
with the formalities of a valid will as prescribed by Article 805 of the Civil
Code," 8 and secondly, assuming that it is a mere donation inter vivos, it is a
prohibited donation under the provisions of Article 133 of the Civil Code. 9
it also appears that Ana Rivera served her master for about
nineteen years without actually receiving her salary from him. The
fact that subsequently Stephenson transferred the account to the
name of himself and/or Ana Rivera and executed with the latter
the survivorship agreement in question although there was no
relation of kinship between them but only that of master and
servant, nullifies the assumption that Stephenson was the
exclusive owner of the bank account. In the absence, then, of
clear proof to the contrary, we must give full faith and credit to the
certificate of deposit which recites in effect that the funds in
question belonged to Edgar Stephenson and Ana Rivera; that
they were joint (and several) owners thereof; and that either of
them could withdraw any part or the whole of said account during
the lifetime of both, and the balance, if any, upon the death of
either, belonged to the survivor. 17
xxx xxx xxx
In Macam v. Gatmaitan, 18 it was held:
xxx xxx xxx
This Court is of the opinion that Exhibit C is an aleatory contract
whereby, according to article 1790 of the Civil Code, one of the
parties or both reciprocally bind themselves to give or do
something as an equivalent for that which the other party is to
give or do in case of the occurrence of an event which is
uncertain or will happen at an indeterminate time. As already
stated, Leonarda was the owner of the house and Juana of the
Buick automobile and most of the furniture. By virtue of Exhibit C,
Juana would become the owner of the house in case Leonarda
died first, and Leonarda would become the owner of the
automobile and the furniture if Juana were to die first. In this
manner Leonarda and Juana reciprocally assigned their
respective property to one another conditioned upon who might
die first, the time of death determining the event upon which the
acquisition of such right by the one or the other depended. This
contract, as any other contract, is binding upon the parties
thereto. Inasmuch as Leonarda had died before Juana, the latter
thereupon acquired the ownership of the house, in the same
SO ORDERED.
Feati Bank and Trust Company vs. Court of Appeals, 196 SCRA
576 (1990)
Republic
SUPREME
Manila
of
the
Philippines
COURT
THIRD DIVISION
role as the notifying and negotiating bank for and in behalf of the
issuing bank, it in effect accepted a trust reposed on it, and
became a trustee in relation to plaintiff as the beneficiary of the
letter of credit. As trustee, it was then duty bound to protect the
interests of the plaintiff under the terms of the letter of credit, and
must be held liable for damages and loss resulting to the plaintiff
from its failure to perform that obligation.
Furthermore, when the defendant BANK assumed the role of a
notifying and negotiating BANK it in effect represented to the
plaintiff that, if the plaintiff complied with the terms and conditions
of the letter of credit and presents the same to the BANK together
with the documents mentioned therein the said BANK will pay the
plaintiff the amount of the letter of credit. The Court is convinced
that it was upon the strength of this letter of credit and this implied
representation of the defendant BANK that the plaintiff delivered
the logs to defendant CHRISTIANSEN, considering that the
issuing bank is a foreign bank with whom plaintiff had no business
connections and CHRISTIANSEN had not offered any other
Security for the payment of the logs. Defendant BANK cannot
now be allowed to deny its commitment and liability under the
letter of credit:
A holder of a promissory note given because of
gambling who indorses the same to an innocent holder
for value and who assures said party that the note has
no legal defect, is in estoppel from asserting that there
had been an illegal consideration for the note, and so,
he has to pay its value. (Rodriguez v. Martinez, 5 Phil.
67).
The defendant BANK, in insisting upon the certification of
defendant CHRISTIANSEN as a condition precedent to
negotiating the letter of credit, likewise in the Court's opinion
acted in bad faith, not only because of the clear declaration of the
Central Bank that such a requirement was illegal, but because the
BANK, with all the legal counsel available to it must have known
that the condition was void since it depended on the sole will of
Third Reason
THE RESPONDENT COURT LIKEWISE COMMITTED AN
ERROR OF LAW WHEN IT AFFIRMED THE TRIAL COURT'S
DECISION. (Rollo, p. 12)
The principal issue in this case is whether or not a correspondent bank is to
be held liable under the letter of credit despite non-compliance by the
beneficiary with the terms thereof?
The petition is impressed with merit.
It is a settled rule in commercial transactions involving letters of credit that
the documents tendered must strictly conform to the terms of the letter of
credit. The tender of documents by the beneficiary (seller) must include all
documents required by the letter. A correspondent bank which departs from
what has been stipulated under the letter of credit, as when it accepts a
faulty tender, acts on its own risks and it may not thereafter be able to
recover from the buyer or the issuing bank, as the case may be, the money
thus paid to the beneficiary Thus the rule of strict compliance.
In the United States, commercial transactions involving letters of credit are
governed by the rule of strict compliance. In the Philippines, the same holds
true. The same rule must also be followed.
The case of Anglo-South America Trust Co. v. Uhe et al. (184 N.E. 741
[1933]) expounded clearly on the rule of strict compliance.
We have heretofore held that these letters of credit are to be
strictly complied with which documents, and shipping documents
must be followed as stated in the letter. There is no discretion in
the bank or trust company to waive any requirements. The terms
of the letter constitutes an agreement between the purchaser and
the bank. (p. 743)
Although in some American decisions, banks are granted a little discretion
to accept a faulty tender as when the other documents may be considered
immaterial or superfluous, this theory could lead to dangerous precedents.
Since a bank deals only with documents, it is not in a position to determine
whether or not the documents required by the letter of credit are material or
superfluous. The mere fact that the document was specified therein readily
means that the document is of vital importance to the buyer.
Moreover, the incorporation of the Uniform Customs and Practice for
Documentary Credit (U.C.P. for short) in the letter of credit resulted in the
applicability of the said rules in the governance of the relations between the
parties.
And even if the U.C.P. was not incorporated in the letter of credit, we have
already ruled in the affirmative as to the applicability of the U.C.P. in cases
before us.
In Bank of P.I. v. De Nery (35 SCRA 256 [1970]), we pronounced that the
observance of the U.C.P. in this jurisdiction is justified by Article 2 of the
Code of Commerce. Article 2 of the Code of Commerce enunciates that in
the absence of any particular provision in the Code of Commerce,
commercial transactions shall be governed by the usages and customs
generally observed.
There being no specific provision which governs the legal complexities
arising from transactions involving letters of credit not only between the
banks themselves but also between banks and seller and/or buyer, the
applicability of the U.C.P. is undeniable.
The pertinent provisions of the U.C.P. (1962 Revision) are:
Article 3.
An irrevocable credit is a definite undertaking on the part of the
issuing bank and constitutes the engagement of that bank to the
beneficiary and bona fide holders of drafts drawn and/or
documents presented thereunder, that the provisions for payment,
acceptance or negotiation contained in the credit will be duly
fulfilled, provided that all the terms and conditions of the credit are
complied with.
An irrevocable credit may be advised to a beneficiary through
another bank (the advising bank) without engagement on the part
of that bank, but when an issuing bank authorizes or requests
another bank to confirm its irrevocable credit and the latter does
correspondent bank itself had issued the letter of credit. (Shaterian, ExportImport Banking, p. 294, cited in Agbayani Commercial Laws of the
Philippines, Vol. 1, p. 77)
In this case, the letter merely provided that the petitioner "forward the
enclosed original credit to the beneficiary." (Records, Vol. I, p. 11)
Considering the aforesaid instruction to the petitioner by the issuing bank,
the Security Pacific National Bank, it is indubitable that the petitioner is only
a notifying bank and not a confirming bank as ruled by the courts below.
If the petitioner was a confirming bank, then a categorical declaration should
have been stated in the letter of credit that the petitioner is to honor all drafts
drawn in conformity with the letter of credit. What was simply stated therein
was the instruction that the petitioner forward the original letter of credit to
the beneficiary.
Since the petitioner was only a notifying bank, its responsibility was solely to
notify and/or transmit the documentary of credit to the private respondent
and its obligation ends there.
The notifying bank may suggest to the seller its willingness to negotiate, but
this fact alone does not imply that the notifying bank promises to accept the
draft drawn under the documentary credit.
A notifying bank is not a privy to the contract of sale between the buyer and
the seller, its relationship is only with that of the issuing bank and not with
the beneficiary to whom he assumes no liability. It follows therefore that
when the petitioner refused to negotiate with the private respondent, the
latter has no cause of action against the petitioner for the enforcement of his
rights under the letter. (See Kronman and Co., Inc. v. Public National Bank
of New York, supra)
In order that the petitioner may be held liable under the letter, there should
be proof that the petitioner confirmed the letter of credit.
The records are, however, bereft of any evidence which will disclose that
the petitioner has confirmed the letter of credit. The only evidence in this
case, and upon which the private respondent premised his argument, is the
P75,000.00 loan extended by the petitioner to him.
The private respondent relies on this loan to advance his contention that the
letter of credit was confirmed by the petitioner. He claims that the loan was
granted by the petitioner to him, "in anticipation of the presentment of the
letter of credit."
The proposition advanced by the private respondent has no basis in fact or
law. That the loan agreement between them be construed as an act of
confirmation is rather far-fetched, for it depends principally on speculative
reasoning.
As earlier stated, there must have been an absolute assurance on the part
of the petitioner that it will undertake the issuing bank's obligation as its
own. Verily, the loan agreement it entered into cannot be categorized as an
emphatic assurance that it will carry out the issuing bank's obligation as its
own.
The loan agreement is more reasonably classified as an isolated transaction
independent of the documentary credit.
Of course, it may be presumed that the petitioner loaned the money to the
private respondent in anticipation that it would later be paid by the latter
upon the receipt of the letter. Yet, we would have no basis to rule definitively
that such "act" should be construed as an act of confirmation.
The private respondent no doubt was in need of money in loading the logs
on the ship "Zenlin Glory" and the only way to satisfy this need was to
borrow money from the petitioner which the latter granted. From these
circumstances, a logical conclusion that can be gathered is that the letter of
credit was merely to serve as a collateral.
At the most, when the petitioner extended the loan to the private
respondent, it assumed the character of a negotiating bank. Even then, the
petitioner will still not be liable, for a negotiating bank before negotiation has
no contractual relationship with the seller.
The case of Scanlon v. First National Bank (supra) perspicuously explained
the relationship between the seller and the negotiating bank, viz:
It may buy or refuse to buy as it chooses. Equally, it must be true
that it owes no contractual duty toward the person for whose
benefit the letter is written to discount or purchase any draft drawn
Granting that a trust has been created, still, the petitioner may not be
considered a trustee. As the petitioner is only a notifying bank, its
acceptance of the instructions of the issuing bank will not create estoppel on
its part resulting in the acceptance of the trust. Precisely, as a notifying
bank, its only obligation is to notify the private respondent of the existence
of the letter of credit. How then can such create estoppel when that is its
only duty under the law?
We also find erroneous the statement of the Court of Appeals that the
petitioner "acted as a guarantor of the issuing bank and in effect also of the
latter's principal or client, i.e., Hans Axel Christiansen."
It is a fundamental rule that an irrevocable credit is independent not only of
the contract between the buyer and the seller but also of the credit
agreement between the issuing bank and the buyer. (See Kingdom of
Sweden v. New York Trust Co., 96 N.Y.S. 2d 779 [1949]). The relationship
between the buyer (Christiansen) and the issuing bank (Security Pacific
National Bank) is entirely independent from the letter of credit issued by the
latter.
The contract between the two has no bearing as to the non-compliance by
the buyer with the agreement between the latter and the seller. Their
contract is similar to that of a contract of services (to open the letter of
credit) and not that of agency as was intimated by the Court of Appeals. The
unjustified refusal therefore by Christiansen to issue the certification under
the letter of credit should not likewise be charged to the issuing bank.
As a mere notifying bank, not only does the petitioner not have any
contractual relationship with the buyer, it has also nothing to do with the
contract between the issuing bank and the buyer regarding the issuance of
the letter of credit.
The theory of guarantee relied upon by the Court of Appeals has to
necessarily fail. The concept of guarantee vis-a-vis the concept of an
irrevocable credit are inconsistent with each other.
In the first place, the guarantee theory destroys the independence of the
bank's responsibility from the contract upon which it was opened. In the
second place, the nature of both contracts is mutually in conflict with each
other. In contracts of guarantee, the guarantor's obligation is merely
collateral and it arises only upon the default of the person primarily liable.
On the other hand, in an irrevocable credit the bank undertakes a primary
obligation. (See National Bank of Eagle Pass, Tex v. American National
Bank of San Francisco, 282 F. 73 [1922])
The relationship between the issuing bank and the notifying bank, on the
contrary, is more similar to that of an agency and not that of a guarantee. It
may be observed that the notifying bank is merely to follow the instructions
of the issuing bank which is to notify or to transmit the letter of credit to the
beneficiary. (See Kronman v. Public National Bank of New York, supra). Its
commitment is only to notify the beneficiary. It does not undertake any
assurance that the issuing bank will perform what has been mandated to or
expected of it. As an agent of the issuing bank, it has only to follow the
instructions of the issuing bank and to it alone is it obligated and not to
buyer with whom it has no contractual relationship.
In fact the notifying bank, even if the seller tenders all the documents
required under the letter of credit, may refuse to negotiate or accept the
drafts drawn thereunder and it will still not be held liable for its only
engagement is to notify and/or transmit to the seller the letter of credit.
Finally, even if we assume that the petitioner is a confirming bank, the
petitioner cannot be forced to pay the amount under the letter. As we have
previously explained, there was a failure on the part of the private
respondent to comply with the terms of the letter of credit.
The failure by him to submit the certification was fatal to his case. The
U.C.P. which is incorporated in the letter of credit ordains that the bank may
only pay the amount specified under the letter if all the documents tendered
are on their face in compliance with the credit. It is not tasked with the duty
of ascertaining the reason or reasons why certain documents have not been
submitted, as it is only concerned with the documents. Thus, whether or not
the buyer has performed his responsibility towards the seller is not the
bank's problem.
We are aware of the injustice committed by Christiansen on the private
respondent but we are deciding the controversy on the basis of what the law
is, for the law is not meant to favor only those who have been oppressed,
the law is to govern future relations among people as well. Its commitment
is to all and not to a single individual. The faith of the people in our justice
system may be eroded if we are to decide not what the law states but what
we believe it should declare. Dura lex sed lex.
Considering the foregoing, the materiality of ruling upon the validity of the
certificate of approval required of the private respondent to submit under the
letter of credit, has become insignificant.
In any event, we affirm the earlier ruling of the Court of Appeals dated April
9, 1987 in regard to the petition before it for certiorari and prohibition with
preliminary injunction, to wit:
There is no merit in the respondent's contention that the
certification required in condition No. 4 of the letter of credit was
"patently illegal." At the time the letter of credit was issued there
was no Central Bank regulation prohibiting such a condition in the
letter of credit. The letter of credit (Exh. C) was issued on June 7,
1971, more than two months before the issuance of the Central
Bank Memorandum on August 16, 1971 disallowing such a
condition in a letter of credit. In fact the letter of credit had already
expired on July 30, 1971 when the Central Bank memorandum
was issued. In any event, it is difficult to see how such a condition
could be categorized as illegal or unreasonable since all that
plaintiff Villaluz, as seller of the logs, could and should have done
was to refuse to load the logs on the vessel "Zenlin Glory", unless
Christiansen first issued the required certification that the logs had
been approved by him to be in accordance with the terms and
conditions of his purchase order. Apparently, Villaluz was in too
much haste to ship his logs without taking all due precautions to
assure that all the terms and conditions of the letter of credit had
been strictly complied with, so that there would be no hitch in its
negotiation. (Rollo, p. 8)
WHEREFORE, the COURT RESOLVED to GRANT the petition and hereby
NULLIFIES and SETS ASIDE the decision of the Court of Appeals dated
June 29, 1990. The amended complaint in Civil Case No. 15121 is
DISMISSED.
SO ORDERED.
of
the
Philippines
COURT
SECOND DIVISION
G.R. No. 146717
TRANSFIELD
PHILIPPINES,
INC.,
petitioner,
vs.
LUZON HYDRO CORPORATION, AUSTRALIA and NEW ZEALAND
BANKING GROUP LIMITED and SECURITY BANK CORPORATION,
respondents.
DECISION
TINGA, J.:
Subject of this case is the letter of credit which has evolved as the
ubiquitous and most important device in international trade. A creation of
commerce and businessmen, the letter of credit is also unique in the
number of parties involved and its supranational character.
Petitioner has appealed from the Decision1 of the Court of Appeals in CAG.R. SP No. 61901 entitled "Transfield Philippines, Inc. v. Hon. Oscar
Pimentel, et al.," promulgated on 31 January 2001.2
On 26 March 1997, petitioner and respondent Luzon Hydro Corporation
(hereinafter, LHC) entered into a Turnkey Contract3 whereby petitioner, as
Turnkey Contractor, undertook to construct, on a turnkey basis, a seventy
(70)-Megawatt hydro-electric power station at the Bakun River in the
provinces of Benguet and Ilocos Sur (hereinafter, the Project). Petitioner
was given the sole responsibility for the design, construction,
commissioning, testing and completion of the Project.4
The Turnkey Contract provides that: (1) the target completion date of the
Project shall be on 1 June 2000, or such later date as may be agreed upon
between petitioner and respondent LHC or otherwise determined in
accordance with the Turnkey Contract; and (2) petitioner is entitled to claim
extensions of time (EOT) for reasons enumerated in the Turnkey Contract,
among which are variations, force majeure, and delays caused by LHC
itself.5 Further, in case of dispute, the parties are bound to settle their
differences through mediation, conciliation and such other means
enumerated under Clause 20.3 of the Turnkey Contract.6
To secure performance of petitioner's obligation on or before the target
completion date, or such time for completion as may be determined by the
parties' agreement, petitioner opened in favor of LHC two (2) standby letters
of credit both dated 20 March 2000 (hereinafter referred to as "the
Securities"), to wit: Standby Letter of Credit No. E001126/8400 with the
local branch of respondent Australia and New Zealand Banking Group
Limited (ANZ Bank)7 and Standby Letter of Credit No. IBDIDSB-00/4 with
respondent Security Bank Corporation (SBC)8 each in the amount of
US$8,988,907.00.9
In the course of the construction of the project, petitioner sought various
EOT to complete the Project. The extensions were requested allegedly due
to several factors which prevented the completion of the Project on target
date, such as force majeure occasioned by typhoon Zeb, barricades and
demonstrations. LHC denied the requests, however. This gave rise to a
series of legal actions between the parties which culminated in the instant
petition.
The first of the actions was a Request for Arbitration which LHC filed before
the Construction Industry Arbitration Commission (CIAC) on 1 June 1999.10
This was followed by another Request for Arbitration, this time filed by
petitioner before the International Chamber of Commerce (ICC)11 on 3
November 2000. In both arbitration proceedings, the common issues
presented were: [1) whether typhoon Zeb and any of its associated events
constituted force majeure to justify the extension of time sought by
petitioner; and [2) whether LHC had the right to terminate the Turnkey
Contract for failure of petitioner to complete the Project on target date.
Meanwhile, foreseeing that LHC would call on the Securities pursuant to the
pertinent provisions of the Turnkey Contract,12 petitionerin two separate
On 2 February 2001, the appellate court dismissed the petition for certiorari.
The appellate court expressed conformity with the trial court's decision that
LHC could call on the Securities pursuant to the first principle in credit law
that the credit itself is independent of the underlying transaction and that as
long as the beneficiary complied with the credit, it was of no moment that he
had not complied with the underlying contract. Further, the appellate court
held that even assuming that the trial court's denial of petitioner's application
for a writ of preliminary injunction was erroneous, it constituted only an error
of judgment which is not correctible by certiorari, unlike error of jurisdiction.
Undaunted, petitioner filed the instant Petition for Review raising the
following issues for resolution:
WHETHER THE "INDEPENDENCE PRINCIPLE" ON LETTERS OF
CREDIT MAY BE INVOKED BY A BENEFICIARY THEREOF WHERE
THE BENEFICIARY'S CALL THEREON IS WRONGFUL OR
FRAUDULENT.
WHETHER LHC HAS THE RIGHT TO CALL AND DRAW ON THE
SECURITIES BEFORE THE RESOLUTION OF PETITIONER'S AND
LHC'S DISPUTES BY THE APPROPRIATE TRIBUNAL.
WHETHER ANZ BANK AND SECURITY BANK ARE JUSTIFIED IN
RELEASING THE AMOUNTS DUE UNDER THE SECURITIES
DESPITE BEING NOTIFIED THAT LHC'S CALL THEREON IS
WRONGFUL.
WHETHER OR NOT PETITIONER WILL SUFFER GRAVE AND
IRREPARABLE DAMAGE IN THE EVENT THAT:
A. LHC IS ALLOWED TO CALL AND DRAW ON, AND ANZ
BANK AND SECURITY BANK ARE ALLOWED TO RELEASE,
THE REMAINING BALANCE OF THE SECURITIES PRIOR TO
THE RESOLUTION OF THE DISPUTES BETWEEN
PETITIONER AND LHC.
B. LHC DOES NOT RETURN THE AMOUNTS IT HAD
WRONGFULLY DRAWN FROM THE SECURITIES.21
Petitioner contends that the courts below improperly relied on the
"independence principle" on letters of credit when this case falls squarely
letter of credit from drawing thereon. It adds that petitioner has filed two
other proceedings, to wit: (1) ICC Case No. 11264/TE/MW, entitled
"Transfield Philippines Inc. v. Luzon Hydro Corporation," in which the parties
made
claims
and
counterclaims
arising
from
petitioner's
performance/misperformance of its obligations as contractor for LHC; and
(2) Civil Case No. 04-332, entitled "Transfield Philippines, Inc. v. Luzon
Hydro Corporation" before Branch 56 of the RTC of Makati, which is an
action to enforce and obtain execution of the ICC's partial award mentioned
in petitioner's Manifestation of 12 April 2004.
In its Comment to petitioner's Motion for Leave to File Addendum to
Petitioner's Memorandum, LHC stresses that the question of whether the
funds it drew on the subject letters of credit should be returned is outside
the issue in this appeal. At any rate, LHC adds that the action to enforce the
ICC's partial award is now fully within the Makati RTC's jurisdiction in Civil
Case No. 04-332. LHC asserts that petitioner is engaged in forum-shopping
by keeping this appeal and at the same time seeking the suit for
enforcement of the arbitral award before the Makati court.
Respondent SBC in its Memorandum, dated 10 March 200327 contends that
the Court of Appeals correctly dismissed the petition for certiorari. Invoking
the independence principle, SBC argues that it was under no obligation to
look into the validity or accuracy of the certification submitted by respondent
LHC or into the latter's capacity or entitlement to so certify. It adds that the
act sought to be enjoined by petitioner was already fait accompli and the
present petition would no longer serve any remedial purpose.
In a similar fashion, respondent ANZ Bank in its Memorandum dated 13
March 200328 posits that its actions could not be regarded as unjustified in
view of the prevailing independence principle under which it had no
obligation to ascertain the truth of LHC's allegations that petitioner defaulted
in its obligations. Moreover, it points out that since the Standby Letter of
Credit No. E001126/8400 had been fully drawn, petitioner's prayer for
preliminary injunction had been rendered moot and academic.
At the core of the present controversy is the applicability of the
"independence principle" and "fraud exception rule" in letters of credit. Thus,
a discussion of the nature and use of letters of credit, also referred to simply
as "credits," would provide a better perspective of the case.
The letter of credit evolved as a mercantile specialty, and the only way to
understand all its facets is to recognize that it is an entity unto itself. The
relationship between the beneficiary and the issuer of a letter of credit is not
strictly contractual, because both privity and a meeting of the minds are
lacking, yet strict compliance with its terms is an enforceable right. Nor is it a
third-party beneficiary contract, because the issuer must honor drafts drawn
against a letter regardless of problems subsequently arising in the
underlying contract. Since the bank's customer cannot draw on the letter, it
does not function as an assignment by the customer to the beneficiary. Nor,
if properly used, is it a contract of suretyship or guarantee, because it entails
a primary liability following a default. Finally, it is not in itself a negotiable
instrument, because it is not payable to order or bearer and is generally
conditional, yet the draft presented under it is often negotiable.29
In commercial transactions, a letter of credit is a financial device developed
by merchants as a convenient and relatively safe mode of dealing with sales
of goods to satisfy the seemingly irreconcilable interests of a seller, who
refuses to part with his goods before he is paid, and a buyer, who wants to
have control of the goods before paying.30 The use of credits in commercial
transactions serves to reduce the risk of nonpayment of the purchase price
under the contract for the sale of goods. However, credits are also used in
non-sale settings where they serve to reduce the risk of nonperformance.
Generally, credits in the non-sale settings have come to be known as
standby credits.31
There are three significant differences between commercial and standby
credits. First, commercial credits involve the payment of money under a
contract of sale. Such credits become payable upon the presentation by the
seller-beneficiary of documents that show he has taken affirmative steps to
comply with the sales agreement. In the standby type, the credit is payable
upon certification of a party's nonperformance of the agreement. The
documents that accompany the beneficiary's draft tend to show that the
applicant has not performed. The beneficiary of a commercial credit must
demonstrate by documents that he has performed his contract. The
beneficiary of the standby credit must certify that his obligor has not
performed the contract.32
By definition, a letter of credit is a written instrument whereby the writer
requests or authorizes the addressee to pay money or deliver goods to a
third person and assumes responsibility for payment of debt therefor to the
addressee.33 A letter of credit, however, changes its nature as different
transactions occur and if carried through to completion ends up as a binding
contract between the issuing and honoring banks without any regard or
relation to the underlying contract or disputes between the parties thereto.34
Since letters of credit have gained general acceptability in international
trade transactions, the ICC has published from time to time updates on the
Uniform Customs and Practice (UCP) for Documentary Credits to
standardize practices in the letter of credit area. The vast majority of letters
of credit incorporate the UCP.35 First published in 1933, the UCP for
Documentary Credits has undergone several revisions, the latest of which
was in 1993.36
In Bank of the Philippine Islands v. De Reny Fabric Industries, Inc.,37 this
Court ruled that the observance of the UCP is justified by Article 2 of the
Code of Commerce which provides that in the absence of any particular
provision in the Code of Commerce, commercial transactions shall be
governed by usages and customs generally observed. More recently, in
Bank of America, NT & SA v. Court of Appeals,38 this Court ruled that there
being no specific provisions which govern the legal complexities arising from
transactions involving letters of credit, not only between or among banks
themselves but also between banks and the seller or the buyer, as the case
may be, the applicability of the UCP is undeniable.
Article 3 of the UCP provides that credits, by their nature, are separate
transactions from the sales or other contract(s) on which they may be based
and banks are in no way concerned with or bound by such contract(s), even
if any reference whatsoever to such contract(s) is included in the credit.
Consequently, the undertaking of a bank to pay, accept and pay draft(s) or
negotiate and/or fulfill any other obligation under the credit is not subject to
claims or defenses by the applicant resulting from his relationships with the
issuing bank or the beneficiary. A beneficiary can in no case avail himself of
the contractual relationships existing between the banks or between the
applicant and the issuing bank.
Thus, the engagement of the issuing bank is to pay the seller or beneficiary
of the credit once the draft and the required documents are presented to it.
The so-called "independence principle" assures the seller or the beneficiary
of prompt payment independent of any breach of the main contract and
precludes the issuing bank from determining whether the main contract is
actually accomplished or not. Under this principle, banks assume no liability
or responsibility for the form, sufficiency, accuracy, genuineness,
falsification or legal effect of any documents, or for the general and/or
particular conditions stipulated in the documents or superimposed thereon,
nor do they assume any liability or responsibility for the description, quantity,
weight, quality, condition, packing, delivery, value or existence of the goods
represented by any documents, or for the good faith or acts and/or
omissions, solvency, performance or standing of the consignor, the carriers,
or the insurers of the goods, or any other person whomsoever.39
The independent nature of the letter of credit may be: (a) independence in
toto where the credit is independent from the justification aspect and is a
separate obligation from the underlying agreement like for instance a typical
standby; or (b) independence may be only as to the justification aspect like
in a commercial letter of credit or repayment standby, which is identical with
the same obligations under the underlying agreement. In both cases the
payment may be enjoined if in the light of the purpose of the credit the
payment of the credit would constitute fraudulent abuse of the credit.40
Can the beneficiary invoke the independence principle?
Petitioner insists that the independence principle does not apply to the
instant case and assuming it is so, it is a defense available only to
respondent banks. LHC, on the other hand, contends that it would be
contrary to common sense to deny the benefit of an independent contract to
the very party for whom the benefit is intended. As beneficiary of the letter of
credit, LHC asserts it is entitled to invoke the principle.
As discussed above, in a letter of credit transaction, such as in this case,
where the credit is stipulated as irrevocable, there is a definite undertaking
by the issuing bank to pay the beneficiary provided that the stipulated
documents are presented and the conditions of the credit are complied
with.41 Precisely, the independence principle liberates the issuing bank from
the duty of ascertaining compliance by the parties in the main contract. As
the principle's nomenclature clearly suggests, the obligation under the letter
of credit is independent of the related and originating contract. In brief, the
letter of credit is separate and distinct from the underlying transaction.
is not rightful. In that case, the applicant may sue the beneficiary in
tort, in contract, or in breach of warranty; but, during the litigation to
determine whether the applicant has in fact breached the obligation to
perform, the beneficiary, not the applicant, holds the money. Parties
that use a standby credit and courts construing such a credit should
understand this allocation of burdens. There is a tendency in some
quarters to overlook this distinction between surety contracts and
standby credits and to reallocate burdens by permitting the obligor or
the issuer to litigate the performance question before payment to the
beneficiary.42
While it is the bank which is bound to honor the credit, it is the beneficiary
who has the right to ask the bank to honor the credit by allowing him to draw
thereon. The situation itself emasculates petitioner's posture that LHC
cannot invoke the independence principle and highlights its puerility, more
so in this case where the banks concerned were impleaded as parties by
petitioner itself.
Respondent banks had squarely raised the independence principle to justify
their releases of the amounts due under the Securities. Owing to the nature
and purpose of the standby letters of credit, this Court rules that the
respondent banks were left with little or no alternative but to honor the credit
and both of them in fact submitted that it was "ministerial" for them to honor
the call for payment.43
Furthermore, LHC has a right rooted in the Contract to call on the
Securities. The relevant provisions of the Contract read, thus:
4.2.1. In order to secure the performance of its obligations under this
Contract, the Contractor at its cost shall on the Commencement Date
provide security to the Employer in the form of two irrevocable and
confirmed standby letters of credit (the "Securities"), each in the
amount of US$8,988,907, issued and confirmed by banks or financial
institutions acceptable to the Employer. Each of the Securities must be
in form and substance acceptable to the Employer and may be
provided on an annually renewable basis.44
8.7.1 If the Contractor fails to comply with Clause 8.2, the Contractor
shall pay to the Employer by way of liquidated damages ("Liquidated
Damages for Delay") the amount of US$75,000 for each and every day
or part of a day that shall elapse between the Target Completion Date
and the Completion Date, provided that Liquidated Damages for Delay
payable by the Contractor shall in the aggregate not exceed 20% of
the Contract Price. The Contractor shall pay Liquidated Damages for
Delay for each day of the delay on the following day without need of
demand from the Employer.
8.7.2 The Employer may, without prejudice to any other method of
recovery, deduct the amount of such damages from any monies due,
or to become due to the Contractor and/or by drawing on the
Security."45
A contract once perfected, binds the parties not only to the fulfillment of
what has been expressly stipulated but also to all the consequences which
according to their nature, may be in keeping with good faith, usage, and
law.46 A careful perusal of the Turnkey Contract reveals the intention of the
parties to make the Securities answerable for the liquidated damages
occasioned by any delay on the part of petitioner. The call upon the
Securities, while not an exclusive remedy on the part of LHC, is certainly an
alternative recourse available to it upon the happening of the contingency
for which the Securities have been proffered. Thus, even without the use of
the "independence principle," the Turnkey Contract itself bestows upon LHC
the right to call on the Securities in the event of default.
Next, petitioner invokes the "fraud exception" principle. It avers that LHC's
call on the Securities is wrongful because it fraudulently misrepresented to
ANZ Bank and SBC that there is already a breach in the Turnkey Contract
knowing fully well that this is yet to be determined by the arbitral tribunals. It
asserts that the "fraud exception" exists when the beneficiary, for the
purpose of drawing on the credit, fraudulently presents to the confirming
bank, documents that contain, expressly or by implication, material
representations of fact that to his knowledge are untrue. In such a situation,
petitioner insists, injunction is recognized as a remedy available to it.
Citing Dolan's treatise on letters of credit, petitioner argues that the
independence principle is not without limits and it is important to fashion
those limits in light of the principle's purpose, which is to serve the
commercial function of the credit. If it does not serve those functions,
application of the principle is not warranted, and the commonlaw principles
of contract should apply.
It is worthy of note that the propriety of LHC's call on the Securities is largely
intertwined with the fact of default which is the self-same issue pending
resolution before the arbitral tribunals. To be able to declare the call on the
Securities wrongful or fraudulent, it is imperative to resolve, among others,
whether petitioner was in fact guilty of delay in the performance of its
obligation. Unfortunately for petitioner, this Court is not called upon to rule
upon the issue of defaultsuch issue having been submitted by the parties
to the jurisdiction of the arbitral tribunals pursuant to the terms embodied in
their agreement.47
Would injunction then be the proper remedy to restrain the alleged wrongful
draws on the Securities?
Most writers agree that fraud is an exception to the independence principle.
Professor Dolan opines that the untruthfulness of a certificate
accompanying a demand for payment under a standby credit may qualify as
fraud sufficient to support an injunction against payment.48 The remedy for
fraudulent abuse is an injunction. However, injunction should not be granted
unless: (a) there is clear proof of fraud; (b) the fraud constitutes fraudulent
abuse of the independent purpose of the letter of credit and not only fraud
under the main agreement; and (c) irreparable injury might follow if
injunction is not granted or the recovery of damages would be seriously
damaged.49
In its complaint for injunction before the trial court, petitioner alleged that it is
entitled to a total extension of two hundred fifty-three (253) days which
would move the target completion date. It argued that if its claims for
extension would be found meritorious by the ICC, then LHC would not be
entitled to any liquidated damages.50
Generally, injunction is a preservative remedy for the protection of one's
substantive right or interest; it is not a cause of action in itself but merely a
provisional remedy, an adjunct to a main suit. The issuance of the writ of
preliminary injunction as an ancillary or preventive remedy to secure the
rights of a party in a pending case is entirely within the discretion of the
court taking cognizance of the case, the only limitation being that this
discretion should be exercised based upon the grounds and in the manner
provided by law.51
the fact that the ICC and CIAC have not ruled with finality on the existence
of default.
Nowhere in its complaint before the trial court or in its pleadings filed before
the appellate court, did petitioner invoke the fraud exception rule as a
ground to justify the issuance of an injunction.58 What petitioner did assert
before the courts below was the fact that LHC's draws on the Securities
would be premature and without basis in view of the pending disputes
between them. Petitioner should not be allowed in this instance to bring into
play the fraud exception rule to sustain its claim for the issuance of an
injunctive relief. Matters, theories or arguments not brought out in the
proceedings below will ordinarily not be considered by a reviewing court as
they cannot be raised for the first time on appeal.59 The lower courts could
thus not be faulted for not applying the fraud exception rule not only
because the existence of fraud was fundamentally interwoven with the issue
of default still pending before the arbitral tribunals, but more so, because
petitioner never raised it as an issue in its pleadings filed in the courts
below. At any rate, petitioner utterly failed to show that it had a clear and
unmistakable right to prevent LHC's call upon the Securities.
Of course, prudence should have impelled LHC to await resolution of the
pending issues before the arbitral tribunals prior to taking action to enforce
the Securities. But, as earlier stated, the Turnkey Contract did not require
LHC to do so and, therefore, it was merely enforcing its rights in accordance
with the tenor thereof. Obligations arising from contracts have the force of
law between the contracting parties and should be complied with in good
faith.60 More importantly, pursuant to the principle of autonomy of contracts
embodied in Article 1306 of the Civil Code,61 petitioner could have
incorporated in its Contract with LHC, a proviso that only the final
determination by the arbitral tribunals that default had occurred would justify
the enforcement of the Securities. However, the fact is petitioner did not do
so; hence, it would have to live with its inaction.
With respect to the issue of whether the respondent banks were justified in
releasing the amounts due under the Securities, this Court reiterates that
pursuant to the independence principle the banks were under no obligation
to determine the veracity of LHC's certification that default has occurred.
Neither were they bound by petitioner's declaration that LHC's call thereon
present appeal and at the same time pursuing Civil Case No. 04-332
wherein petitioner pressed for judgment on the issue of whether the funds
LHC drew on the Securities should be returnedpetitioner resorted to
forum-shopping. In both instances, however, petitioner has apparently opted
not to respond to the charge.
Forum-shopping is a very serious charge. It exists when a party repetitively
avails of several judicial remedies in different courts, simultaneously or
successively, all substantially founded on the same transactions and the
same essential facts and circumstances, and all raising substantially the
same issues either pending in, or already resolved adversely, by some other
court.67 It may also consist in the act of a party against whom an adverse
judgment has been rendered in one forum, of seeking another and possibly
favorable opinion in another forum other than by appeal or special civil
action of certiorari, or the institution of two or more actions or proceedings
grounded on the same cause on the supposition that one or the other court
might look with favor upon the other party.68 To determine whether a party
violated the rule against forum-shopping, the test applied is whether the
elements of litis pendentia are present or whether a final judgment in one
case will amount to res judicata in another.69 Forum-shopping constitutes
improper conduct and may be punished with summary dismissal of the
multiple petitions and direct contempt of court.70
Considering the seriousness of the charge of forum-shopping and the
severity of the sanctions for its violation, the Court will refrain from making
any definitive ruling on this issue until after petitioner has been given ample
opportunity to respond to the charge.
WHEREFORE, the instant petition is DENIED, with costs against petitioner.
Petitioner is hereby required to answer the charge of forum-shopping within
fifteen (15) days from notice.
SO ORDERED.
of
the
Philippines
COURT
THIRD DIVISION
FERNAN, C.J.:p
In this petition for certiorari, petitioner Philippine National Bank (PNB) seeks
to annul and set aside the orders dated March 4, 1977 and May 31, 1977
rendered in Civil Case No. 24422 1 of the Court of First Instance of Rizal,
Branch XXI, respectively granting private respondent Tayabas Cement
Company, Inc.'s application for a writ of preliminary injunction to enjoin the
foreclosure sale of certain properties in Quezon City and Negros Occidental
and denying petitioner's motion for reconsideration thereof.
In 1963, Ignacio Arroyo, married to Lourdes Tuason Arroyo (the Arroyo
Spouses), obtained a loan of P580,000.00 from petitioner bank to purchase
60% of the subscribed capital stock, and thereby acquire the controlling
interest of private respondent Tayabas Cement Company, Inc. (TCC). 2 As
security for said loan, the spouses Arroyo executed a real estate mortgage
over a parcel of land covered by Transfer Certificate of Title No. 55323 of
the Register of Deeds of Quezon City known as the La Vista property.
Thereafter, TCC filed with petitioner bank an application and agreement for
the establishment of an eight (8) year deferred letter of credit (L/C) for
$7,000,000.00 in favor of Toyo Menka Kaisha, Ltd. of Tokyo, Japan, to
cover the importation of a cement plant machinery and equipment.
Upon approval of said application and opening of an L/C by PNB in favor of
Toyo Menka Kaisha, Ltd. for the account of TCC, the Arroyo spouses
executed the following documents to secure this loan accommodation:
Surety Agreement dated August 5, 1964 3 and Covenant dated August 6,
1964. 4
The imported cement plant machinery and equipment arrived from Japan
and were released to TCC under a trust receipt agreement. Subsequently,
Toyo Menka Kaisha, Ltd. made the corresponding drawings against the L/C
as scheduled. TCC, however, failed to remit and/or pay the corresponding
amount covered by the drawings. Thus, on May 19, 1968, pursuant to the
trust receipt agreement, PNB notified TCC of its intention to repossess, as it
later did, the imported machinery and equipment for failure of TCC to settle
its obligations under the L/C. 5
In the meantime, the personal accounts of the spouses Arroyo, which
included another loan of P160,000.00 secured by a real estate mortgage
over parcels of agricultural land known as Hacienda Bacon located in
Isabela, Negros Occidental, had likewise become due. The spouses Arroyo
having failed to satisfy their obligations with PNB, the latter decided to
foreclose the real estate mortgages executed by the spouses Arroyo in its
favor.
On July 18, 1975, PNB filed with the City Sheriff of Quezon City a petition
for extra-judicial foreclosure under Act 3138, as amended by Act 4118 and
under Presidential Decree No. 385 of the real estate mortgage over the
properties known as the La Vista property covered by TCT No. 55323. 6
PNB likewise filed a similar petition with the City Sheriff of Bacolod, Negros
Occidental with respect to the mortgaged properties located at Isabela,
Negros Occidental and covered by OCT No. RT 1615.
The foreclosure sale of the La Vista property was scheduled on August 11,
1975. At the auction sale, PNB was the highest bidder with a bid price of
P1,000,001.00. However, when said property was about to be awarded to
PNB, the representative of the mortgagor-spouses objected and demanded
from the PNB the difference between the bid price of P1,000,001.00 and the
indebtedness of P499,060.25 of the Arroyo spouses on their personal
account. It was the contention of the spouses Arroyo's representative that
the foreclosure proceedings referred only to the personal account of the
mortgagor spouses without reference to the account of TCC.
To remedy the situation, PNB filed a supplemental petition on August 13,
1975 requesting the Sheriff's Office to proceed with the sale of the subject
real properties to satisfy not only the amount of P499,060.25 owed by the
spouses Arroyos on their personal account but also the amount of
P35,019,901.49 exclusive of interest, commission charges and other
expenses owed by said spouses as sureties of TCC. 7 Said petition was
opposed by the spouses Arroyo and the other bidder, Jose L. Araneta.
On September 12, 1975, Acting Clerk of Court and Ex-Officio Sheriff Diana
L. Dungca issued a resolution finding that the questions raised by the
parties required the reception and evaluation of evidence, hence, proper for
adjudication by the courts of law. Since said questions were prejudicial to
the holding of the foreclosure sale, she ruled that her "Office, therefore,
cannot properly proceed with the foreclosure sale unless and until there be
a court ruling on the aforementioned issues." 8
Thus, in May, 1976, PNB filed with the Court of First Instance of Quezon
City, Branch V a petition for mandamus 9 against said Diana Dungca in her
capacity as City Sheriff of Quezon City to compel her to proceed with the
foreclosure sale of the mortgaged properties covered by TCT No. 55323 in
order to satisfy both the personal obligation of the spouses Arroyo as well
as their liabilities as sureties of TCC. 10
On September 6, 1976, the petition was granted and Dungca was directed
to proceed with the foreclosure sale of the mortgaged properties covered by
TCT No. 55323 pursuant to Act No. 3135 and to issue the corresponding
Sheriff's Certificate of Sale. 11
Before the decision could attain finality, TCC filed on September 14, 1976
before the Court of First Instance of Rizal, Pasig, Branch XXI a
complaint 12 against PNB, Dungca, and the Provincial Sheriff of Negros
Occidental and Ex-Officio Sheriff of Bacolod City seeking, inter alia, the
issuance of a writ of preliminary injunction to restrain the foreclosure of the
mortgages over the La Vista property and Hacienda Bacon as well as a
declaration that its obligation with PNB had been fully paid by reason of the
latter's repossession of the imported machinery and equipment. 13
On October 5, 1976, the CFI, thru respondent Judge Gregorio Pineda,
issued a restraining order 14 and on March 4, 1977, granted a writ of
preliminary injunction. 15 PNB's motion for reconsideration was denied,
hence this petition.
Petitioner PNB advances four grounds for the setting aside of the writ of
preliminary injunction, namely: a) that it contravenes P.D. No. 385 which
prohibits the issuance of a restraining order against a government financial
institution in any action taken by such institution in compliance with the
mandatory foreclosure provided in Section 1 thereof; b) that the writ
countermands a final decision of a co-equal and coordinate court; c) that the
writ seeks to prohibit the performance of acts beyond the court's territorial
jurisdiction; and, d) private respondent TCC has not shown any clear legal
right or necessity to the relief of preliminary injunction.
Private respondent TCC counters with the argument that P.D. No. 385 does
not apply to the case at bar, firstly because no foreclosure proceedings
have been instituted against it by PNB and secondly, because its account
under the L/C has been fully satisfied with the repossession of the imported
machinery and equipment by PNB.
The resolution of the instant controversy lies primarily on the question of
whether or not TCC's liability has been extinguished by the repossession of
PNB of the imported cement plant machinery and equipment.
We rule for the petitioner PNB. It must be remembered that PNB took
possession of the imported cement plant machinery and equipment
pursuant to the trust receipt agreement executed by and between PNB and
TCC giving the former the unqualified right to the possession and disposal
of all property shipped under the Letter of Credit until such time as all the
liabilities and obligations under said letter had been discharged. 16 In the
case of Vintola vs. Insular Bank of Asia and America 17 wherein the same
argument was advanced by the Vintolas as entrustees of imported seashells
under a trust receipt transaction, we said:
Further, the VINTOLAS take the position that their obligation to
IBAA has been extinguished inasmuch as, through no fault of
their own, they were unable to dispose of the seashells, and that
they have relinquished possession thereof to the IBAA, as owner
of the goods, by depositing them with the Court.
The foregoing submission overlooks the nature and mercantile
usage of the transaction involved. A letter of credit-trust receipt
arrangement is endowed with its own distinctive features and
characteristics. Under that set-up, a bank extends a loan covered
by the Letter of Credit, with the trust receipt as a security for the
loan. In other words, the transaction involves a loan feature
represented by the letter of credit, and a security feature which is
in the covering trust receipt.
xxx xxx xxx
A trust receipt, therefore, is a security agreement, pursuant to
which a bank acquires a "security interest" in the goods. It
secures an indebtedness and there can be no such thing as
security interest that secures no obligation. As defined in our
laws:
(h) "Security interest" means a property interest in
goods, documents or instruments to secure
performance of some obligations of the entrustee or of
some third persons to the entruster and includes title,
whether or not expressed to be absolute, whenever
such title is in substance taken or retained for security
only.
xxx xxx xxx
Contrary to the allegation of the VINTOLAS, IBAA did not become
the real owner of the goods. It was merely the holder of a security
title for the advances it had made to the VINTOLAS. The goods
the VINTOLAS had purchased through IBAA financing remain
their own property and they hold it at their own risk. The trust
receipt arrangement did not convert the IBAA into an investor; the
latter remained a lender and creditor.
xxx xxx xxx
Since the IBAA is not the factual owner of the goods, the
VINTOLAS cannot justifiably claim that because they have
surrendered the goods to IBAA and subsequently deposited them
in the custody of the court, they are absolutely relieved of their
obligation to pay their loan because of their inability to dispose of
the goods. The fact that they were unable to sell the seashells in
question does not affect IBAA's right to recover the advances it
had made under the Letter of Credit.
PNB's possession of the subject machinery and equipment being precisely
as a form of security for the advances given to TCC under the Letter of
Credit, said possession by itself cannot be considered payment of the loan
secured thereby. Payment would legally result only after PNB had
foreclosed on said securities, sold the same and applied the proceeds
thereof to TCC's loan obligation. Mere possession does not amount to
foreclosure for foreclosure denotes the procedure adopted by the
mortgagee to terminate the rights of the mortgagor on the property and
includes the sale itself. 18
Neither can said repossession amount to dacion en pago. Dation in
payment takes place when property is alienated to the creditor in
satisfaction of a debt in money and the same is governed by sales. 19 Dation
in payment is the delivery and transmission of ownership of a thing by the
debtor to the creditor as an accepted equivalent of the performance of the
obligation. 20 As aforesaid, the repossession of the machinery and
equipment in question was merely to secure the payment of TCC's loan
obligation and not for the purpose of transferring ownership thereof to PNB
in satisfaction of said loan. Thus, no dacion en pago was ever
accomplished.
Proceeding from this finding, PNB has the right to foreclose the mortgages
executed by the spouses Arroyo as sureties of TCC. A surety is considered
in law as being the same party as the debtor in relation to whatever is
adjudged touching the obligation of the latter, and their liabilities are
interwoven as to be inseparable. 21 As sureties, the Arroyo spouses are
primarily liable as original promissors and are bound immediately to pay the
creditor the amount outstanding. 22
Under Presidential Decree No. 385 which took effect on January 31, 1974,
government financial institutions like herein petitioner PNB are required to
Insular Bank of Asia & America vs. IAC, 167 SCRA 450 (1988)
Republic
SUPREME
Manila
of
the
Philippines
COURT
SECOND DIVISION
G.R. No. 74834 November 17, 1988
INSULAR BANK OF ASIA & AMERICA (NOW PHILIPPINE COMMERCIAL
INTERNATIONAL
BANK),
petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT, THE PHILIPPINE
AMERICAN LIFE INSURANCE CO., SPS. BEN MENDOZA & JUANITA M.
MENDOZA, respondents.
Balili, Parado, Cavada & Maamo for petitioner.
Romulo, Mabanta, Buenaventura, Sayoc & Delos Angeles for respondent
Spouses Mendozas.
Francisco, Zulueta & Associates for respondent Philam Life.
MELENCIO-HERRERA, J.:
An appeal by certiorari under Rule 45 of the Rules of Court by petitioner, the
Insular Bank of Asia and America (IBAA) [now the Philippine Commercial
International Bank], from the judgment of the public respondent, then the
Intermediate Appellate Court, * in CA-G.R. CV No. 03224.
Briefly, the antecedent facts disclose that sometime in 1976 and 1977
respondent spouses Ben S. Mendoza and Juanita M. Mendoza (the
Mendozas, for brevity), obtained two (2) loans from respondent Philippine
American Life Insurance Co. (Philam Life) in the total amount of
P600,000.00 to finance the construction of their residential house at
Mandaue City. The said loans, with a 14% nominal interest rate, were to be
liquidated in equal amortizations over a period of five (5) years from March
1977 to March 1982.
of
Liability
600,000.00
Less:
a) Payment
of Mendozas
P
280,
293.11
b) Payment
of IBAA
372,227.65
652,520.76
Overpayment
by IBAA
(
P
52,520.76)
On 21 April 1980 the Real Estate Mortgage, which secured the two (2)
standby L/Cs. was extrajudicially foreclosed by, and sold at public auction
for P775,000.00, to petitioner IBAA as the lone and highest bidder (Exhibit
"17-Mendoza"). The bid price of P775,000.00 by petitioner IBAA was arrived
at as follows:
Principal
(unpaid
advances
under the
2
P
432,386.07
standby
LCs) plus
interest &
charges
Add:
a)
Stipulated
Attorney's
fees (20%)
b)
P
86,477.20
Principals
(clean
loans) plus
accrued
interest
under
P/Ns Nos.
562/77
and
564/77
P
255,346.95
c)
Expenses
of
foreclosure
P 72.20
TOTAL
P
775,000.42
On a date that does not appear of record, Philam Life filed suit against
Respondent Spouses and IBAA before the Regional Trial Court of Manila,
Branch XXXXI, for the recovery of the sum of P274,779.56, the amount
allegedly still owing under the loan. After trial, said Court rendered a
Decision finding that IBAA had paid Philam Life only P342,127.05 and not
P372,227.65, as claimed by IBAA, because of a stale IBAA Manager's
check in the amount of P30,100.60, which had to be deducted. With this
deduction, the Trial Court arrived at the following computation:
Limit
of
Liability
of
IBAA Less:
P
600,000.00
a) Payment
by Mendozas
P
280,
293.11
b) Payment
by IBAA
P342,127.05
P
622,420.16
Overpayment
by IBAA
P 22,420.16
considered,
judgment
is
hereby
Transfield Philippines, Inc. vs. Luzon Hydro Corporation, 443 SCRA 307
(2004)
of
the
Philippines
COURT
SECOND DIVISION
G.R. No. 160466
SPOUSES
ALFREDO
and
SUSANA
ONG,
petitioners,
vs.
PHILIPPINE COMMERCIAL INTERNATIONAL BANK, respondent.
DECISION
PUNO, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of Court
to set aside the Decision of the Court of Appeals in CA-G.R. SP No. 39255,
dated February 17, 2003, affirming the decision of the trial court denying
petitioners motion to dismiss.
The facts: Baliwag Mahogany Corporation (BMC) is a domestic corporation
engaged in the manufacture and export of finished wood products.
Petitioners-spouses Alfredo and Susana Ong are its President and
Treasurer, respectively.
On April 20, 1992, respondent Philippine Commercial International Bank
(now Equitable-Philippine Commercial International Bank or E-PCIB) filed a
case for collection of a sum of money1 against petitioners-spouses.
Respondent bank sought to hold petitioners-spouses liable as sureties on
the three (3) promissory notes they issued to secure some of BMCs loans,
totalling five million pesos (P5,000,000.00).
The complaint alleged that in 1991, BMC needed additional capital for its
business and applied for various loans, amounting to a total of five million
pursuing of collection cases against the BMC and this provision should
benefit petitioners as sureties. Second, principal debtor BMC has been
placed under suspension of payment of debts by the SEC; petitioners
contend that it would prejudice them if the principal debtor BMC would enjoy
the suspension of payment of its debts while petitioners, who acted only as
sureties for some of BMCs debts, would be compelled to make the
payment; petitioners add that compelling them to pay is contrary to Article
2063 of the Civil Code which provides that a compromise between the
creditor and principal debtor benefits the guarantor and should not prejudice
the latter. Lastly, petitioners rely on Article 2081 of the Civil Code which
provides that: "the guarantor may set up against the creditor all the
defenses which pertain to the principal debtor and are inherent in the debt;
but not those which are purely personal to the debtor." Petitioners aver that
if the principal debtor BMC can set up the defense of suspension of
payment of debts and filing of collection suits against respondent bank,
petitioners as sureties should likewise be allowed to avail of these defenses.
We find no merit in petitioners contentions.
Reliance of petitioners-spouses on Articles 2063 and 2081 of the Civil Code
is misplaced as these provisions refer to contracts of guaranty. They do not
apply to suretyship contracts. Petitioners-spouses are not guarantors but
sureties of BMCs debts. There is a sea of difference in the rights and
liabilities of a guarantor and a surety. A guarantor insures the solvency of
the debtor while a surety is an insurer of the debt itself. A contract of
guaranty gives rise to a subsidiary obligation on the part of the guarantor. It
is only after the creditor has proceeded against the properties of the
principal debtor and the debt remains unsatisfied that a guarantor can be
held liable to answer for any unpaid amount. This is the principle of
excussion. In a suretyship contract, however, the benefit of excussion is not
available to the surety as he is principally liable for the payment of the debt.
As the surety insures the debt itself, he obligates himself to pay the debt if
the principal debtor will not pay, regardless of whether or not the latter is
financially capable to fulfill his obligation. Thus, a creditor can go directly
against the surety although the principal debtor is solvent and is able to pay
or no prior demand is made on the principal debtor. A surety is directly,
equally and absolutely bound with the principal debtor for the payment of
the debt and is deemed as an original promissor and debtor from the
beginning.5
of
the
THIRD DIVISION
INTERNATIONAL FINANCE G.R. No. 160324
CORPORATION,
Petitioner, Present:
Panganiban, J.,
Chairman,
- versus - Sandoval-Gutierrez,*
Corona,
Carpio Morales, and
Garcia, JJ
IMPERIAL TEXTILE MILLS, Promulgated:
INC.,**
Respondent. ' November 15, 2005
x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x
DECISION
PANGANIBAN, J.:
Philippines
COURT
Thereafter, on May 20, 1988, IFC filed a complaint with the RTC of
Manila against PPIC and ITM for the payment of the outstanding
balance plus interests and attorney's fees.
The trial court held PPIC liable for the payment of the outstanding loan
plus interests. It also ordered PPIC to pay IFC its claimed attorney's
fees. However, the trial court relieved ITM of its obligation as
guarantor. Hence, the trial court dismissed IFC's complaint against
ITM.
xxxxxxxxx
Thus, apropos the decision dismissing the complaint against ITM, IFC
appealed [to the CA].[5]
Ruling of the Court of Appeals
The CA reversed the Decision of the trial court, insofar as the latter
exonerated ITM from any obligation to IFC. According to the appellate court,
ITM bound itself under the 'Guarantee Agreement to pay PPIC's obligation
upon default.[6] ITM was not discharged from its obligation as guarantor when
PPIC mortgaged the latter's properties to IFC.[7] The CA, however, held that
ITM's liability as a guarantor would arise only if and when PPIC could not pay.
Since PPIC's inability to comply with its obligation was not sufficiently
established, ITM could not immediately be made to assume the liability.[8]
The main issue is whether ITM is a surety, and thus solidarily liable with
PPIC for the payment of the loan.
The Court's Ruling
The Petition is meritorious.
Main Issue:
Liability of Respondent Under
The present controversy arose from the following Contracts: (1) the Loan
Agreement dated December 17, 1974, between IFC and PPIC;[13] and (2)
the Guarantee Agreement dated December 17, 1974, between ITM and
Grandtex, on the one hand, and IFC on the other.[14]
IFC claims that, under the Guarantee Agreement, ITM bound itself as a
surety to PPIC's obligations proceeding from the Loan Agreement.[15] For
its part, ITM asserts that, by the terms of the Guarantee Agreement, it was
merely a guarantor[16] and not a surety. Moreover, any ambiguity in the
Agreement should be construed against IFC -- the party that drafted it.[17]
Language of the
Contract
Whereas,
The Agreement uses 'guarantee and guarantors, prompting ITM to base its
argument on those words.[20] This Court is not convinced that the use of
the two words limits the Contract to a mere guaranty. The specific
stipulations in the Contract show otherwise.
Solidary Liability
Agreed to by ITM
The creditor may proceed against any one of the solidary debtors or
some or all of them simultaneously. The demand made against one of
them shall not be an obstacle to those which may subsequently be
directed against the others, so long as the debt has not been fully
collected.
Pursuant to this provision, petitioner (as creditor) was justified in taking
action directly against respondent.
No Ambiguity in the
Undertaking
The Court does not find any ambiguity in the provisions of the Guarantee
Agreement. When qualified by the term jointly and severally, the use of the
word 'guarantor to refer to a 'surety does not violate the law.[23] As Article
2047 provides, a suretyship is created when a guarantor binds itself
solidarily with the principal obligor. Likewise, the phrase in the Agreement -'as primary obligor and not merely as surety -- stresses that ITM is being
placed on the same level as PPIC. Those words emphasize the nature of
their liability, which the law characterizes as a suretyship.
The use of the word guarantee does not ipso facto make the contract one of
guaranty.[24] This Court has recognized that the word is frequently
employed in business transactions to describe the intention to be bound by
a primary or an independent obligation.[25] The very terms of a contract
govern the obligations of the parties or the extent of the obligor's liability.
Thus, this Court has ruled in favor of suretyship, even though contracts
were denominated as a 'Guarantor's Undertaking [26] or a 'Continuing
Guaranty.[27]
Contracts have the force of law between the parties,[28] who are free to
stipulate any matter not contrary to law, morals, good customs, public order
or public policy.[29] None of these circumstances are present, much less
alleged by respondent. Hence, this Court cannot give a different meaning to
the plain language of the Guarantee Agreement.
Indeed, the finding of solidary liability is in line with the premise provided in
the 'Whereas' clause of the Guarantee Agreement. The execution of the
Agreement was a condition precedent for the approval of PPIC's loan from
IFC. Consistent with the position of IFC as creditor was its requirement of a
higher degree of liability from ITM in case PPIC committed a breach. ITM
agreed with the stipulation in Section 2.01 and is now estopped from
feigning ignorance of its solidary liability. The literal meaning of the
stipulations control when the terms of the contract are clear and there is no
doubt as to the intention of the parties.[30]
We note that the CA denied solidary liability, on the theory that the parties
would not have executed a Guarantee Agreement if they had intended to
name ITM as a primary obligor.[31] The appellate court opined that ITM's
undertaking was collateral to and distinct from the Loan Agreement. On this
point, the Court stresses that a suretyship is merely an accessory or a
collateral to a principal obligation.[32] Although a surety contract is
secondary to the principal obligation, the liability of the surety is direct,
primary and absolute; or equivalent to that of a regular party to the
undertaking.[33] A surety becomes liable to the debt and duty of the
principal obligor even without possessing a direct or personal interest in the
obligations constituted by the latter.[34]
ITM's Liability as Surety
With the present finding that ITM is a surety, it is clear that the CA erred in
declaring the former secondarily liable.[35] A surety is considered in law to
be on the same footing as the principal debtor in relation to whatever is
adjudged against the latter.[36] Evidently, the dispositive portion of the
assailed Decision should be modified to require ITM to pay the amount
adjudged in favor of IFC.
Peripheral Issues
IFC had allegedly instituted different arguments that effectively changed the
corporation's theory on appeal, in violation of this Court's previous
pronouncements.[37] ITM further claims that the main issue in the present
case is a question of fact that is not cognizable by this Court.[38]
Alleged Change of
Theory on Appeal
Petitioner's arguments before the trial court (that ITM was a 'primary
obligor') and before the CA (that ITM was a 'surety') were related and
intertwined in the action to enforce the solidary liability of ITM under the
Guarantee Agreement. We emphasize that the terms primary obligor and
'surety were premised on the same stipulations in Section 2.01 of the
Agreement. Besides, both terms had the same legal consequences. There
was therefore effectively no change of theory on appeal. At any rate, ITM
failed to show to this Court a disparity between IFC's allegations in the trial
court and those in the CA. Bare allegations without proof deserve no
credence.
Review of Factual
Findings Necessary
As to the issue that only questions of law may be raised in a Petition for
Review,[39] the Court has recognized exceptions,[40] one of which applies
SO ORDERED.
of
the
Philippines
COURT
SECOND DIVISION
[G.R. No. 151060. August 31, 2005]
JN DEVELOPMENT CORPORATION, and SPS. RODRIGO and LEONOR
STA. ANA, Petitioners, vs. PHILIPPINE EXPORT AND FOREIGN LOAN
GUARANTEE CORPORATION, respondent.
[G.R. No. 151311. August 31, 2005]
NARCISO V. CRUZ, Petitioner, vs. PHILIPPINE EXPORT and FOREIGN
LOAN GUARANTEE CORPORATION, respondent.
DECISION
TINGA, J.:
Before us are consolidated petitions questioning the Decision[1] of the Court
of Appeals (CA) in CA-G.R. CV No. 61318, entitled Philippine Export and
Foreign Loan Guarantee Corporation v. JN Development Corporation, et al.,
which reversed the Decision of the Regional Trial Court (RTC) of Makati,
Branch 60.
On 13 December 1979, petitioner JN Development Corporation (JN') and
Traders Royal Bank (TRB) entered into an agreement whereby TRB would
extend to JN an Export Packing Credit Line for Two Million Pesos
(P2,000,000.00). The loan was covered by several securities, including a
real estate mortgage[2] and a letter of guarantee from respondent Philippine
Export and Foreign Loan Guarantee Corporation (PhilGuarantee'), now
Trade and Investment Development Corporation of the Philippines, covering
seventy percent (70%) of the credit line.[3] With PhilGuarantee issuing a
guarantee in favor of TRB,[4] JN, petitioner spouses Rodrigo and Leonor
been obtained.[37] The law imposes conditions precedent for the invocation
of the defense. Thus, in order that the guarantor may make use of the
benefit of excussion, he must set it up against the creditor upon the latter's
demand for payment and point out to the creditor available property of the
debtor within the Philippines sufficient to cover the amount of the debt.[38]
While a guarantor enjoys the benefit of excussion, nothing prevents him
from paying the obligation once demand is made on him. Excussion, after
all, is a right granted to him by law and as such he may opt to make use of it
or waive it. PhilGuarantee's waiver of the right of excussion cannot prevent
it from demanding reimbursement from petitioners. The law clearly requires
the debtor to indemnify the guarantor what the latter has paid.[39]
Petitioners' claim that PhilGuarantee had no more obligation to pay TRB
because of the alleged expiration of the contract of guarantee is untenable.
The guarantee, dated17 December 1979, states:
In the event of default by JNDC and as a consequence thereof,
PHILGUARANTEE is made to pay its obligation arising under the aforesaid
guarantee PHILGUARANTEE shall pay the BANK the amount of P1.4
million or 70% of the total obligation unpaid
....
This guarantee shall be valid for a period of one (1) year from date hereof
but may be renewed upon payment by JNDC of the guarantee fee at the
same rate of 1.5% per annum.[40]
The guarantee was only up to 17 December 1980. JN's obligation with TRB
fell due on 30 June 1980, and demand on PhilGuarantee was made by TRB
on 08 October 1980. That payment was actually made only on 10 March
1981 does not take it out of the terms of the guarantee. What is controlling
is that default and demand on PhilGuarantee had taken place while the
guarantee was still in force.
There is likewise no merit in petitioners' claim that PhilGuarantee's failure to
give its express consent to the alleged extensions granted by TRB to JN
had extinguished the guarantee. The requirement that the guarantor should
consent to any extension granted by the creditor to the debtor under Art.
2079 is for the benefit of the guarantor. As such, it is likewise waivable by
the guarantor. Thus, even assuming that extensions were indeed granted by
TRB to JN, PhilGuarantee could have opted to waive the need for consent
to such extensions. Indeed, a guarantor is not precluded from waiving his
right to be notified of or to give his consent to extensions obtained by the
debtor. Such waiver is not contrary to public policy as it is purely personal
and does not affect public interest.[41] In the instant case, PhilGuarantee's
waiver can be inferred from its actual payment to TRB after the latter's
demand, despite JN's failure to pay the renewal/guarantee fee as indicated
in the guarantee.[42]
For the above reasons, there is no basis for petitioner's claim that
PhilGuarantee was a mere volunteer payor and had no legal obligation to
pay TRB. The law does not prohibit the payment by a guarantor on his own
volition, heedless of the benefit of excussion. In fact, it recognizes the right
of a guarantor to recover what it has paid, even if payment was made before
the debt becomes due,[43] or if made without notice to the debtor,[44]
subject of course to some conditions.
Petitioners' invocation of our ruling in Willex Plastic Industries, Corp. v.
Court of Appeals[45] is misplaced, if not irrelevant. In the said case, the
guarantor claimed that it could not be proceeded against without first
exhausting all of the properties of the debtor. The Court, finding that there
was an express renunciation of the benefit of excussion in the contract of
guarantee, ruled against the guarantor.
The cited case finds no application in the case a quo. PhilGuarantee is not
invoking the benefit of excussion. It cannot be overemphasized that
excussion is a right granted to the guarantor and, therefore, only he may
invoke it at his discretion.
The benefit of excussion, as well as the requirement of consent to
extensions of payment, is a protective device pertaining to and conferred on
the guarantor. These may be invoked by the guarantor against the creditor
as defenses to bar the unwarranted enforcement of the guarantee.
However, PhilGuarantee did not avail of these defenses when it paid its
obligation according to the tenor of the guarantee once demand was made
on it. What is peculiar in the instant case is that petitioners, the principal
debtors themselves, are muddling the issues and raising the same defenses
against the guarantor, which only the guarantor may invoke against the
creditor, to avoid payment of their own obligation to the guarantor. The
People's Bank and Trust Co. vs. Odom, 64 Phil. 126 (1937)
Republic
SUPREME
Manila
of
the
Philippines
COURT
EN BANC
G.R. No. L-43670
PEOPLE
BANK
AND
TRUST
vs.
W. J. ODOM, defendant-appellant.
COMPANY,
Gibbs,
McDonough
and
Ohnick and Opisso for appellee.
Ozaeta
plaintiff-appellee,
for
appellant.
IMPERIAL, J.:
The plaintiff brought this action to recover from the defendant the balance of
an overdraft owing to it from the latter, and to foreclose the mortgage of
properties to guarantee his obligation. The defendant appealed from the
judgment of the Court of First Instance of Manila ordering him to pay to the
plaintiff the sum of P138,403.68, with 9 per cent interest per annum from
January 4, 1934, until fully paid, plus P500 as attorney's fees, and the costs.
The judgment decreed that the principal and interest should be paid within
three months, failing which the mortgaged properties will be sold at public
auction, consisting of the rights, title and interest of the defendant in the
contracts of lease of the building known as the "Sugar News Co., Building"
and "Edward J. Nell Co. Building" as well as his rights, title, and interest in
the land on which the two buildings are constructed, and that the proceeds
of the sale should be applied to the payment of the amount of the judgment.
On January 12, 1927, the defendant entered into a contract with A. D. Gibbs
(Exhibit E) whereby the latter authorized him to construct two concrete
buildings of three floors each, upon his land on Loaisa Street, District of
Binondo, City of Manila, described in certificate of title No. 27584. Upon that
date, the building known as the Sugar News Co. Building was completely
constructed and its first floor was occupied by the People Bank and Trust
Co., but the two upper floors were not fully equipped; the other building
known as the "Edward J. Nell Co. Building" was then under construction.
Under the contract the defendant bore all the expenses of consideration
thereof Gibbs assigned to him all the rents which the building may produce
for a period of eight (8) years from November 1, 1926, as to the first floor
then already occupied, and as to the other floors to be equipped, from the
date they are thus fully equipped. As to the other building, "Edward J. Nell
Co. Building", the parties agreed that the defendant would also bear all the
expenses of construction until it is fully completed, and in consideration
thereof Gibbs assigned to him all the rent which it may produce for a period
of the eight (8) years and three (3) months from the date of the termination
of its construction; this period, however, to be counted from the completion
of each floor in the event that the floors composing the building should not
be completed and equipped at the same time.
By virtue of contracts entered into with the plaintiff, the defendant obtained
an overdraft from the former amounting to P110,000. To secure this
overdraft, the defendant, on April 26, 1928, assigned to the plaintiff all his
rights, title and interest in the contracts of lease with the Sugar News
Company, Manila Machinery and Supply Co., Inc., and T. Yamamoto of the
various portions of the "Sugar News Company Building", as well as the
rights, title and interest which he had acquired in the land on which the said
building was constructed under the contract which he had with A. D. Gibbs.
As additional security, the defendant also assigned to the plaintiff insurance
policy No. 402894 for P100,000 issued by the Manufacturers Life Insurance
Company (Exhibit C).
The overdraft was increased to P150,000, and to secure the payment
thereof the defendant executed Exhibit B on September 18, 1928, in favor of
the plaintiff, whereby he assigned to the latter also by way of guaranty the
same securities which he had given for the overdraft of P110,000.
On January 20, 1931, the overdraft was again increased to P165,000, and
to guarantee the payment thereof the defendant executed Exhibit D
whereby he assigned to the plaintiff his rights, title and interest in the
contracts of lease with Edward J. Nell Company, El Progreso, Inc., and
France & Goulette of various portions of the "Edward J. Nell Company
Building"; in whatever contracts of lease of any portion of the same building
which he may enter not in the future, and the rights, title and interest which
he had in the land occupied by the building according to his contract with A.
D. Gibbs on January 12, 1927.
On the same date, January 20, 1931, the plaintiff and the defendant
executed Exhibit F, whereby the latter assigned to the former his right to
collect the rents of the "Edward J. Nell Company Building" to secure the
payment of the overdraft of P165.000 with interest at 9 per cent per annum.
The annual rentals then produced by the building were the following: from
Edward J. Nell Company P1,3000, from El Progreso P300 and from the
Lyric Film Exchange, Inc., successor of France & Goulette, P800.
Pursuant to the aforesaid contracts, the defendant drew funds upon plaintiff
by way of overdrafts, and on January 4, 1934, his account showed a
balance against him in the amount of P138,403.68, including stipulated
interest up to said date.
The defendant contends in his first assigned error that the contract Exhibit D
took the place of the previous conrtracts Exhibit B and C. To resolve this
point, it is necessary to take into account the intention of the parties
expressed in the contract Exhibit D and the terms in which it was drawn. It
was executed, according to the contract itself, as a result of the increase of
the overdraft to P165,000 as well as the additional guaranty given by
defendant, consisting of the assignment by way of guaranty of his rights in
his contracts of lease of the Edward J. Nell Company Building and of his
rights in the land occupied by the same building. Clause 3 of said contract
stipulated that the contract Exhibit C of April 26, 1928, was incorporated
therein and also constituted a guaranty of the payment of the overdraft as
increased to P165,000. In the light of these facts, it is evident that the
intention of the parties was neither to set aside the previous contracts nor to
substitute Exhibit D therefor.
In his second assignment of error the defendant contends that the court
should have held that the obligation contracted by him was with a term, and
the parties not having fixed the date of payment, the plaintiff should have
first brought an action to fix said date under article 1128 of the Civil Code
providing that, when it is to be inferred from the nature and circumstances of
the obligation that it was intended to grant the debtor time to pay, and the
term is not otherwise stated, the courts should fix the date of the maturity of
the obligation. The contract Exhibit D is a complement of the contracts
Exhibits B and C, hence, its language and the intention of the parties must
be interpreted in relation to and jointly with those of the latter under the
provisions of article 1285 of the same Code. It was expressly stipulated in
Exhibits B and C that the obligation contracted by the defendant shall expire
and be due upon demand of the plaintiff, and in view of the fact that the
latter deed was incorporated in Exhibit D as above stated and that the
defendant was required by the plaintiff to pay all his indebtedness, it is plain
that the obligation was without a term and that it became due and is
demandable. Wherefore, article 1128 of the Civil Code relied upon is not
applicable.
The subject of the third assignment of error is the ruling of the court that the
contracts evidenced by Exhibits B, C and D are one of mortgage and that
the plaintiff's action is for the foreclosure thereof. The defendant vigorously
argues that none of the three contracts is one of mortgage, but an
assignment of rights, because in none of said contracts did the parties
intend to constitute a mortgage. A careful examination of the documents
shows, in our opinion, that they were really mortgage contracts inasmuch as
they were executed to guarantee the principal obligations of the defendant,
consisting of the overdrafts of the indebtedness resulting therefrom. It
positively appears in each of them that the defendant assigned to the
plaintiff all his rights in the contracts of lease, in the land, and in the
insurance policy to guarantee his indebtedness resulting from the
overdrafts. An assignment to guarantee an obligation as in effect a
mortgage and not an absolute conveyance of title which confers ownership
on the assignee. (Title Guaranty & Surety Co. vs. Witmire 195 Fed., 41, 44;
Polhemus vs. Trainer, 30 Cal., 685; Campbell vs. Woodstock Iron Co., 83
Ala., 351; Dunham vs. Whitehead, 21 N. Y., 131; Woodward vs. Crump, 32
S. W., 195.) In Exhibits C and D it was stipulated, among other things, that if
the defendant should comply with all the conditions of the contracts and
should pay his indebtedness, together with interest at 9 per cent per annum,
the assignments would become null and void, otherwise they would remain
in full force. If the parties' intention as contended by the defendant were that
the assignments are absolute, and not by way of guaranty or mortgage, the
stipulation would not have been made because it would be inconsistent with
the will of the contracting parties. Wherefore, we hold that the third
assignment of error is untenable.
As a corollary of his theory that the contracts are absolute conveyances, the
defendant contends in his fourth and last assignment of error that his civil
liability has ceased and that he does not now owe the plaintiff anything. The
conclusions that we have reached in resolving the next preceding
assignment of error show that this last contention of the defendant is equally
untenable. The assignments he made not being absolute, and the plaintiff
having established that he has not paid his total overdraft, inasmuch as he
still owes the amount of money above stated, with interest, it is evident that
he is not yet relieved of his obligation.
Before closing, it is necessary to pass upon an aspect of the case which
substantially affects the rights of the defendant. Under the contracts, the
plaintiff was authorized to collect the rents of the two buildings during the
period, in turn, might be that fixed in the contract entered into between the
defendant and A. D. Gibbs. We use the conditional form because the
contracts of lease have not been put in evidence, hence, we cannot point
out the duration thereof with precision. On the other hand, the plaintiff
liquidated the account of the defendant up to January 4, 1934, only, and in
the appealed judgment it was decreed that the mortgaged rights be sold at
public auction should the defendant fail to pay his indebtedness within three
months. If the indebtedness has already been paid with the rents which the
plaintiff failed to account for, then there would be no ground to take this
step. If the indebtedness has not yet been fully paid, neither would it be
proper to sell any of the rights in the mortgage contracts of lease because
the latter have already matured according to the contract with Gibbs. For
this reason, it is necessary to provide for the one and the other case. As to
the insurance policy, nothing can be said about it as the appealed judgment
is silent thereon.
In view of the foregoing, we affirm the appealed judgment, except that part
ordering the public sale of the mortgaged rights, with costs to the defendant
and appellant. The plaintiff is ordered to account to the defendant for the
rents received from two buildings which have not been included in its
liquidation, Exhibit G-4, and within ten days from notice of this judgment by
the court of origin, it shall file a written liquidation showing the final state of
the account of the defendant. So ordered.
Avancea, C.J., Villa-Real, Abad Santos, Diaz, Laurel and Concepcion, JJ.,
concur.
of
the
Philippines
COURT
SECOND DIVISION
G.R. No. L-33157 June 29, 1982
BENITO
H.
LOPEZ,
petitioner,
vs.
THE COURT OF APPEALS and THE PHILIPPINE AMERICAN GENERAL
INSURANCE CO., INC., respondents.
GUERRERO, J.:
On June 2, 1959, petitioner Benito H. Lopez obtained a loan in the amount
of P20,000.00 from the Prudential Bank and Trust Company. On the same
date, he executed a promissory note for the same amount, in favor of the
said Bank, binding himself to repay the said sum one (1) year after the said
date, with interest at the rate of 10% per annum. In addition to said
promissory note, he executed Surety Bond No. 14164 in which he, as
principal, and Philippine American General Insurance Co., Inc.
(PHILAMGEN) as surety, bound themselves jointly and severally in favor of
Prudential Bank for the payment of the sum of P20,000.00.
On the same occasion, Lopez also executed in favor of Philamgen an
indemnity agreement whereby he agreed "to indemnify the Company and
keep it indemnified and hold the same harmless from and against any and
all damages, losses, costs, stamps, taxes, penalties, charges and expenses
of whatever kind and nature which the Company shall or may at any time
sustain or incur in consequence of having become surety upon the bond." 1
At the same time, Lopez executed a deed of assignment of 4,000 shares of
the Baguio Military Institution entitled "Stock Assignment Separate from
Certificate", which reads:
not pay the loan, Vice-President Abello and Pio Pedrosa of the Prudential
Bank would buy the shares of stocks and out of the proceeds thereof, the
loan would be paid to the Prudential Bank.
On June 2, 1960, Lopez' obligation matured without it being settled. Thus,
the Prudential Bank made demands for payment both upon Lopez and
Philamgen. In turn, Philamgen sent Lopez several written demands for the
latter to pay his note (Exhibit H, H-1 & H-2), but Lopez did not comply with
said demands. Hence, the Prudential Bank sometime in August, 1961 filed a
case against them to enforce payment on the promissory note plus interest.
Upon receipt of the copies of complaint, Atty. Sumawang confronted Emilio
Abello and Pio Pedrosa regarding their commitment to buy the shares of
stock of Lopez in the event that the latter failed to pay his obligations to the
Prudential Bank. Vice-President Abello then instructed Atty. Sumawang to
transfer the shares of stock to Philamgen and made a commitment that
thereafter he (Abello) and Pio Pedrosa will buy the shares of stock from it so
that the proceeds could be paid to the bank, and in the meantime
Philamgen will not pay the bank because it did not want payment under the
terms of the bank. 3
Due to said commitment and instruction of Vice-President Abello, Assistant
Treasurer Marcial C. Cruz requested the transfer of Stock Certificate No. 44
for 4,000 shares to Philamgen in a letter dated October 31, 1961. Stock
Certificate No. 44 in the name of Lopez was accordingly cancelled and in
lieu thereof Stock Certificate No. 171 was issued by the Baguio Military
Institute in the name of Philamgen on November 17, 1961.
The complaint was thereafter dismissed. But when no payment was still
made by the principal debtor or by the surety, the Prudential Bank filed on
November 8, 1963 another complaint for the recovery of the P20,000.00. On
November 18, 1963, after being informed of said complaint, Lopez
addressed the following letter to Philamgen:
Dear Mr. Sumawang:
This is with reference to yours of the 13th instant advising me of a
complaint filed against us by Prudential Bank & Trust Co.
regarding my loan of P20,000.00. In this connection, I would like
to know what happened to my shares of stocks of Baguio Military
assigned and transferred unto Philamgen the stocks involved "for and in
consideration of the obligations undertaken" by Philamgen "under the terms
and conditions of the surety bond executed by it in favor of the Prudential
Bank" and "for value received". On its face, it is neither pledge nor dation in
payment. The document speaks of an outright sale as there is a complete
and unconditional divestiture of the incorporeal property consisting of stocks
from Lopez to Philamgen. The transfer appears to have been an absolute
conveyance of the stocks to Philamgen whether or not Lopez defaults in the
payment of P20,000.00 to Prudential Bank. While it is a conveyance in
consideration of a contingent obligation, it is not itself a conditional
conveyance.
It is true that if Lopez should "well and truly perform and fulfill all the
undertakings, covenants, terms, conditions, and agreements stipulated" in
his promissory note to Prudential Bank, the obligation of Philamgen under
the surety bond would become null and void. Corollarily, the stock
assignment, which is predicated on the obligation of Philamgen under the
surety bond, would necessarily become null and void likewise, for want of
cause or consideration under Article 1352 of the New Civil Code. But this is
not the case here because aside from the obligations undertaken by
Philamgen under the surety bond, the stock assignment had other
considerations referred to therein as "value received". Hence, based on the
manifest terms thereof, it is an absolute transfer.
Notwithstanding the express terms of the "Stock Assignment Separate from
Certificate", however, We hold and rule that the transaction should not be
regarded as an absolute conveyance in view of the circumstances obtaining
at the time of the execution thereof.
It should be remembered that on June 2, 1959, the day Lopez obtained a
loan of P20,000.00 from Prudential Bank, Lopez executed a promissory
note for ?20,000.00, plus interest at the rate of ten (10%) per cent per
annum, in favor of said Bank. He likewise posted a surety bond to secure
his full and faithful performance of his obligation under the promissory note
with Philamgen as his surety. In return for the undertaking of Philamgen
under the surety bond, Lopez executed on the same day not only an
indemnity agreement but also a stock assignment.
The indemnity agreement and the stock assignment must be considered
together as related transactions because in order to judge the intention of
a different nature from the debt, whose value was neither intrinsic
nor apparent and was not agreed upon by the parties. 13
Petitioner's argument that even assuming, arguendo that the transaction
was at its inception a pledge, it gave way to a dation in payment when the
obligation secured came into existence and private respondent had the
stocks transferred to it in the corporate books and took a stock certificate in
its name, is without merit. The fact that the execution of the stock
assignment is accompanied by the delivery of the shares of stock, duly
endorsed in blank to Philamgen is no proof that the transaction is a dation in
payment. Likewise, the fact that Philamgen had the shares of stock
transferred to it in the books of the corporation and took a certificate in its
name in lieu of Lopez which was cancelled does not amount to conversion
of the stock to one's own use. The transfer of title to incorporeal property is
generally an essential part of the delivery of the same in pledge. It merely
constitutes evidence of the pledgee's right of property in the thing pledged.
By the contract of pledge, the pledgor does not part with his
general right of property in the collateral. The general property
therein remains in him, and only a special property vests in the
pledgee. The pledgee does not acquire an interest in the property,
except as a security for his debt. Thus, the pledgee holds
possession of the security subject to the rights of the pledgor; he
cannot acquire any interest therein that is adverse to the pledgor's
title. Moreover, even where the legal title to incorporeal property
which may be pledged is transferred to a pledgee as collateral
security, he takes only a special property therein Such transfer
merely performs the office that the delivery of possession does in
case of a pledge of corporeal property.
xxx xxx xxx
The pledgee has been considered as having a lien on the pledged
property. The extent of such lien is measured by the amount of
the debt or the obligation that is secured by the collateral, and the
lien continues to exist as long as the pledgee retains actual or
symbolic possession of the property, and the debt or obligation
remains unpaid. Payment of the debt extinguishes the lien.
novation; the third person who has assumed the obligation of the
debtor merely becomes a co-debtor or a surety. If there is no
agreement as to solidarity, the first and the new debtor are
considered obligated jointly. (8 Manresa 435, cited in Tolentino,
Commentaries and Jurisprudence on the Civil Code of the
Philippines, Vol. IV, p. 360)
In the case at bar, the undertaking of Messrs. Emilio Abello and Pio
Pedrosa that they would buy the shares of stock so that Philamgen could be
reimbursed from the proceeds that it paid to Prudential Bank does not
necessarily imply the extinguishment of the liability of petitioner Lopez.
Since it was not established nor shown that Lopez would be released from
responsibility, the same does not constitute novation and hence, Philamgen
may still enforce the obligation. As the Court of Appeals correctly held that
"(t)he representation of Mr. Abello to Atty. Sumawang that he and Mr.
Pedrosa would buy the stocks was a purely private arrangement between
them, not an agreement between (Philamgen) and (Lopez)" and which We
hereby affirm, petitioner's second assignment of error must be rejected.
In fine, We hold and rule that the transaction entered into by and between
petitioner and respondent under the Stock Assignment Separate From
Certificate in relation to the Surety Bond No. 14164 and the Indemnity
Agreement, all executed and dated June 2, 1959, constitutes a pledge of
the 40,000 shares of stock by the petitioner-pledgor in favor of the private
respondent-pledgee, and not a dacion en pago. It is also Our ruling that
upon the facts established, there was no novation of the obligation by
substitution of debtor.
The promise of Abello and Pedrosa to buy the shares from private
respondent not having materialized (which promise was given to said
respondent only and not to petitioner) and no action was taken against the
two by said respondent who chose instead to sue the petitioner on the
Indemnity Agreement, it is quite clear that this respondent has abandoned
its right and interest over the pledged properties and must, therefore,
release or return the same to the petitioner-pledgor upon the latter's
satisfaction of his obligation under the Indemnity Agreement.
It must also be made clear that there is no double payment nor unjust
enrichment in this case because We have ruled that the shares of stock
were merely pledged. As the Court of Appeals said:
of
the
Philippines
COURT
THIRD DIVISION
G.R. No. L-53955 January 13, 1989
THE
MANILA
BANKING
CORPORATION,
plaintiff-appellee,
vs.
ANASTACIO TEODORO, JR. and GRACE ANNA TEODORO, defendantsappellants.
Formoso & Quimbo Law Office for plaintiff-appellee.
Serafin P. Rivera for defendants-appellants.
BIDIN, J.:
This is an appeal from the decision* of the Court of First Instance of Manila,
Branch XVII in Civil Case No. 78178 for collection of sum of money based
on promissory notes executed by the defendants-appellants in favor of
plaintiff-appellee bank. The dispositive portion of the appealed decision
(Record on Appeal, p. 33) reads as follows:
WHEREFORE judgment is hereby rendered (a) sentencing
defendants, Anastacio Teodoro, Jr. and Grace Anna Teodoro
jointly and severally, to pay plaintiff the sum of P15,037.11 plus
12% interest per annum from September 30, 1969 until fully paid,
in payment of Promissory Notes No. 11487, plus the sum of
P1,000.00 as attorney's fees; and (b) sentencing defendant
Anastacio Teodoro, Jr. to pay plaintiff the sum of P8,934.74, plus
interest at 12% per annum from September 30, 1969 until fully
paid, in payment of Promissory Notes Nos. 11515 and 11699,
plus the sum of P500.00 an attorney's fees.
With Costs against defendants.
The facts of the case as found by the trial court are as follows:
On April 25, 1966, defendants, together with Anastacio Teodoro,
Sr., jointly and severally, executed in favor of plaintiff a
Promissory Note (No. 11487) for the sum of P10,420.00 payable
in 120 days, or on August 25, 1966, at 12% interest per annum.
Defendants failed to pay the said amount inspire of repeated
demands and the obligation as of September 30, 1969 stood at P
15,137.11 including accrued interest and service charge.
On May 3, 1966 and June 20, 1966, defendants Anastacio
Teodoro, Sr. (Father) and Anastacio Teodoro, Jr. (Son) executed
in favor of plaintiff two Promissory Notes (Nos. 11515 and 11699)
for P8,000.00 and P1,000.00 respectively, payable in 120 days at
12% interest per annum. Father and Son made a partial payment
on the May 3, 1966 promissory Note but none on the June 20,
1966 Promissory Note, leaving still an unpaid balance of
P8,934.74 as of September 30, 1969 including accrued interest
and service charge.
The three Promissory Notes stipulated that any interest due if not
paid at the end of every month shall be added to the total amount
then due, the whole amount to bear interest at the rate of 12% per
annum until fully paid; and in case of collection through an
attorney-at-law, the makers shall, jointly and severally, pay 10%
of the amount over-due as attorney's fees, which in no case shall
be leas than P200.00.
It appears that on January 24, 1964, the Son executed in favor of
plaintiff a Deed of Assignment of Receivables from the
Emergency Employment Administration in the sum of P44,635.00.
The Deed of Assignment provided that it was for and in
consideration of certain credits, loans, overdrafts and other credit
accommodations extended to defendants as security for the
payment of said sum and the interest thereon, and that
defendants do hereby remise, release and quitclaim all its rights,
title, and interest in and to the accounts receivables. Further.
(1) The title and right of possession to said accounts
receivable is to remain in the assignee, and it shall
have the right to collect the same from the debtor, and
whatsoever the Assignor does in connection with the
collection of said accounts, it agrees to do as agent and
representative of the Assignee and in trust for said
Assignee ;
xxx xxx xxx
(6) The Assignor guarantees the existence and legality
of said accounts receivable, and the due and punctual
payment thereof unto the assignee, ... on demand, ...
and further, that Assignor warrants the solvency and
credit worthiness of each and every account.
(7) The Assignor does hereby guarantee the payment
when due on all sums payable under the contracts
giving rise to the accounts receivable ... including
reasonable attorney's fees in enforcing any rights
against the debtors of the assigned accounts receivable
and will pay upon demand, the entire unpaid balance of
said contract in the event of non-payment by the said
debtors of any monthly sum at its due date or of any
other default by said debtors;
xxx xxx xxx
(9) ... This Assignment shall also stand as a continuing
guarantee for any and all whatsoever there is or in the
future there will be justly owing from the Assignor to the
Assignee ...
In their stipulations of Fact, it is admitted by the parties that
plaintiff extended loans to defendants on the basis and by reason
of certain contracts entered into by the defunct Emergency
Employment Administration (EEA) with defendants for the
fabrication of fishing boats, and that the Philippine Fisheries
Commission succeeded the EEA after its abolition; that nonpayment of the notes was due to the failure of the Commission to
pay defendants after the latter had complied with their contractual
supplied
by
... that the title and right of possession to said account receivable
is to remain in said assignee and it shall have the right to collect
directly from the debtor, and whatever the Assignor does in
connection with the collection of said accounts, it agrees to do so
as agent and representative of the Assignee and it trust for said
Assignee ...(Ibid. par. 2 of Deed of Assignment).' (Record on
Appeal, p. 27)
The character of the transactions between the parties is not, however,
determined by the language used in the document but by their intention.
Thus, the Court, quoting from the American Jurisprudence (68 2d, Secured
Transaction, Section 50) said:
The characters of the transaction between the parties is to be
determined by their intention, regardless of what language was
used or what the form of the transfer was. If it was intended to
secure the payment of money, it must be construed as a pledge.
However, even though a transfer, if regarded by itself, appellate to
have been absolute, its object and character might still be
qualified and explained by a contemporaneous writing declaring it
to have been a deposit of the property as collateral security. It has
been Id that a transfer of property by the debtor to a creditor, even
if sufficient on its farm to make an absolute conveyance, should
be treated as a pledge if the debt continues in existence and is
not discharged by the transfer, and that accordingly, the use of
the terms ordinarily exporting conveyance, of absolute ownership
will not be given that effect in such a transaction if they are also
commonly used in pledges and mortgages and therefore do not
unqualifiedly indicate a transfer of absolute ownership, in the
absence of clear and ambiguous language or other circumstances
excluding an intent to pledge. (Lopez v. Court of Appeals, 114
SCRA 671 [1982]).
Definitely, the assignment of the receivables did not result from a sale
transaction. It cannot be said to have been constituted by virtue of a dation
in payment for appellants' loans with the bank evidenced by promissory
note Nos. 11487, 11515 and 11699 which are the subject of the suit for
collection in Civil Case No. 78178. At the time the deed of assignment was
executed, said loans were non-existent yet. The deed of assignment was
executed on January 24, 1964 (Exh. "G"), while promissory note No. 11487
is dated April 25, 1966 (Exh. 'A), promissory note 11515, dated May 3, 1966
(Exh. 'B'), promissory note 11699, on June 20, 1966 (Exh. "C"). At most, it
was a dation in payment for P10,000.00, the amount of credit from appellee
bank indicated in the deed of assignment. At the time the assignment was
executed, there was no obligation to be extinguished except the amount of
P10,000.00. Moreover, in order that an obligation may be extinguished by
another which substitutes the same, it is imperative that it be so declared in
unequivocal terms, or that the old and the new obligations be on every point
incompatible with each other (Article 1292, New Civil Code).
Obviously, the deed of assignment was intended as collateral security for
the bank loans of appellants, as a continuing guaranty for whatever sums
would be owing by defendants to plaintiff, as stated in stipulation No. 9 of
the deed.
In case of doubt as to whether a transaction is a pledge or a dation in
payment, the presumption is in favor of pledge, the latter being the lesser
transmission of rights and interests (Lopez v. Court of Appeals, supra).
In one case, the assignments of rights, title and interest of the defendant in
the contracts of lease of two buildings as well as her rights, title and interest
in the land on which the buildings were constructed to secure an overdraft
from a bank amounting to P110,000.00 which was increased to
P150,000.00, then to P165,000.00 was considered by the Court to be
documents of mortgage contracts inasmuch as they were executed to
guarantee the principal obligations of the defendant consisting of the
overdrafts or the indebtedness resulting therefrom. The Court ruled that an
assignment to guarantee an obligation is in effect a mortgage and not an
absolute conveyance of title which confers ownership on the assignee
(People's Bank & Trust Co. v. Odom, 64 Phil. 126 [1937]).
II
As to whether or not appellee bank must have to exhaust all legal remedies
against the Philippine Fisheries Commission before it can proceed against
appellants for collection of loans under their promissory notes, must also be
answered in the negative.
The obligation of appellants under the promissory notes not having been
released by the assignment of receivables, appellants remain as the
principal debtors of appellee bank rather than mere guarantors. The deed of
assignment merely guarantees said obligations. That the guarantor cannot
be compelled to pay the creditor unless the latter has exhausted all the
property of the debtor, and has resorted to all the legal remedies against the
debtor, under Article 2058 of the New Civil Code does not therefore apply to
them. It is of course of the essence of a contract of pledge or mortgage that
when the principal obligation becomes due, the things in which the pledge
or mortgage consists may be alienated for the payment to the creditor
(Article 2087, New Civil Code). In the instant case, appellants are both the
principal debtors and the pledgors or mortgagors. Resort to one is,
therefore, resort to the other.
Appellee bank did try to collect on the pledged receivables. As the
Emergency Employment Agency (EEA) which issued the receivables had
been abolished, the collection had to be coursed through the Office of the
President which disapproved the same (Record on Appeal, p. 16). The
receivable became virtually worthless leaving appellants' loans from
appellee bank unsecured. It is but proper that after their repeated demands
made on appellants for the settlement of their obligations, appellee bank
should proceed against appellants. It would be an exercise in futility to
proceed against a defunct office for the collection of the receivables
pledged.
WHEREFORE, the appeal is Dismissed for lack of merit and the appealed
decision of the trial court is affirmed in toto.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr. and Cortes, JJ., concur.
Separate Opinions
FELICIANO, J., concurring:
I quite agree with the general reasoning of and the results reached by my
distinguished brother Bidin in respect of both of the principal issues he
addressed in his opinion.
I would merely wish to add a few lines in respect of the point made by Bidin,
J., that "the character of the transactions between the parties is not,
however, determined by the language used in the document but by their
intention.' This statement is basically not exceptionable, so far as it goes. It
might, however, be borne in mind that the intent of the parties to the
transaction is to be determined in the first instance, by the very language
which they use. The deed of assignment contains language which suggest
that the parties intended to effect a complete alienation of title to and rights
over the receivables which are the subject of the assignment. This language
is comprised of works like "remise," "release and quitclaim" and clauses like
"the title and right of possession to said accounts receivable is to remain in
said assignee" who "shall have the right to collect directly from the debtor."
The same intent is also suggested by the use of the words "agent and
representative of the assignee" in reffering to the assignor.
The point that appears to me to be worth making is that although in its form,
the deed of assignment of receivables partakes of the nature of a complete
alienation of the receivables assigned, such form should be taken in
conjunction with, and indeed must be qualified and controlled by, other
language showing an intent of the parties that title to the receivables shall
pass to the assignee for the limited purpose of securing another, principal;
obligation owed by the assignor to the assignee. Title moves from assignor
to asignee but that title is defeasible being designed to collateralize the
principal obligation. Operationally, what this means is that the assignee is
burdened with an obligation of taking the proceeds of the receivables
assigned and applying such proceeds to the satisfaction of the principal
obligation and returning any balance remaining thereafter to the assignor.
The parties gave the deed of assignment the form of an absolute
conveyance of title over the receivables assigned, essentially for the
convenience of the assignee. Without such formally unlimited conveyance
of title, the assignee would have to treat the deed of assignment as no more
than a deed of pledge or of chattel mortgage. In other words, in such
hypothetical case, should the assignee seek to realize upon the security
given to him through the deed of assignment (which would then have to
comply with the documentation and registration requirements of a pledge or
chattel mortgage), the assignee would have to foreclose upon the securities
or credits assigned and place them on public sale and there acquire the
same. It should be recalled that under the principle which forbids a pactum
of
the
Philippines
COURT
SECOND DIVISION
G.R. No. L-60705 June 28, 1989
INTEGRATED REALTY CORPORATION and RAUL L. SANTOS,
petitioners,
vs.
PHILIPPINE NATIONAL BANK, OVERSEAS BANK OF MANILA and THE
HON. COURT OF APPEALS, respondents.
G.R. No. L-60907 June 28, 1989
OVERSEAS
BANK
OF
MANILA,
petitioner,
vs.
COURT OF APPEALS, INTEGRATED REALTY CORPORATION, and
RAUL L. SANTOS, respondents.
REGALADO, J.:
In these petitions for review on certiorari, Integrated Realty Corporation and
Raul Santos (G.R. No. 60705), and Overseas Bank of Manila (G.R. No.
60907) appeal from the decision of the Court of Appeals, 1 the decretal
portion of which states:
WHEREFORE, with the modification that appellee Overseas Bank
of Manila is ordered to pay to the appellant Raul Santos the sum
of P 700,000.00 due under the time deposit certificates Nos. 2308
and 2367 with 6 1/2 (sic) interest per annum from date of issue
until fully paid, the appealed decision is affirmed in all other
respects.
The defendant OBM after the due dates of the time deposit
certificates, did not pay plaintiff PNB. Plaintiff demanded payment
from defendants IRC and Raul L. Santos (Exhibit K) and from
defendant OBM (Exhibit L). Defendants IRC and Raul L. Santos
replied that the obligation (loan) of defendant IRC was deemed
paid with the irrevocable assignment of the time deposit
certificates (Exhibits 5 Santos, 6 Santos and 7 Santos).
On April 6, 1969 (sic), ** PNB filed a complaint to collect from IRC
and Santos the loan of P 700,000.00 with interest as well as
attomey's fees. It impleaded OBM as a defendant to compel it to
redeem and pay to it Santos' time deposit certificates with
interest, plus exemplary and corrective damages, attorney's fees,
and cost.
In their answer to the complaint, IRC and Santos alleged that
PNB has no cause of action against them because their obligation
to PNB was fully paid or extinguished upon the' irrevocable'
assignment of the time deposit certificates, and that they are not
answerable for the insolvency of OBM They filed a counterclaim
for damages against PNB and a cross-claim against OBM
alleging that OBM acted fraudulently in refusing to pay the time
deposit certificates to PNB resulting in the filing of the suit against
them by PNB, and that, therefore, OBM should pay them
whatever amount they may be ordered by the court to pay PNB
with interest. They also asked that OBM be ordered to pay them
compensatory, moral, exemplary and corrective damages.
In its answer to the complaint, OBM denied knowledge of the time
deposit certificates because the alleged time deposit of Santos
'does not appear in its books of account.
Whereupon, IRC and Santos, with leave of court, filed a thirdparty complaint against Emerito B. Ramos, Jr., president of OBM
and Rodolfo R. Sunico, treasurer of said bank, who allegedly
received the time deposits of Santos and issued the certificates
therefor.
Answering the third-party complaint, Ramos and Sunico alleged
that IRC and Santos have no cause of action against them
that it may sell the same and apply the proceeds thereof in payment of the
loan to the bank. However, when no payment was still made by the principal
debtor or surety, the bank filed a complaint which compelled Philamgen to
pay the bank. Thereafter, Philamgen filed an action to recover the amount of
the loan against Lopez. The trial court therein held that the obligation of
Lopez was deemed paid when his shares of stocks were transferred in the
name of Philamgen. On appeal, the Court of Appeals ruled that Lopez was
still liable to Philamgen because, pending payment, Philamgen was merely
holding the stock as security for the payment of Lopez' obligation.
In upholding the finding therein of the Court of Appeals, We held
that:
Notwithstanding the express terms of the 'Stock Assignment
Separate from Certificate', however, We hold and rule that the
transaction should not be regarded as an absolute conveyance in
view of the circumstances obtaining at the time of the execution
thereof.
It should be remembered that on June 2, 1959, the day Lopez
obtained a loan of P 20,000.00 from Prudential Bank, Lopez
executed a promissory note for P 20,000.00, plus interest at the
rate of ten (10%) per cent per annum, in favor of said Bank. He
likewise posted a surety bond to secure his full and faithful
performance of his obligation under the promissory note with
Philamgen as his surety. In return for the undertaking of
Philamgen under the surety bond, Lopez executed on the same
day not only an indemnity agreement but also a stock
assignment.
The indemnity agreement and stock assignment must be
considered together as related transactions because in order to
judge the intention of the contracting parties, their
contemporaneous and subsequent acts shall be principally
considered. (Article 1371, New Civil Code). Thus, considering that
the indemnity agreement connotes a continuing obligation of
Lopez towards Philamgen while the stock assignment indicates a
complete discharge of the same obligation, the existence of the
indemnity agreement whereby Lopez had to pay a premium of P
l,000.00 for a period of one year and agreed at all times to
damages. 19 OBM contends that it had agreed to pay interest only up to the
dates of maturity of the certificates of time deposit and that respondent
Santos is not entitled to interest after the maturity dates had expired, unless
the contracts are renewed. This is true with respect to the stipulated
interest, but the obligations consisting as they did in the payment of money,
under Article 1108 of the Civil Code he has the right to recover damages
resulting from the default of OBM and the measure of such damages is
interest at the legal rate of six percent (6%) per annum on the amounts due
and unpaid at the expiration of the periods respectively provided in the
contracts. In fine, OBM is being required to pay such interest, not as interest
income stipulated in the certificates of time deposit, but as damages for
failure and delay in the payment of its obligations which thereby compelled
IRC and Santos to resort to the courts.
The applicable rule is that legal interest, in the nature of damages for noncompliance with an obligation to pay a sum of money, is recoverable from
the date judicial or extra-judicial demand is made, 20 Which latter mode of
demand was made by PNB, after the maturity of the certificates of time
deposit, on March 1, 1968. 21 The measure of such damages, there being
no stipulation to the contrary, shall be the payment of the interest agreed
upon in the certificates of deposit 22 Which is six and onehalf percent (61/2%). Such interest due or accrued shall further earn legal interest from the
time of judicial demand. 23
We reject the proposition of IRC and Santos that OBM should reimburse
them the entire amount they may be adjudged to pay PNB. It must be noted
that their liability to pay the various interests of nine percent (9%) on the
principal obligation, one and one-half percent (1-1/2%) additional interest
and one percent (1%) penalty interest is an offshoot of their failure to pay
under the terms of the two promissory notes executed in favor of PNB. OBM
was never a party to Id promissory notes. There is, therefore, no privity of
contract between OBM and PNB which will justify the imposition of the
aforesaid interests upon OBM whose liability should be strictly confined to
and within the provisions of the certificates of time deposit involved in this
case. In fact, as noted by respondent court, when OBM assigned as error
that portion of the judgment of the court a quo requiring OBM to make the
disputed reimbursement, IRC and Santos did not dispute that objection of
OBM Besides, IRC and Santos are not without fault. They likewise acted in
bad faith when they refuse to comply with their obligations under the
of
the
Philippines
COURT
FIRST DIVISION
G.R. No. L-78519 September 26, 1989
VICTORIA YAU CHU, assisted by her husband MICHAEL CHU, petitioners,
vs.
HON. COURT OF APPEALS, FAMILY SAVINGS BANK and/or CAMS
TRADING ENTERPRISES, INC., respondents.
Francisco A. Lara, Jr. for petitioner.
D. T. Ramos and Associates for respondent Family Savings Bank.
Romulo T. Santos for respondent CAMS Trading.
GRINO-AQUINO, J.:
This is a petition for review on certiorari to annul and set aside the Court of
Appeals' decision dated October 28, 1986 in CA-G.R. CV No. 03269 which
affirmed the decision of the trial court in favor of the private respondents in
an action to recover the petitioners' time deposits in the respondent Family
Savings Bank.
Since 1980, the petitioner, Victoria Yau Chu, had been purchasing cement
on credit from CAMS Trading Enterprises, Inc. (hereafter "CAMS Trading"
for brevity). To guaranty payment for her cement withdrawals, she executed
in favor of Cams Trading deeds of assignment of her time deposits in the
total sum of P320,000 in the Family Savings Bank (hereafter the Bank).
Except for the serial numbers and the dates of the time deposit certificates,
the deeds of assignment, which were prepared by her own lawyer, uniformly
provided
obligation, did not have to be followed. All that had to be done to convert the
pledgor's time deposit certificates into cash was to present them to the bank
for encashment after due notice to the debtor.
The encashment of the deposit certificates was not a pacto commissorio
which is prohibited under Art. 2088 of the Civil Code. A pacto commissorio
is a provision for the automatic appropriation of the pledged or mortgaged
property by the creditor in payment of the loan upon its maturity. The
prohibition against a pacto commissorio is intended to protect the obligor,
pledgor, or mortgagor against being overreached by his creditor who holds
a pledge or mortgage over property whose value is much more than the
debt. Where, as in this case, the security for the debt is also money
deposited in a bank, the amount of which is even less than the debt, it was
not illegal for the creditor to encash the time deposit certificates to pay the
debtors' overdue obligation, with the latter's consent.
Whether the debt had already been paid as now alleged by the debtor, is a
factual question which the Court of Appeals found not to have been proven
for the evidence which the debtor sought to present on appeal, were
receipts for payments made prior to July 18, 1980. Since the petitioner
signed on July 18, 1980 a letter admitting her indebtedness to be in the sum
of P404,500, and there is no proof of payment made by her thereafter to
reduce or extinguish her debt, the application of her time deposits, which
she had assigned to the creditor to secure the payment of her debt, was
proper. The Court of Appeals did not commit a reversible error in holding
that it was so.
WHEREFORE, the petition for review is denied. Costs against the appellant.
SO ORDERED.
of
the
Philippines
COURT
SECOND DIVISION
REGALADO, J.:
This petition for review on certiorari impugns and seeks the reversal of the
decision promulgated by respondent court on March 8, 1991 in CA-G.R. CV
No. 23615 1 affirming with modifications, the earlier decision of the Regional
Trial Court of Manila, Branch XLII, 2 which dismissed the complaint filed
therein by herein petitioner against respondent bank.
The undisputed background of this case, as found by the court a quo and
adopted by respondent court, appears of record:
1. On various dates, defendant, a commercial banking institution,
through its Sucat Branch issued 280 certificates of time deposit
(CTDs) in favor of one Angel dela Cruz who deposited with herein
defendant the aggregate amount of P1,120,000.00, as follows:
(Joint Partial Stipulation of Facts and Statement of Issues,
Original Records, p. 207; Defendant's Exhibits 1 to 280);
CTD
Dates Serial Nos. Quantity Amount
22
Feb.
82
26
Feb.
82
2
Mar.
82
4
Mar.
82
5
Mar.
82
5
Mar.
82
5
Mar.
82
8
Mar.
82
9
Mar.
82
9
Mar.
82
9
Mar.
82
Total
===== ========
90101
74602
74701
90127
74797
89965
70147
90001
90023
89991
90251
280
to
to
to
to
to
to
to
to
to
to
to
CTD
90120
74691
74740
90146
94800
89986
90150
90020
90050
90000
90272
20
90
40
20
4
22
4
20
28
10
22
P80,000
360,000
160,000
80,000
16,000
88,000
16,000
80,000
112,000
40,000
88,000
P1,120,000
TRUST
Ave.,
Makati
Manila,
OFFICEP
OF
BANK
COMPANY
No.
90101
Philippines
4,000.00
DEPOSIT
AUTHORIZED SIGNATURES 5
Respondent court ruled that the CTDs in question are non-negotiable
instruments, nationalizing as follows:
. . . While it may be true that the word "bearer" appears rather
boldly in the CTDs issued, it is important to note that after the
word "BEARER" stamped on the space provided supposedly for
the name of the depositor, the words "has deposited" a certain
amount follows. The document further provides that the amount
deposited shall be "repayable to said depositor" on the period
indicated. Therefore, the text of the instrument(s) themselves
manifest with clarity that they are payable, not to whoever
purports to be the "bearer" but only to the specified person
indicated therein, the depositor. In effect, the appellee bank
acknowledges its depositor Angel dela Cruz as the person who
made the deposit and further engages itself to pay said depositor
the amount indicated thereon at the stipulated date. 6
We disagree with these findings and conclusions, and hereby hold that the
CTDs in question are negotiable instruments. Section 1 Act No. 2031,
otherwise known as the Negotiable Instruments Law, enumerates the
requisites for an instrument to become negotiable, viz:
(a) It must be in writing and signed by the maker or drawer;
(b) Must contain an unconditional promise or order to pay a sum
certain in money;
(c) Must be payable on demand, or at a fixed or determinable
future time;
(d) Must be payable to order or to bearer; and
(e) Where the instrument is addressed to a drawee, he must be
named or otherwise indicated therein with reasonable certainty.
The CTDs in question undoubtedly meet the requirements of the law for
negotiability. The parties' bone of contention is with regard to requisite (d)
set forth above. It is noted that Mr. Timoteo P. Tiangco, Security Bank's
Branch Manager way back in 1982, testified in open court that the depositor
reffered to in the CTDs is no other than Mr. Angel de la Cruz.
xxx xxx xxx
Atty. Calida:
q In other words Mr. Witness, you are saying that per
books of the bank, the depositor referred (sic) in these
certificates states that it was Angel dela Cruz?
witness:
a Yes, your Honor, and we have the record to show that
Angel dela Cruz was the one who cause (sic) the
amount.
Atty. Calida:
q And no other person or entity or company, Mr.
Witness?
witness:
a None, your Honor. 7
xxx xxx xxx
Atty. Calida:
q Mr. Witness, who is the depositor identified in all of
these certificates of time deposit insofar as the bank is
concerned?
witness:
a Angel dela Cruz is the depositor. 8
xxx xxx xxx
The next query is whether petitioner can rightfully recover on the CTDs. This
time, the answer is in the negative. The records reveal that Angel de la
Cruz, whom petitioner chose not to implead in this suit for reasons of its
own, delivered the CTDs amounting to P1,120,000.00 to petitioner without
informing respondent bank thereof at any time. Unfortunately for petitioner,
although the CTDs are bearer instruments, a valid negotiation thereof for
the true purpose and agreement between it and De la Cruz, as ultimately
ascertained, requires both delivery and indorsement. For, although
petitioner seeks to deflect this fact, the CTDs were in reality delivered to it
as a security for De la Cruz' purchases of its fuel products. Any doubt as to
whether the CTDs were delivered as payment for the fuel products or as a
security has been dissipated and resolved in favor of the latter by
petitioner's own authorized and responsible representative himself.
In a letter dated November 26, 1982 addressed to respondent Security
Bank, J.Q. Aranas, Jr., Caltex Credit Manager, wrote: ". . . These
certificates of deposit were negotiated to us by Mr. Angel dela Cruz to
guarantee his purchases of fuel products" (Emphasis ours.) 13 This
admission is conclusive upon petitioner, its protestations notwithstanding.
Under the doctrine of estoppel, an admission or representation is rendered
conclusive upon the person making it, and cannot be denied or disproved as
against the person relying thereon. 14 A party may not go back on his own
acts and representations to the prejudice of the other party who relied upon
them. 15 In the law of evidence, whenever a party has, by his own
declaration, act, or omission, intentionally and deliberately led another to
believe a particular thing true, and to act upon such belief, he cannot, in any
litigation arising out of such declaration, act, or omission, be permitted to
falsify it. 16
If it were true that the CTDs were delivered as payment and not as security,
petitioner's credit manager could have easily said so, instead of using the
words "to guarantee" in the letter aforequoted. Besides, when respondent
bank, as defendant in the court below, moved for a bill of particularity
therein 17 praying, among others, that petitioner, as plaintiff, be required to
aver with sufficient definiteness or particularity (a) the due date or dates of
payment of the alleged indebtedness of Angel de la Cruz to plaintiff and (b)
whether or not it issued a receipt showing that the CTDs were delivered to it
by De la Cruz as payment of the latter's alleged indebtedness to it, plaintiff
corporation opposed the motion. 18 Had it produced the receipt prayed for, it
could have proved, if such truly was the fact, that the CTDs were delivered
as payment and not as security. Having opposed the motion, petitioner now
labors under the presumption that evidence willfully suppressed would be
adverse if produced. 19
Under the foregoing circumstances, this disquisition in Intergrated Realty
Corporation, et al. vs. Philippine National Bank, et al. 20 is apropos:
. . . Adverting again to the Court's pronouncements in Lopez,
supra, we quote therefrom:
The character of the transaction between the parties is
to be determined by their intention, regardless of what
language was used or what the form of the transfer
was. If it was intended to secure the payment of money,
it must be construed as a pledge; but if there was some
other intention, it is not a pledge. However, even though
a transfer, if regarded by itself, appears to have been
absolute, its object and character might still be qualified
and explained by contemporaneous writing declaring it
to have been a deposit of the property as collateral
security. It has been said that a transfer of property by
the debtor to a creditor, even if sufficient on its face to
make an absolute conveyance, should be treated as a
pledge if the debt continues in inexistence and is not
discharged by the transfer, and that accordingly the use
of the terms ordinarily importing conveyance of
absolute ownership will not be given that effect in such
a transaction if they are also commonly used in pledges
and mortgages and therefore do not unqualifiedly
indicate a transfer of absolute ownership, in the
absence of clear and unambiguous language or other
circumstances excluding an intent to pledge.
Petitioner's insistence that the CTDs were negotiated to it begs the
question. Under the Negotiable Instruments Law, an instrument is
negotiated when it is transferred from one person to another in such a
manner as to constitute the transferee the holder thereof, 21 and a holder
may be the payee or indorsee of a bill or note, who is in possession of it, or
the bearer thereof. 22 In the present case, however, there was no
negotiation in the sense of a transfer of the legal title to the CTDs in favor of
petitioner in which situation, for obvious reasons, mere delivery of the
bearer CTDs would have sufficed. Here, the delivery thereof only as security
for the purchases of Angel de la Cruz (and we even disregard the fact that
the amount involved was not disclosed) could at the most constitute
petitioner only as a holder for value by reason of his lien. Accordingly, a
negotiation for such purpose cannot be effected by mere delivery of the
instrument since, necessarily, the terms thereof and the subsequent
disposition of such security, in the event of non-payment of the principal
obligation, must be contractually provided for.
The pertinent law on this point is that where the holder has a lien on the
instrument arising from contract, he is deemed a holder for value to the
extent of his lien. 23 As such holder of collateral security, he would be a
pledgee but the requirements therefor and the effects thereof, not being
provided for by the Negotiable Instruments Law, shall be governed by the
Civil Code provisions on pledge of incorporeal rights, 24 which inceptively
provide:
Art. 2095. Incorporeal rights, evidenced by negotiable
instruments, . . . may also be pledged. The instrument proving the
right pledged shall be delivered to the creditor, and if negotiable,
must be indorsed.
Art. 2096. A pledge shall not take effect against third persons if a
description of the thing pledged and the date of the pledge do not
appear in a public instrument.
Aside from the fact that the CTDs were only delivered but not indorsed, the
factual findings of respondent court quoted at the start of this opinion show
that petitioner failed to produce any document evidencing any contract of
pledge or guarantee agreement between it and Angel de la Cruz. 25
Consequently, the mere delivery of the CTDs did not legally vest in
petitioner any right effective against and binding upon respondent bank. The
requirement under Article 2096 aforementioned is not a mere rule of
adjective law prescribing the mode whereby proof may be made of the date
of a pledge contract, but a rule of substantive law prescribing a condition
without which the execution of a pledge contract cannot affect third persons
adversely. 26
On the other hand, the assignment of the CTDs made by Angel de la Cruz
in favor of respondent bank was embodied in a public instrument. 27 With
regard to this other mode of transfer, the Civil Code specifically declares:
Art. 1625. An assignment of credit, right or action shall produce
no effect as against third persons, unless it appears in a public
instrument, or the instrument is recorded in the Registry of
Property in case the assignment involves real property.
Respondent bank duly complied with this statutory requirement. Contrarily,
petitioner, whether as purchaser, assignee or lien holder of the CTDs,
neither proved the amount of its credit or the extent of its lien nor the
execution of any public instrument which could affect or bind private
respondent. Necessarily, therefore, as between petitioner and respondent
bank, the latter has definitely the better right over the CTDs in question.
Finally, petitioner faults respondent court for refusing to delve into the
question of whether or not private respondent observed the requirements of
the law in the case of lost negotiable instruments and the issuance of
replacement certificates therefor, on the ground that petitioner failed to
raised that issue in the lower court. 28
On this matter, we uphold respondent court's finding that the aspect of
alleged negligence of private respondent was not included in the stipulation
of the parties and in the statement of issues submitted by them to the trial
court. 29 The issues agreed upon by them for resolution in this case are:
1. Whether or not the CTDs as worded are negotiable
instruments.
2. Whether or not defendant could legally apply the amount
covered by the CTDs against the depositor's loan by virtue of the
assignment (Annex "C").
3. Whether or not there was legal compensation or set off
involving the amount covered by the CTDs and the depositor's
outstanding account with defendant, if any.
4. Whether or not plaintiff could compel defendant to preterminate
the CTDs before the maturity date provided therein.
Still, even assuming arguendo that said issue of negligence was raised in
the court below, petitioner still cannot have the odds in its favor. A close
scrutiny of the provisions of the Code of Commerce laying down the rules to
be followed in case of lost instruments payable to bearer, which it invokes,
will reveal that said provisions, even assuming their applicability to the
CTDs in the case at bar, are merely permissive and not mandatory. The
very first article cited by petitioner speaks for itself.
PADILLA, J.:
In this special civil action for Certiorari, the interpretation by the Department
of Justice of the penal provision of PD 115, the Trust Receipts Law, is
assailed by petitioner.
The relevant facts are as follows:
On 23 January 1981, Philippine Blooming Mills (PBM, for short) thru its duly
authorized officer, private respondent Alfredo Ching, applied for the
issuance of commercial letters of credit with petitioner's Makati branch to
finance the purchase of 500 M/T Magtar Branch Dolomites and one (1) Lot
High Fired Refractory Sliding Nozzle Bricks.
Petitioner issued an irrevocable letter of credit in favor of Nikko Industry Co.,
Ltd. (Nikko) by virtue of which the latter drew four (4) drafts which were
accepted by PBM and duly honored and paid by the petitioner bank.:- nad
To secure payment of the amount covered by the drafts, and in
consideration of the transfer by petitioner of the possession of the goods to
PBM, the latter as entrustee, thru private respondent, executed four (4)
Trust Receipt Agreements with maturity dates on 19 May, 3 and 24 June
1981 acknowledging petitioner's ownership of the goods and its (PBM'S)
obligation to turn over the proceeds of the sale of the goods, if sold, or to
return the same, if unsold within the stated period.
Out of the said obligation resulted an overdue amount of P1,475,274.09.
Despite repeated demands, PBM failed and refused to either turn over the
proceeds of the sale of the goods or to return the same.
On 7 September 1984, petitioner filed a criminal complaint against private
respondent for violation of PD 115 before the office of the Provincial Fiscal
of Rizal. After preliminary investigation wherein private respondent failed to
appear or submit a counter-affidavit and even refused to receive the
subpoena, the Fiscal found a prima facie case for violation of PD 115 on
four (4) counts and filed the corresponding information in court.
Private respondent appealed the Fiscal's resolution to the Department of
Justice on three (3) grounds:
1. Lack of proper preliminary investigation;
2. The Provincial Fiscal of Rizal did not have jurisdiction over the case, as
respondent's obligation was purely civil;
3. There had been a novation of the obligation by the substitution of the
person of the Rehabilitation Receivers in place of both PBM and private
respondent Ching.
Then Secretary of Justice (now Senator) Neptali A. Gonzales, in a 24
September 1986 letter/resolution, 1 held:
"Your contention that respondent's obligation was purely a civil one, is
without any merit. The four (4) Trust Receipt Agreements entered into by
respondent and complainant appear regular in form and in substance. Their
agreement regarding interest, not being contrary to law, public policy or
morals, public order or good custom, is a valid stipulation which does not
change the character of the said Trust Receipt Agreements. Further, as
precisely pointed out by complainant, raw materials for manufacture of
goods to be ultimately sold are proper objects of a trust receipt. Thus,
respondent's failure to remit to the complainant proceeds of the sale of the
finished products if sold or the finished products themselves if not sold, at
the maturity dates of the trust receipts, constitutes a violation of P.D. 115." 2
Does the penal provision of PD 115 (Trust Receipts Law) apply when the
goods covered by a Trust Receipt do not form part of the finished products
which are ultimately sold but are instead, utilized/used up in the operation of
the equipment and machineries of the entrustee-manufacturer?
The answer must be in the affirmative, Section 4 of said PD 115 says in
part:
"Sec. 4. What constitutes a trust receipt transaction. A trust receipt
transaction, within the meaning of this Decree, is any transaction by and
between a person referred to in this Decree as the entrustee, and another
person referred to in this Decree as the entrustee, whereby the entruster,
who owns or holds absolute title or security interests over certain specified
goods, documents or instruments, releases the same to the possession of
the entrustee upon the latter's execution and delivery to the entruster of a
signed document called a 'trust receipt' wherein the entrustee binds himself
to hold the designated goods, documents or instruments in trust for the
entruster and to sell or otherwise dispose of the goods, documents or
instruments with the obligation to turn over to the entruster the proceeds
thereof to the extent of the amount owing to the entruster or as appears in
the trust receipt or the goods, documents or instruments themselves, if they
are unsold or not otherwise disposed of, in accordance with the terms and
conditions specified in the trust receipt, . . ."
Respondent Ching contends that PBM is not in the business of selling
Magtar Branch Dolomites or High Fired Refractory Sliding Nozzle Bricks, it
is a manufacturer of steel and steel products. But PBM, as entrustee under
the trust receipts has, under Sec. 9 of PD 115, the following obligations,
inter alia: (a) receive the proceeds of sale, in trust for the entruster and turn
over the same to the entruster to the extent of the amount owing to him or
as appears on the trust receipt; (b) keep said goods or proceeds thereof
whether in money or whatever form, separate and capable of identification
as property of the entruster; (c) return the goods, documents or instruments
in the event of non-sale, or upon demand of the entruster; and (d) observe
all other terms and conditions of the trust receipt not contrary to the
provisions of said Decree. 7
The trust receipts, there is an obligation to repay the entruster. 8 Their terms
are to be interpreted in accordance with the general rules on contracts, the
law being alert in all cases to prevent fraud on the part of either party to the
the RTC of Makati, Branch 143 and the withdrawal of IS-No. 84-3140, is
made permanent. Let this case be remanded to said RTC for disposition in
accordance with this decision.
SO ORDERED.
benefit and gain, to the damage and prejudice of the Philippine Banking
Corporation, in the aforesaid sum of P22,389.80, Philippine Currency.
Contrary to PD 115 in relation to Article 315 of the Revised Penal Code.
The case was docketed as Criminal Case No. 1390.
During trial, petitioner Veloso insisted that the transaction was a clean loan
as per verbal guarantee of Cayo Garcia Tuiza, PBCs former manager. He
and petitioner Colinares signed the documents without reading the fine print,
only learning of the trust receipt implication much later. When he brought
this to the attention of PBC, Mr. Tuiza assured him that the trust receipt was
a mere formality.
On 7 July 1986, the trial court promulgated its decision convicting
Petitioners of estafa for violating P.D. No. 115 in relation to Article 315 of the
Revised Penal Code and sentencing each of them to suffer imprisonment of
two years and one day of prision correccional as minimum to six years and
one day of prision mayor as maximum, and to solidarily indemnify PBC the
amount of P20,824.44, with legal interest from 29 January 1980, 12 %
penalty charge per annum, 25% of the sums due as attorneys fees, and
costs.
The trial court considered the transaction between PBC and Petitioners as a
trust receipt transaction under Section 4, P.D. No. 115. It considered
Petitioners use of the goods in their Carmelite monastery project an act of
disposing as contemplated under Section 13, P.D. No. 115, and treated
the charge invoice for goods issued by CM Builders Centre as a document
within the meaning of Section 3 thereof. It concluded that the failure of
Petitioners to turn over the amount they owed to PBC constituted estafa.
Petitioners appealed from the judgment to the Court of Appeals which was
docketed as CA-G.R. CR No. 05408. Petitioners asserted therein that the
trial court erred in ruling that they violated the Trust Receipt Law, and in
holding them criminally liable therefor. In the alternative, they contend that
at most they can only be made civilly liable for payment of the loan.
In its decision 6 March 1989, the Court of Appeals modified the judgment of
the trial court by increasing the penalty to six years and one day of prision
mayor as minimum to fourteen years eight months and one day of reclusion
of P70,000 for the balance of the loan, including interest and other charges,
as evidenced by the different receipts issued by PBC, and that the PBC
executed an Affidavit of desistance.
We required the Solicitor General to comment on the Motion to Dismiss.
In its Comment of 30 July 1990, the Solicitor General opined that payment
of the loan was akin to a voluntary surrender or plea of guilty which merely
serves to mitigate Petitioners culpability, but does not in any way extinguish
their criminal liability.
In the Resolution of 13 August 1990, we gave due course to the Petition and
required the parties to file their respective memoranda.
The parties subsequently filed their respective memoranda.
It was only on 18 May 1999 when this case was assigned to the ponente.
Thereafter, we required the parties to move in the premises and for
Petitioners to manifest if they are still interested in the further prosecution of
this case and inform us of their present whereabouts and whether their bail
bonds are still valid.
Petitioners submitted their Compliance.
The core issues raised in the petition are the denial by the Court of Appeals
of Petitioners Motion for New Trial and the true nature of the contract
between Petitioners and the PBC. As to the latter, Petitioners assert that it
was an ordinary loan, not a trust receipt agreement under the Trust
Receipts Law.
The grant or denial of a motion for new trial rests upon the discretion of the
judge. New trial may be granted if: (1) errors of law or irregularities have
been committed during the trial prejudicial to the substantial rights of the
accused; or (2) new and material evidence has been discovered which the
accused could not with reasonable diligence have discovered and produced
at the trial, and which, if introduced and admitted, would probably change
the judgment.
For newly discovered evidence to be a ground for new trial, such evidence
must be (1) discovered after trial; (2) could not have been discovered and
produced at the trial even with the exercise of reasonable diligence; and (3)
There are two possible situations in a trust receipt transaction. The first is
covered by the provision which refers to money received under the
obligation involving the duty to deliver it (entregarla) to the owner of the
merchandise sold. The second is covered by the provision which refers to
merchandise received under the obligation to return it (devolvera) to the
owner.
Failure of the entrustee to turn over the proceeds of the sale of the goods,
covered by the trust receipt to the entruster or to return said goods if they
were not disposed of in accordance with the terms of the trust receipt shall
be punishable as estafa under Article 315 (1) of the Revised Penal Code,
without need of proving intent to defraud.
A thorough examination of the facts obtaining in the case at bar reveals that
the transaction intended by the parties was a simple loan, not a trust receipt
agreement.
Petitioners received the merchandise from CM Builders Centre on 30
October 1979. On that day, ownership over the merchandise was already
transferred to Petitioners who were to use the materials for their
construction project. It was only a day later, 31 October 1979, that they went
to the bank to apply for a loan to pay for the merchandise.
This situation belies what normally obtains in a pure trust receipt transaction
where goods are owned by the bank and only released to the importer in
trust subsequent to the grant of the loan. The bank acquires a security
interest in the goods as holder of a security title for the advances it had
made to the entrustee. The ownership of the merchandise continues to be
vested in the person who had advanced payment until he has been paid in
full, or if the merchandise has already been sold, the proceeds of the sale
should be turned over to him by the importer or by his representative or
successor in interest. To secure that the bank shall be paid, it takes full title
to the goods at the very beginning and continues to hold that title as his
indispensable security until the goods are sold and the vendee is called
upon to pay for them; hence, the importer has never owned the goods and
is not able to deliver possession. In a certain manner, trust receipts partake
of the nature of a conditional sale where the importer becomes absolute
owner of the imported merchandise as soon as he has paid its price.
they were entering into was not a pure loan but had trust receipt
implications.
The Trust Receipts Law does not seek to enforce payment of the loan,
rather it punishes the dishonesty and abuse of confidence in the handling of
money or goods to the prejudice of another regardless of whether the latter
is the owner. Here, it is crystal clear that on the part of Petitioners there was
neither dishonesty nor abuse of confidence in the handling of money to the
prejudice of PBC. Petitioners continually endeavored to meet their
obligations, as shown by several receipts issued by PBC acknowledging
payment of the loan.
The Information charges Petitioners with intent to defraud and
misappropriating the money for their personal use. The mala prohibita
nature of the alleged offense notwithstanding, intent as a state of mind was
not proved to be present in Petitioners situation. Petitioners employed no
artifice in dealing with PBC and never did they evade payment of their
obligation nor attempt to abscond. Instead, Petitioners sought favorable
terms precisely to meet their obligation.
Also noteworthy is the fact that Petitioners are not importers acquiring the
goods for re-sale, contrary to the express provision embodied in the trust
receipt. They are contractors who obtained the fungible goods for their
construction project. At no time did title over the construction materials pass
to the bank, but directly to the Petitioners from CM Builders Centre. This
impresses upon the trust receipt in question vagueness and ambiguity,
which should not be the basis for criminal prosecution in the event of
violation of its provisions.
The practice of banks of making borrowers sign trust receipts to facilitate
collection of loans and place them under the threats of criminal prosecution
should they be unable to pay it may be unjust and inequitable, if not
reprehensible. Such agreements are contracts of adhesion which borrowers
have no option but to sign lest their loan be disapproved. The resort to this
scheme leaves poor and hapless borrowers at the mercy of banks, and is
prone to misinterpretation, as had happened in this case. Eventually, PBC
showed its true colors and admitted that it was only after collection of the
money, as manifested by its Affidavit of Desistance.
of
the
THIRD DIVISION
x-------------------------------------------x
Philippines
COURT
DECISION
CORONA, J.:
Development Bank of the Philippines (DBP) assails in this petition for review
on certiorari under Rule 45 of the Rules of Court the December 14, 1999
decision[1] and the June 8, 2000 resolution of the Court of Appeals in CAG.R. CV No. 45783. The challenged decision dismissed DBP's appeal and
affirmed the February 12, 1991 decision of the Regional Trial Court of
Makati, Branch 137 in Civil Case No. 88-931 in toto, while the impugned
resolution denied DBP's motion for reconsideration for being pro forma.
In 1973, Lirag Textile Mills, Inc. (Litex) opened an irrevocable commercial
letter of credit with respondent Prudential Bank for US$498,000. This was in
connection with its importation of 5,000 spindles for spinning machinery with
drawing frame, simplex fly frame, ring spinning frame and various
accessories, spare parts and tool gauge. These were released to Litex
under covering 'trust receipts' it executed in favor of Prudential Bank. Litex
installed and used the items in its textile mill located in Montalban, Rizal.
On October 10, 1980, DBP granted a foreign currency loan in the amount of
US$4,807,551 to Litex. To secure the loan, Litex executed real estate and
chattel mortgages on its plant site in Montalban, Rizal, including the
buildings and other improvements, machineries and equipments there.
Among the machineries and equipments mortgaged in favor of DBP were
the articles covered by the 'trust receipts.
Sometime in June 1982, Prudential Bank learned about DBP's plan for the
overall rehabilitation of Litex. In a July 14, 1982 letter, Prudential Bank
notified DBP of its claim over the various items covered by the 'trust
receipts' which had been installed and used by Litex in the textile mill.
Prudential Bank informed DBP that it was the absolute and juridical owner
of the said items and they were thus not part of the mortgaged assets that
could be legally ceded to DBP.
For the failure of Litex to pay its obligation, DBP extra-judicially foreclosed
on the real estate and chattel mortgages, including the articles claimed by
Prudential Bank. During the foreclosure sale held on April 19, 1983, DBP
acquired the foreclosed properties as the highest bidder.
a)
b)
c)
SO ORDERED.
Aggrieved, DBP filed an appeal with the Court of Appeals. However, the
appellate court dismissed the appeal and affirmed the decision of the trial
court in toto. It applied the provisions of PD 115 and held that ownership
over the contested articles belonged to Prudential Bank as entrustor, not to
Litex. Consequently, even if Litex mortgaged the items to DBP and the latter
foreclosed on such mortgage, DBP was duty-bound to turn over the
proceeds to Prudential Bank, being the party that advanced the payment for
them.
On DBP's argument that the disputed articles were not proper objects of a
trust receipt agreement, the Court of Appeals ruled that the items were part
of the trust agreement entered into by and between Prudential Bank and
Litex. Since the agreement was not contrary to law, morals, public policy,
customs and good order, it was binding on the parties.
Moreover, the appellate court found that DBP was not a mortgagee in good
faith. It also upheld the finding of the trial court that DBP was a trustee ex
maleficio of Prudential Bank over the articles covered by the 'trust receipts.
DBP filed a motion for reconsideration but the appellate court denied it for
being pro forma. Hence, this petition.
In a trust receipt transaction, the goods are released by the entruster (who
owns or holds absolute title or security interests over the said goods) to the
entrustee on the latter's execution and delivery to the entruster of a trust
receipt. The trust receipt evidences the absolute title or security interest of
the entruster over the goods. As a consequence of the release of the goods
and the execution of the trust receipt, a two-fold obligation is imposed on the
entrustee, namely: (1) to hold the designated goods, documents or
instruments in trust for the purpose of selling or otherwise disposing of them
and (2) to turn over to the entruster either the proceeds thereof to the extent
of the amount owing to the entruster or as appears in the trust receipt, or the
goods, documents or instruments themselves if they are unsold or not
otherwise disposed of, in accordance with the terms and conditions
specified in the trust receipt. In the case of goods, they may also be
released for other purposes substantially equivalent to (a) their sale or the
procurement of their sale; or (b) their manufacture or processing with the
purpose of ultimate sale, in which case the entruster retains his title over the
said goods whether in their original or processed form until the entrustee
has complied fully with his obligation under the trust receipt; or (c) the
loading, unloading, shipment or transshipment or otherwise dealing with
them in a manner preliminary or necessary to their sale.[4] Thus, in a trust
receipt transaction, the release of the goods to the entrustee, on his
execution of a trust receipt, is essentially for the purpose of their sale or is
necessarily connected with their ultimate or subsequent sale.
Here, Litex was not engaged in the business of selling spinning machinery,
its accessories and spare parts but in manufacturing and producing textile
and various kinds of fabric. The articles were not released to Litex to be
sold. Nor was the transfer of possession intended to be a preliminary step
for the said goods to be ultimately or subsequently sold. Instead, the
contemporaneous and subsequent acts of both Litex and Prudential Bank
showed that the imported articles were released to Litex to be installed in its
textile mill and used in its business. DBP itself was aware of this. To support
its assertion that the contested articles were excluded from goods that could
be covered by a trust receipt, it contended:
Hence, the transactions between Litex and Prudential Bank were allegedly
not trust receipt transactions within the meaning of PD 115. It follows that,
contrary to the decisions of the trial court and the appellate court, the
transactions were not governed by the Trust Receipts Law.
We disagree.
ruled, their provisions did not contravene the law, morals, good customs,
public order or public policy.
Amount
of Bill
Description
Security
of Marks
Nos.
& Vessel
The articles were owned by Prudential Bank and they were only held by
Litex in trust. While it was allowed to sell the items, Litex had no authority to
dispose of them or any part thereof or their proceeds through conditional
sale, pledge or any other means.
Article 2085 (2) of the Civil Code requires that, in a contract of pledge or
mortgage, it is essential that the pledgor or mortgagor should be the
absolute owner of the thing pledged or mortgaged. Article 2085 (3) further
mandates that the person constituting the pledge or mortgage must have
the free disposal of his property, and in the absence thereof, that he be
legally authorized for the purpose.
Litex had neither absolute ownership, free disposal nor the authority to
freely dispose of the articles. Litex could not have subjected them to a
chattel mortgage. Their inclusion in the mortgage was void[7] and had no
legal effect.[8] There being no valid mortgage, there could also be no valid
foreclosure or valid auction sale.[9] Thus, DBP could not be considered
either as a mortgagee or as a purchaser in good faith.[10]
No one can transfer a right to another greater than what he himself has.[11]
Nemo dat quod non habet. Hence, Litex could not transfer a right that it did
not have over the disputed items. Corollarily, DBP could not acquire a right
greater than what its predecessor-in-interest had. The spring cannot rise
higher than its source.[12] DBP merely stepped into the shoes of Litex as
trustee of the imported articles with an obligation to pay their value or to
return them on Prudential Bank's demand. By its failure to pay or return
them despite Prudential Bank's repeated demands and by selling them to
Lyon without Prudential Bank's knowledge and conformity, DBP became a
trustee ex maleficio.
On the matter of actual damages adjudged by the trial court and affirmed by
the Court of Appeals, DBP wants this Court to review the evidence
presented during the trial and to reverse the factual findings of the trial
court. This Court is, however, not a trier of facts and it is not its function to
analyze or weigh evidence anew.[13] The rule is that factual findings of the
trial court, when adopted and confirmed by the CA, are binding and
conclusive on this Court and generally will not be reviewed on appeal.[14]
While there are recognized exceptions to this rule, none of the established
exceptions finds application here.
With regard to the imposition of exemplary damages, the appellate court
agreed with the trial court that the requirements for the award thereof had
been sufficiently established. Prudential Bank's entitlement to compensatory
damages was likewise amply proven. It was also shown that DBP was
aware of Prudential Bank's claim as early as July, 1982. However, it ignored
the latter's demand, included the disputed articles in the mortgage
foreclosure and caused their sale in a public auction held on April 19, 1983
where it was declared as the highest bidder. Thereafter, in the series of
communications between them, DBP gave Prudential Bank the false
impression that its claim was still being evaluated. Without acting on
Prudential Bank's plea, DBP included the contested articles among the
properties it sold to Lyon in June, 1987. The trial court found that this chain
of events showed DBP's fraudulent attempt to prevent Prudential Bank from
asserting its rights. It smacked of bad faith, if not deceit. Thus, the award of
exemplary damages was in order. Due to the award of exemplary damages,
the grant of attorney's fees was proper.[15]
DBP's assertion that both the trial and appellate courts failed to address the
issue of prescription is of no moment. Its claim that, under Article 1146 (1) of
the Civil Code, Prudential Bank's cause of action had prescribed as it
should be reckoned from October 10, 1980, the day the mortgage was
registered, is not correct. The written extra-judicial demand by the creditor
interrupted the prescription of action.[16] Hence, the four-year prescriptive
period which DBP insists should be counted from the registration of the
mortgage was interrupted when Prudential Bank wrote the extra-judicial
demands for the turn over of the articles or their value. In particular, the last
demand letter sent by Prudential Bank was dated July 30, 1988 and this
was received by DBP the following day. Thus, contrary to DBP's claim,
Prudential Bank's right to enforce its action had not yet prescribed when it
filed the complaint on May 24, 1988.
SO ORDERED.
of
the
Philippines
COURT
THIRD DIVISION
G.R. No. 137232
Despite the lapse of the respective due dates under the promissory notes
and notwithstanding the banks demand letters, RTMC failed to pay its
loans. Hence, on January 22, 1993, the bank filed a complaint for sum of
money against RTMC and Yujuico before the Regional Trial Court, Br. 16,
Manila.
In their answer (OR, pp. 44-47), RTMC and Yujuico contend that they
should be absolved from liability. They claimed that although the grant of the
credit line and the execution of the suretyship agreement are admitted, the
bank gave assurance that the suretyship agreement was merely a formality
under which Yujuico will not be personally liable. They argue that the
importation of raw materials under the credit line was with a grant of option
to them to turn-over to the bank the imported raw materials should these fail
to meet their manufacturing requirements. RTMC offered to make such turnover since the imported materials did not conform to the required
specifications. However, the bank refused to accept the same, until the
materials were destroyed by a fire which gutted down RTMCs premises.
For failure of the parties to amicably settle the case, trial on the merits
proceeded. After the trial, the Court a quo rendered a decision in favor of
the bank, the decretal part of which reads:
WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered in
favor of plaintiff and against defendants who are ordered to pay jointly and
severally in favor of plaintiff, inclusive of stipulated 30% per annum interest
and penalty of 3% per month until fully paid, under the following promissory
notes:
90-1116 6-20-90 P737,088.25 9-18-90
(maturity)
90-1320 7-13-90 P650,000.00
10-1190
10-1590
10-1590
90
90-1373 7-20-90 P715,900.00
10-1890
10-2090
10-2490
90-1540 8-7-90
P720,984.00 11-5-90
90-1569 8-9-90
P209,433.75 11-8-90
which refused to accept the same, and which goods were subsequently lost
in a fire; (2) whether the Court of Appeals erred when it ruled that petitioners
are solidarily liable for the payment of their obligations to the bank; and (3)
whether the Court of Appeals violated the Trust Receipts Law.
On the first issue, petitioners theorize that when petitioner RTMC imported
the raw materials needed for its manufacture, using the credit line, it was
merely acting on behalf of the bank, the true owner of the goods by virtue of
the trust receipts. Hence, under the doctrine of res perit domino, the bank
took the risk of the loss of said raw materials. RTMCs role in the transaction
was that of end user of the raw materials and when it did not accept those
materials as they did not meet the manufacturing requirements, RTMC
made a valid and effective tender of the goods to the bank. Since the bank
refused to accept the raw materials, RTMC stored them in its warehouse.
When the warehouse and its contents were gutted by fire, petitioners
obligation to the bank was accordingly extinguished.
Petitioners stance, however, conveniently ignores the true nature of its
transaction with the bank. We recall that RTMC filed with the bank an
application for a credit line in the amount of P10 million, but only P8 million
was approved. RTMC then made withdrawals from this credit line and
issued several promissory notes in favor of the bank. In banking and
commerce, a credit line is "that amount of money or merchandise which a
banker, merchant, or supplier agrees to supply to a person on credit and
generally agreed to in advance."3 It is the fixed limit of credit granted by a
bank, retailer, or credit card issuer to a customer, to the full extent of which
the latter may avail himself of his dealings with the former but which he must
not exceed and is usually intended to cover a series of transactions in which
case, when the customers line of credit is nearly exhausted, he is expected
to reduce his indebtedness by payments before making any further
drawings.4
It is thus clear that the principal transaction between petitioner RTMC and
the bank is a contract of loan. RTMC used the proceeds of this loan to
purchase raw materials from a supplier abroad. In order to secure the
payment of the loan, RTMC delivered the raw materials to the bank as
collateral. Trust receipts were executed by the parties to evidence this
security arrangement. Simply stated, the trust receipts were mere securities.
of
the
Philippines
COURT
FIRST DIVISION
G.R. No. 73271 May 29, 1987
SPOUSES TIRSO I. VINTOLA and LORETO DY VINTOLA, defendantsappellants,
vs.
INSULAR BANK OF ASIA AND AMERICA, plaintiff-appellee.
MELENCIO-HERRERA, J.:
This case was appealed to the Intermediate Appellate Court which,
however, certified the same to this Court, the issue involved being purely
legal.
The facts are not disputed.
On August 20, 1975 the spouses Tirso and Loreta Vintola (the VINTOLAS,
for short), doing business under the name and style "Dax Kin International,"
engaged in the manufacture of raw sea shells into finished products, applied
for and were granted a domestic letter of credit by the Insular Bank of Asia
and America (IBAA), Cebu City. 1 in the amount of P40,000.00. The Letter
of Credit authorized the bank to negotiate for their account drafts drawn by
their supplier, one Stalin Tan, on Dax Kin International for the purchase of
puka and olive seashells. In consideration thereof, the VINTOLAS, jointly
and severally, agreed to pay the bank "at maturity, in Philippine currency,
the equivalent, of the aforementioned amount or such portion thereof as
may be drawn or paid, upon the faith of the said credit together with the
usual charges."
On the same day, August 20, 1975, having received from Stalin Tan the
puka and olive shells worth P40,000.00, the VINTOLAS executed a Trust
Receipt agreement with IBAA, Cebu City. Under that Agreement, the
VINTOLAS agreed to hold the goods in trust for IBAA as the "latter's
property with liberty to sell the same for its account, " and "in case of sale"
to turn over the proceeds as soon as received to (IBAA) the due date
indicated in the document was October 19, 1975.
Having defaulted on their obligation, IBAA demanded payment from the
VINTOLAS in a letter dated January 1, 1976. The VINTOLAS, who were
unable to dispose of the shells, responded by offering to return the goods.
IBAA refused to accept the merchandise, and due to the continued refusal
of the VINTOLAS to make good their undertaking, IBAA charged them with
Estafa for having misappropriated, misapplied and converted for their own
personal use and benefit the aforesaid goods. During the trial of the criminal
case the VINTOLAS turned over the seashells to the custody of the Trial
Court.
On April 12, 1982, the then Court of First Instance of Cebu, Branch VII,
acquitted the VINTOLAS of the crime charged, after finding that the element
of misappropriation or conversion was inexistent. Concluded the Court:
Finally, it should be mentioned that under the trust receipt, in the
event of default and/or non-fulfillment on the part of the accused
of their undertaking, the bank is entitled to take possession of the
goods or to recover its equivalent value together with the usual
charges. In either case, the remedy of the Bank is civil and not
criminal in nature. ... 2
Shortly thereafter, IBAA commenced the present civil action to recover the
value of the goods before the Regional Trial Court of Cebu, Branch XVI.
Holding that the complaint was barred by the judgment of acquittal in the
criminal case, said Court dismissed the complaint. However, on IBAA's
motion, the Court granted reconsideration and:
1. Order(ed)defendants jointly and severally to pay the plaintiff the
sum of Seventy Two Thousand Nine Hundred Eighty Two and
27/100 (P72,982.27), Philippine Currency, plus interest of 14%
per annum and service charge of one (1%) per cent per annum
computed from judicial demand and until the obligation is fully
paid;
bank extends a loan covered by the Letter of Credit, with the trust receipt as
a security for the loan. In other words, the transaction involves a loan
feature represented by the letter of credit, and a security feature which is in
the covering trust receipt.
Thus, Section 4 of P.D. No. 115 defines a trust receipt transaction as:
... any transaction by and between a person referred to in this
Decree as the entruster, and another person referred to in this
Decree as the entrustee, whereby the entruster, who owns or
holds absolute title or security interests over certain specified
goods, documents or instruments, releases the same to the
possession of the entrustee upon the latter's execution and
delivery to the entruster of a signed document called a "trust
receipt" wherein the entrustee binds himself to hold the
designated goods, documents or instruments in trust for the
entruster and to sell or otherwise dispose of the goods,
documents or instrument thereof to the extent of the amount
owing to the entruster or as appears in the trust receipt or the
goods, documents or instruments themselves if they are unsold or
not otherwise disposed of, in accordance with the terms and
conditions specified in the trust receipt, or for other purposes
substantially equivalent to any one of the following:
1. In the case of goods or documents, (a) to sell the goods or
procure their sale, ...
A trust receipt, therefore, is a security agreement, pursuant to which a bank
acquires a "security interest" in the goods. "It secures an indebtedness and
there can be no such thing as security interest that secures no obligation." 4
As defined in our laws:
(h) "Security Interest"means a property interest in goods,
documents or instruments to secure performance of some
obligations of the entrustee or of some third persons to the
entruster and includes title, whether or not expressed to be
absolute, whenever such title is in substance taken or retained for
security only. 5
They further agreed that their marginal deposit of P8,000.00, later increased
to P11,000.00
be applied, without further proceedings or formalities to pay or
reduce our obligation under this letter of credit or its
corresponding Trust Receipt. (Emphasis supplied) 8
The foregoing premises considered, it follows that the acquittal of the
VINTOLAS in the Estafa case is no bar to the institution of a civil action for
collection. It is inaccurate for the VINTOLAS to claim that the judgment in
the estafa case had declared that the facts from which the civil action might
arise, did not exist, for, it will be recalled that the decision of acquittal
expressly declared that "the remedy of the Bank is civil and not criminal in
nature." This amounts to a reservation of the civil action in IBAA's favor, for
the Court would not have dwelt on a civil liability that it had intended to
extinguish by the same decision. 9 The VINTOLAS are liable ex contractu
for breach of the Letter of Credit Trust Receipt, whether they did or they
did not "misappropriate, misapply or convert" the merchandise as charged
in the criminal case. 10 Their civil liability does not arise ex delicto, the
action for the recovery of which would have been deemed instituted with the
criminal-action (unless waived or reserved) and where acquittal based on a
judicial declaration that the criminal acts charged do not exist would have
extinguished the civil action. 11 Rather, the civil suit instituted by IBAA is
based ex contractu and as such is distinct and independent from any
criminal proceedings and may proceed regardless of the result of the latter.
Under the situational circumstances of the parties, they are governed by
Article 31 of the Civil Code, explicitly providing:
Art. 31. When the civil action is based on an obligation not arising
from the act or omission complained of as a felony, such civil
action may proceed independently of the criminal proceedings
and regardless of the result of the latter.
WHEREFORE, finding no reversible error in the judgment appealed from,
the same is hereby AFFIRMED. No costs.
SO ORDERED.
of
the
Philippines
COURT
THIRD DIVISION
G.R. No. 81559-60 April 6, 1992
PEOPLE OF THE PHILIPPINES, (public petitioner) and ALLIED BANKING
CORPORATION
(private
petitioner),
vs.
HON. JUDGE DAVID G. NITAFAN (public respondent) and BETTY SIA
ANG (private respondent).
The Trust Receipts Law punishes the dishonesty and abuse of confidence
in the handling of money or goods to the prejudice of another regardless of
whether the latter is the owner or not. The law does not seek to enforce
payment of the loan. Thus, there can be no violation of a right against
imprisonment for non-payment of a debt.
Trust receipts are indispensable contracts in international and domestic
business transactions. The prevalent use of trust receipts, the danger of
their misuse and/or misappropriation of the goods or proceeds realized from
the sale of goods, documents or instruments held in trust for entrusterbanks, and the need for regulation of trust receipt transactions to safeguard
the rights and enforce the obligations of the parties involved are the main
thrusts of P.D. 115. As correctly observed by the Solicitor General, P.D.
115, like Batas Pambansa Blg. 22, punishes the act "not as an offense
against property, but as an offense against public order. . . ." The misuse of
trust receipts therefore should be deterred to prevent any possible havoc in
trade circles and the banking community (citing Lozano v. Martinez, 146
SCRA 323 [1986]; Rollo, p. 57) It is in the context of upholding public
interest that the law now specifically designates a breach of a trust receipt
agreement to be an act that "shall" make one liable for estafa.
The offense is punished as a malum prohibitum regardless of the existence
of intent or malice. A mere failure to deliver the proceeds of the sale or the
goods if not sold, constitutes a criminal offense that causes prejudice not
only to another, but more to the public interest.
We are continually re-evaluating the opposite view which insists that the
violation of a trust receipt agreement should result only in a civil action for
collection. The respondent contends that there is no malice involved. She
cites the dissent of the late Chief Justice Claudio Teehankee in Ong v.
Court of Appeals, (124 SCRA 578 [1983]) to wit:
The old capitalist orientation of putting importers in jail for
supposed estafa or swindling for non-payment of the price of the
imported goods released to them under trust receipts (a purely
commercial transaction) under the fiction of the trust receipt
device, should no longer be permitted in this day and age.
As earlier stated, however, the law punishes the dishonesty and abuse of
confidence in the handling of money or goods to the prejudice of the bank.
The Court reiterates that the enactment of P.D. 115 is a valid exercise of the
police power of the State and is, thus, constitutional. (Lee v. Rodil, supra;
Lozano v. Martinez, supra) The arguments of the respondent are
appropriate for a repeal or modification of the law and should be directed to
Congress. But until the law is repealed, we are constrained to apply it.
WHEREFORE, the petition is hereby GRANTED. The Order of the
respondent Regional Trial Court of Manila, Branch 52 dated January 7,
1988 is SET ASIDE. Let this case be remanded to the said court for
disposition in accordance with this decision.
SO ORDERED.
of
the
Philippines
COURT
EN BANC
G.R. No. 34385
ALEJANDRA
TORRES,
ET
AL.,
plaintiff-appellees,
vs.
FRANCISCO LIMJAP, Special Administrator of the estate of the
deceased Jose B. Henson, defendant-appellant.
x---------------------------------------------------------x
G.R. No. 34386
for
appellant.
JOHNSON, J.:
These two actions were commenced in the Court of First Instance of Manila
on April 16, 1930, for the purpose of securing from the defendant the
possession of two drug stores located in the City of Manila, covered by two
chattel mortgages executed by the deceased Jose B. Henson in favor of the
plaintiffs.
In the first case the plaintiffs alleged that Jose B. Henson, in his lifetime,
executed in their favor a chattel mortgage (Exhibit A) on his drug store at
Nos. 101-103 Calle Rosario, known as Farmacia Henson, to secure a loan
of P7,000, although it was made to appear in the instrument that the loan
was for P20,000.
In the second case the plaintiffs alleged that they were the heirs of the late
Don Florentino Torres; and that Jose B. Henson, in his lifetime, executed in
favor of Don Florentino Torres a chattel mortgage (also Exhibit A) on his
three drug stores known as Henson's Pharmacy, Farmacia Henson and
Botica Hensonina, to secure a loan of P50,000, which was later reduced to
P26,000, and for which, Henson's Pharmacy at Nos. 71-73 Escolta,
remained as the only security by agreement of the parties.
In both cases the plaintiffs alleged that the defendant violated the terms of
the mortgage and that, in consequence thereof they became entitled to the
possession of the chattels and to foreclose their mortgages thereon. Upon
the petition of the plaintiffs and after the filing of the necessary bonds, the
court issued in each case an order directing the sheriff of the City of Manila
to take immediate possession of said drug stores.
The defendant filed practically the same answer to both complaints. He
denied generally and specifically the plaintiffs' allegations, and set up the
following special defenses:
(1) That the chattel mortgages (Exhibit A, in G.R. No. 34385 and Exhibit A,
in G.R. No. 34286) are null and void for lack of sufficient particularity in the
description of the property mortgaged; and
(2) That the chattels which the plaintiffs sought to recover were not the
same property described in the mortgage.
The defendant also filed a counterclaim for damages in the sum of P20,000
in the first case and P100,000 in the second case.
Upon the issue thus raised by the pleadings, the two causes were tried
together by agreement of the parties. After hearing the evidence adduced
during the trial and on July 17, 1930, the Honorable Mariano Albert, judge,
in a very carefully prepared opinion, arrived at the conclusion (a) that the
defendant defaulted in the payment of interest on the loans secured by the
mortgages, in violation of the terms thereof; (b) that by reason of said failure
said mortgages became due, and (c) that the plaintiffs, as mortgagees, were
entitled to the possession of the drug stores Farmacia Henson at Nos. 101103 Calle Rosario and Henson's Pharmacy at Nos. 71-73 Escolta.
Accordingly, a judgment was rendered in favor of the plaintiffs and against
the defendant, confirming the attachment of said drug stores by the sheriff
of the City of Manila and the delivery thereof to the plaintiffs. The dispositive
part of the decision reads as follows:
En virtud de todo lo expuesto, el Juzgado dicta sentencia confirmado
en todas sus partes los ordenes de fechas 16 y 17 de abril de presente
ano, dictadas en las causas Nos. 37096 y 37097, respectivamente, y
declara definitiva la entrega hecha a los demandantes por el Sheriff de
Manila de las boticas en cuestion. Se condena en costas al
demandado en ambas causas.
From the judgment the defendant appealed, and now makes the following
assignments of error:
I. The lower court erred in failing to make a finding on the question of
the sufficiency of the description of the chattels mortgaged and in
failing to hold that the chattel mortgages were null and void for lack of
particularity in the description of the chattels mortgaged.
II. The lower court erred in refusing to allow the defendant to introduce
evidence tending to show that the stock of merchandise found in the
two drug stores was not in existence or owned by the mortgagor at the
time of the execution of the mortgages in question.
III. The lower court erred in holding that the administrator of the
deceased is now estopped from contesting the validity of the
mortgages in question.
IV. The lower court erred in failing to make a finding on the
counterclaims of the defendant.
With reference to the first assignment of error, we deem it unnecessary to
discuss the question therein raised, inasmuch as according to our view on
the question of estoppel, as we shall hereinafter set forth in our discussion
of the third assignment of error, the defendant is estopped from questioning
the validity of these chattel mortgages.
In his second assignment of error the appellant attacks the validity of the
stipulation in said mortgages authorizing the mortgagor to sell the goods
covered thereby and to replace them with other goods thereafter acquired.
He insists that a stipulation authorizing the disposal and substitution of the
chattels mortgaged does not operate to extend the mortgage to after-
when it leads away from the true intent and purpose of the legislature
and to conclusions inconsistent with the general purpose of the act.
Intent is the spirit which gives life to a legislative enactment. In
construing statutes the proper course is to start out and follow the true
intent of the legislature and to adopt that sense which harmonizes best
with the content and promotes in the fullest manner the apparent policy
and objects of the legislature. (Vol. II Sutherland, Statutory
Construction, pp. 693-695.)
A stipulation in the mortgage, extending its scope and effect to afteracquired property, is valid and binding
. . . where the after-acquired property is in renewal of, or in substitution
for, goods on hand when the mortgage was executed, or is purchased
with the proceeds of the sale of such goods, etc. (11 C.J., p. 436.)
Cobbey, a well-known authority on Chattel Mortgages, recognizes the
validity of stipulations relating to after-acquired and substituted chattels. His
views are based on the decisions of the supreme courts of several states of
the Union. He says: "A mortgage may, by express stipulations, be drawn to
cover goods put in stock in place of others sold out from time to time. A
mortgage may be made to include future acquisitions of goods to be added
to the original stock mortgaged, but the mortgage must expressly provide
that such future acquisitions shall be held as included in the mortgage. ...
Where a mortgage covering the stock in trade, furniture, and fixtures in the
mortgagor's store provides that "all goods, stock in trade, furniture, and
fixtures hereafter purchased by the mortgagor shall be included in and
covered by the mortgage," the mortgage covers all after-acquired property
of the classes mentioned, and, upon foreclosure, such property may be
taken and sold by the mortgagee the same as the property in possession of
the mortgagor at the time the mortgage was executed." (Vol. I, Cobbey on
Chattel Mortgages, sec. 361, pp. 474, 475.)
In harmony with the foregoing, we are of the opinion (a) that the provision of
the last paragraph of section 7 of Act No. 1508 is not applicable to drug
stores, bazaars and all other stores in the nature of a revolving and floating
business; (b) that the stipulation in the chattel mortgages in question,
extending their effect to after-acquired property, is valid and binding; and (c)
that the lower court committed no error in not permitting the defendant-
of
the
Philippines
COURT
EN BANC
G.R. No. L-17500
PEOPLE'S BANK AND TRUST CO. and ATLANTIC GULF AND PACIFIC
CO.
OF
MANILA,
plaintiffs-appellants,
vs.
DAHICAN LUMBER COMPANY, DAHICAN AMERICAN LUMBER
CORPORATION and CONNELL BROS. CO. (PHIL.), defendantsappellants.
Angel
S.
Gamboa
for
Laurel Law Offices for plaintiffs-appellants.
defendants-appellants.
DIZON, J.:
On September 8, 1948, Atlantic Gulf & Pacific Company of Manila, a West
Virginia corporation licensed to do business in the Philippines hereinafter
referred to as ATLANTIC sold and assigned all its rights in the Dahican
Lumber concession to Dahican Lumber Company hereinafter referred to
as DALCO for the total sum of $500,000.00, of which only the amount of
$50,000.00 was paid. Thereafter, to develop the concession, DALCO
obtained various loans from the People's Bank & Trust Company
hereinafter referred to as the BANK amounting, as of July 13, 1950, to
P200,000.00. In addition, DALCO obtained, through the BANK, a loan of
$250,000.00 from the Export-Import Bank of Washington D.C., evidenced
by five promissory notes of $50,000.00 each, maturing on different dates,
executed by both DALCO and the Dahican America Lumber Corporation, a
foreign corporation and a stockholder of DALCO, hereinafter referred to
as DAMCO, all payable to the BANK or its order.
As security for the payment of the abovementioned loans, on July 13, 1950
DALCO executed in favor of the BANK the latter acting for itself and as
Upon motion of the parties the Court, on September 30, 1953, issued an
order transferring the venue of the action to the Court of First Instance of
Manila where it was docketed as Civil Case No. 20987.
On August 30, 1958, upon motion of all the parties, the Court ordered the
sale of all the machineries, equipment and supplies of DALCO, and the
same were subsequently sold for a total consideration of P175,000.00 which
was deposited in court pending final determination of the action. By a similar
agreement one-half (P87,500.00) of this amount was considered as
representing the proceeds obtained from the sale of the "undebated
properties" (those not claimed by DAMCO and CONNELL), and the other
half as representing those obtained from the sale of the "after acquired
properties".
After due trial, the Court, on July 15, 1960, rendered judgment as follows:
IN VIEW WHEREFORE, the Court:
1. Condemns Dahican Lumber Co. to pay unto People's Bank the sum
of P200,000,00 with 7% interest per annum from July 13, 1950, Plus
another sum of P100,000.00 with 5% interest per annum from July 13,
1950; plus 10% on both principal sums as attorney's fees;
2. Condemns Dahican Lumber Co. to pay unto Atlantic Gulf the sum of
P900,000.00 with 4% interest per annum from July 3, 1950, plus 10%
on both principal as attorney's fees;
3. Condemns Dahican Lumber Co. to pay unto Connell Bros, the sum
of P425,860.55, and to pay unto Dahican American Lumber Co. the
sum of P2,151,678.24 both with legal interest from the date of the filing
of the respective answers of those parties, 10% of the principals as
attorney's fees;
4. Orders that of the sum realized from the sale of the properties of
P175,000.00, after deducting the recognized expenses, one-half
thereof be adjudicated unto plaintiffs, the court no longer specifying the
share of each because of that announced intention under the
stipulation of facts to "pool their resources"; as to the other one-half,
the same should be adjudicated unto both plaintiffs, and defendant
Dahican American and Connell Bros. in the proportion already set forth
on page 9, lines 21, 22 and 23 of the body of this decision; but with the
understanding that whatever plaintiffs and Dahican American and
Connell Bros. should receive from the P175,000.00 deposited in the
Court shall be applied to the judgments particularly rendered in favor of
each;
5. No other pronouncement as to costs; but the costs of the
receivership as to the debated properties shall be borne by People's
Bank, Atlantic Gulf, Connell Bros., and Dahican American Lumber Co.,
pro-rata.
On the following day, the Court issued the following supplementary
decision:
IN VIEW WHEREOF, the dispositive part of the decision is hereby
amended in order to add the following paragraph 6:
6. If the sums mentioned in paragraphs 1 and 2 are not paid within
ninety (90) days, the Court orders the sale at public auction of the
lands object of the mortgages to satisfy the said mortgages and costs
of foreclosure.
From the above-quoted decision, all the parties appealed.
Main contentions of plaintiffs as appellants are the following: that the "after
acquired properties" were subject to the deeds of mortgage mentioned
heretofore; that said properties were acquired from suppliers other than
DAMCO and CONNELL; that even granting that DAMCO and CONNELL
were the real suppliers, the rescission of the sales to DALCO could not
prejudice the mortgage lien in favor of plaintiffs; that considering the
foregoing, the proceeds obtained from the sale of the "after acquired
properties" as well as those obtained from the sale of the "undebated
properties" in the total sum of P175,000.00 should have been awarded
exclusively to plaintiffs by reason of the mortgage lien they had thereon; that
damages should have been awarded to plaintiffs against defendants, all of
them being guilty of an attempt to defraud the former when they sought to
rescind the sales already mentioned for the purpose of defeating their
mortgage lien, and finally, that defendants should have been made to bear
all the expenses of the receivership, costs and attorney's fees.
On the other hand, defendants-appellants contend that the trial court erred:
firstly, in not holding that plaintiffs had no cause of action against them
because the promissory note sued upon was not yet due when the action to
foreclose the mortgages was commenced; secondly, in not holding that the
mortgages aforesaid were null and void as regards the "after acquired
properties" of DALCO because they were not registered in accordance with
the Chattel Mortgage Law, the court erring, as a consequence, in holding
that said properties were subject to the mortgage lien in favor of plaintiffs;
thirdly, in not holding that the provision of the fourth paragraph of each of
said mortgages did not automatically make subject to such mortgages the
"after acquired properties", the only meaning thereof being that the
mortgagor was willing to constitute a lien over such properties; fourthly, in
not ruling that said stipulation was void as against DAMCO and CONNELL
and in not awarding the proceeds obtained from the sale of the "after
acquired properties" to the latter exclusively; fifthly, in appointing a Receiver
and in holding that the damages suffered by DAMCO and CONNELL by
reason of the depreciation or loss in value of the "after acquired properties"
placed under receivership was damnum absque injuria and, consequently,
in not awarding, to said parties the corresponding damages claimed in their
counterclaim; lastly, in sentencing DALCO and DAMCO to pay attorney's
fees and in requiring DAMCO and CONNELL to pay the costs of the
Receivership, instead of sentencing plaintiffs to pay attorney's fees.
Plaintiffs' brief as appellants submit six assignments of error, while that of
defendants also as appellants submit a total of seventeen. However, the
multifarious issues thus before Us may be resolved, directly or indirectly, by
deciding the following issues:
Firstly, are the so-called "after acquired properties" covered by and subject
to the deeds of mortgage subject of foreclosure?; secondly, assuming that
they are subject thereto, are the mortgages valid and binding on the
properties aforesaid inspite of the fact that they were not registered in
accordance with the provisions of the Chattel Mortgage Law?; thirdly,
assuming again that the mortgages are valid and binding upon the "after
acquired properties", what is the effect thereon, if any, of the rescission of
sales entered into, on the one hand, between DAMCO and DALCO, and
between DALCO and CONNELL, on the other?; and lastly, was the action to
foreclose the mortgages premature?
same manner and to the same extent as if now included therein". No clearer
language could have been chosen.
Conceding, on the other hand, that it is the law in this jurisdiction that, to
affect third persons, a chattel mortgage must be registered and must
describe the mortgaged chattels or personal properties sufficiently to enable
the parties and any other person to identify them, We say that such law
does not apply to this case.
As the mortgages in question were executed on July 13, 1950 with the old
Civil Code still in force, there can be no doubt that the provisions of said
code must govern their interpretation and the question of their validity. It
happens however, that Articles 334 and 1877 of the old Civil Code are
substantially reproduced in Articles 415 and 2127, respectively, of the new
Civil Code. It is, therefore, immaterial in this case whether we take the
former or the latter as guide in deciding the point under consideration.
Article 415 does not define real property but enumerates what are
considered as such, among them being machinery, receptacles, instruments
or replacements intended by owner of the tenement for an industry or works
which may be carried on in a building or on a piece of land, and shall tend
directly to meet the needs of the said industry or works.
On the strength of the above-quoted legal provisions, the lower court held
that inasmuch as "the chattels were placed in the real properties mortgaged
to plaintiffs, they came within the operation of Art. 415, paragraph 5 and Art.
2127 of the New Civil Code".
We find the above ruling in agreement with our decisions on the subject:
(1) In Berkenkotter vs. Cu Unjieng, 61 Phil. 663, We held that Article 334,
paragraph 5 of the Civil Code (old) gives the character of real property to
machinery, liquid containers, instruments or replacements intended by the
owner of any building or land for use in connection with any industry or trade
being carried on therein and which are expressly adapted to meet the
requirements of such trade or industry.
(2) In Cu Unjieng e Hijos vs. Mabalacat Sugar Co., 58 Phil. 439, We held
that a mortgage constituted on a sugar central includes not only the land on
which it is built but also the buildings, machinery and accessories installed
at the time the mortgage was constituted as well as the buildings, machinery
and accessories belonging to the mortgagor, installed after the constitution
thereof .
It is not disputed in the case at bar that the "after acquired properties" were
purchased by DALCO in connection with, and for use in the development of
its lumber concession and that they were purchased in addition to, or in
replacement of those already existing in the premises on July 13, 1950. In
Law, therefore, they must be deemed to have been immobilized, with the
result that the real estate mortgages involved herein which were
registered as such did not have to be registered a second time as chattel
mortgages in order to bind the "after acquired properties" and affect third
parties.
But defendants, invoking the case of Davao Sawmill Company vs. Castillo,
61 Phil. 709, claim that the "after acquired properties" did not become
immobilized because DALCO did not own the whole area of its lumber
concession all over which said properties were scattered.
The facts in the Davao Sawmill case, however, are not on all fours with the
ones obtaining in the present. In the former, the Davao Sawmill Company,
Inc., had repeatedly treated the machinery therein involved as personal
property by executing chattel mortgages thereon in favor of third parties,
while in the present case the parties had treated the "after acquired
properties" as real properties by expressly and unequivocally agreeing that
they shall automatically become subject to the lien of the real estate
mortgages executed by them. In the Davao Sawmill decision it was, in fact,
stated that "the characterization of the property as chattels by the appellant
is indicative of intention and impresses upon the property the character
determined by the parties" (61 Phil. 112, emphasis supplied). In the present
case, the characterization of the "after acquired properties" as real property
was made not only by one but by both interested parties. There is,
therefore, more reason to hold that such consensus impresses upon the
properties the character determined by the parties who must now be held in
estoppel to question it.
Moreover, quoted in the Davao Sawmill case was that of Valdez vs. Central
Altagracia, Inc. (225 U.S. 58) where it was held that while under the general
law of Puerto Rico, machinery placed on property by a tenant does not
become immobilized, yet, when the tenant places it there pursuant to
seller; that all items were supplied by different parties, neither of whom
appeared to be DAMCO or CONNELL that, in fact, CONNELL collected a
5% service charge on the net value of all items it claims to have sold to
DALCO and which, in truth, it had purchased for DALCO as the latter's
general agent; that CONNELL had to issue its own invoices in addition to
those o f the real suppliers in order to collect and justify such service
charge.
Taking into account the above circumstances together with the fact that
DAMCO was a stockholder and CONNELL was not only a stockholder but
the general agent of DALCO, their claim to be the suppliers of the "after
acquired required properties" would seem to be preposterous. The most
that can be claimed on the basis of the evidence is that DAMCO and
CONNELL probably financed some of the purchases. But if DALCO still
owes them any amount in this connection, it is clear that, as financiers, they
can not claim any right over the "after acquired properties" superior to the
lien constituted thereon by virtue of the deeds of mortgage under
foreclosure. Indeed, the execution of the rescission of sales mentioned
heretofore appears to be but a desperate attempt to better or improve
DAMCO and CONNELL's position by enabling them to assume the role of
"unpaid suppliers" and thus claim a vendor's lien over the "after acquired
properties". The attempt, of course, is utterly ineffectual, not only because
they are not the "unpaid sellers" they claim to be but also because there is
abundant evidence in the record showing that both DAMCO and CONNELL
had known and admitted from the beginning that the "after acquired
properties" of DALCO were meant to be included in the first and second
mortgages under foreclosure.
The claim that Belden, of ATLANTIC, had given his consent to the
rescission, expressly or otherwise, is of no consequence and does not make
the rescission valid and legally effective. It must be stated clearly, however,
in justice to Belden, that, as a member of the Board of Directors of DALCO,
he opposed the resolution of December 15, 1952 passed by said Board and
the subsequent rescission of the sales.
Finally, defendants claim that the action to foreclose the mortgages filed on
February 12, 1953 was premature because the promissory note sued upon
did not fall due until April 1 of the same year, concluding from this that,
when the action was commenced, the plaintiffs had no cause of action.
Upon this question the lower court says the following in the appealed
judgment;
The other is the defense of prematurity of the causes of action in that
plaintiffs, as a matter of grace, conceded an extension of time to pay
up to 1 April, 1953 while the action was filed on 12 February, 1953,
but, as to this, the Court taking it that there is absolutely no debate that
Dahican Lumber Co., was insolvent as of the date of the filing of the
complaint, it should follow that the debtor thereby lost the benefit to the
period.
x x x unless he gives a guaranty or security for the debt . . . (Art. 1198,
New Civil Code);
and as the guaranty was plainly inadequate since the claim of plaintiffs
reached in the aggregate, P1,200,000 excluding interest while the
aggregate price of the "after-acquired" chattels claimed by Connell
under the rescission contracts was P1,614,675.94, Exh. 1, Exh. V,
report of auditors, and as a matter of fact, almost all the properties
were sold afterwards for only P175,000.00, page 47, Vol. IV, and the
Court understanding that when the law permits the debtor to enjoy the
benefits of the period notwithstanding that he is insolvent by his giving
a guaranty for the debt, that must mean a new and efficient guaranty,
must concede that the causes of action for collection of the notes were
not premature.
Very little need be added to the above. Defendants, however, contend that
the lower court had no basis for finding that, when the action was
commenced, DALCO was insolvent for purposes related to Article 1198,
paragraph 1 of the Civil Code. We find, however, that the finding of the trial
court is sufficiently supported by the evidence particularly the resolution
marked as Exhibit K, which shows that on December 16, 1952 in the
words of the Chairman of the Board DALCO was "without funds, neither
does it expect to have any funds in the foreseeable future." (p. 64, record on
appeal).
The remaining issues, namely, whether or not the proceeds obtained from
the sale of the "after acquired properties" should have been awarded
exclusively to the plaintiffs or to DAMCO and CONNELL, and if in law they
should be distributed among said parties, whether or not the distribution
however, our considered opinion that, upon the facts established, all the
expenses of the Receivership, which was deemed necessary to safeguard
the rights of the plaintiffs, should be borne by the defendants, jointly and
severally, in the same manner that all of them should pay to the plaintiffs,
jointly a severally, attorney's fees awarded in the appealed judgment.
In consonance with the portion of this decision concerning the damages that
the plaintiffs are entitled to recover from the defendants, the record of this
case shall be remanded below for the corresponding proceedings.
Modified as above indicated, the appealed judgment is affirmed in all other
respects. With costs.
Concepcion, C.J., Reyes, J.B.L., Regala, Makalintal, Bengzon, J.P.,
Zaldivar, Sanchez and Castro, JJ., concur.
of
the
Philippines
COURT
EN BANC
G.R. No. L-25729
VILLA-REAL, J.:
This is an appeal by Jose Marie Memije from a judgment of the Court
of First Instance of Manila the dispositive part of which is as follows:
For all the foregoing, the court is of the opinion that the plaintiff has a
right to the relief prayed for in its complaint. Wherefore, judgment is
rendered declaring that Exhibits C and D, that is, the mortgage deeds
in question in this proceeding, in so far as they prejudice the rights of
the plaintiff, are null and void; that the preliminary injunction issued in
this case against the defendant Jose Ma. Memije is final and absolute;
and that the plaintiff recover the amount of the fire insurance policies of
the defendant "Magallanes Press, Inc.," which, or the representatives
of which, is hereby ordered to endorse said insurance policies to the
plaintiff, with the costs of the proceedings against the defendants, with
the exception of J.P. Heilbronn Co., Inc. It is so ordered.
the unpaid balance, until the whole amount of the indebtedness shall have
been paid, the first payment to be made on January 1, 1922, with the
condition that upon the failure to pay any monthly installment or the interest
earned on the unpaid balance, the whole amount of the indebtedness shall
become due, and the maker shall pay the payee an additional sum
equivalent to 15 per cent of the total balance, for attorney's fee and
expenses of collection, forfeiting all right of exemption.
On the same date, December 1, 1921, the said Magallanes Press,
through its managers H. Camena, also executed a promissory note in favor
of J. P. Heilbronn & Co., Inc., for the sum of P10,715.77, with interest at 12
per cent per annum, payable at the rate of P500 a month, together with the
interest earned on the unpaid balance, until the whole amount of the
indebtedness shall have been paid, the first payment to be made on
January 1, 1922, with the condition that upon the failure to pay any monthly
installment or the interest earned on the unpaid balance, the whole amount
of the indebtedness shall become due, and the maker shall pay the payee
an additional sum equal to 15 per cent of the total balance for attorney's fee
and expenses of collection, forfeiting all right of exemption.
To secure the payment of said promissory notes which amounted to a
total of P14,188.69, H. Camena, as general manager of the Magallanes
Press, executed a chattel mortgage on all of the printing machinery and its
accessories, belonging to the said Magallanes Press, in favor of J. P.
Heilbronn & Co., Inc.
One June 19, 1922, the Magallanes Press Co., Inc., successor to the
Magallanes Press, with all the latter's rights and obligations, through its duly
authorized president, E. F. Clemente, executed a chattel mortgage on the
same printing machinery ad its accessories in favor of the Belgian Catholic
Missionaries Co., Inc., which the Magallanes Press had mortgaged to J. P.
Heilbronn & Co., Inc., to secure the payment of a loan of P30,500, with
interest at 12 per cent per annum, which the said Magallanes Press & Co.,
Inc., had obtained from the Belgian Catholic Missionaries Co., Inc., the
duration of the mortgage loan being one year from the execution of the
mortgage deed.
In December, 1922 the appellant Jose Ma. Memije made a loan in the
sum of P2,000 to E. F. Clemente which was paid on account of the
indebtedness of the Magallanes Press to J. P. Heilbronn & co., Inc.,
payment of his mortgage credit on the same date the manager of said
corporation, E. F. Clemente, permitted the secretary of the said corporation
to place the property covered by the mortgage into the hands of the said
Jose Ma. Memije in order that the same might be sold, but the sale could
not be consummated due to the issuance of the said writ of preliminary
injunction.
The first question raised by the defendant and appellant has
reference to the overruling of the demurrer filed by him to complaint.
One of the grounds of said demurrer was that the complaint in this
case did not allege facts sufficient to constitute a cause of action against the
said defendant, in that, notwithstanding the fact that the said complaint was
instituted to annul the document of transfer of the mortgage credit Exhibit C,
it was not alleged in the said complaint that the defendant Jose Ma. Memije
had any intention to defraud the interests of the plaintiff corporation, which
was absolutely impossible due to the nature of the transaction and the
preferential character of the mortgage credit of J. P. Heilbronn & Co., Inc.
As to this paragraph of the complaint, the plaintiff company having
known of the existence of a chattel mortgage in favor of J. P. Heilbronn &
Co., Inc., the latter, either as the first or as the second mortgage, had a
perfect right to transfer its mortgage credit, without the knowledge or
consent of any other mortgagee, inasmuch as whoever acquired it, would
have exactly the same status as the transferor with the same rights and
obligations. The fact, therefore, that the Magallanes Press Co., Inc., had
consented to the transfer of the mortgage credit of J. P. Heilbronn & Co.,
Inc., to Jose Ma. Memije, does not constitute a fraud that an vitiate the said
transfer, inasmuch as the order of preference of the mortgages has not
been altered, and its allegations does not constitute a cause of action to
annul the said transfer.
In regard to the allegation contained in the ninth paragraph of the
complaint, it is very clear that the increase made by Jose Ma. Memije in the
mortgage credit acquired by him from J.P. Heilbronn & Co., Inc., and the
extension made by the Magallanes Press, Inc., of the mortgage to said
additional credit without the knowledge or consent of the plaintiff company,
as second mortgagee, prejudices the credit of the latter, inasmuch as the
security for the payment of said credit was reduced as to it, and, therefore,
Co., Inc., also had a mortgage credit for the amount of P30,500, secured by
a second mortgage on the same personal property. After this second
mortgage had been executed, the payment of the mortgage credit of J.P.
Heilbronn & Co., Inc., became due, which credit had been reduced to the
sum of P8,280,90 through partial payments, and the herein defendantappellant Jose Ma. Memije acquired said mortgage credit and increased it
by P5,895.59 of which increase P2,000 was a previous loan.
There is no question but that J. P. Heilbronn & Co., Inc., at the time of
the transfer of this mortgage rights to Jose Ma. Memije, had a preferential
right over that of the Belgian Catholic Missionaries Co., Inc., for the
remainder of the amount of the mortgage credit, that is, P8,280.90. The
plaintiff company had a preferential right to the rest of the value of the
mortgaged property after deducting the remaining mortgage credit of J. P.
Heilbronn & Co., Inc.
The increase of P5,895.59 made by the defendant Jose Ma. Memije
in favor of the Magallanes Press Co., Inc., and the extension of the
mortgage thereto, are not only subordinate to the mortgage credit of the
plaintiff company, being subsequent in time and in registration, but said
increase in the security is also void. The increase of the mortgage security
becomes a new mortgage in itself, inasmuch as the original mortgage did
not contain any stipulation in regard to the increase of the mortgage credit,
and even if it did, said increase would take effect only from the date of the
increase. A mortgage that contains a stipulation in regard to future
advances in the credit will take effect only from the date the same are made
and not from the date of the mortgage (11 C. J., 448; 5 R. C. L., 420-421).
In accordance with the provisions of section 5 of Act No. 1508, known as
the Chattle Mortgage Law, the parties to the original deeds swore that the
same was mortgaged "to secure the obligations specified therein and for no
other purpose." Neither the increase in question, nor the extension of the
mortgage to secure the payment of the same is specified in the deed,
consequently said extension is void. "Where the statute provides that the
parties to a chattel mortgage must make oath that the debt is a just debt,
honestly due and owing from the mortgagor to the mortgagee, it is obvious
that a valid mortgage cannot be made to secure a debt to be thereafter
contacted." (11 C. J., 448.)
Briefly, therefore, we have the following:
(a) That Jose Ma. Memije has a preferential right to the value of the
chattels mortgage and the amount of the insurance policies up to the
sum of P8,280.90;
(b) That the plaintiff corporation, the Belgian Catholic Missionaries Co.,
Inc., has a right to the remainder of the value of said chattels and the
insurance policies up to the amount of P30,500, after deducting the
preferential credit of Jose Ma. Memije;
(c) That as to the increase of P5,895.59, the right of the defendant
Jose Ma. Memije is that of an ordinary creditor.
In regard to the damages claimed by the defendant in his
counterclaim and which is the subject-matter of his remaining assignments
of error, said defendant has a right to interest at 12 per cent on the
P8,280.90 the amount of the mortgage credit acquired by him from J. P.
Heilbronn & Co., Inc., from February 26, 1923, the date of the acquisition
until fully paid.
For the foregoing reasons, the judgment appealed from is revoked
and it is ordered the another be entered declaring all the mortgages
overdue, and the mortgage credit of Jose Ma. Memije preferential over that
of the Belgian Catholic Missionaries Co., Inc., up to the amount of
P8,280.90, with interest at the rate of 12 per cent per annum from February
26, 1923, until fully paid; the mortgage credit of the Belgian Catholic
Missionaries Co., Inc., for the sum of P30,500 with interest at the rate of 12
per cent per annum, from June 19, 1922, until fully paid, plus the sum of
P3,000 for attorney's fees, over the additional credit of Jose Ma. Memije for
P5,895.59; and ordering the foreclosure of the said mortgages by selling the
mortgaged property at public auction, to the proceeds of which shall be
added the amount of the insurance policies and the above-mentioned
credits in the order of preference above established, without special
pronouncement as to costs. So ordered.
Avancea, C. J., Johnson, Street, Ostrand and Johns, JJ., concur.
of
the
Philippines
COURT
FIRST DIVISION
VITUG, J.:p
Would it be valid and effective to have a clause in a chattel mortgage that
purports to likewise extend its coverage to obligations yet to be contracted
or incurred? This question is the core issue in the instant petition for review
on certiorari.
Petitioner Chua Pac, the president and general manager of co-petitioner
"Acme Shoe, Rubber & Plastic Corporation," executed on 27 June 1978, for
and in behalf of the company, a chattel mortgage in favor of private
respondent Producers Bank of the Philippines. The mortgage stood by way
of security for petitioner's corporate loan of three million pesos
(P3,000,000.00). A provision in the chattel mortgage agreement was to this
effect
(c) If the MORTGAGOR, his heirs, executors or administrators
shall well and truly perform the full obligation or obligations abovestated according to the terms thereof, then this mortgage shall be
null and void. . . .
Press,
said
Inc.,
et
al.,
14
the
Court
Ong Liong Tiak vs. Luneta Motor Co., 66 Phil. 459 (1938)
Republic
SUPREME
Manila
of
the
Philippines
COURT
EN BANC
G.R. No. L-44552
November 7, 1938
ONG
LIONG
TIAK,
plaintiff-appellant,
vs.
LUNETA MOTOR COMPANY and the SHERIFF OF MANILA, defendantappellees.
Felipe
S.
Jose Agbulos for appellees.
Abeleda
for
appellant.
DIAZ, J.:
Ong Liong Tiak appealed from the decision rendered by the Court of
First Instance of Manila in civil case No. 47997 of said court, overruling and
dismissing his complaint, wherein he sought an injunction against the
defendant and a judgment in his favor for damages in the sum of P500, plus
the costs. In his brief, Ong Liong Tiak, the appellant, makes the following
enumeration of the errors alleged by him to have been committed by the
lower court in rendering its decision appealed from, to wit:
1. The trial court erred in holding that the indebtedness of
Jeronimo Angeles to Macondray and Co., Inc., was also guaranteed by
the chattel mortgage executed by S. Arellano Choa Siong in favor of
the Luneta Motor Co.
2. The trial court erred in holding that the automobile in question
was still encumbered at the time it was sold by S. Arellano Choa Siong
to the plaintiff-appellant.
3. The trial court erred in not finding as a fact that the chattel
mortgage over the automobile in question was extinguished upon
payment of the last promissory note.
4. The trial court erred in not holding that the automobile in
question was, at the time of the levy on execution by the defendant
sheriff, the exclusive property of the plaintiff-appellant.
It is undisputed that about August 21, 1933, S. Arellano Choa Siong,
the registered owner of Chrysler Sedan automobile, motor No. 4253, serial
No. 6524936, transferred the ownership thereof to the plaintiff-appellant, to
which effect he endorsed his certificate of registration, Exhibit A, in favor of
the latter. lawphi1.net
S. Arellano Choa Siong purchased said automobile from the Luneta
Motor Co. about June 11, 1931. However, instead of paying the price
thereof, which was P1,800 he executed eighteen promissory notes for P100
each in favor of the vendor, binding himself to redeem one after another,
every month. To secure the payment of said eighteen promissory notes and
that of articles he might take from his creditor, such as gasoline, tires,
automobile accessories, etc., and to secure also the payment of any other
obligation that he might contract with it, he constituted a mortgage on the
automobile in question, executing to that effect in favor of the Luneta Motor
Co., the instrument of mortgage, Exhibit 2, one of the clauses of which
reads as follows:
. . . it being expressly agreed further that this mortgage shall also
serve as security for the payment to the said mortgagee in addition to
the aforesaid notes of the purchase price or cost of any and all
gasoline, tires, automobile accessories or parts, and repairs furnished
or made by the said mortgagee at any time up to the date this
mortgage is completely satisfied as and when the same becomes due,
and of any other indebtedness of the mortgagor in favor of the
mortgagee incurred in any other manner whatever. (Emphasis ours.)
About the months of October and
November, 1932, one
Jeronimo Angeles obtained from Macondray & Co., Inc. paints and other
merchandise of the total value of P407. For the payment of this amount, S.
Arellano Choa Siong acted as surety up to the sum of P300, having paid the
sum of balance P160 on account, on March 30, 1933, thereby leaving a
balance against him in the sum of P140. In this state of affairs, Macondray &
Co., Inc., assigned its credit against S. Arellano Choa Siong, who offered no
objection thereto. On the contrary, he paid P40 on account, shortly
thereafter, thereby leaving a balance of P100. About April 4, 1933, S.
Arellano Choa Siong made the last payment of the eighteen promissory
notes which he had executed in favor of the defendant-appellee. However,
as there still existed in its favor a credit of P100 for the paints and other
merchandise taken by Jeronimo Angeles from Macondray & Co., Inc. under
the personal guaranty of S. Arellano Choa Siong, which sum was assigned
to it by said Macondray & Co., Inc. without any objection on the part of S.
Arellano Choa Siong, the defendant-appellee refused to cancel the
instrument of mortgage Exhibit 2. On the contrary, it foreclosed to mortgage
constituted in its favor, causing the sheriff to attach the above-mentioned
automobile. It is for the purpose of setting aside said attachment that the
plaintiff filed his complaint in this case, seeking what has already been set
forth hereinbefore.
Taking into account the circumstances of the case, and particularly
the obligation assumed by S. Arellano Choa Siong, according to the terms
of the above-quoted clause of the instrument of mortgage Exhibit 2, this
court holds that the lower court committed one of the errors attributed to it
by the appellant. It was right in holding that, by interpreting the terms of
Exhibit 2, the automobile in question is still remained subject to the lien
stated in said instrument, inasmuch as the account, which S. Arellano Choa
Siong accepted and bound himself to pay for Jeronimo Angeles, had not
been completely settled. Instruments of mortgage, as said Exhibit 2, are
binding, while they subsist, not only upon the parties executing them but
also upon those who later, by purchase or otherwise, acquire the properties
referred to therein. The right of those who so acquire said properties should
not and can not be superior to that of the creditor who has in his favor an
instrument of mortgage executed for the formalities of the law, in good faith,
and without the least indication of fraud. This is all the more true in the
present case, because, when the plaintiff purchased the automobile in
question on august 22, 1933, he knew, or at least, it is presumed that he
knew, by the mere fact that the instrument of mortgage, Exhibit 2, was
registered in the office of the register of deeds of Manila, that said
automobile was subject to a mortgage lien. In purchasing it, with full
knowledge that such circumstances existed, it should be presumed that he
did so, very much willing to respect the lien existing thereon, since he
should not have expected that with the purchase, he would acquire a better
right than that which the vendor then had.
For all the foregoing consideration, finding as this court finds that the
decision appealed from is in accordance with law, the same is hereby
affirmed, with the costs to the appellant. So ordered.
Avancea C.J., Villa-Real, Abad Santos, Imperial and Laurel, JJ., concur.
Petitioner,
DECISION
Tinga, J.:
Before us is a petition for review on certiorari under Rule 45 of the Rules of
Court. Petitioner Prudential Bank seeks the reversal of the Decision[1] of the
Court of Appeals dated 27 September 2001 in CA-G.R. CV No. 59543
affirming the Decision of the Regional Trial Court (RTC) of Pasig City,
Branch 160, in favor of respondents.
Respondents, spouses Don A. Alviar and Georgia B. Alviar, are the
registered owners of a parcel of land in San Juan, Metro Manila, covered by
Transfer Certificate of Title (TCT) No. 438157 of the Register of Deeds of
Rizal. On 10 July 1975, they executed a deed of real estate mortgage in
favor of petitioner Prudential Bank to secure the payment of a loan worth
P250,000.00.[2] This mortgage was annotated at the back of TCT No.
438157. On 4 August 1975, respondents executed the corresponding
promissory note, PN BD#75/C-252, covering the said loan, which provides
that the loan matured on 4 August 1976 at an interest rate of 12% per
annum with a 2% service charge, and that the note is secured by a real
estate mortgage as aforementioned.[3] Significantly, the real estate
mortgage contained the following clause:
That for and in consideration of certain loans, overdraft and other credit
accommodations obtained from the Mortgagee by the Mortgagor and/or
contract when it filed its petition for extrajudicial foreclosure of real estate
mortgage. Petitioner relies on the cases of Lim Julian v. Lutero,[21] Tad-Y v.
Philippine National Bank,[22] Quimson v. Philippine National Bank,[23] C &
C Commercial v. Philippine National Bank,[24] Mojica v. Court of
Appeals,[25] and China Banking Corporation v. Court of Appeals,[26] all of
which upheld the validity of mortgage contracts securing future
advancements.
Anent the Court of Appeals conclusion that the parties did not intend to
include PN BD#76/C-345 in the real estate mortgage because the same
was specifically secured by a foreign currency deposit account, petitioner
states that there is no law or rule which prohibits an obligation from being
covered by more than one security.[27] Besides, respondents even
continued to withdraw from the same foreign currency account even while
the promissory note was still outstanding, strengthening the belief that it was
the real estate mortgage that principally secured all of respondents
promissory notes.[28] As for PN BD#76/C-345, which the Court of Appeals
found to be exclusively secured by the Clean-Phase out TOD 3923,
petitioner posits that such security is not exclusive, as the "dragnet clause"
of the real estate mortgage covers all the obligations of the respondents.[29]
Moreover, petitioner insists that respondents attempt to evade foreclosure
by the expediency of stating that the promissory notes were executed by
them not in their personal capacity but as corporate officers. It claims that
PN BD#76/C-430 was in fact for home construction and personal
consumption of respondents. Thus, it states that there is a need to pierce
the veil of corporate fiction.[30]
Finally, petitioner alleges that the mortgage contract was executed by
respondents with knowledge and understanding of the "dragnet clause,"
being highly educated individuals, seasoned businesspersons, and political
personalities.[31] There was no oppressive use of superior bargaining
power in the execution of the promissory notes and the real estate
mortgage.[32]
For their part, respondents claim that the "dragnet clause" cannot be applied
to the subsequent loans extended to Don Alviar and Donalco Trading, Inc.
since these loans are covered by separate promissory notes that expressly
provide for a different form of security.[33] They reiterate the holding of the
trial court that the "blanket mortgage clause" would apply only to loans
respondents themselves, and not to Donalco Trading Inc., and that they
sign the note in their personal capacity and not as officers of the
corporation.
Now on the main issues.
A "blanket mortgage clause," also known as a "dragnet clause" in American
jurisprudence, is one which is specifically phrased to subsume all debts of
past or future origins. Such clauses are "carefully scrutinized and strictly
construed."[38] Mortgages of this character enable the parties to provide
continuous dealings, the nature or extent of which may not be known or
anticipated at the time, and they avoid the expense and inconvenience of
executing a new security on each new transaction.[39] A "dragnet clause"
operates as a convenience and accommodation to the borrowers as it
makes available additional funds without their having to execute additional
security documents, thereby saving time, travel, loan closing costs, costs of
extra legal services, recording fees, et cetera.[40] Indeed, it has been
settled in a long line of decisions that mortgages given to secure future
advancements are valid and legal contracts,[41] and the amounts named as
consideration in said contracts do not limit the amount for which the
mortgage may stand as security if from the four corners of the instrument
the intent to secure future and other indebtedness can be gathered.[42]
The "blanket mortgage clause" in the instant case states:
That for and in consideration of certain loans, overdraft and other credit
accommodations obtained from the Mortgagee by the Mortgagor and/or
________________ hereinafter referred to, irrespective of number, as
DEBTOR, and to secure the payment of the same and those that may
hereafter be obtained, the principal or all of which is hereby fixed at Two
Hundred Fifty Thousand (P250,000.00) Pesos, Philippine Currency, as well
as those that the Mortgagee may extend to the Mortgagor and/or DEBTOR,
including interest and expenses or any other obligation owing to the
Mortgagee, whether direct or indirect, principal or secondary as appears in
the accounts, books and records of the Mortgagee, the Mortgagor does
hereby transfer and convey by way of mortgage unto the Mortgagee, its
successors or assigns, the parcels of land which are described in the list
inserted on the back of this document, and/or appended hereto, together
with all the buildings and improvements now existing or which may hereafter
be erected or constructed thereon, of which the Mortgagor declares that
he/it is the absolute owner free from all liens and incumbrances. . . .[43]
(Emphasis supplied.)
Thus, contrary to the finding of the Court of Appeals, petitioner and
respondents intended the real estate mortgage to secure not only the
P250,000.00 loan from the petitioner, but also future credit facilities and
advancements that may be obtained by the respondents. The terms of the
above provision being clear and unambiguous, there is neither need nor
excuse to construe it otherwise.
The cases cited by petitioner, while affirming the validity of "dragnet
clauses" or "blanket mortgage clauses," are of a different factual milieu from
the instant case. There, the subsequent loans were not covered by any
security other than that for the mortgage deeds which uniformly contained
the "dragnet clause."
In the case at bar, the subsequent loans obtained by respondents were
secured by other securities, thus: PN BD#76/C-345, executed by Don Alviar
was secured by a "hold-out" on his foreign currency savings account, while
PN BD#76/C-430, executed by respondents for Donalco Trading, Inc., was
secured by "Clean-Phase out TOD CA 3923" and eventually by a deed of
assignment on two promissory notes executed by Bancom Realty
Corporation with Deed of Guarantee in favor of A.U. Valencia and Co., and
by a chattel mortgage on various heavy and transportation equipment. The
matter of PN BD#76/C-430 has already been discussed. Thus, the critical
issue is whether the "blanket mortgage" clause applies even to subsequent
advancements for which other securities were intended, or particularly, to
PN BD#76/C-345.
Under American jurisprudence, two schools of thought have emerged on
this question. One school advocates that a "dragnet clause" so worded as to
be broad enough to cover all other debts in addition to the one specifically
secured will be construed to cover a different debt, although such other debt
is secured by another mortgage.[44] The contrary thinking maintains that a
mortgage with such a clause will not secure a note that expresses on its
face that it is otherwise secured as to its entirety, at least to anything other
than a deficiency after exhausting the security specified therein,[45] such
deficiency being an indebtedness within the meaning of the mortgage, in the
absence of a special contract excluding it from the arrangement.[46]
The latter school represents the better position. The parties having
conformed to the "blanket mortgage clause" or "dragnet clause," it is
reasonable to conclude that they also agreed to an implied understanding
that subsequent loans need not be secured by other securities, as the
subsequent loans will be secured by the first mortgage. In other words, the
sufficiency of the first security is a corollary component of the "dragnet
clause." But of course, there is no prohibition, as in the mortgage contract in
issue, against contractually requiring other securities for the subsequent
loans. Thus, when the mortgagor takes another loan for which another
security was given it could not be inferred that such loan was made in
reliance solely on the original security with the "dragnet clause," but rather,
on the new security given. This is the "reliance on the security test."
Hence, based on the "reliance on the security test," the California court in
the cited case made an inquiry whether the second loan was made in
reliance on the original security containing a "dragnet clause." Accordingly,
finding a different security was taken for the second loan no intent that the
parties relied on the security of the first loan could be inferred, so it was
held. The rationale involved, the court said, was that the "dragnet clause" in
the first security instrument constituted a continuing offer by the borrower to
secure further loans under the security of the first security instrument, and
that when the lender accepted a different security he did not accept the
offer.[47]
In another case, it was held that a mortgage with a "dragnet clause" is an
"offer" by the mortgagor to the bank to provide the security of the mortgage
for advances of and when they were made. Thus, it was concluded that the
"offer" was not accepted by the bank when a subsequent advance was
made because (1) the second note was secured by a chattel mortgage on
certain vehicles, and the clause therein stated that the note was secured by
such chattel mortgage; (2) there was no reference in the second note or
chattel mortgage indicating a connection between the real estate mortgage
and the advance; (3) the mortgagor signed the real estate mortgage by her
name alone, whereas the second note and chattel mortgage were signed by
the mortgagor doing business under an assumed name; and (4) there was
no allegation by the bank, and apparently no proof, that it relied on the
security of the real estate mortgage in making the advance.[48]
Indeed, in some instances, it has been held that in the absence of clear,
supportive evidence of a contrary intention, a mortgage containing a
"dragnet clause" will not be extended to cover future advances unless the
document evidencing the subsequent advance refers to the mortgage as
providing security therefor.[49]
It was therefore improper for petitioner in this case to seek foreclosure of the
mortgaged property because of non-payment of all the three promissory
notes. While the existence and validity of the "dragnet clause" cannot be
denied, there is a need to respect the existence of the other security given
for PN BD#76/C-345. The foreclosure of the mortgaged property should
only be for the P250,000.00 loan covered by PN BD#75/C-252, and for any
amount not covered by the security for the second promissory note. As held
in one case, where deeds absolute in form were executed to secure any
and all kinds of indebtedness that might subsequently become due, a
balance due on a note, after exhausting the special security given for the
payment of such note, was in the absence of a special agreement to the
contrary, within the protection of the mortgage, notwithstanding the giving of
the special security.[50] This is recognition that while the "dragnet clause"
subsists, the security specifically executed for subsequent loans must first
be exhausted before the mortgaged property can be resorted to.
One other crucial point. The mortgage contract, as well as the promissory
notes subject of this case, is a contract of adhesion, to which respondents
only participation was the affixing of their signatures or "adhesion"
thereto.[51] A contract of adhesion is one in which a party imposes a readymade form of contract which the other party may accept or reject, but which
the latter cannot modify.[52]
The real estate mortgage in issue appears in a standard form, drafted and
prepared solely by petitioner, and which, according to jurisprudence must be
strictly construed against the party responsible for its preparation.[53] If the
parties intended that the "blanket mortgage clause" shall cover subsequent
advancement secured by separate securities, then the same should have
been indicated in the mortgage contract. Consequently, any ambiguity is to
be taken contra proferentum, that is, construed against the party who
caused the ambiguity which could have avoided it by the exercise of a little
more care.[54] To be more emphatic, any ambiguity in a contract whose
of
the
Philippines
COURT
FIRST DIVISION
G.R. No. 168736
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari assails the Decision1 of the Court of
Appeals (CA) in CA G.R. CV No. 62352 dated November 5, 2003 which
modified the Decision2 of the Regional Trial Court (RTC) of Quezon City,
Branch 105 in Civil Case No. Q-97-32130 dated January 27, 1999, as well
as the Resolution3 dated June 28, 2005 denying the motion for
reconsideration thereof.
The facts of the case are as follows:
Petitioners, spouses Adelina and Feliciano Cuyco, obtained a loan in the
amount of P1,500,000.00 from respondents, spouses Renato and Filipina
Cuyco, payable within one year at 18% interest per annum, and secured by
a Real Estate Mortgage4 over a parcel of land with improvements thereon
situated in Cubao, Quezon City covered by TCT No. RT-43723 (188321).5
Subsequently, petitioners obtained additional loans from the respondents in
the aggregate amount of P1,250,000.00, broken down as follows: (1)
P150,000.00 on May 30, 1992; (2) P150,000.00 on July 1, 1992; (3)
P500,000.00 on September 5, 1992; (4) P200,000.00 on October 29, 1992;
and (5) P250,000.00 on January 13, 1993.6
On November 5, 2003, the CA partially granted the petition and modified the
RTC decision insofar as the amount of the loan obligations secured by the
real estate mortgage. It held that by express intention of the parties, the real
estate mortgage secured the original P1,500,000.00 loan and the
subsequent loans of P150,000.00 and P500,000.00 obtained on July 1,
1992 and September 5, 1992, respectively. As regards the loans obtained
on May 31, 1992, October 29, 1992 and January 13, 1993 in the amounts of
P150,000.00, P200,000.00 and P250,000.00, respectively, the appellate
tribunal held that the parties never intended the same to be secured by the
real estate mortgage. The Court of Appeals also found that the trial court
properly imposed 12% legal interest on the stipulated interest from the date
of filing of the complaint. The dispositive portion of the Decision reads:
WHEREFORE, the instant appeal is PARTIALLY GRANTED. The assailed
decision of the Regional Trial Court of Quezon City, Branch 105, in Civil
Case No. Q-97-32130 is hereby MODIFIED to read:
"WHEREFORE, in the light of the foregoing, the Court renders judgment on
the Complaint in favor of the plaintiffs and hereby orders the defendants to
pay to the Court or to the plaintiffs the amount of P2,149,113.92[,]
representing the total outstanding principal loan of the said defendants, plus
the stipulated interest at the rate of 18% per annum accruing thereon until
fully paid, within a period of one hundred and twenty days from the entry of
judgment, and in case of default of such payment and upon motion, the
property, subject of the real estate mortgage contract, shall be ordered sold
at public auction in satisfaction of the mortgage debts.1avvphil.net
Defendants are further, ordered to pay the plaintiffs the following:
1. the legal interest at the rate of 12% per annum on the stipulated
interest of 18% per annum, computed from the filing of the complaint
until fully paid;
2. the sum of P25,000.00 as and for attorneys fees; and
3. the costs of suit."
SO ORDERED.16
Hence, the instant petition for review on the sole issue:
with reasonable certainty, the interest shall begin to run from the time
the claim is made judicially or extrajudicially (Art. 1169, Civil Code) but
when such certainty cannot be so reasonably established at the time
the demand is made, the interest shall begin to run only from the date
the judgment of the court is made (at which time the quantification of
damages may be deemed to have been reasonably ascertained). The
actual base for the computation of legal interest shall, in any case, be
on the amount finally adjudged.
3. When the judgment of the court awarding a sum of money
becomes final and executory, the rate of legal interest, whether
the case falls under paragraph 1 or paragraph 2, above, shall be
12% per annum from such finality until its satisfaction, this
interim period being deemed to be by then an equivalent to a
forbearance of credit. (Emphasis supplied)
In the case at bar, the evidence shows that petitioners obtained several
loans from the respondent, some of which as held by the CA were secured
by real estate mortgage and earned an interest of 18% per annum. Upon
default thereof, respondents demanded payment from the petitioners by
filing an action for foreclosure of the real estate mortgage. Clearly, the case
falls under the rule stated in paragraph 1.
Applying the rules in the computation of interest, the principal amount of
loans subject of the real estate mortgage must earn the stipulated interest of
18% per annum, which interest, as long as unpaid, also earns legal interest
of 12% per annum, computed from the date of the filing of the complaint on
September 10, 1997 until finality of the Courts Decision. Such interest is not
due to stipulation but due to the mandate of the law21 as embodied in Article
2212 of the Civil Code. From such date of finality, the total amount due shall
earn interest of 12% per annum until satisfied.22
Certainly, the computed interest from the filing of the complaint on
September 10, 1997 would no longer be true upon the finality of this Courts
decision. In accordance with the rules laid down in Eastern Shipping Lines,
Inc. v. Court of Appeals, we derive the following formula23 for the RTCs
guidance:
TOTAL AMOUNT DUE = [principal + interest + interest on interest] partial payments made
Interest = principal x 18 % per annum x no. of years from due date until
finality of judgment
Interest on interest = Interest computed as of the filing of the complaint
(September 10, 1997) x 12% x no. of years until finality of judgment
Total amount due as of the date of finality of judgment will earn an interest
of 12% per annum until fully paid.
In Rizal Commercial Banking Corporation v. Alfa RTW Manufacturing
Corporation,24 this Court held that the total amount due on the contracts of
loan may be easily determined by the trial court through a simple
mathematical computation based on the formula specified above.
Mathematics is an exact science, the application of which needs no further
proof from the parties.
As regards what loans were secured by the real estate mortgage,
respondents contended that all five additional loans were intended by the
parties to be secured by the real estate mortgage. Thus, the CA erred in
ruling that only two of the five additional loans were secured by the real
estate mortgage when the documents evidencing said loans would show at
least three loans were secured by the real estate mortgage, namely: (1)
P150,000.00 obtained on May 31, 1992; (2) P150,000.00 obtained on July
1, 1992; and (3) P500,000.00 obtained on September 5, 1992.25
In their Reply, petitioners alleged that their petition only raised the sole issue
of interest on the interest due, thus, by not filing their own petition for review,
respondents waived their privilege to bring matters for the Courts review
that do not deal with the sole issue raised.
Procedurally, the appellate court in deciding the case shall consider only the
assigned errors, however, it is equally settled that the Court is clothed with
ample authority to review matters not assigned as errors in an appeal, if it
finds that their consideration is necessary to arrive at a just disposition of
the case.26
Moreover, as an exception to the rule that findings of facts of the CA are
conclusive and binding on the Court,27 an independent evaluation of facts
may be done by it when the findings of facts are conflicting,28 as in this
case.
The RTC held that all the additional loans were secured by the real estate
mortgage, thus:
There is, therefore, a preponderance of evidence to show that the parties
agreed that the additional loans would be against the mortgaged property. It
is of no moment that the Deed of Mortgage (Exh. B) was not amended and
thereafter annotated at the back of the title (Exh. C) because under Article
2125 of the Civil Code, if the instrument of mortgage is not recorded, the
mortgage is nevertheless binding between the parties. It is extremely
difficult for the court to perceive that the plaintiffs required the defendants to
execute a mortgage on the first loan and thereafter fail to do so on the
succeeding loans. Such contrary behavior is unlikely.29
The CA modified the RTC decision holding that:
However, the real estate mortgage contract was supplemented by the
express intention of the mortgagors (defendants-appellants) to secure the
subsequent loans they obtained from the mortgagees (plaintiffs-appellees),
on 01 July 1992, in the amount of P150,000.00, and on 05 September 1992,
in the amount of P500,000.00. The mortgagors (defendants-appellants)
intention to secure a larger amount than that stated in the real estate
mortgage contract was unmistakable in the acknowledgment receipts they
issued on the said loans. The acknowledgment receipts read:
"July 1, [1]992
"Received from Mr. & Mrs. Renato Q. Cuyco PCIB Ck # 498243 in the
amount of P150,000.00 July 1/92 as additional loan against mortgaged
property TCT No. RT-43723 (188321) Q.C.
(SGD) Adelina S. Cuyco"
"Sept. 05/92
"Received from Mr. R. Cuyco the amount of P500,000.00 (five hundred
thousand) PCIB Ck # 468657 as additional loan from mortgage property
TCT RT-43723.
(SGD) Adelina S. Cuyco"
In such case, the specific amount mentioned in the real estate mortgage
contract no longer controls. By express intention of the mortgagors
(defendants-appellants) the real estate mortgage contract, as
supplemented, secures the P1,500,000.00 loan obtained on 25 November
1991; the P150,000.00 loan obtained on 01 July 1992; and the P500,000.00
loan obtained on 05 September 1992. All these loans are subject to
stipulated interest of 18% per annum provided in the real estate mortgage
contract.
With respect to the other subsequent loans of the defendants-appellants in
the amount of P150,000.00, obtained on 31 May 1992; in the amount of
P200,000.00, obtained on 29 October 1992; and, in the amount of
P250,000.00, obtained on 13 January 1993, nothing in the records remotely
suggests that the mortgagor (defendants-appellants), likewise, intended the
said loans to be secured by the real estate mortgage contract.
Consequently, we rule that the trial court did err in declaring said loans to be
secured by the real estate mortgage contract.30
As a general rule, a mortgage liability is usually limited to the amount
mentioned in the contract.31 However, the amounts named as consideration
in a contract of mortgage do not limit the amount for which the mortgage
may stand as security if from the four corners of the instrument the intent to
secure future and other indebtedness can be gathered. This stipulation is
valid and binding between the parties and is known in American
Jurisprudence as the "blanket mortgage clause," also known as a "dragnet
clause." 32
A "dragnet clause" operates as a convenience and accommodation to the
borrowers as it makes available additional funds without their having to
execute additional security documents, thereby saving time, travel, loan
closing costs, costs of extra legal services, recording fees, et cetera.33
While a real estate mortgage may exceptionally secure future loans or
advancements, these future debts must be sufficiently described in the
mortgage contract. An obligation is not secured by a mortgage unless it
comes fairly within the terms of the mortgage contract.34
The pertinent provisions of the November 26, 1991 real estate mortgage
reads:
obligation but also for the interest, other charges and costs approved by the
court. Thus, to discharge the real estate mortgage, petitioners must pay the
respondents (1) the total amount due, as computed in accordance with the
formula indicated above, that is, the principal loan of P1,500,000.00, the
stipulated interest of 18%, the interest on the stipulated interest due of 12%
computed from the filing of the complaint until finality of the decision less
partial payments made, (2) the 12% legal interest on the total amount due
from finality until fully satisfied, (3) the reasonable attorneys fees of
P25,000.00 and (4) the costs of suit, within the period specified by the
Rules. Should the petitioners default in the payment thereof, the property
shall be sold at public auction to satisfy the judgment.
WHEREFORE, in view of the foregoing, the Decision of the Court of
Appeals in CA G.R. CV No. 62352 dated November 5, 2003, which modified
the Decision of the Regional Trial Court of Quezon City, Branch 105, in Civil
Case No. Q-97-32130, is AFFIRMED with the MODIFICATIONS that
petitioners are ordered to pay the respondents (1) the total amount due, as
computed by the RTC in accordance with the formula specified above, (2)
the legal interest of 12% per annum on the total amount due from such
finality until fully paid, (3) the reasonable amount of P25,000.00 as
attorneys fees, and (4) the costs of suit, within a period of not less than 90
days nor more than 120 days from the entry of judgment, and in case of
default of such payment the property shall be sold at public auction to
satisfy the judgment.
SO ORDERED.
of
the
Philippines
COURT
EN BANC
G.R. No. L-23768
JOSE
GARRIDO,
vs.
PILAR G. TUASON, defendant-appellee.
Pedro
Bernardino
Flores
David S. Ignacio for defendant-appellee.
plaintiff-appellant,
for
plaintiff-appellant.
CONCEPCION, C.J.:
Appeal from a decision of the Court of First Instance of Manila, certified to
us by the Court of Appeals, only questions of law being raised by plaintiffappellant.
On October 17, 1959, Jose Garrido commenced Civil Case No. 71763 of
the Municipal Court of Manila, for the foreclosure of a chattel mortgage,
executed in his favor by defendant, Pilar G. Tuason, to guarantee the
payment of a debt in the sum of P1,000, as well as for the recovery of
attorney's fees and the costs. After appropriate proceedings, decision was
rendered, on November 14, 1959, ordering the defendant to pay to plaintiff
"the sum of P1,000 with interest thereon at the rate of 1% per month from
June 30, 1959 until the whole amount is fully paid, plus the sum of P100 for
attorney's fees, and the costs."
In compliance with a writ of execution, issued on December 9, 1959, after
this decision had become final, a car of the defendant was, on January 2,
1960, sold, by the Provincial Sheriff of Rizal, at public auction, to the
plaintiff, as the highest bidder, for the sum of P550. On January 28, 1960,
plaintiff filed two (2) motions, namely: one, praying that the sum of P165,
allegedly spent by him to carry out said writ of execution, be added to the
unsatisfied portion of the aforementioned decision, presumably as part of
the costs, and another, for an alias writ of execution for the sum of
P1,290.58, as the aggregate outstanding balance allegedly due under said
decision. Both motions were denied in an order dated February 27, 1960.
Plaintiff's motion for reconsideration of this order was denied on March 19,
1960.1wph1.t
Soon later, or on April 1, 1960, plaintiff commenced Civil Case No. 76462,
of said court, against the same defendant whose husband was included,
as her co-defendant, on May 27, 1960 for the recovery of said alleged
balance of P1,290.58. On motion of said defendants, plaintiff's complaint in
said case No. 76462 was dismissed by the Municipal Court, on August 31,
1960. Plaintiff appealed to the Court of First Instance of Manila, which, in
due course rendered its decision, on April 17, 1961, dismissing the case,
without pronouncement as to costs, upon the ground that, pursuant to
Article 2115 of the Civil Code of the Philippines, plaintiff has no cause of
action against the defendants. Hence, this appeal by the plaintiff.
Article 2115 of said Code reads:1wph1.t
... The sale of the thing pledged shall extinguish the principal
obligation, whether or not the proceeds of the sale are equal to the
amount of the principal obligation, interest and expenses in a proper
case. If the price of the sale is more than said amount, the debtor shall
not be entitled to the excess, unless it is otherwise agreed. If the price
of the sale is less, neither shall the creditor be entitled to recover the
deficiency, notwithstanding any stipulation to the contrary.
The Court of First Instance must have applied this precept in view of Article
2141 of the same Code, pursuant to which the provisions thereof on pledge
shall be applicable to chattel mortgages "insofar as they are not in conflict
with the Chattel Mortgage Law." We have already held, however,1 that said
Article 2115 is inconsistent with the provisions of the Chattel Mortgage
Law,2 and that, accordingly, the chattel mortgage creditor may maintain an
action3 for the deficiency.
Then, again, said Court would seem to have acted under the impression,
that, since Case No. 71763 was one for the foreclosure of a chattel
mortgage, the decision therein rendered was for such foreclosure; but such
was not the nature of said decision, for it merely ordered the defendant to
pay the sum of P1,000, with interest thereon, in addition to attorney's fees
and the costs. It did not order the sale of the property mortgaged to the
plaintiff or of any other particular property, for the satisfaction of his credit
against the defendant. It did not purport to enforce plaintiff's lien over the
mortgaged property. In other words, it was an ordinary money judgment, to
which said Articles 2115 and 2141 were absolutely irrelevant.
The municipal court erred, therefore, in denying plaintiff's motion of January
28, 1960, for the issuance of an alias writ of execution in Case No. 71763,
less than five (5) years having elapsed since the decision therein was
rendered on November 14, 1959. As a consequence, plaintiff could have
and should have appealed from the order of denial of said motion; but, he
did not do so, and, instead, he brought the case at bar, thereby allowing
said order to become final. Thus, the principle of res adjudicata bars the
present action, which, accordingly, was dismissed properly.
WHEREFORE, the decision appealed from is hereby affirmed, with costs
against plaintiff-appellant. It is so ordered.1wph1.t
Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and
Fernando, JJ., concur.
DECISION
CHICO-NAZARIO, J.:
The undisputed facts of this case show that on 11 June 1997, Elias Colarina
bought on installment from Magna Financial Services Group, Inc., one (1)
unit of Suzuki Multicab, more particularly described as follows:
After making a down payment, Colarina executed a promissory note for the
balance of P229,284.00 payable in thirty-six (36) equal monthly installments
at P6,369.00 monthly, beginning 18 July 1997. To secure payment thereof,
Colarina executed an integrated promissory note and deed of chattel
mortgage over the motor vehicle.
Colarina appealed to the Regional Trial Court (RTC) of Legazpi City, Branch
4, where the case was docketed as Civil Case No. 10013. During the
pendency of his appeal before the RTC, Colarina died and was substituted
in the case by his heirs.[7] In a decision dated 30 January 2002, the RTC
affirmed in toto the decision of the MTCC.[8]
Colarina filed a Petition for Review before the Court of Appeals, docketed as
CA-G.R. SP No. 69481. On 21 January 2003, the Court of Appeals
rendered its decision[9] holding:
On the other hand, respondent countered that the Court of Appeals correctly
set aside the trial court's decision due to the inconsistency of the remedies
or reliefs sought by the petitioner in its Complaint where it prayed for the
custody of the chattel mortgage and at the same time asked for the payment
of the unpaid balance on the motor vehicle.[14]
In its Complaint, Magna Financial Services Group, Inc. made the following
prayer:
In its Memorandum before us, petitioner resolutely declared that it has opted
for the remedy provided under Article 1484(3) of the Civil Code,[17] that is,
to foreclose the chattel mortgage.
Article 1484, paragraph 3, provides that if the vendor has availed himself of
the right to foreclose the chattel mortgage, 'he shall have no further action
against the purchaser to recover any unpaid balance of the purchase price.
Any agreement to the contrary shall be void. In other words, in all
proceedings for the foreclosure of chattel mortgages executed on chattels
which have been sold on the installment plan, the mortgagee is limited to
the property included in the mortgage.[19]
The next issue of consequence is whether or not there has been an actual
foreclosure of the subject vehicle.
In the case at bar, there is no dispute that the subject vehicle is already in
the possession of the petitioner, Magna Financial Services Group, Inc.
However, actual foreclosure has not been pursued, commenced or
concluded by it.
Where the mortgagee elects a remedy of foreclosure, the law requires the
actual foreclosure of the mortgaged chattel. Thus, in Motor Co. v.
Fernandez,[24] our Supreme Court said that it is actual sale of the
mortgaged chattel in accordance with Sec. 14 of Act No. 1508 that would
bar the creditor (who chooses to foreclose) from recovering any unpaid
balance.[25] And it is deemed that there has been foreclosure of the
mortgage when all the proceedings of the foreclosure, including the sale of
the property at public auction, have been accomplished.[26]
SO ORDERED.
of
the
Philippines
COURT
EN BANC
G.R. No. L-11964
REGISTER
of
DEEDS
OF
MANILA,
petitioner-appellee,
vs.
CHINA BANKING CORPORATION, respondent-appellant.
Office
of
the
Solicitor
General
Sycip-Salazar,
Luna
and
Associates
Alfonso Ponce Enrile as Amicus Curiae.
for
petitioner-appellee.
for
respondent-appellant.
DIZON, J.:
Appeal from a resolution of the Land Registration Commission holding "that
the deed of transfer in favor of an alien bank, subject of the present
Consulta, is unregisterable for being in contravention of the Constitution of
the Philippines".
In an information filed on June 16, 1953 in the Court of First Instance of
Manila (Criminal Case No. 22908) Alfonso Pangilinan and one Guillermo
Chua were charged with qualified theft, the money involved amounting to
P275,000.00. On September 18, 1956, Pangilinan and his wife, Belen Sta.
Ana, executed a public instrument entitled DEED OF TRANSFER whereby,
after admitting his civil liability in favor of his employer, the China Banking
Corporation, in relation to the offense aforesaid, he ceded and transferred to
the latter, in satisfaction thereof, a parcel of land located in the City of
Manila, registered in the name of "Belen Sta. Ana, married to Alfonso
Pangilinan" (Transfer Certificate of Title No. 32230). On October 24, 1956
the deed was presented for registration to the Register of Deeds of the City
of Manila, but because the transferee the China Banking Corporation
was alien-owned and, as such, barred from acquiring lands in the
Philippines, in accordance with the provisions of Section 5, Article XIII of the
After considering the arguments adduced by appellant in its brief, jointly with
those expounded in the briefs submitted by Alfonso Ponce Enrile and
William H. Quasha and Associates, as amici curiae, on the one hand, and
on the other, those relied upon in the brief submitted by the Office of the
Solicitor General on behalf of the Commission, we are inclined to uphold, as
we do uphold, the appealed resolution.
To support its view appellant relies particularly upon paragraphs (c) and (d),
Section 25 of Republic Act 337 which read as follows: .
SEC. 25. Any commercial bank may purchase, hold, and convey real
estate for the following purposes:
xxx
xxx
xxx
former employee, Alfonso Pangilinan, was not a debt resulting from a loan
or a similar transaction had between the two parties in the ordinary course
of banking business.
Neither do the provisions of paragraph (d) of the Same section apply to the
present case because the deed of transfer in question can in no sense be
considered as a sale made by virtue of a judgment, decree, mortgage, or
trust deed held by appellant bank. In the same manner it cannot be said that
the real property in question was purchased by appellant "to secure debts
due to it", considering that, as stated heretofore, the term debt employed in
the pertinent legal provision can logically refer only to such debts as may
become payable to appellant bank as a result of a banking transaction.
That the constitutional prohibition under consideration has for its purpose
the preservation of the patrimony of the nation can not be denied, but
appellant and the amici curiae claim that it should be liberally construed so
that the prohibition be limited to the permanent acquisition of real estate by
aliens whether natural or juridical persons. This, of course, would make
legal the ownership acquired by appellant bank by virtue of the deed of
transfer mentioned heretofore, subject to its obligation to dispose of it in
accordance with law, within 5 years from the date of its acquisition. We can
not give assent to this contention, in view of the fact that the constitutional
prohibition in question is absolute in terms. We have so held in Ong Sui Si
Temple vs. The Register of Deeds of Manila (G. R. No. L-6776, prom. May
21, 1955) where we said, inter alia, the following:
We are of the opinion that the Court below has correctly held that in
view of the absolute terms of section 5, Title XIII, of the Constitution,
the provisions of Act 271 of the old Philippine Commission must be
deemed repealed since the Constitution was enacted, in so far as
incompatible therewith. In providing that
Save in cases of hereditary succession no private agricultural
land shall be transferred or assigned except to individuals,
corporations or associations qualified to acquire or hold lands of
the public domain in the Philippines.
the Constitution makes no exception in favor of religious associations.
Neither is there any such saving found in Sections 1 and 2 of Article
XIII, restricting the acquisition of public agricultural lands and other
of
the
Philippines
COURT
THIRD DIVISION
Spouses RODRIGO PADERES and SONIA PADERES , Petitioners, versus - The Hon. COURT OF APPEALS,[1] Hon. CARLOTA P.
VALENZUELA, in her capacity as the Liquidator of Banco Filipino Savings
and Mortgage Bank Respondents. G. R. No. 147074 July 15, 2005
Spouses ISABELO BERGARDO and JUANA HERMINIA BERGARDO,
Petitioners, - versus - The Hon. COURT OF APPEALS,1 Hon. CARLOTA
P. VALENZUELA, in her capacity as the Liquidator of Banco Filipino
Savings and Mortgage Bank, Respondents. G. R. No. 147075 July 15, 2005
xx - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - xx
DECISION
CARPIO MORALES, J.:
By their Petition for review on certiorari under Rule 45 of the Rules of
Court, petitioners spouses Rodrigo and Sonia Paderes and spouses Isabelo
and Juana Bergado seek the reversal of the September 20, 2000
Decision[3] and February 16, 2001 Resolution of the Court of Appeals,
which dismissed their original Petition and denied their Motion for
Reconsideration, respectively.
On January 25, 1985, for failure of MICC to settle its obligations, Banco
Filipino filed a verified Petition[12] for the extrajudicial foreclosure of MICC's
mortgage. At the auction sale of the foreclosed properties on March 25,
1985, Banco Filipino submitted a bid of P3,092,547.82 and was declared
the highest bidder. A Certificate of Sale[13] was issued in its favor which
was registered with the Registry of Deeds and annotated on the
corresponding TCTs covering the mortgaged properties on July 29, 1985.
As for petitioners' argument that they are still entitled to redeem the
foreclosed properties, it must be rejected too.
[SGD.]
LUCIANO D. VALENCIA
Counsel for Spouses Paderes
JPA Subdivision, City of Muntinlupa[32]
x x x (Emphasis supplied).
November 4, 1996
[SGD.]
LUCIANO D. VALENCIA
Counsel for Spouses Paderes
JPA Subdivision, City of Muntinlupa[34]
x x x (Emphasis supplied).
November 8, 1996
Mrs. LUZ B. DACASIN
Asst. Vice-President
Real Estate Department
Banco Filipino Savings & Mortgage Bank
Makati City
Re: Lot 18, Block 48 Gamboa St.
BF Homes, Paraaque, MM (264 SQ.M.)
Occupied by Sps. Isabelo Bergado &
Juana Herminia Bergado
Lot 5, Block 48, L. Florentino St.
BF Homes, Paraaque, MM (263 SQ.M.)
Occupied by Sps. Rodrigo Paderes &
Sonia Paderes
Dear Madam Asst. Vice-President:
Pursuant to our conference this morning November 8, 1996,
regarding our desire to redeem the properties above-captioned,
which your good office accommodated, and per your advi[c]e, we
submit the following facts taken out and our proposals:
1. Regarding the lot, you mentioned that, the cost per square
meter was P7,500.00. To this price we are no-committal for
the said price is high. Although, we are still to have the
amount re-negotiated.
2. We appreciate very much your having excluded the house built
in the said lot for purposes of fixing the redemption price.
3. Your advi[c]e to subject the properties (house and lot) to a
real-estate mortgage with the bank so that the amount to be
Under Article 1318 of the Civil Code, there are three essential
requisites which must concur in order to give rise to a binding contract: (1)
consent of the contracting parties; (2) object certain which is the subject
matter of the contract; and (3) cause of the obligation which is established.
'Consent is further defined in Article 1319 of the Code as follows:
Art. 1319. Consent is manifested by the meeting of the offer
and the acceptance upon the thing and the cause which are
to constitute the contract. The offer must be certain and the
acceptance absolute. A qualified acceptance constitutes a
counter-offer.
Acceptance made by letter or telegram does not bind the offerer
except from the time it came to his knowledge. The contract, in
such a case, is presumed to have been entered into in the place
where the offer was made. (Emphasis supplied)
The letters dated October 17, 1996 and November 4, 1996, signed by
petitioners' counsel, while ostensibly proposing to redeem the foreclosed
properties and requesting Banco Filipino to suggest a price for their
repurchase, made it clear that any proposal by the bank would be subject to
further action on the part of petitioners.
The letter dated October 25, 1996 signed by Luz Dacasin, Assistant
Vice-President of Banco Filipino, merely invited petitioners to engage in
further negotiations and does not contain a recognition of petitioners'
claimed right of redemption or a definite offer to sell the subject properties
back to them.
that the court, that has ordered the placing of the mortgaged
properties in the hands of a receiver in a foreclosure suit, has
jurisdiction to order the sale at public auction of the said
mortgaged properties even before the termination of the
receivership; and (4) that the fact that the price at which the
mortgaged properties were sold at public auction is inadequate, is
not in itself sufficient to justify the annulment of the sale.[41]
(Emphasis supplied)
Hence, petitioners argue, the writ of possession had lost its validity and
efficacy and should therefore be declared null and void.
Petitioners' ultimate argument fails too. In Rodil vs. Benedicto,[42] this Court
categorically held that the right of the applicant or a subsequent purchaser
to request for the issuance of a writ of possession of the land never
prescribes:
The respondents claim that the petition for the issuance of a writ
of possession was filed out of time, the said petition having been
filed more than five years after the issuance of the final decree of
registration. In support of their contention, the respondents cite
the case of Sorogon vs. Makalintal [80 Phil. 259 (1948)], wherein
the following was stated:
"It is the law and well settled doctrine in this jurisdiction that
a writ of possession must be issued within the same period
of time in which a judgment in ordinary civil actions may be
summarily executed (section 17, Act 496, as amended),
upon the petition of the registered owner or his successors in
interest and against all parties who claim a right to or interest
in the land registered prior to the registration proceeding."
The better rule, however, is that enunciated in the case of
Manlapas and Tolentino vs. Lorente [48 Phil. 298 (1925)], which
has not yet been abandoned, that the right of the applicant or a
subsequent purchaser to ask for the issuance of a writ of
possession of the land never prescribes. . .
xxx
In a later case [Sta. Ana v. Menla, 111 Phil. 947 (1961)], the
Court also ruled that the provision in the Rules of Court to the
effect that judgment may be enforced within five years by
motion, and after five years but within ten years by an action
(Section 6, Rule 39) refers to civil actions and is not
applicable to special proceedings, such as land registration
cases. The Court said:
"The second assignment of error is as follows:
'That the lower court erred in ordering that the decision
rendered in this land registration case on November 28,
1931 or twenty six years ago, has not yet become final
and unenforceable.
We fail to understand the arguments of the appellant in
support of the above assignment, except in so far as it
supports his theory that after a decision in a land registration
Petitioners have not supplied any cogent reason for this Court to deviate
from the foregoing ruling.
SO ORDERED.
12. That plaintiff is still in actual possession of the property and intend to
remain in actual possession of the property, while defendant was never in
actual possession of said property;
13. That plaintiff is ready and willing to pay the redemption money, which is
the total bank claim of P925,448.17 plus lawful interest and other allowable
expenses incident to the foreclosure proceedings:
14. That the latest actuations of defendant are indicative of the refusal of
defendant to allow the exercise of redemption by herein plaintiff, reason for
which there is a need for judicial determination of the rights and obligations
of the parties to this case;
15. That on account of the unlawful actuations of defendant in refusing the
redemption of the property by plaintiff, the latter engaged the services of
counsel for a fee of P30,000.00 which defendant should pay to plaintiff.
WHEREFORE, it is respectfully prayed of this Honorable Court that, after
due hearing, judgment be rendered:
a. ordering defendant to accept from plaintiff the lawful redemption
amount which shall be determined by this Honorable Court;
b. ordering defendant to execute the necessary instrument in order to
effect the redemption of the property;
c. ordering defendant to pay to plaintiff the sum of P30,000.00 by way
of attorney's fees;
AND PLAINTIFF PRAYS for further reliefs just and equitable under the
premises.
Petitioner filed a motion to dismiss on the ground that the complaint does
not state a cause of action. It alleges that assuming that the allegations in
the complaint are true and correct, still there was no redemption effected
within one year from the date of registration of the sheriff's certificate of sale
with the Register of Deeds on January 21, 1991, thus private respondent
had lost its right to redeem the subject land. Petitioner claimed that the letter
cited in paragraph 5 of the complaint was a mere offer to redeem the
property which was promptly answered by a letter dated August 28, 1991,
which categorically denied private respondent's offer and stated that when it
comes to redemption, the basis of payment is the total claim of the bank at
the time the property was foreclosed plus 12% thereof and all litigation
expenses attached thereto or its present appraised value whichever is
higher; that the letter mentioned in paragraph 6 of the complaint dated
January 23, 1992 of the Deputy Liquidator was about negotiation and
special arrangement and not redemption for at that stage the period of
redemption had already expired; that the letter mentioned in paragraph 7
dated March 12, 1992 was of the postponement of the consolidation of the
subject property and not of any extension for the period of redemption; that
the amount of P50,000.00 remitted by private respondent was in
consideration of the postponement of the consolidation of the property in
petitioner's name and as manifestation of private respondent's sincerity to
repurchase the foreclosed property; that when private respondent remitted
P50,000.00, the Deputy Liquidator of petitioner bank requested the legal
counsel of petitioner to defer consolidation of property in petitioner's name;
that in a letter dated November 5, 1993, petitioner's Senior Vice President
declared that the subject property is available for repurchase in the amount
of P5,830,600.00 to which private respondent in another letter asked for an
extension of 30 days to make an offer.
Private respondent filed its opposition to the motion to dismiss alleging
among others that the complaint states a cause of action; that the annexes
of the motion to dismiss should not be considered in the resolution of such
motion.
On May 10, 1994, the trial court rendered an Order[3] dismissing the
complaint. It ratiocinated that (1) the letter dated August 6, 1991 was an
offer to redeem for P700,000.00 without any tender of the money; (2) the
reply letter of petitioner dated August 28, 1991 stated that the redemption
price is P1,146,837.81 representing the bank's claim of P925,448.17 plus
12% interest and expenses of foreclosure or the appraised value which was
P1,457,650.00; (3) the March 12, 1992 letter of the petitioner categorically
informed private respondent that the period for redemption had expired,
however, the bank agreed to postpone the consolidation of title of the land
in the bank's name up to the end of March 1992 if the plaintiff shall deposit
P50,000.00 in order to avoid consolidation. Under Section 6 of Act 3135, on
redemption of foreclosed property, it is provided that a debtor may redeem
the property at anytime within one year from and after the date of sale, i.e.,
one year period to be reckoned from the registration of the sheriff's
certificate of sale. The registration of sheriff's sale was on January 21, 1991
so that the redemption period was until January 21, 1992; that although
there was an offer to redeem the property for P700,000.00 on August 6,
1991, which was within the redemption period, there was no tender of
redemption price and the P700,000.00 offered was not the correct
redemption price. It found that the complaint did not state that private
respondent tendered the correct redemption price within the redemption
period as required under Section 30 of Rule 39 of the Rules of Court.
Private respondent's motion for reconsideration was denied in an Order
dated July 25, 1994.[4]
Private respondent filed its appeal with the CA which reversed the trial court
in its assailed decision, the dispositive portion of which reads:
WHEREFORE, the Orders of the respondent trial court dated May 10, 1994,
and July 25, 1994 are hereby REVERSED and SET ASIDE. The appellants
are declared entitled to repurchase the property in question within THIRTY
(30) days from notice hereof which shall be effected upon payment of the
repurchase price of P925,448.17 less P50,000.00, which is the deposit on
the redemption price, with legal interest from March 24, 1992, the time the
contract extending the period of redemption of the property took effect until
it is fully paid.[5]
The CA ruled that:
A perusal of the allegations in the complaint shows that there was sufficient
basis to make out a case against Banco Filipino. The complaint alleged that
as early as August 6, 1991 or about six (6) months before the statutory
period for redemption would expire, the appellant had exerted earnest
efforts to effect the redemption of the property in question and that after an
agreement had been reached by the parties, with the corresponding deposit
on the redemption price had been given by the appellant, the appellee bank
led the appellant to believe that the appellee was negotiating with the former
in good faith. However, the true intention of the appellee bank was to refuse
the redemption of the property as manifested by its act of increasing the
amount of the redemption price after the period for redemption had expired
and after a deposit on the redemption price had been duly accepted by it as
evidenced by a receipt issued by the appellee.
Even assuming however that the appellant is now barred from exercising its
right of redemption, yet it can still repurchase the property in question based
on a new contract entered into between the parties extending the period
within which to purchase the property as evidenced by the appellee's
Deputy Liquidator Rosauro Napa's letter to Belen Jocson dated March 12,
1992 and the letter addressed to Atty. German M. Balot, Legal Counsel,
Banco Filipino ' Santiago, Isabela dated April 7, 1992.
...
In the case of Philippine National Bank vs. Court of Appeals, the Court held:
Indeed under Article 1482 of the Civil Code, earnest money given in a sale
transaction is considered part of the purchase price and proof of the
perfection of the sale. This provision, however, gives no more than a
disputable presumption that prevails in the absence of contrary or rebuttal
evidence. In the instant case, the letter-agreements themselves are the
evidence of an intention on the part of herein private parties to enter into
negotiations leading to a contract of sale that is mutually acceptable as to
absolutely bind them to the performance of their obligations thereunder. The
letter-agreements are replete with substantial condition precedents,
acceptance of which on the part of private respondent must first be made in
order for petitioner to proceed to the next step in the negotiations.
. . . [6]
In compliance with the CA decision, private respondent on April 27, 2000,
made a tender of payment and consignation with the CA in the amount of
P1,300,987.96 through a Philippine National Bank check which was duly
receipted by the appellate court. [7]
Hence, the herein petition for review on certiorari filed by petitioner alleging
that the appellate court erred in holding that (1) the allegations in the
complaint of private respondent against petitioner are sufficient to constitute
a cause of action for redemption and specific performance; and (2)
respondent was entitled to repurchase back from petitioner it's foreclosed
property for only P925,448.17.
The basic issue is whether private respondent's complaint for redemption
and specific performance states a cause of action against petitioner.
The allegations in the complaint do not show that a new contract was
entered into between the parties. The March 12, 1992 letter referred to by
the CA as well as in the complaint only directed private respondent to remit
at least P50,000.00 to petitioner as a manifestation of the former's interest
and willingness to redeem the property. Thus, the P50,000.00 remitted by
private respondent was only the first step to show its interest in redeeming
the property. In no way did it establish that a contract of sale, as found by
the CA, had been perfected and that the P50,000.00 remitted by private
respondent is considered as earnest money.
Article 1475 of the Civil Code provides:
The contract of sale is perfected at the moment there is a meeting of minds
upon the thing which is the object of the contract and upon the price.
From that moment, the parties may reciprocally demand performance,
subject to the provisions of the law governing the form of contracts.
There was no showing in the complaint that private respondent and
petitioner had already agreed on the purchase price of the foreclosed
property. In fact, the allegations in paragraphs 8 to 10 of the complaint show
otherwise, thus:
8. That in a letter of the President of plaintiff dated January 20, 1993,
plaintiff amended its first offer and made an offer of P1,000,000.00 as
redemption which offer included a plan of payment;
9. That between January 20, 1993 to November 1993, plaintiff exerted
earnest efforts in order to finally effect the redemption, but defendant
dilly dallied on the matter.
10. That in a letter of Atty. ORLANDO O. SAMSON, Senior Vice
President of defendant, dated November 5, 1993, there is a turn-around
by defendant and is now demanding P5,830,000.00 as purchase price
of the property, instead of the original agreed redemption;
The complaint does not allege that there was already a meeting of the
minds of the parties.
Based on the foregoing, there is no basis for the order of the CA to allow
private respondent to repurchase the foreclosed property in the amount of
BUKIDNON DOCTORS' HOSPITAL, INC., Petitioner, - versus METROPOLITAN BANK & TRUST CO., Respondent. G.R. No. 161882
July 8, 2005
DECISION
In its letter of 16 July 2003, or approximately a year and eight months after
the agreed effectivity date of the lease contract, the respondent asked the
petitioner to vacate the leased premises within fifteen days. The petitioner
refused, invoking the subsisting lease agreement.
On 21 August 2003, the respondent filed with the Regional Trial Court
(RTC) of MalaybalayCity, Bukidnon, an Ex Parte Motion for a Writ of
Possession. The case was docketed as Misc. Case No. 735-03 and raffled
to Branch 9 of that court.
Its motion for reconsideration having been denied by the trial court in the
Order of 23 January 2004,[6] the petitioner filed on 29 January 2004 (the
day it received the denial order) a Notice of Appeal stating that it was
appealing to the Court of Appeals on both questions of fact and law.[7]
Earlier, or on 27 November 2003, the petitioner filed with the trial court an
action for specific performance, injunction, and damages, docketed as Civil
Case No. 3312-03.[8] Also, on 30 January 2004, the petitioner filed a
petition for rehabilitation before the RTC of Cagayan de Oro City, Branch
18, docketed as Spec. Pro. Case No. 2004-019.
In our Resolution of 2 August 2004, we gave due course to the petition and
resolved to decide the case based on the pleadings already filed.[12]
instant petition praying (1) for the reversal of the order for the issuance of a
writ of possession and (2) for full possession by the petitioner of the subject
properties was rendered moot and academic. Nonetheless, for the guidance
of the bench and the bar, we shall proceed to resolve the important issue of
whether a writ of possession will lie to recover the material possession of
previously mortgaged properties that have been leased to the mortgagor
after the mortgagee consolidated its ownership over the properties.
Before filing on 4 March 2004 the petition in this case, the petitioner had
filed two other cases, namely, (1) an Action for Specific Performance,
Injunction, and Damages with the RTC of Malaybalay City, docketed as Civil
Case No. 3312-03 and (2) a Petition for Corporate Rehabilitation with the
RTC of Cagayan de Oro City, docketed therein as S.P. Case No. 2004-019.
However, these two cases involve causes of action different from the one at
bar. In Civil Case No. 3312-03, the petitioner sought the enforcement of the
lease contract between it and the respondent, with prayer for damages for
the latter's breach of its contractual obligation. In S.P. Case No. 2004-019,
the petitioner prayed for rehabilitation pursuant to the Interim Rules on
Corporation Rehabilitation.
Upon the other hand, in this case, the ex parte motion for a writ of
possession was filed at the instance of the respondent. When the motion
was granted, the petitioner filed a notice of appeal to the Court of Appeals,
which it later withdrew. Thereafter, it appealed to us via Rule 45 of the Rules
of Court questioning the propriety of the issuance of a writ of possession for
the purpose of evicting the petitioner despite the lease agreement
subsequently entered into by the parties after the expiration of the
redemption period. As can be clearly seen, the two cases and the appeal
filed by the petitioner involved different causes of action. Thus, the petitioner
cannot be said to have engaged in forum-shopping.
Neither can the petitioner be deemed to have waived its right to file this
petition. Realizing that the remaining issue was a pure question of law, it
withdrew its Notice of Appeal stating that it was appealing the 28 January
2002 Order on both questions of law and fact. Section 9 of Rule 41 of the
Rules of Court provides that prior to the transmittal of the original record, the
court may allow withdrawal of the appeal.
Nothing in the Rules prevents a party from filing a petition under Rule 45 of
the Rules of Court after seasonably withdrawing the Notice of Appeal as
long as it is done within the reglementary period and the issue involved is
purely one of law. In this case it was before the lapse of the reglementary
period to appeal that the petitioner withdrew its Notice of Appeal to the
Court of Appeals and filed with us a motion for extension of time to file a
petition under Rule 45 of the Rules of Court. And the petition was filed within
the extended period we granted, raising only one question of law.
(a)
Ordinary appeal. ' The appeal to the Court of Appeals
in cases decided by the Regional Trial Court in the exercise of its
original jurisdiction shall be taken by filing a notice of appeal with
the court which rendered the judgment or final order appealed
from and serving a copy thereof upon the adverse party. No
record on appeal shall be required except in special proceedings
and other cases of multiple or separate appeals where the law or
these Rules so require. In such cases, the record on appeal shall
be filed and served in like manner.
(b) Petition for review. ' The appeal to the Court of Appeals in
cases decided by the Regional Trial Court in the exercise of its
appellate jurisdiction shall be by petition for review in accordance
with Rule 42.
(c) Appeal by certiorari. ' In all cases where only questions of law
are raised or involved, the appeal shall be to the Supreme Court
by petition for review on certiorari in accordance with Rule 45.
A question of law exists when the doubt or controversy concerns the correct
application of law or jurisprudence to a certain set of facts; or when the
issue does not call for an examination of the probative value of the evidence
presented, the truth or falsehood of facts being admitted. A question of fact
exists when the doubt or difference arises as to the truth or falsehood of
facts or when the query invites calibration of the whole evidence considering
mainly the credibility of the witnesses, the existence and relevancy of
specific surrounding circumstances, as well as their relation to each other
and to the whole, and the probability of the situation.[15]
As earlier stated, the only issue raised in this petition is' 'whether [or] not the
court a quo correctly ruled that respondent, a former mortgagee-buyer, was
still entitled to a writ of possession as a matter of right as provided under act
3135, as amended, despite a lease agreement between itself and the
former mortgagor-seller executed after respondent became the absolute
owner of the foreclosed properties.
In sum, the petition at bar is not tainted with any of the procedural errors
attributed to it by the respondent.
We shall now consider the issue of the propriety of the issuance of a writ of
possession in favor of the respondent.
However, in the instant case, a writ of possession was not the correct
remedy for the purpose of ousting the petitioner from the subject premises.
It must be noted that possession is the holding of a thing or the enjoyment
of a right.[21] It is acquired by the material occupation of a thing or the
exercise of a right, or by the fact that a thing or right is subject to the action
of one's will, or by the proper acts and legal formalities established for
acquiring such right.[22] 'By material occupation of a thing, it is not
necessary that the person in possession should be the occupant of the
property; the occupancy can be held by another in his name.[23] Thus
Articles 524 and 525 of the Civil Code provide:
In the case at bar, it is not disputed that after the foreclosure of the property
in question and the issuance of new certificates of title in favor of the
respondent, the petitioner and the respondent entered into a contract of
lease of the subject properties. This new contractual relation presupposed
that the petitioner recognized that possession of the properties had been
legally placed in the hands of the respondent, and that the latter had taken
such possession but delivered it to the former as lessee of the property. By
paying the monthly rentals, the petitioner also recognized the superior right
of the respondent to the possession of the property as owner thereof. And
by accepting the monthly rentals, the respondent enjoyed the fruits of its
possession over the subject property.[24] Clearly, the respondent is in
material possession of the subject premises. Thus, the trial court's issuance
of a writ of possession is not only superfluous, but improper under the law.
Moreover, as a lessee, the petitioner was a legitimate possessor of the
subject properties under Article 525 of the Civil Code. Thus, it could not be
deprived of its lawful possession by a mere ex parte motion for a writ of
possession.
Apropos to this case is Banco de Oro Savings and Mortgage Bank v. Court
of Appeals.[25] There, the spouses Nery were not able to redeem the
property they mortgaged to the bank; hence, the latter was able to
consolidate the title to the property in its name. The Nerys requested the
bank for more time to repurchase the subject property, obligating
themselves to pay monthly rentals or reasonable compensation for the
continued occupation of the premises on the ground that they had leased
portions of the building to tenants. Since neither the Nerys nor their tenants
vacated the subject premises nor paid reasonable compensation for the use
thereof, the bank instituted three separate ejectment suits against them
before the Metropolitan Trial Court of Paraaque. The Nerys argued that the
proper remedy that should have been taken by the bank as mortgagee was
to obtain a writ of possession and not an action for ejectment. We rejected
Nerys' argument and ruled that it was proper for the bank to sue for
ejectment. Thus:
The Nerys forget, however, that they had asked the Bank for a
grace period within which to repurchase the mortgaged property
and to be allowed to pay monthly rentals or reasonable
compensation for the use of the premises. In fact, they did pay
rentals for several months. Their continued stay in the property
was thereby converted to one by tolerance or permission. 'A
person who occupies the land of another at the latter's tolerance
or permission, without any contract between them, is necessarily
bound by an implied promise that he will vacate upon demand,
failing which, a summary action for ejectment is proper against
him (Dakudao v. Consolacion, L-54573, 24 June 1983, 112 SCRA
877). The Nerys refused to vacate upon demand, the last of which
was made by letter, dated 25 July 1984, as found by the Trial
Court, and not 9 September 1983 as the Nerys allege. An
ejectment suit, therefore, was proper, with the legally prescribed
period to institute the same having been complied with.
No pronouncement as to costs.
SO ORDERED.
of
the
Philippines
COURT
THIRD DIVISION
G.R. No. 164510
SPOUSES
SANTIAGO
and
RUFINA
TANCHAN,
vs.
ALLIED BANKING CORPORATION, respondent.
petitioners
DECISION
AUSTRIA-MARTINEZ, J.:
By way of Petition for Review under Rule 45 of the Rules of Court, spouses
Santiago and Rufina Tanchan (petitioners) seek the modification of the June
15, 2004 Decision1of the Court of Appeals (CA) which affirmed the August
3, 2001 Decision2 and August 8, 2002 Order3 of Branch 137, Regional Trial
Court (RTC), Makati in Civil Case No. 98-2468.4
The relevant facts are of record.
For value received, Cebu Foremost Construction, Inc. (Foremost), through
its Chairman and President Henry Tanchan (Henry) and his spouse, VicePresident and Treasurer Ma. Julie Ann Tanchan (Ma. Julie Ann) executed
and delivered to Allied Banking Corporation (respondent) seven US$
promissory notes,5 including Promissory Note No. 0051-97-036966 (Exhibit
"G") for US$379,000.00, at 9.50% interest rate per annum, due on February
9, 1998.
Foremost also issued to respondent several Philippine peso promissory
notes7 covering various loans in the aggregate amount of
Php28,900,000.00, including Promissory Note No. 0051-97-03688 (Exhibit
"H") for PhpP16,500,000.00, at an interest rate of 14.5% per annum, due
on February 9, 1998.8
All the foregoing promissory notes are secured by two Continuing Guaranty/
Comprehensive Surety Agreements (CG/CSA) executed in the personal
capacities of spouses Henry and Ma. Julie Ann (Spouses Tanchan) and
Henry's brother, herein petitioner Santiago Tanchan (Santiago),9for himself
and as attorney-in-fact of his wife and co-petitioner Rufina Tanchan (Rufina)
under a Special Power of Attorney, dated April 30, 1993, which grants
Santiago authority to:
x x x borrow and/or contract debts and obligations involving, affecting
or creating a charge or liability on, or which may involve, affect or
create a liability on the Property and/or my interest therein, whether or
not such debt/s or obligation/s contracted or to be contracted will
benefit me or the family, and to sign, execute and deliver in my name
to or in favor of any party, under such terms and conditions as my
attorney-in-fact may deem necessary, appropriate or convenient, any
and all documents instruments or contract/s (including without
limitations, promissory notes, loan agreements, assignments, surety or
guaranty undertakings, security agreements) involving, affecting or
creating a charge or liability on the Property."10
The liability of the
Php150,000,000.00.11
sureties
under
both
CG/CSAs
is
limited
to
Exhibit "G" and all the Philippine peso promissory notes, including Exhibit
"H", are secured not only by the two CG/CSAs but also by a Real Estate
Mortgage executed on February 14, 1997 by Henry, for himself and as the
legal guardian of the minors Henry Paul L. Tanchan and Don Henry L.
Tanchan; his wife Ma. Julie Ann; and Spouses Pablo and Milagros Lim, over
real properties registered in their names under Transfer Certificates of Title
No. 115804, No. 111149, No. 110672 and No. 3815, all located in Cebu
City.12
In separate final demand letters, both dated May 14, 1998, respondent
sought from Foremost payment of US$1,054,000.00, as the outstanding
principal balance, exclusive of interest and charges, of its obligations under
the seven US$ promissory notes,and PhP28,900,000.00 under its Philippine
peso promissory notes.13 Separate demands for payment were also made
upon Spouses Tanchan14 and the petitioners15 as sureties.
0051-9600603
0051-9702444
0051-9703696
(Exhibit
"G")
0051-9703688
(Exhibit
"H")
proceeds, they diverted the same to a purpose other than that for
which they were intended as shown by the fact that defendants
[Foremost, et al.] were not able to fully pay the obligations at its
maturity date;
5. There is no security whatsoever for the claim plaintiff [respondent]
seeks to enforce by this action, and only by the issuance of a writ of
preliminary attachment can its interest be protected.20
The application for writ of preliminary attachment was granted by the RTC in
an Order dated November 3, 1998, to wit:
WHEREFORE, finding plaintiff's [respondent's] application for the
issuance of a writ of preliminary attachment sufficient in form and
substance, and the ground set forth therein being among those
allowed by the Rules (Rule 57, Sec. 1 [e]), let a Writ of Preliminary
Attachment issue against the properties of defendants Cebu Foremost
Construction, Incorporated, Santiago Tanchan, Jr., Rufina C. Tanchan,
Henry Tanchan and Ma. Julie Ann T. Tanchan, upon plaintiff's
[respondent's] filing of a bond in the amount of FIFTY-FOUR MILLION
(P54,000,000.00) PESOS, conditioned to answer for whatever damage
that the said defendants [Foremost, et al.] may suffer by reason of the
issuance of said writ should the Court finally adjudge that plaintiff
[respondent] was not entitled thereto.
SO ORDERED.21
Thus, armed with a writ of attachment,22 the sheriff levied several parcels of
land registered in the name of Foremost, et al.23
In their Amended Answer with Counterclaim,24 Foremost, et al.
acknowledged the authenticity and due execution of the promissory notes
but denied liability for the amounts alleged in the Complaint, the
computation of which they dispute due to the arbitrariness of the imposition
of new interest rates. They impugned the cause of action of respondent to
collect the amount due under Exhibit "G" and Exhibit "H" in view of the
bank's prior extra-judicial foreclosure of the securities thereon, which
recourse bars collection of the amounts due on the same promissory
notes.25
until fully paid, and 1% penalty per month on the amount due from
maturity date until fully paid; (5) US $75,000.00, plus 9.5% interest per
annum from 7 January 1997 until fully paid, and 1% penalty per month
on the amount due from maturity date until fully paid; (7) US
$379,000.00, plus 9.5% interest per annum from 12 February 1997 to
8 December 1997, 11.4% interest per annum from 9 December 1997
until fully paid, and 1% penalty per month on the amount due from
maturity date until fully paid; (8) P7,582,945.85, plus 28.5% interest per
annum, and 3% penalty per month, from the foreclosure sale on 10
August 1998 until fully paid; (9) attorney's fees equivalent to 10% of the
amount due plaintiff. However, the liability of defendants' Santiago
Tanchan, Jr., Rufina C. Tanchan, Henry Tanchan and Ma. Julie Ann T.
Tanchan is limited to P150,00,000.00 only.
Defendants' counterclaims are dismissed for lack of sufficient merit.
SO ORDERED.39
Foremost, et al. filed a Motion for Partial Reconsideration of Decision on the
ground that respondent failed to state a cause of action for the payment of
any deficiency account under Exhibit "G" and Exhibit "H". Its Complaint
does not contain any allegation regarding a deficiency account; nor even an
allusion to the foreclosure sale conducted in partial satisfaction of said
promissory notes. Although in its Amended Pre-trial Brief, respondent
mentioned that a deficiency account remained after the foreclosure of the
real estate mortgage, such statement did not have the effect of amending
the Complaint itself. Neither did the testimonies of Bandilla and Elumbaring
about a deficiency account take the place of a specific allegation of such
cause of action in the Complaint. Thus, in the absence of an allegation in
the Complaint of a cause of action for the payment of a deficiency account,
the RTC had no factual or legal basis to grant such claim.40
Spouses Tanchan and herein petitioners also filed a Motion to Lift the Writ
of Preliminary Attachment.41
The RTC denied the Motion to Lift the Writ of Attachment in an Order42
dated September 25, 2001, and the Motion for Partial Reconsideration, in
an Order43dated August 8, 2002.
before appeal therefrom was perfected, petitioners filed on August 23, 2001
a Motion to Lift the Writ of Preliminary Attachment, reiterating their objection
to the writ and seeking payment of damages for its wrongful issuance.50
Clearly, petitioners' opposition to the writ was timely.
The question now is whether petitioner has a valid reason to have the writ
discharged and to claim damages.
It should be borne in mind that the questioned writ of preliminary attachment
was issued by the RTC under Section 1(d), Rule 57 of the Rules of Court, to
wit Sec. 1. Grounds upon which attachment may issue. - A plaintiff or any
proper party may, at the commencement of the action or at any time
thereafter, have the property of the adverse party attached as security
for the satisfaction of any judgment that may be recovered in the
following cases:
xxxx
(d) In an action against a party who has been guilty of a fraud in
contracting the debt or incurring the obligation upon which the action is
brought, or in concealing or disposing of the property for the taking,
detention or conversion of which the action is brought;
x x x x.
and on the basis solely of respondent's allegations in its Complaint "that
defendants [Foremost, et al.] failed to pay their obligations on maturity
dates, with the amount of US$1,054,000.00 and Php7,466795.69 remaining
unpaid; that defendants are disposing/concealing their properties with intent
to defraud the plaintiff and/or are guilty of fraud in the performance of their
obligations; and that there is no security whatsoever for the claim sought to
be enforced."51
Petitioners argue that the foregoing allegations are not sufficient to justify
issuance of the writ, especially in the absence of findings that they, as
sureties, participated in specific fraudulent acts in the execution and
performance of the loan agreements with respondent. 52
In refusing to lift the writ, the RTC held that the lack of a specific factual
finding of fraud in its decision is not among the grounds provided under
Sections 12 and 13, Rule 57 of the Rules of Court for the discharge of the
writ.53 The CA agreed for the reason that the RTC's affirmative action on the
complaint filed by respondent signifies its agreement with the allegations
found therein that Foremost, et al., including herein petitioners, committed
fraudulent acts in procuring loans from respondent.54
Both courts are in error.
The present case fits perfectly into the mold of Allied Banking Corporation v.
South Pacific Sugar Corporation,55where a writ of preliminary attachment
issued in favor of Allied Banking Corporation was discharged by the lower
courts for lack of evidence of fraud. In sustaining the discharge of the writ,
the Court held:
Moreover, even a cursory examination of the bank's complaint will
reveal that it cited no factual circumstance to show fraud on the part of
respondents. The complaint only had a general statement in the Prayer
for the Issuance of a Writ of Preliminary Attachment, reproduced in the
attached affidavit of petitioner's witness Go who stated as follows:
xxxx
4. Defendants committed fraud in contracting the obligations upon
which the present action is based and in the performance thereof.
Among others, defendants induced plaintiff to grant the subject
loans to defendant corporation by willfully and deliberately
misrepresenting that, one, the proceeds of the loans would be
used as additional working capital and, two, they would be in a
financial position to pay, and would most certainly pay, the loan
obligations on their maturity dates. In truth, defendants had no
intention of honoring their commitments as shown by the fact that
upon their receipt of the proceeds of the loans, they diverted the
same to illegitimate purposes and then brazenly ignored and
resisted plaintiff's lawful demands for them to settle their past due
loan obligations
xxxx
The affidavit, being the foundation of the writ, must contain such
particulars as to how the fraud imputed to respondent was committed
for the court to decide whether or not to issue the writ. Absent any
statement of other factual circumstances to show that respondent, at
the time of contracting the obligation, had a preconceived plan or
intention not to pay, or without any showing of how respondent
committed the alleged fraud, the general averment in the affidavit that
respondent is an officer and director of Wincorp who allegedly
connived with the other defendants to commit a fraud, is insufficient to
support the issuance of a writ of preliminary attachment x x x. Verily,
the mere fact that respondent is an officer and director of the
company does not necessarily give rise to the inference that he
committed a fraud or that he connived with the other defendants
to commit a fraud. While under certain circumstances, courts may
treat a corporation as a mere aggroupment of persons, to whom
liability will directly attach, this is only done when the wrongdoing
has been clearly and convincingly established. (Emphasis
supplied)
Indeed, a writ of preliminary attachment is too harsh a provisional remedy to
be issued based on mere abstractions of fraud.58 Rather, the rules require
that for the writ to issue, there must be a recitation of clear and concrete
factual circumstances manifesting that the debtor practiced fraud upon the
creditor at the time of the execution of their agreement in that said debtor
had a pre-conceived plan or intention not to pay the creditor.59Being a state
of mind, fraud cannot be merely inferred from a bare allegation of nonpayment of debt or non-performance of obligation.60
As shown in Ng Wee, the requirement becomes all the more stringent when
the application for preliminary attachment is directed against a defendant
officer of a defendant corporation, for it will not be inferred from the affiliation
of one to the other that the officer participated in or facilitated in any
fraudulent practice attributed to the corporation. There must be evidence
clear and convincing that the officer committed a fraud or connived with the
corporation to commit a fraud; only then may the properties of said officer,
along with those of the corporation, be held under a writ of preliminary
attachment.
of
the
Philippines
COURT
SECOND DIVISION
1) Article 2018 of the New Civil Code is inapplicable to the factual milieu of
the instant case considering that in a commodity futures transaction the
broker is not the direct participant and cannot be considered as winner or
loser and the contract itself, from its very nature, cannot be considered as
gambling.
2) A commodity futures contract, being a specie of securities, is valid and
enforceable as its terms are governed by special laws, notably the Revised
Securities Act and the Revised Rules and Regulations on Commodity
Futures Trading issued by the Securities and Exchange Commission (SEC)
and approved by the Monetary Board of the Central Bank; hence, the Civil
Code is not the controlling piece of legislation.
From the records, We gather the following antecedent facts and
proceedings.
The petitioner, ONAPAL Philippines Commodities, Inc. (petitioner), a duly
organized and existing corporation, was licensed as commission
merchant/broker by the SEC, to engage in commodity futures trading in
Cebu City under Certificate of Registration No. CEB-182. On April 27, 1983,
petitioner and private respondent concluded a "Trading Contract". Like all
customers of the petitioner, private respondent was furnished regularly with
"Commodities Daily Quotations" showing daily movements of prices of
commodity futures traded and of market reports indicating the volume of
trade in different future exchanges in Hongkong, Tokyo and other centers.
Every time a customer enters into a trading transaction with petitioner as
broker, the trading order is communicated by telex to its principal, Frankwell
Enterprises of Hongkong. If the transaction, either buying or selling
commodity futures, is consummated by the principal, the petitioner issues a
document known as "Confirmation of Contract and Balance Sheet" to the
customer. An order of a customer of the petitioner is supposed to be
transmitted from Cebu to petitioner's office in Manila. From Manila, it should
be forwarded to Hongkong and from there, transmitted to the Commodity
Futures Exchange in Japan.
There were only two parties involved as far as the transactions covered by
the Trading Contract are concerned the petitioner and the private
respondents. We quote hereunder the respondent Court's detailed findings
of the transactions between the parties:
delivery so that under the contract made by the purchaser, if the price of
cotton had advanced, he would have received in cash from the seller each
week the advance (increase) in price and if cotton prices declined, the
purchaser had to make like payments to the seller. In the terminology of the
exchange, these payments are called "margins". 6 Either the seller or the
buyer may elect to make or demand delivery of the cotton agreed to be sold
and bought, but in general, it seems practically a uniform custom that
settlements are made by payments and receipts of difference in prices at
the time of delivery from that prevailing at the time of payment of the past
weekly "margins". These settlements are made by "closing out" the
contracts. 7 Where the broker represented the buyer in buying and selling
cotton for future delivery with himself extending credit margins, and some of
the transactions were closed at a profit while the others at a loss, payments
being made of the difference in prices arising out of their rise or fall above or
below the contract price, and the facts showed that no actual delivery of
cotton was contemplated, such contracts are of the kind commonly called
"futures". 8 Making contracts for the purchase and sale of commodities for
future delivery, the parties not intending an actual delivery, or contracts of
the kind commonly called futures, are unenforceable. 9
The term "futures" has grown out of those purely speculative transactions in
which there are nominal contracts to sell for future delivery, but where in fact
no delivery is intended or executed. The nominal seller does not have or
expect to have a stock of merchandise he purports to sell nor does the
nominal buyer expect to receive it or to pay for the price. Instead of that, a
percentage or margin is paid, which is increased or diminished as the
market rates go up and down, and accounted for to the buyer. This is simple
speculation, gambling or wagering on prices within a given time; it is not
buying and selling and is illegal as against public policy. 10
The facts as disclosed by the evidence on record show that private
respondent made arrangements with Elizabeth Diaz, Account Executive of
petitioner for her to see Mr. Albert Chiam, petitioner's Branch Manager. The
contract signed by private respondent purports to be for the delivery of
goods with the intention that the difference between the price stipulated and
the exchange or market price at the time of the pretended delivery shall be
paid by the loser to the winner. We quote with approval the following
findings of the trial court as cited in the Court of Appeals decision:
The transaction is not what the parties call it but what the law defines it to
be. 15
After considering all the evidence in this case, it appears that petitioner and
private respondent did not intend, in the deals of purchasing and selling for
future delivery, the actual or constructive delivery of the goods/commodity,
despite the payment of the full price therefor. The contract between them
falls under the definition of what is called "futures". The payments made
under said contract were payments of difference in prices arising out of the
rise or fall in the market price above or below the contract price thus making
it purely gambling and declared null and void by law. 16
In England and America where contracts commonly called futures
originated, such contracts were at first held valid and could be enforced by
resort to courts. Later these contracts were held invalid for being
speculative, and in some states in America, it was unlawful to make
contracts commonly called "futures". Such contracts were found to be mere
gambling or wagering agreements covered and protected by the rules and
regulations of exchange in which they were transacted under devices which
rendered it impossible for the courts to discover their true character. 17 The
evil sought to be suppressed by legislation is the speculative dealings by
means of such trading contracts, which degenerated into mere gambling in
the future price of goods/commodities ostensibly but not actually, bought or
sold. 18
Under Article 2018, the private respondent is entitled to refund from the
petitioner what she paid. There is no evidence that the orders of private
respondent were actually transmitted to the petitioner's principal in
Hongkong and Tokyo. There was no arrangement made by petitioner with
the Central Bank for the purpose of remitting the money of its customers
abroad. The money which was supposed to be remitted to Frankwell
Enterprises of Hongkong was kept by petitioner in a separate account in a
local bank. Having received the money and orders of private respondent
under the trading contract, petitioner has the burden of proving that said
orders and money of private respondent had been transmitted. But
petitioner failed to prove this point.
For reasons indicated and construed in the light of the applicable rules and
under the plain language of the statute, We find no reversible error
committed by the respondent Court that would justify the setting aside of the
of
the
Philippines
COURT
THIRD DIVISION
G.R. No. 115849
Bank
Attn.
Mr.
Mercurio
Manager, Property Management Dept.
of
the
Philippines
Q.
Rivera
Gentleman:
I have the honor to submit my formal offer to purchase your properties
covered by titles listed hereunder located at Sta. Rosa, Laguna, with a
total area of 101 hectares, more or less.
TCT
NO.
T106932
T106933
T106934
T106935
T-
AREA
113,580
sq. m.
70,899 sq.
m.
52,246 sq.
m.
96,768 sq.
m.
187,114
106936 sq. m.
T481,481
106937 sq. m.
My offer is for PESOS: THREE MILLION FIVE
THOUSAND (P3,500,000.00) PESOS, in cash.
HUNDRED
ENTERPRISES
Andres
II
de
17,
Bank
Roxas
Bank
of
the
Roxas,
Philippines
Makati
Hectares
of
Land
Gentlemen:
Pursuant to our discussion last 28 September 1987, we are pleased to
inform you that we are accepting your offer for us to purchase the
property at Sta. Rosa, Laguna, formerly owned by Byme Investment,
for a total price of PESOS: FIVE MILLION FIVE HUNDRED
THOUSAND (P5,500,000.00).
Thank you.
(6) On October 12, 1987, the conservator of the bank (which has been
placed under conservatorship by the Central Bank since 1984) was
replaced by an Acting Conservator in the person of defendant Leonida
de
Mercurio
Producers
Roxas,
Rivera
Bank
Makati
accepted by our client thru a letter dated September 30, 1987 and was
received by you on October 5, 1987.
In view of the above circumstances, we believe that an agreement has
been perfected. We were also informed that despite repeated follow-up
to consummate the purchase, you now refuse to honor your
commitment. Instead, you have advertised for sale the same lot to
others.
In behalf of our client, therefore, we are making this formal demand
upon you to consummate and execute the necessary
actions/documentation within three (3) days from your receipt hereof.
We are ready to remit the agreed amount of P5.5 million at your
advice. Otherwise, we shall be constrained to file the necessary court
action to protect the interest of our client.
We trust that you will be guided accordingly.
(8) Defendant bank, through defendant Rivera, acknowledged receipt
of the foregoing letter and stated, in its communication of December 2,
1987 (Exh. "I"), that said letter has been "referred . . . to the office of
our Conservator for proper disposition" However, no response came
from the Acting Conservator. On December 14, 1987, the plaintiffs
made a second tender of payment (Exh. "L" and "L-1"), this time
through the Acting Conservator, defendant Encarnacion. Plaintiffs'
letter reads:
PRODUCERS
THE
Paseo
Makati, Metro Manila
Attn.:
Atty.
Central Bank Conservator
BANK
de
NIDA
OF
PHILIPPINES
Roxas,
ENCARNACION
5) Did the respondent Court commit any reversible error in its findings
of facts?
The First Issue: Was There Forum-Shopping?
In order to prevent the vexations of multiple petitions and actions, the
Supreme Court promulgated Revised Circular No. 28-91 requiring that a
party "must certify under oath . . . [that] (a) he has not (t)heretofore
commenced any other action or proceeding involving the same issues in the
Supreme Court, the Court of Appeals, or any other tribunal or agency; (b) to
the best of his knowledge, no such action or proceeding is pending" in said
courts or agencies. A violation of the said circular entails sanctions that
include the summary dismissal of the multiple petitions or complaints. To be
sure, petitioners have included a VERIFICATION/CERTIFICATION in their
Petition stating "for the record(,) the pendency of Civil Case No. 92-1606
before the Regional Trial Court of Makati, Branch 134, involving a derivative
suit filed by stockholders of petitioner Bank against the conservator and
other defendants but which is the subject of a pending Motion to Dismiss
Without Prejudice.9
Private respondent Ejercito vigorously argues that in spite of this
verification, petitioners are guilty of actual forum shopping because the
instant petition pending before this Court involves "identical parties or
interests represented, rights asserted and reliefs sought (as that) currently
pending before the Regional Trial Court, Makati Branch 134 in the Second
Case. In fact, the issues in the two cases are so interwined that a judgement
or resolution in either case will constitute res judicata in the other." 10
On the other hand, petitioners explain
because:
11
1) In the earlier or "First Case" from which this proceeding arose, the
Bank was impleaded as a defendant, whereas in the "Second Case"
(assuming the Bank is the real party in interest in a derivative suit), it
was plaintiff;
2) "The derivative suit is not properly a suit for and in behalf of the
corporation under the circumstances";
xxx
xxx
As already observed, there is between the action at bar and RTC Case
No. 86-36563, an identity as regards parties, or interests represented,
rights asserted and relief sought, as well as basis thereof, to a degree
sufficient to give rise to the ground for dismissal known as auter action
pendant or lis pendens. That same identity puts into operation the
sanction of twin dismissals just mentioned. The application of this
sanction will prevent any further delay in the settlement of the
controversy which might ensue from attempts to seek reconsideration
of or to appeal from the Order of the Regional Trial Court in Civil Case
No. 86-36563 promulgated on July 15, 1986, which dismissed the
petition upon grounds which appear persuasive.
Consequently, where a litigant (or one representing the same interest or
person) sues the same party against whom another action or actions for the
alleged violation of the same right and the enforcement of the same relief
is/are still pending, the defense of litis pendencia in one case is bar to the
others; and, a final judgment in one would constitute res judicata and thus
would cause the dismissal of the rest. In either case, forum shopping could
be cited by the other party as a ground to ask for summary dismissal of the
two 20 (or more) complaints or petitions, and for imposition of the other
sanctions, which are direct contempt of court, criminal prosecution, and
disciplinary action against the erring lawyer.
Applying the foregoing principles in the case before us and comparing it with
the Second Case, it is obvious that there exist identity of parties or interests
represented, identity of rights or causes and identity of reliefs sought.
Very simply stated, the original complaint in the court a quo which gave rise
to the instant petition was filed by the buyer (herein private respondent and
his predecessors-in-interest) against the seller (herein petitioners) to
enforce the alleged perfected sale of real estate. On the other hand, the
complaint 21 in the Second Case seeks to declare such purported sale
involving the same real property "as unenforceable as against the Bank",
which is the petitioner herein. In other words, in the Second Case, the
majority stockholders, in representation of the Bank, are seeking to
accomplish what the Bank itself failed to do in the original case in the trial
court. In brief, the objective or the relief being sought, though worded
differently, is the same, namely, to enable the petitioner Bank to escape
from the obligation to sell the property to respondent. In Danville Maritime,
Inc. vs. Commission on Audit. 22, this Court ruled that the filing by a party of
two apparently different actions, but with the same objective, constituted
forum shopping:
In the attempt to make the two actions appear to be different, petitioner
impleaded different respondents therein PNOC in the case before
the lower court and the COA in the case before this Court and sought
what seems to be different reliefs. Petitioner asks this Court to set
aside the questioned letter-directive of the COA dated October 10,
1988 and to direct said body to approve the Memorandum of
Agreement entered into by and between the PNOC and petitioner,
while in the complaint before the lower court petitioner seeks to enjoin
the PNOC from conducting a rebidding and from selling to other parties
the vessel "T/T Andres Bonifacio", and for an extension of time for it to
comply with the paragraph 1 of the memorandum of agreement and
damages. One can see that although the relief prayed for in the two (2)
actions are ostensibly different, the ultimate objective in both actions is
the same, that is, approval of the sale of vessel in favor of petitioner
and to overturn the letter-directive of the COA of October 10, 1988
disapproving the sale. (emphasis supplied).
In an earlier case 23 but with the same logic and vigor, we held:
In other words, the filing by the petitioners of the instant special civil
action for certiorari and prohibition in this Court despite the pendency
of their action in the Makati Regional Trial Court, is a species of forumshopping. Both actions unquestionably involve the same transactions,
the same essential facts and circumstances. The petitioners' claim of
absence of identity simply because the PCGG had not been impleaded
in the RTC suit, and the suit did not involve certain acts which
transpired after its commencement, is specious. In the RTC action, as
in the action before this Court, the validity of the contract to purchase
and sell of September 1, 1986, i.e., whether or not it had been
efficaciously rescinded, and the propriety of implementing the same
(by paying the pledgee banks the amount of their loans, obtaining the
release of the pledged shares, etc.) were the basic issues. So, too, the
relief was the same: the prevention of such implementation and/or the
restoration of the status quo ante. When the acts sought to be
restrained took place anyway despite the issuance by the Trial Court of
a temporary restraining order, the RTC suit did not become functus
oficio. It remained an effective vehicle for obtention of relief; and
petitioners' remedy in the premises was plain and patent: the filing of
an amended and supplemental pleading in the RTC suit, so as to
include the PCGG as defendant and seek nullification of the acts
sought to be enjoined but nonetheless done. The remedy was certainly
not the institution of another action in another forum based on
essentially the same facts, The adoption of this latter recourse renders
the petitioners amenable to disciplinary action and both their actions, in
this Court as well as in the Court a quo, dismissible.
In the instant case before us, there is also identity of parties, or at least, of
interests represented. Although the plaintiffs in the Second Case (Henry L.
Co. et al.) are not name parties in the First Case, they represent the same
interest and entity, namely, petitioner Bank, because:
Firstly, they are not suing in their personal capacities, for they have no direct
personal interest in the matter in controversy. They are not principally or
even subsidiarily liable; much less are they direct parties in the assailed
contract of sale; and
Secondly, the allegations of the complaint in the Second Case show that the
stockholders are bringing a "derivative suit". In the caption itself, petitioners
claim to have brought suit "for and in behalf of the Producers Bank of the
Philippines" 24. Indeed, this is the very essence of a derivative suit:
An individual stockholder is permitted to institute a derivative suit on
behalf of the corporation wherein he holdsstock in order to protect or
vindicate corporate rights, whenever the officials of the corporation
refuse to sue, or are the ones to be sued or hold the control of the
corporation. In such actions, the suing stockholder is regarded as a
nominal party, with the corporation as the real party in interest.
(Gamboa v. Victoriano, 90 SCRA 40, 47 [1979]; emphasis supplied).
In the face of the damaging admissions taken from the complaint in the
Second Case, petitioners, quite strangely, sought to deny that the Second
Case was a derivative suit, reasoning that it was brought, not by the minority
shareholders, but by Henry Co et al., who not only own, hold or control over
80% of the outstanding capital stock, but also constitute the majority in the
Board of Directors of petitioner Bank. That being so, then they really
represent the Bank. So, whether they sued "derivatively" or directly, there is
undeniably an identity of interests/entity represented.
Petitioner also tried to seek refuge in the corporate fiction that the
personality Of the Bank is separate and distinct from its shareholders. But
the rulings of this Court are consistent: "When the fiction is urged as a
means of perpetrating a fraud or an illegal act or as a vehicle for the evasion
of an existing obligation, the circumvention of statutes, the achievement or
perfection of a monopoly or generally the perpetration of knavery or crime,
the veil with which the law covers and isolates the corporation from the
members or stockholders who compose it will be lifted to allow for its
consideration merely as an aggregation of individuals." 25
In addition to the many cases 26 where the corporate fiction has been
disregarded, we now add the instant case, and declare herewith that the
corporate veil cannot be used to shield an otherwise blatant violation of the
prohibition against forum-shopping. Shareholders, whether suing as the
majority in direct actions or as the minority in a derivative suit, cannot be
allowed to trifle with court processes, particularly where, as in this case, the
corporation itself has not been remiss in vigorously prosecuting or defending
corporate causes and in using and applying remedies available to it. To rule
otherwise would be to encourage corporate litigants to use their
shareholders as fronts to circumvent the stringent rules against forum
shopping.
Finally, petitioner Bank argued that there cannot be any forum shopping,
even assuming arguendo that there is identity of parties, causes of action
and reliefs sought, "because it (the Bank) was the defendant in the (first)
case while it was the plaintiff in the other (Second Case)",citing as authority
Victronics Computers, Inc., vs. Regional Trial Court, Branch 63, Makati, etc.
et al., 27 where Court held:
The rule has not been extended to a defendant who, for reasons
known only to him, commences a new action against the plaintiff
instead of filing a responsive pleading in the other case setting forth
therein, as causes of action, specific denials, special and affirmative
defenses or even counterclaims, Thus, Velhagen's and King's motion
to dismiss Civil Case No. 91-2069 by no means negates the charge of
forum-shopping as such did not exist in the first place. (emphasis
supplied)
Petitioner pointed out that since it was merely the defendant in the original
case, it could not have chosen the forum in said case.
Respondent, on the other hand, replied that there is a difference in factual
setting between Victronics and the present suit. In the former, as
underscored in the above-quoted Court ruling, the defendants did not file
any responsive pleading in the first case. In other words, they did not make
any denial or raise any defense or counter-claim therein In the case before
us however, petitioners filed a responsive pleading to the complaint as a
result of which, the issues were joined.
Indeed, by praying for affirmative reliefs and interposing counterclaims in
their responsive pleadings, the petitioners became plaintiffs themselves in
the original case, giving unto themselves the very remedies they repeated in
the Second Case.
Ultimately, what is truly important to consider in determining whether forumshopping exists or not is the vexation caused the courts and parties-litigant
by a party who asks different courts and/or administrative agencies to rule
on the same or related causes and/or to grant the same or substantially the
same reliefs, in the process creating the possibility of conflicting decisions
being rendered by the different fora upon the same issue. In this case, this
is exactly the problem: a decision recognizing the perfection and directing
the enforcement of the contract of sale will directly conflict with a possible
decision in the Second Case barring the parties front enforcing or
implementing the said sale. Indeed, a final decision in one would constitute
res judicata in the other 28.
The foregoing conclusion finding the existence of forum-shopping
notwithstanding, the only sanction possible now is the dismissal of both
cases with prejudice, as the other sanctions cannot be imposed because
petitioners' present counsel entered their appearance only during the
proceedings
in
this
Court,
and
the
Petition's
VERIFICATION/CERTIFICATION contained sufficient allegations as to the
pendency of the Second Case to show good faith in observing Circular 2891. The Lawyers who filed the Second Case are not before us; thus the
rudiments of due process prevent us from motu propio imposing disciplinary
measures against them in this Decision. However, petitioners themselves
(and particularly Henry Co, et al.) as litigants are admonished to strictly
follow the rules against forum-shopping and not to trifle with court
proceedings and processes They are warned that a repetition of the same
will be dealt with more severely.
Having said that, let it be emphasized that this petition should be dismissed
not merely because of forum-shopping but also because of the substantive
issues raised, as will be discussed shortly.
The Second Issue: Was The Contract Perfected?
The respondent Court correctly treated the question of whether or not there
was, on the basis of the facts established, a perfected contract of sale as
the ultimate issue. Holding that a valid contract has been established,
respondent Court stated:
There is no dispute that the object of the transaction is that property
owned by the defendant bank as acquired assets consisting of six (6)
memoranda that purport to show his limited actual authority, of which private
respondent cannot be charged with knowledge. In any event, since the
issue is apparent authority, the existence of which is borne out by the
respondent Court's findings, the evidence of actual authority is immaterial
insofar as the liability of a corporation is concerned 33.
Petitioners also argued that since Demetria and Janolo were experienced
lawyers and their "law firm" had once acted for the Bank in three criminal
cases, they should be charged with actual knowledge of Rivera's limited
authority. But the Court of Appeals in its Decision (p. 12) had already made
a factual finding that the buyers had no notice of Rivera's actual authority
prior to the sale. In fact, the Bank has not shown that they acted as its
counsel in respect to any acquired assets; on the other hand, respondent
has proven that Demetria and Janolo merely associated with a loose
aggrupation of lawyers (not a professional partnership), one of whose
members (Atty. Susana Parker) acted in said criminal cases.
Petitioners also alleged that Demetria's and Janolo's P4.25 million counteroffer in the letter dated September 17, 1987 extinguished the Bank's offer of
P5.5 million 34 .They disputed the respondent Court's finding that "there was
a meeting of minds when on 30 September 1987 Demetria and Janolo
through Annex "L" (letter dated September 30, 1987) "accepted" Rivera's
counter offer of P5.5 million under Annex "J" (letter dated September 17,
1987)", citing the late Justice Paras35, Art. 1319 of the Civil Code 36 and
related Supreme Court rulings starting with Beaumont vs. Prieto 37.
However, the above-cited authorities and precedents cannot apply in the
instant case because, as found by the respondent Court which reviewed the
testimonies on this point, what was "accepted" by Janolo in his letter dated
September 30, 1987 was the Bank's offer of P5.5 million as confirmed and
reiterated to Demetria and Atty. Jose Fajardo by Rivera and Co during their
meeting on September 28, 1987. Note that the said letter of September 30,
1987 begins with"(p)ursuant to our discussion last 28 September 1987 . . .
Petitioners insist that the respondent Court should have believed the
testimonies of Rivera and Co that the September 28, 1987 meeting "was
meant to have the offerors improve on their position of P5.5. million."38
However, both the trial court and the Court of Appeals found petitioners'
testimonial evidence "not credible", and we find no basis for changing this
finding of fact.
Indeed, we see no reason to disturb the lower courts' (both the RTC and the
CA) common finding that private respondents' evidence is more in keeping
with truth and logic that during the meeting on September 28, 1987, Luis
Co and Rivera "confirmed that the P5.5 million price has been passed upon
by the Committee and could no longer be lowered (TSN of April 27, 1990,
pp. 34-35)"39. Hence, assuming arguendo that the counter-offer of P4.25
million extinguished the offer of P5.5 million, Luis Co's reiteration of the said
P5.5 million price during the September 28, 1987 meeting revived the said
offer. And by virtue of the September 30, 1987 letter accepting this revived
offer, there was a meeting of the minds, as the acceptance in said letter was
absolute and unqualified.
We note that the Bank's repudiation, through Conservator Encarnacion, of
Rivera's authority and action, particularly the latter's counter-offer of P5.5
million, as being "unauthorized and illegal" came only on May 12, 1988 or
more than seven (7) months after Janolo' acceptance. Such delay, and the
absence of any circumstance which might have justifiably prevented the
Bank from acting earlier, clearly characterizes the repudiation as nothing
more than a last-minute attempt on the Bank's part to get out of a binding
contractual obligation.
Taken together, the factual findings of the respondent Court point to an
implied admission on the part of the petitioners that the written offer made
on September 1, 1987 was carried through during the meeting of
September 28, 1987. This is the conclusion consistent with human
experience, truth and good faith.
It also bears noting that this issue of extinguishment of the Bank's offer of
P5.5 million was raised for the first time on appeal and should thus be
disregarded.
This Court in several decisions has repeatedly adhered to the principle
that points of law, theories, issues of fact and arguments not
adequately brought to the attention of the trial court need not be, and
ordinarily will not be, considered by a reviewing court, as they cannot
be raised for the first time on appeal (Santos vs. IAC, No. 74243,
November 14, 1986, 145 SCRA 592).40
. . . It is settled jurisprudence that an issue which was neither averred
in the complaint nor raised during the trial in the court below cannot be
raised for the first time on appeal as it would be offensive to the basic
rules of fair play, justice and due process (Dihiansan vs. CA, 153
SCRA 713 [1987]; Anchuelo vs. IAC, 147 SCRA 434 [1987]; Dulos
Realty & Development Corp. vs. CA, 157 SCRA 425 [1988]; Ramos vs.
IAC, 175 SCRA 70 [1989]; Gevero vs. IAC, G.R. 77029, August 30,
1990).41
Since the issue was not raised in the pleadings as an affirmative defense,
private respondent was not given an opportunity in the trial court to
controvert the same through opposing evidence. Indeed, this is a matter of
due process. But we passed upon the issue anyway, if only to avoid
deciding the case on purely procedural grounds, and we repeat that, on the
basis of the evidence already in the record and as appreciated by the lower
courts, the inevitable conclusion is simply that there was a perfected
contract of sale.
The Third Issue: Is the Contract Enforceable?
The petition alleged42:
Even assuming that Luis Co or Rivera did relay a verbal offer to sell at
P5.5 million during the meeting of 28 September 1987, and it was this
verbal offer that Demetria and Janolo accepted with their letter of 30
September 1987, the contract produced thereby would be
unenforceable by action there being no note, memorandum or
writing subscribed by the Bank to evidence such contract. (Please see
article 1403[2], Civil Code.)
Upon the other hand, the respondent Court in its Decision (p, 14) stated:
. . . Of course, the bank's letter of September 1, 1987 on the official
price and the plaintiffs' acceptance of the price on September 30,
1987, are not, in themselves, formal contracts of sale. They are
however clear embodiments of the fact that a contract of sale was
perfected between the parties, such contract being binding in whatever
form it may have been entered into (case citations omitted). Stated
simply, the banks' letter of September 1, 1987, taken together with
plaintiffs' letter dated September 30, 1987, constitute in law a sufficient
memorandum of a perfected contract of sale.
The respondent Court could have added that the written communications
commenced not only from September 1, 1987 but from Janolo's August 20,
1987 letter. We agree that, taken together, these letters constitute sufficient
memoranda since they include the names of the parties, the terms and
conditions of the contract, the price and a description of the property as the
object of the contract.
But let it be assumed arguendo that the counter-offer during the meeting on
September 28, 1987 did constitute a "new" offer which was accepted by
Janolo on September 30, 1987. Still, the statute of frauds will not apply by
reason of the failure of petitioners to object to oral testimony proving
petitioner Bank's counter-offer of P5.5 million. Hence, petitioners by such
utter failure to object are deemed to have waived any defects of the
contract under the statute of frauds, pursuant to Article 1405 of the Civil
Code:
Art. 1405. Contracts infringing the Statute of Frauds, referred to in No.
2 of article 1403, are ratified by the failure to object to the presentation
of oral evidence to prove the same, or by the acceptance of benefits
under them.
As private respondent pointed out in his Memorandum, oral testimony on
the reaffirmation of the counter-offer of P5.5 million is a plenty and the
silence of petitioners all throughout the presentation makes the evidence
binding on them thus;
A Yes, sir, I think it was September 28, 1987 and I was again present
because Atty. Demetria told me to accompany him we were able to
meet Luis Co at the Bank.
xxx
xxx
xxx
A The 5.5 million pesos and Mr. Luis Co said that the amount cited by
Mr. Mercurio Rivera is the final price and that is the price they intends
(sic) to have, sir.
Q What do you mean?.
A That is the amount they want, sir.
Q What is the reaction of the plaintiff Demetria to Luis Co's statement
(sic) that the defendant Rivera's counter-offer of 5.5 million was the
defendant's bank (sic) final offer?
A He said in a day or two, he will make final acceptance, sir.
Q What is the response of Mr. Luis Co?.
A He said he will wait for the position of Atty. Demetria, sir.
[Direct testimony of Atty. Jose Fajardo, TSN, January 16, 1990, at pp. 1821.]
Q What transpired during that meeting between you and Mr. Luis Co of
the defendant Bank?
A We went straight to the point because he being a busy person, I told
him if the amount of P5.5 million could still be reduced and he said that
was already passed upon by the committee. What the bank expects
which was contrary to what Mr. Rivera stated. And he told me that is
the final offer of the bank P5.5 million and we should indicate our
position as soon as possible.
Q What was your response to the answer of Mr. Luis Co?
A I said that we are going to give him our answer in a few days and he
said that was it. Atty. Fajardo and I and Mr. Mercurio [Rivera] was with
us at the time at his office.
Q For the record, your Honor please, will you tell this Court who was
with Mr. Co in his Office in Producers Bank Building during this
meeting?
A Mr. Co himself, Mr. Rivera, Atty. Fajardo and I.
Conservator
Revoke
It is not disputed that the petitioner Bank was under a conservator placed by
the Central Bank of the Philippines during the time that the negotiation and
perfection of the contract of sale took place. Petitioners energetically
contended that the conservator has the power to revoke or overrule actions
of the management or the board of directors of a bank, under Section 28-A
of Republic Act No. 265 (otherwise known as the Central Bank Act) as
follows:
Whenever, on the basis of a report submitted by the appropriate
supervising or examining department, the Monetary Board finds that a
bank or a non-bank financial intermediary performing quasi-banking
functions is in a state of continuing inability or unwillingness to maintain
a state of liquidity deemed adequate to protect the interest of
depositors and creditors, the Monetary Board may appoint a
&
Zarate
Ass.
Building
T.
T.
Encarnacion
EDCARNACION
In the third place, while admittedly, the Central Bank law gives vast and farreaching powers to the conservator of a bank, it must be pointed out that
such powers must be related to the "(preservation of) the assets of the
bank, (the reorganization of) the management thereof and (the restoration
of) its viability." Such powers, enormous and extensive as they are, cannot
extend to the post-facto repudiation of perfected transactions, otherwise
they would infringe against the non-impairment clause of the Constitution 44.
If the legislature itself cannot revoke an existing valid contract, how can it
delegate such non-existent powers to the conservator under Section 28-A of
said law?
Obviously, therefore, Section 28-A merely gives the conservator power to
revoke contracts that are, under existing law, deemed to be defective i.e.,
void, voidable, unenforceable or rescissible. Hence, the conservator merely
takes the place of a bank's board of directors. What the said board cannot
do such as repudiating a contract validly entered into under the doctrine
of implied authority the conservator cannot do either. Ineluctably, his
power is not unilateral and he cannot simply repudiate valid obligations of
the Bank. His authority would be only to bring court actions to assail such
contracts as he has already done so in the instant case. A contrary
understanding of the law would simply not be permitted by the Constitution.
Neither by common sense. To rule otherwise would be to enable a failing
bank to become solvent, at the expense of third parties, by simply getting
the conservator to unilaterally revoke all previous dealings which had one
way or another or come to be considered unfavorable to the Bank, yielding
nothing to perfected contractual rights nor vested interests of the third
parties who had dealt with the Bank.
The Fifth Issue: Were There Reversible Errors of Facts?
Basic is the doctrine that in petitions for review under Rule 45 of the Rules
of Court, findings of fact by the Court of Appeals are not reviewable by the
Supreme Court. In Andres vs. Manufacturers Hanover & Trust Corporation,
45
, we held:
. . . The rule regarding questions of fact being raised with this Court in
a petition for certiorari under Rule 45 of the Revised Rules of Court has
been stated in Remalante vs. Tibe, G.R. No. 59514, February 25,
1988, 158 SCRA 138, thus:
The rule in this jurisdiction is that only questions of law may be raised
in a petition for certiorari under Rule 45 of the Revised Rules of Court.
"The jurisdiction of the Supreme Court in cases brought to it from the
Court of Appeals is limited to reviewing and revising the errors of law
imputed to it, its findings of the fact being conclusive " [Chan vs. Court
of Appeals, G.R. No. L-27488, June 30, 1970, 33 SCRA 737,
reiterating a long line of decisions]. This Court has emphatically
declared that "it is not the function of the Supreme Court to analyze or
weigh such evidence all over again, its jurisdiction being limited to
reviewing errors of law that might have been committed by the lower
court" (Tiongco v. De la Merced, G. R. No. L-24426, July 25, 1974, 58
SCRA 89; Corona vs. Court of Appeals, G.R. No. L-62482, April 28,
1983, 121 SCRA 865; Baniqued vs. Court of Appeals, G. R. No. L47531, February 20, 1984, 127 SCRA 596). "Barring, therefore, a
showing that the findings complained of are totally devoid of support in
the record, or that they are so glaringly erroneous as to constitute
serious abuse of discretion, such findings must stand, for this Court is
not expected or required to examine or contrast the oral and
documentary evidence submitted by the parties" [Santa Ana, Jr. vs.
Hernandez, G. R. No. L-16394, December 17, 1966, 18 SCRA 973] [at
pp. 144-145.]
Likewise, in Bernardo vs. Court of Appeals 46, we held:
The resolution of this petition invites us to closely scrutinize the facts of
the case, relating to the sufficiency of evidence and the credibility of
witnesses presented. This Court so held that it is not the function of the
Supreme Court to analyze or weigh such evidence all over again. The
Supreme Court's jurisdiction is limited to reviewing errors of law that
may have been committed by the lower court. The Supreme Court is
not a trier of facts. . . .
As held in the recent case of Chua Tiong Tay vs. Court of Appeals and
Goldrock Construction and Development Corp. 47:
The Court has consistently held that the factual findings of the trial
court, as well as the Court of Appeals, are final and conclusive and
may not be reviewed on appeal. Among the exceptional circumstances
where a reassessment of facts found by the lower courts is allowed are
when the conclusion is a finding grounded entirely on speculation,
surmises or conjectures; when the inference made is manifestly
absurd, mistaken or impossible; when there is grave abuse of
discretion in the appreciation of facts; when the judgment is premised
on a misapprehension of facts; when the findings went beyond the
issues of the case and the same are contrary to the admissions of both
appellant and appellee. After a careful study of the case at bench, we
find none of the above grounds present to justify the re-evaluation of
the findings of fact made by the courts below.
In the same vein, the ruling of this Court in the recent case of South Sea
Surety and Insurance Company Inc. vs. Hon. Court of Appeals, et al. 48 is
equally applicable to the present case:
We see no valid reason to discard the factual conclusions of the
appellate court, . . . (I)t is not the function of this Court to assess and
evaluate all over again the evidence, testimonial and documentary,
adduced by the parties, particularly where, such as here, the findings
of both the trial court and the appellate court on the matter coincide.
(emphasis supplied)
Petitioners, however, assailed the respondent Court's Decision as "fraught
with findings and conclusions which were not only contrary to the evidence
on record but have no bases at all," specifically the findings that (1) the
"Bank's counter-offer price of P5.5 million had been determined by the past
due committee and approved by conservator Romey, after Rivera presented
the same for discussion" and (2) "the meeting with Co was not to scale
down the price and start negotiations anew, but a meeting on the already
determined price of P5.5 million" Hence, citing Philippine National Bank vs.
Court of Appeals 49, petitioners are asking us to review and reverse such
factual findings.
The first point was clearly passed upon by the Court of Appeals 50, thus:
There can be no other logical conclusion than that when, on
September 1, 1987, Rivera informed plaintiffs by letter that "the bank's
counter-offer is at P5.5 Million for more than 101 hectares on lot basis,
"such counter-offer price had been determined by the Past Due
Committee and approved by the Conservator after Rivera had duly
presented plaintiffs' offer for discussion by the Committee . . . Tersely
put, under the established fact, the price of P5.5 Million was, as clearly
worded in Rivera's letter (Exh. "E"), the official and definitive price at
which the bank was selling the property. (p. 11, CA Decision)
xxx
xxx
xxx
To be sure, there are settled exceptions where the Supreme Court may
disregard findings of fact by the Court of Appeals 52. We have studied both
the records and the CA Decision and we find no such exceptions in this
case. On the contrary, the findings of the said Court are supported by a
preponderance of competent and credible evidence. The inferences and
conclusions are seasonably based on evidence duly identified in the
Decision. Indeed, the appellate court patiently traversed and dissected the
issues presented before it, lending credibility and dependability to its
findings. The best that can be said in favor of petitioners on this point is that
the factual findings of respondent Court did not correspond to petitioners'
claims, but were closer to the evidence as presented in the trial court by
private respondent. But this alone is no reason to reverse or ignore such
factual findings, particularly where, as in this case, the trial court and the
appellate court were in common agreement thereon. Indeed, conclusions of
fact of a trial judge as affirmed by the Court of Appeals are conclusive
upon this Court, absent any serious abuse or evident lack of basis or
capriciousness of any kind, because the trial court is in a better position to
observe the demeanor of the witnesses and their courtroom manner as well
as to examine the real evidence presented.
Epilogue.
In summary, there are two procedural issues involved forum-shopping and
the raising of issues for the first time on appeal [viz., the extinguishment of
the Bank's offer of P5.5 million and the conservator's powers to repudiate
contracts entered into by the Bank's officers] which per se could justify
the dismissal of the present case. We did not limit ourselves thereto, but
delved as well into the substantive issues the perfection of the contract of
sale and its enforceability, which required the determination of questions of
fact. While the Supreme Court is not a trier of facts and as a rule we are not
required to look into the factual bases of respondent Court's decisions and
resolutions, we did so just the same, if only to find out whether there is
reason to disturb any of its factual findings, for we are only too aware of the
depth, magnitude and vigor by which the parties through their respective
eloquent counsel, argued their positions before this Court.
We are not unmindful of the tenacious plea that the petitioner Bank is
operating abnormally under a government-appointed conservator and "there
is need to rehabilitate the Bank in order to get it back on its feet . . . as many