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REPUBLIC OF THE PHILIPPINES

METROPOLITAN TRIAL COURT
NATIONAL CAPITAL JUDICIAL REGION
BACOLOD CITY, BRANCH VI

POTATO CORPORATION,
Plaintiff,

-VERSUS- CIVIL CASE NO.1234

FOR: EJECTMENT
GIANNI MODICA,
and all persons claiming rights under him,
Defendants.
x--------------------------------------------------------x

COMPLAINT

Plaintiff, by counsel, unto this Honorable Court respectfully states:

1. PLAINTIFF POTATO CORPORATION, is a corporation duly

organized and existing under and by virtue of the laws of the Republic of
the Philippines with business address at Unit 12-B, 12th Floor Petron
MegaPlaza Building, Bacolod City herein represented by Otto Potato. A
copy of the Secretary’s Certificate to file this complaint and sign the
verification/certification is hereto attached and made integral part hereof
as Annex A;

2. Defendant GIANNI MODICA is of legal age, a foreigner, and

with address at Unit 604 Somerset Tower I, Bacolod City, where he may be
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served with summons and other court processes (hereinafter

“DEFENDANT” for brevity);

This action includes as defendants all persons claiming rights under

said defendant or any or all occupants of Unit 604 Somerset Tower I,
Bacolod City.

3. POTATO CORPORATION is the owner of Condominium Unit

604 Somerset Tower I, Bacolod City (hereinafter referred to as the UNIT);

4. On October 30, 2007, defendant entered into a Contract of

Lease with the Plaintiff over the above subject Condominium Unit for a
term of six (6) months at a monthly rental of SEVENTEEN THOUSAND FIVE
HUNDRED PESOS (Php17,500.oo) payable to the plaintiff.

A photocopy of the above mentioned Lease Contract is hereto made

as an integral part hereof and marked as Annex “B”.

5. Among the other stipulations agreed upon by plaintiff and

defendant in their lease contract are as follows:

a) Plaintiff is entitled to possession of the condominium

unit upon expiration of lease contract, as stated in paragraph 12
thereof, to wit:
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“12. RETURN OF PREMISES – Upon termination of this

contract whether by reason of the expiration of the term or any
breach per default of the LESSEE, the LESSEE, shall without
delay, return and surrender the leased premises in as good and
tenantable condition as they were at the beginning of the
lease, ordinary wear and tear excepted, devoid of all
occupants, xxx xxx”.

b) Plaintiff is entitled to liquidated damages of 140% of the

prevailing monthly rental for every month of delay whenever
defendant failed to surrender possession of the unit to plaintiff, and
this is stated in paragraph 13 thereof, to wit:

“13. FAILURE TO RETURN – If the lease premises are not

returned at the termination of the lease, the LESSEE shall be
responsible to the LESSOR for all damages which the LESSOR
may suffer for any reason thereof, and shall indemnify the
LESSOR against any and all claims which may be made by any
succeeding LESSEE against the LESSOR arising from delay in
delivery possession of the premises by the LESSOR and shall be
entitled to liquidated damages for unlawful detained or failure
to return the premises after the terms of this lease at the rate
of one hundred forty percent (140%) of the prevailing monthly
rental for every month of delay xxx xxx”.

c) Plaintiff non-exercise of its rights under the lease

contract does not amount to waiver or relinquishment of its right as
provided for in paragraph 11 of the Lease Contract.
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6. Defendant incurred some unpaid rentals, however, considering that

defendant and Mr. Ettore Rossi (the President of plaintiff) knew each other,
plaintiff renewed this lease contract under the same terms and conditions
and for a lesser monthly rental of FIFTEEN THOUSAND PESOS
(Php15,000.oo) payable to plaintiff for the period of six (6) months from
November 10, 2008 up to May 9, 2009.

A photocopy of this “Lease of Renewal Contract” is hereto made as

an integral part hereof and marked as Annex “C”.

7. Defendant defaulted in paying his monthly rentals, thus, on

June 8, 2009, plaintiff through its Miss Cristy B. Luyon, Finance Manager,
sent a demand letter to defendant to pay the Php105,000.oo unpaid rentals
as of that date. A photocopy of said demand letter is hereto attached and
marked as Annex “D”.

8. Eventually, the lease contract expired, and though defendant

had still some unpaid rentals defendant requested its renewal and
promised to settle his unpaid rentals. With such promise and the fact that
defendant and Mr. Ettore Rossi knew each other, plaintiff did renew the
lease contract under the same terms and conditions at a monthly rental of
FIFTEEN THOUSAND PESOS (Php15,000.oo), and this renewed lease
contract covers the period of six (6) months from May 10, 2011 up to
November 9, 2011.
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A photocopy of this “Lease of Renewal Contract” dated July 11, 2010

is hereto made as an integral part hereof and marked as Annex “E”.

9. Unfortunately, defendant still defaulted in paying the accruing

monthly rentals, and despite the grace period to update his rental
payments and to pay all the monthly rentals due, defendant failed and
continuously had not done so;

10. By reason of said accumulating arrears of defendant, plaintiff

was worried about the payment of Condominium Association Dues, thus,
plaintiff through its President, Mr. Ettore Rossi, notified the condominium
Property Manager about the non-payment by defendant of the monthly
rentals. A photocopy of said letter dated July 17, 2012 is hereto attached
and marked as Annex “F”.

11. The rental arrearages of defendant as of July 9, 2013

amounted to FIVE HUNDRED SEVENTY THOUSAND (Php 570,000.oo) Pesos
which covers the period of July 2008 to January 2009, and from January
2011 up to the last sending of the Demand to Vacate and Pay Rentals on
July 18, 2013 or about 38 months already;

12. On July 18, 2013, plaintiff sent a Final Demand to Vacate

Condominium Unit 604 Somerset Tower I, Bacolod City and to Pay rental
arrearages of FIVE HUNDRED SEVENTY THOUSAND (Php570,000.oo) Pesos
through a letter dated July 17, 2013 upon defendant through personal
service. The said demand letter was served by plaintiff’s messenger and the
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same was received by his son, Gian Franco Modica, a person of suitable age
and discretion, as evidenced by his signature at the bottom of said letter.

Photocopies of Demand Letter dated July 17, 2013 and the Affidavit
of Service of plaintiff’s messenger, who served the Demand Letter unto the
defendant, are hereto made as integral parts hereof and marked as
Annexes “G” and “H”.

13. The one year period for the filing of an ejectment case is
reckoned from the date of the last demand;

14. Despite the fact that the defendant is not anymore entitled to
the occupation and possession of the subject Unit by virtue of the
expiration of contract, the non-payment of rentals, and final notice and
demand to vacate the same, defendant refused and continuously fails to
restore plaintiff AFCSC to the possession of the subject Unit;

15. The continuous possession by the defendant and his refusal to

restore AFCSC to the possession of the Unit has become illegal and
unlawful, and AFCSC is now entitled to the immediate possession of the
same;

16. As the defendant is adamant in his refusal to vacate the Unit

and to enforce its rights and interest, Potato Corporation was constrained
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to institute this suit and engage the services of a counsel for which AFCSC
has to incur attorney’s fees of TWENTY THOUSAND PESOS (Php 20,000.00);

17. To serve as an example for the public good to the end that a
person be discouraged from the unlawful possession of a property to which
he has no more right whatsoever, AFCSC should be awarded exemplary
damages of TWENTY THOUSAND PESOS (Php20,000.00);

18. Likewise, Potato Corporation is entitled to a reasonable rent of

FIFTEN THOUSAND PESOS (Php15,000.00) for the subject Unit, from the
filing of the Complaint until defendants and all persons claiming rights
under them physically vacate the Unit;

19. Potato Corporation is also entitled to liquidated damages of

140% of the prevailing monthly rental for every month of delay of
defendant to surrender the leased UNIT to AFCSC;

20. Potato Corporation is also entitled to the other costs of the

suit.

WHEREFORE, premises considered, it is respectfully moved unto this

Honorable Court that after due summary proceedings, judgment be
rendered as follows:

1. Defendant and all persons claiming rights under him be

ordered to vacate Condominium Unit 604 Somerset Tower I, Bacolod City,
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the subject Unit, and restore POTATO CPRPORATION to the possession

thereof;

2. Potato Corporation be awarded the following to wit:

a) Php570,000.oo as and by way of unpaid rentals

B) Php20,000.00 as and by way of attorney’s fees;

c) Php20,000.00 as and by way of exemplary damages;

d) Reasonable rent of P15,000.00 as and by way of monthly

rent for the subject Unit to commence from the date of the
filing of the complaint until the subject Unit is peacefully
restored and/or surrendered to Potato Corporation;

3. Costs of suit.

Other reliefs just and equitable under the premises, also prayed for.

Bacolod City, July 31, 2013.

Atty. Salvino Kristi S. Kalalang

Counsel for PLAINTIFF
Unit 15-G, Patatas Building

# 343 Sen. Puyat, Bacolod City

P.T.R. No. 8439481 Bacolod City 01/11/2013

I.B.P No. 882584 Bacolod City 01/11/2013

Roll No. 88910