REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION

REGIONAL TRIAL COURT
Pasig City, Manila
Branch __

SYBEX ANIMAL HEALTH AND

NUTRITION INC.
Plaintiff,

Civil Case No. ____________

For: Complaint for Sum of

Money with Damages,
- versus - With Application for
Writ of Preliminary
Attachment

EUROTEC NUTRITION
(THAILAND) CO. LTD.,
WATSUMA SRISA-ARD,
SURASAK SRISA-ARD AND
BONGKOT SUTIKOMMALA
Defendants.
x- - - - - - - - - - - - - - - - - - - - - - - - - - x

COMPLAINT
WITH APPLICATION FOR WRIT OF PRELIMINARY ATTACHMENT

Plaintiff, through undersigned counsel, and unto this

Honorable Court respectfully allege that:

1. Plaintiff SYBEX ANIMAL HEALTH AND NUTRITION INC.

(“Sybex”) is a domestic corporation duly created and established
under the laws of the Philippines with principal place of business at
107 Chateau Verde Building, Valle Verde 1, E. Rodriguez Jr. Avenue,
Pasig City, Philippines. A copy of it’s Articles of Incorporation is
 2 - -

attached and made an integral part hereof as Annex “A.” It is

represented herein by its President and Managing Director, NILO C.
NEQUINTO, who has been authorized by its plaintiff’s Board of
Directors to institute the present complaint. A copy of the pertinent
Secretary’s Certificate is attached and made an integral part hereof as
Annex “B”. It may be served with court processes and orders
through its counsel, JGLaw, with office address at 6 th Floor SOL
Building, 112 Amorsolo Street, Legaspi Village, Makati City;

2. Defendant EUROTEC NUTRITION (THAILAND) INC. LTD.

(“Eurotec Thailand”) is a foreign corporation organized and existing
under the laws of Bangkok, Thailand with office address at 90/227
Moo 5 Prayasurane Rd., Bangchan, Klong Sam Wa, Bangkok
Thailand;

3. Defendant WATSUMA SRISA-ARD is the Managing

Director and a majority owner of Eurotec and has business address at
90/227 Moo 5 Prayasurane Rd., Bangchan, Klong Sam Wa, Bangkok
Thailand;

4. Defendant SURASAK SRISA-ARD is a majority owner of

Eurotec and the husband of Defendant Watsuma Srisa-Ard and has
business address at 90/227 Moo 5 Prayasurane Rd., Bangchan, Klong
Sam Wa, Bangkok Thailand;

5. Defendant BONGKOT SUTIKOMMALA is the Chief

Accountant of Defendant Eurotec and has business address at 90/227
Moo 5 Prayasurane Rd., Bangchan, Klong Sam Wa, Bangkok
Thailand;

Hereinafter referred to as Defendants.

COMMON ALLEGATIONS OF ANTECEDENT FACTS

6. Sybex is a wholly owned subsidiary of Eurotec Nutrition

Philippines Inc. (“Eurotec Philippines”);

7. Sybex is the exclusive distributor and agent in the

Philippines for Global Nutrition International (“Global Nutrition”)
and Phileo Animal Care (formerly Lesaffre Feed Additives)
 3 - -

(“Phileo”), for its range of products, including Globamax 1000,

Globind, Safizym, Selsaf, Selyeast, Safmannan, Pronady and Actisaf
in the Philippines. As such, Plaintiff Sybex is responsible for
promoting, offering, and selling the abovementioned products to
customers in the Philippines, including San Miguel Foods, Inc. (“San
Miguel”) and its subsidiaries via ex-stock and indent;

8. For indent transactions, Plaintiff Sybex and Eurotec

Philippines directs the transactions, supply coordination, and
acceptance of payments from its clients through a third party
company, Defendant Eurotec Thailand through individual
Defendants, based in Bangkok, Thailand;

9. In view of the trust reposed upon Defendants, Plaintiff

Sybex agreed to course through Defendants its indent transactions,
and would not have agreed had it not been for Defendants’
representation that they will religiously abide by the agreement with
Plaintiff Sybex;

10. Defendant Eurotec Thailand, in accordance with their

agreement between Plaintiff Sybex, is obliged to remit through their
bank, The Siam Commercial Bank Public Co. Ltd. (Siam Commercial
Bank), the proceeds of payments received from indent customers of
Sybex in the Philippines to the two principals: Global Nutrition
and/or with Phileo to pay for the cost of goods sold. Defendant
Eurotec Thailand is also obliged to remit a part of the payments
received to Sybex as its commission to cover its selling expenses. For
this function, Eurotec Thailand retains a fixed nominal percentage of
one percent (1%) of the value received as handling fee;

10.1 For easier understanding as to how the agreement

between Platintiff Sybex and Defendant Eurotec Thailand
works, an illustration is hereby provided:
 4 - -

Suppliers
Global Nutrition International
Phileo Animal Care
Pays supplier for
supply of goods

Provides supply of
products to Sybex Eurotec Nutrition Thailand
Sybex Animal Health
and Nutrition Dr. Watsuma Srisa-Ard
Remits payment to Sybex Animal
Health and Nutrition the payment Dr. Surasak Srisa-Ard
Nilo C. Nequinto received from customers Bongkot Sutikommala
Retains 1% of the payment amount
as handling fee
Promotes/offers/sells
products The Siam Commercial
Bank – Public Co., Ltd.
Indent Customers
Remits payments for products
San Miguel Foods Inc. purchased to Eurotec Thailand via
their bank, Siam Commercial Bank

Hong Kong Shanghai

Banking Corporation (HSBC)

11. The process that Plaintiff Sybex and Defendant Eurotec

Thailand used to follow was that as soon as Defendant Eurotec
Thailand’s bank, Siam Commercial Bank, receives the inward
payment remittance from San Miguel and Defendant Bongkot is
advised of it, she requests Plaintiff Sybex, through its Finance
Associate, Michaela Concepcion, to issue a corresponding Debit
Note;

12. Upon receipt of the Debit Note from Plaintiff Sybex,

Defendant Bongkot processes the remittance of the subject amount
minus the 1% commission service fee of Defendant Eurotec Thailand
and remits the amount to Plaintiff Sybex within a few days from the
receipt of the Debit Note;

13. For sometime, Defendants complied with the their

obligation to remit under the above-mentioned agreement. Plaintiff
Sybex had no knowledge that the initial compliance was a mere ploy
to entice it to continue with more larger transactions;

14. Thus, on numerous dates between 18 October 2015 to 01

February 2016, San Miguel made numerous indent orders with
 5 - -

Plaintiff Sybex for the purchase of various products offered by

Plaintiff Sybex, all covered by invoice receipts.

A copy of the invoices dated (various dated) is attached herein

and made an integral part hereof as Annex “C”,“C-1”,“C-2”,“C-
3”,“C-4”,“C-5”,“C-6”,“C-7” and “C-8”;

15. Unfortunately, Defendant Eurotec Thailand suddenly did

not remit any payments for the indent orders placed by San Miguel
covering the periods between 18 October 2015 to 01 February 2016;

16. On 21 April, 2016, Mr. Nequinto informed Defendant

Watsuma, through correspondence, for the follow-up regarding the
payments that Defendant Eurotec Thailand has not yet remitted to
Plaintiff Sybex amounting to almost $800,000.00;

A copy of the correspondence dated 21 April 2016 that Mr.

Nequinto sent to Defendant Watsuma is attached herein and made an
integral part hereof as Annex “D”;

17. On the same date, Mr. Nequinto, through

correspondence, also inquired with San Miguel regarding the status
of the outstanding invoices for indent orders and asked for a review
of the remittance records to ascertain that the payments were already
remitted to Defendant Eurotec Thailand;

A copy of the correspondence and the Statement of Account

dated 21 April 2016 that Mr. Nequinto sent to San Miguel is attached
herein and made an integral part hereof as Annex “E” and “F”
respectively;

18. Subsequently, San Miguel was able to confirm and

substantiate the fact that their bank, Hong Kong Shanghai Banking
Corporation (“HSBC”) has already remitted to Defendant Eurotec
Thailand, the payments for Invoices No. SIL15-0309.9, SIL15-0958,
SIL15-0309.10, JSU15-1059, SIL15-0958.2, JSU1601-01, GBL1602-02 and
GBL1602-03.

A copy of the remittance records of HSBC to Defendant Eurotec

Thailand is attached herein and made an integral part hereof as
Annex “G”;
 6 - -

19. On the next day, 22 April 2016, Mr. Nequinto sent another
e-mail to Defendants Watsuma and Bongkot, informing them that
San Miguel has confirmed that they have remitted their payments to
the indent orders and asking them to verify with HSBC that the
payments were received by Defendant Eurotec Thailand’s bank, Siam
Commercial Bank and properly credited to Defendant Eurotec
Thailand’s account. Mr. Nequinto asked that the amounts be remitted
back to Sybex minus the one (1%) percent service fee pursuant to
their agreement.

A copy of the e-mail dated 22 April 2016 sent by Mr. Nequinto

to Defendants Watsuma and Bongkot is attached herein and made an
integral part hereof as Annex “H”;

20. On 26 April 2016, Mr. Nequinto sent another e-mail

asking for help regarding the payment remittances that Defendant
Eurotec Thailand received for Plaintiff Sybex’s indent sales to San
Miguel, claiming that the amount has already accumulated to
$633,000.00 and €243,000.00. In said correspondence, Mr. Nequinto
appealed to Defendant Watsuma’s sense of fairness, considering that
they have been friends for a long time and that Mr. Nequinto did not
know what was going on at Defendant Watsuma’s end;

21. Still unable to get a reply from Defendant Watsuma, Mr.

Nequinto went to Defendants’ office on 03 May 2016 wherein he
spoke with Defendant Surasak and was informed that he should talk
with Defendant Watsuma to settle the issue and to do so after the 12 th
of May, considering that Defendant Watsuma was on a trip;

22. Fearing the worst but still hesitant to accept it, and given
that Defendant Watsuma cannot be contacted through phone calls,
Mr. Nequinto, out of necessity and desperation, personally went to
the office of the Defendants again without any appointment or
announcement, hoping to get at least some sort of response from
Defendant Watsuma. After waiting for more than 3 hours, Mr.
Nequinto was spoken to by Defendant Surasak wherein he assured
that this was not Defendant Watsuma’s business style and that the
money should be returned to Plaintiff Sybex. Defendant Surasak said
that Defendant Watsuma should call Mr. Nequinto to talk about the
 7 - -

issue at hand. Unforunately, Defendant Watsuma did not call Mr.

Nequinto;

23. In addition, Mr. Nequinto also sent another e-mail to

Defendant Surasak on 10 May 2016, informing them that Plaintiff
Sybex has not received any request for Debit Notes from Defendant
Bongkot since January 2016. Mr. Nequinto informed Dr. Watsuma
that they will be sending the Debit Notes corresponding to the
invoices paid for and remitted by San Miguel to Defendant Eurotec
Thailand’s bank, Siam Commercial Bank;

A copy of the e-mail dated 10 May 2016 sent by Mr. Nequinto

to Defendant Surasak is attached herein and made an integral part
hereof as Annex “I”;

24. On even date, Plaintiff Sybex’s Finance Associate, Ms.

Concepcion, sent to Defendant Surasak and Watsuma the
aforementioned Debit Notes corresponding to Invoices No. SIL15-
0309.9, SIL15-0958, SIL15-0309.10, JSU15-1059, SIL15-0958.2, JSU1601-
01, JSU1602-04, GBL1602-02 and GBL1602-03.

A copy of the Debit Notes is attached herein and made an

integral part hereof as Annexes “J”, “J-1”, “J-2”, “J-3”, “J-4”, “J-5”, “J-
6”, “J-7”, “J-8” and “J-9” respectively;

25. Finally, in an e-mail dated 17 May 2016, Mr. Nequinto

informed Defendant Watsuma of his efforts to get in touch with her
to talk about the issue concerning the remittance of payment by
Eurotec Thailand. There Mr. Nequinto, in an emotional state,
appealed to Defendant Watsuma, stating that he trusted and treated
them as very good friends and that he has always admired Defendant
Watsuma as to her commitment to work hard. In a final plea, Mr.
Nequinto asked that Defendants remit back to Plaintiff Sybex the
payments that Defendant Eurotec Thailand has received on behalf of
Plaintiff Sybex;

26. From that point on, however, Plaintiff Sybex and Mr.
Nequinto never heard from Defendants as to any explanation for
their unwarranted and unjustified conduct of not remitting the
payments as per their agreement;
 8 - -

27. From January 2016 to date, Defendant Eurotec Thailand

has unlawfully and without justification, retained all proceeds of
indent purchase payments from San Miguel. It has continuously
ignored and refused, despite repeated demands to return/remit these
payment proceeds to the products suppliers to pay for the cost of
goods and to Plaintiff Sybex according to the previously agreed upon
set up;

28. Considering the long time standing relationship between

Defendant Watsuma and Mr. Nequinto, it is difficult to assume the
reason by which Defendants would suddenly stop communicating
with Plaintiff Sybex and Mr. Nequinto and withhold the remittances
that they have received, as proven by the remittance records of HSBC
(Annex “G”);

29. Defendants’ unresponsiveness to the pleas of Mr.

Nequinto has left him with no choice but to assume the worst; that
the proceeds that should have been remitted to Plaintiff Sybex have
been unlawfully withheld, misappropriated and converted to
Defendants’ own use, in contravention of their agreement;

30. Because of Defendant Eurotec Thailand’s failure and

refusal to remit the payment to the indent orders, Plaintiff Sybex’s
survival was jeopardized as they are unable to order their products
anymore to replenish their stocks as its cash position became critical;

31. Defendants’ role as the supply coordinating center

serving Philippine indent customers of Plaintiff Sybex and as the one
receiving payments from the same places them in the best position to
take possession of the payment proceeds before remitting the same to
Plaintiff Sybex;

32. As such, Defendants took advantage of their position in

receiving the payment proceeds. They willfully and unlawfully did
not remit the payment proceeds that were rightfully owing to
Plaintiff Sybex to the detriment of the latter;

33. Defendants’ unlawful conduct of not remitting the

payment proceeds to Plaintiff Sybex is tantamount to fraud and
embezzlement, and has ultimately led to the financial crisis that
Plaintiff Sybex and Eurotec Philippines are currently experiencing
 9 - -

and their near paralysis, considering that most of these proceeds are
used to fund the purchase of their supply products;

34. As a consequence, Plaintiff Sybex and Eurotec

Philippines, as the responsible parties to selling the above-mentioned
products in the Philippines, had to advance the funds needed to pay
the suppliers, Global Nutrition and Phileo, the cost of goods sold that
San Miguel purchased via indent;

35. That because of the advancement of such funds, the same

has severely impacted the two companies’ financial state and
viability;

36. Despite receipt of the correspondences of Mr. Nequinto

asking for the remittance of the payment to Plaintiff Sybex for indent
purchases by San Miguel, the same have remained unheeded and
unanswered, and that Defendants failed and continues to fail to pay
the same;

37. In order to maintain continuity, Plaintiff Sybex had to

terminate Defendant Eurotec Thailand as the supply coordinating
center serving the Philippine indent customers and appoint Global
Nutrition Asia-Pacific Pte. Ltd (Singapore) as the new supply
coordinating center;

38. Plaintiff Sybex would not have pushed through with the
complaint had Defendant Eurotec Thailand represented that they will
be consistent in remitting the payment proceeds;

39. While Defendant Eurotec Thailand remitted payments in

the past, these remittances were only made to convince Plaintiff
Sybex to agree to the setup and to continue the arrangement. These is
further bolstered by the fact that Defendant Eurotec Thailand did not
merely incur in delay in remitting the payment proceeds, but
completely stopped remitting any payment received by them, despite
numerous demands made unto them by Plaintiff Sybex;

40. The conduct of Defendants Eurotec Thailand, Watsuma

and Surasak Srisa-Ard and Bongkot Sutikommala led Plaintiff Sybex
to believe that they can be trusted and that there would be no issues
as to their arrangement. However, Plaintiff Sybex was eventually
 10 - -

defrauded by Defendants when they no longer remitted any of the

indent payments due them;

41. The actions perpetuated by Defendant Eurotec Thailand,

as well as Defendants Watsuma and Surasak Srisa-Ard and
Defendant Bongkot Sutikommala partake of a malicious and
fraudulent nature which was designed to severely damage Plaintiff
Sybex’s standing to the point of paralyzing and shutting down their
operations. It has driven their financial condition to such a point that
the existence of the business was put at jeopardy. The same could
have been averted had Defendants merely remitted the payment of
the indent orders that Plaintiff Sybex received.

ALLEGATIONS IN SUPPORT OF THE FACT THAT DEFENDANT EUROTEC

THAILAND IS A FOREIGN CORPORATION DOING BUSINESS IN THE
PHILIPPINES

42. Plaintiff hereby repleads by way of reference all the

foregoing allegations insofar as they are material and relevant to the
instant cause of action;

43. Considering that Defendant Eurotec Thailand is a foreign

corporation, it must be determined whether Defendant Eurotec
Thailand is doing business here in the Philippines in order to
determine whether the Defendants can be sued in Philippine
jurisdiction;

44. First, the concept of a foreign corporation doing business

in the Philippines is explained under Section 133 of the Corporation
Code. It provides that:

SEC. 133 - “No foreign corporation

transacting business in the Philippines
without a license, or its successors or
assigns, shall be permitted to maintain or
intervene in any action, suit or
proceeding in any court or administrative
agency of the Philippines; but such
corporation may be sued or proceeded
against before Philippine courts or
administrative tribunals on any valid
 11 - -

cause of action recognized under

Philippine laws.”

45. From the foregoing, it is clear that an action against a

foreign corporation doing business in the Philippines, whether with
or without a license, can be maintained in Philippine jurisdiction;

46. The Supreme Court has stated in the case of Avon

Insurance v. Court of Appeals1 the following, to wit:

“there is no exact rule or governing

principle as to what constitutes doing or
engaging in or transacting business.
Indeed, such case must be judged in the
light of its peculiar circumstances, upon
its peculiar facts and upon the language
of the statute applicable. The true test,
however, seems to be whether the foreign
corporation is continuing the body or
substance of the business or enterprise
for which it was organized.”

47. The Omnibus Investement Code of 1987 and R.A. 7042

otherwise known as the Foreign Investments Act defines what
constitutes “doing business” by a corporation. It provides under Art.
44 and Sec. 3(d), respectively, to wit:

“The praise "doing business" shall include

soliciting orders, service contracts,
opening offices, whether called "liaison"
offices or branches; appointing
representatives or distributors domiciled
in the Philippines or who in any calendar
year stay in the country for a period or
periods totalling one hundred eighty (180)
days or more; participating in the
management, supervision or control of any
domestic business, firm, entity or
corporation in the Philippines; and any
other act or acts that imply a continuity
of commercial dealings or arrangements,
and contemplate to that extent the
performance of acts or works, or the
exercise of some of the functions normally
1
G.R. No. 97642, August 29, 1997, citing Communication Materials and Design Inc., et al. v. Court
of Appeals.
 12 - -

incident to, and in progressive

prosecution of, commercial gain or of the
purpose and object of the business
organization”

48. Additionally, R.A. 7042 further adds to the definition by

providing what activities are not included. It states that:

Provided, however, That the phrase "doing

business: shall not be deemed to include
mere investment as a shareholder by a
foreign entity in domestic corporations
duly registered to do business, and/or the
exercise of rights as such investor; nor
having a nominee director or officer to
represent its interests in such
corporation; nor appointing a
representative or distributor domiciled in
the Philippines which transacts business
in its own name and for its own account;

49. Upon closer look at the instances of activities not

constituting doing business, the similarity is that the activities
enumerated do not bring any direct receipts or profits to the foreign
corporation.2 Pursuant to the ruling of the Supreme Court in the case
of National Sugar Trading Corporation v. Court of Appeals,3 activities
within Philippine jurisdiction that are not directly connected with its
main business of creating earnings or profits to the foreign
corporation do not constitute doing business in the Philippines;

50. The court further expounded on what the term “doing

business” connotes in light of the Omnibus Investment Code in the
case of Avon Insurance v. CA.4 There the court added:

The term ordinarily implies a continuity

of commercial dealings and arrangements,
and contemplates, to that extent, the
performance of acts or works or the
exercise of the functions normally
incident to and in progressive prosecution
of the purpose and object of its
organization.

2
Villanueva, C., Philippine Corporate Law, p. 997 (2010 ed.).
3
G.R. 110910, July 17, 1995.
4
G.R. No. 97642, August 29, 1997
 13 - -

A single act or transaction made in the

Philippines, however, could qualify a
foreign corporation to be doing business
in the Philippines, if such singular act
is not merely incidental or casual, but
indicates the foreign corporation's
intention to do business in the
Philippines.

51. As to the question of whether Defendant Eurotec

Thailand is a foreign corporation doing business in the Philippines,
the same must be determined in light of the facts surrounding the
case. As stated by the Supreme Court in the case of National Sugar
Trading Corp. v. Court of Appeals;5

“Whether a foreign corporation is doing

business in the Philippines must be
determined in the light of the peculiar
circumstances of each case. This is
essentially a question of fact.”

52. The importance of determining whether a foreign

corporation is doing business has been highlighted by the court in the
Avon Insurance v. Court of Appeals case6, where the Supreme Court
stated:

“The purpose of the law in requiring that

foreign corporations doing business in the
country be licensed to do so, is to
subject the foreign corporations doing
business in the Philippines to the
jurisdiction of the courts, otherwise, a
foreign corporation illegally doing
business here because of its refusal or
neglect to obtain the required license and
authority to do business may successfully
though unfairly plead such neglect or
illegal act so as to avoid service and
thereby impugn the jurisdiction of the
local courts.

The same danger does not exist among

foreign corporations that are indubitably

5
G.R. 110910, July 17, 1995.
6
G.R. 97642, August 29, 1997
 14 - -

not doing business in the

Philippines. Indeed, if a foreign
corporation does not do business here,
there would be no reason for it to be
subject to the States regulation. As we
observed, in so far as State is concerned,
such foreign corporation has no legal
existence. Therefore, to subject such
corporation to the courts jurisdiction
would violate the essence of sovereignty.”

53. In the instant case, considering that Defendant Eurotec

Thailand’s functions under the agreement are to direct the
transactions, supply coordination and acceptance of payments from
Plaintiff Sybex clients, there implies to be a continuity of commercial
dealings and arrangements and the performance of acts or works or
the exercise of the functions normally incident to and in progressive
prosecution of the purpose and object of its organization;

54. Consider also the fact that the setup of Plaintiff Sybex and
Defendant Eurotec Thailand for indent transactions has already
continued for more than 5 years, it follows then that Defendant
Eurotec Thailand has already been involved in the transaction
process between Plaintiff Sybex and its clients;

55. As the court held in the case of The Mentholatum Co. v.

Mangaliman7, the test to determine whether a foreign company is
doing business in the Philippines is stated thus:

“No general rule or governing principle

can be laid down as to what constitutes
"doing" or "engaging in" or "transacting"
business. Indeed, each case must be judged
in the light of its peculiar environmental
circumstances. The true test, however,
seems to be whether the foreign
corporation is continuing the body or
substance of the business or enterprise
for which it was organized or whether it
has substantially retired from it and
turned it over to another. (Traction Cos.
v. Collectors of Int. Revenue [C. C. A.
Ohio], 223 F. 984, 987.) The term implies
a continuity of commercial dealings and
7
G.R. No. L-47701, June 27, 1941 (citations omitted).
 15 - -

arrangements, and contemplates, to that

extent, the performance of acts or works
or the exercise of some of the functions
normally incident to, and in progressive
prosecution of, the purpose and object of
its organization.”

56. Given all the foregoing, the characteristic of continuity in

the dealings between Plaintiff Sybex and Defendant Eurotec Thailand
is clearly manifested under the agreement. The act of handling of
transactions, supply coordination, acceptance of payments,
remittance of proceeds, and retention of a nominal percentage of the
payment proceeds signify that these functions are normally incident
to, and are progressive prosecution of commercial gain or for the
purpose and object of the business organization;

57. In addition, the obligation of Defendant Eurotec Thailand

in retaining a nominal fee for the handling of the payment proceeds
further establishes that it is a foreign corporation doing business in
the Philippines, in accordance with the pronouncement of the
Supreme Court in the earlier cited case of National Sugar Trading
Corporation v. Court of Appeals8. The act of Defendant Eurotec
Thailand in retaining a nominal fee is an activity that brings receipts
or profits to them;

58. Having sufficiently established that Defendant Eurotec

Thailand is a foreign corporation doing business in the Philippines, it
follows then that Plaintiff Sybex may validly sue Defendant Eurotec
Thailand in Philippine courts and that jurisdiction over the
Defendants may be acquired via summons under Sec. 12, Rule 14 of
the Rules of Court as amended by AM No. 11-3-6-SC which provides
for the new rule on service of summons on foreign juridical entities.
The same provides:

“SEC. 12. Service upon foreign private

juridical entity – When the defendant is a
foreign private juridical entity which has
transacted business in the Philippines,
service may be made on its resident agent
designated in accordance with law for that
purpose, or, if there be no such agent, on
the government official designated by law
8
G.R. 110910, July 17, 1995.
 16 - -

to that effect, or on any of its officers

or agents within the Philippines.

If the foreign private juridical entity is

not registered in the Philippines or has
no resident agent, service may, with leave
of court, be effected out of the
Philippines through any of the following
means:

a)By personal service coursed through the

appropriate court in the foreign country
with the assistance of the Department of
Foreign Affairs;

b)By publication once in a newspaper of

general circulation in the country where
the defendant may be found and by
serving a copy of the summons and the
court order by registered mail at the
last known address of the defendant;

c)By facsimile or any recognized

electronic means that could generate
proof of service; or

d)By such other means as the court may in

its discretion effect.”

CAUSES OF ACTION

FIRST CAUSE OF ACTION

59. Plaintiff hereby repleads by way of reference all the

foregoing allegations insofar as they are material and relevant to the
instant cause of action;

60. Defendant Eurotec Thailand failed to remit to Plaintiff

Sybex the total amount of Six Hundred Ninety Three Thousand One
Hundred Thirty Two Dollars ($693,132.00) and the amount of Two
Hundred Fourty Three Thousand Two Hundred Euros (€243,200.00)
representing payments for indent orders by San Miguel to Plaintiff
Sybex;
 17 - -

61. Based on the Agreement with Plaintiff Sybex, Defendant

Eurotec Thailand was supposed to remit these amounts received
from indent customers to the two (2) principals, Global Nutrition
International and/or Phileo Animal Care to pay for the cost of goods
sold. Additionaly, Defendant Eurotec Thailand was also supposed to
remit part of the payment proceeds to Plaintiff Sybex as its
commission to cover the selling expenses/cost of goods sold;

62. However, considering that Plaintiff Sybex has not

received to date any remittance from Defendant Eurotec Thailand
since October 2015, Defendant Eurotec Thailand is in contravention
of its obligations under the agreement, notwithstanding several pleas
for demand of payment of the remittance proceeds;

63. Defendants Eurotec Thailand, Watsuma and Surasak

Srisa-Ard and Bongkot Sutikommala fraudulently took advantage of
their position in the arrangement as the receiver of payments of
indent customers. Their position in the arrangement made it easy for
them to embezzle the remittance proceeds, considering that the
payment for the indent orders would have to be remitted to them
before they could remit the same to Plaintiff Sybex;

64. Despite their clear obligation under the arrangement and

as shown by their past practices, Defendants refused to pay any
single amount owing to Plaintiff Sybex for the products it sold to San
Miguel. This is depite their knowledge of the numerous demands
and appeals that Mr. Nequinto made to Defendant Watsuma and
Surasak, asking them to remit the payments that rightfully belong to
Plaintiff Sybex;

65. Under their arrangement, Defendant Eurotec Thailand is

solidarily liable to remit the payment proceeds that they have
received from San Miguel, as evidenced by the remittance records of
HSBC (Annex “G”) amounting to a total of $693,132.00 and
€243,200.00;

66. In like manner, Defendants Watsuma, Surasak and

Bongkot are solidarily liable with Defendant Eurotec Thailand
considering that they defrauded Plaintiff Sybex and Mr. Nequinto
when they completely stopped the remittance of any payments and
ceased all communication with them despite being long time friends
 18 - -

for a number of years. Also, with Defendant Eurotec Thailand beinga

corporation, its fraudulent act of withholding the remittance
proceeds can only be perpetuated through said individual
Defendants as officers and directors of the said corporation;

67. There is fraud here as shown by the fact that (1) Mr.
Nequinto and Defendant Watsuma and Surasak Srisa-Ard treated
each other closely prior to the unfortunate incident, (2) there was no
warning or any indication as to why Defendant Eurotec Thailand
suddenly stopped remitting any payments, (3) no explanation was
ever given by the individual Defendants in this case, (4) Defendant
Eurotec Thailand withheld not only one payment but a number of
payments before Plaintiff Sybex called them out for the remittance of
the same, (5) there were no more responses for any demands made
from Defendants after Mr. Nequinto went to them on 17 May 2016 to
ask for an explanation as to the situation.

SECOND CAUSE OF ACTION

68. Plaintiff hereby repleads by way of reference all of the

foregoing allegations insofar as they are material and relevant to the
instant cause of action;

69. Despite the agreement between Plaintiff Sybex and

Defendant’s providing for the remittance of the proceeds of
payments received from indent customers of Plaintiff Sybex,
Defendant’s suddenly stopped remitting for invoices covering the
month of October 2015 up until February 2016;

70. As a consequence of Defendant Eurotec Thailand’s non-

remittance of the proceeds of payment, Mr. Nequinto had to confirm
with San Miguel and HSBC on whether the payments had already
been remitted to Defendant Eurotec Thailand. Moreover, when Mr.
Nequinto learned that the same had already been remitted to
Defendant Eurotec Thailand, it plead with them for the remittance of
the payment proceeds through various correspondences explaining
the necessity and importance that the proceeds be remitted in order
to pay for the cost of goods sold and replenish their stock of
products;
 19 - -

71. Plaintiff’s pleas for remittance of the payment have

remained unheeded;

72. With the Defendants’ reckless violation of their

obligations in the executed Agreement between Plaintiff Sybex and
Defendants, and its malicious and deliberate non-payment of its
obligations, Defendants should be made to pay Plaintiff Sybex
exemplary damages in the amount of not less than Three Hundred
Thousand Pesos (Php300,000.00). This is to deter the defendant and
others who may be similarly minded to commit the same acts in the
future.

THIRD CAUSE OF ACTION

73. Plaintiff hereby repleads by way of reference all of the

foregoing allegations insofar as they are material and relevant to the
instant cause of action;

74. As a consequence of the Defendants’ gross, unjust and

malicious disregard of Plaintiff Sybex’s rights and their malicious and
deliberate non-payment of its obligations, Plaintiff Sybex was
constrained to litigate and incur attorneys’ fees. Thus, the
Defendants’ should be made to pay such attorneys’ fees in the
amount of not less than Three Hundred Thousand Pesos
(Php300,000.00) and litigation expenses plus cost of suit in such
amount as may be proved during the trial.

ALLEGATIONS IN SUPPORT OF APPLICATION FOR ISSUANCE OF A WRIT

OF PRELIMINARY ATTACHMENT

75. Plaintiff hereby repleads by way of reference all of the

foregoing allegations insofar as they are material and relevant to the
instant cause of action;

76. Defendant Eurotec Thailand’s act of non-remittance of the

payment of the proceeds of the indent orders to Plaintiff Sybex
partakes of fraud, unlawful withholding and embezzlement of the
money due to Plaintiff Sybex. It fraudulently misapplied or converted
the same in contravention of their obligations under their agreement.
 20 - -

Considering also the fact that Plaintiff Sybex has not in any way
responded to any of the pleas of Mr. Nequinto to have the payments
remitted, nor offer any explanation as to the matter, this bolsters the
fact that Defendants have no intention of remitting the same;

77. It is also sufficiently alleged that Defendants are non-

residents and that they are not found in the Philippines and that
summons may be served upon them by publication. In that regard,
there are sufficient grounds for the issuance of a Writ of Preliminary
Attachment to validly secure the rights of Plaintiff Sybex for any
satisfaction of judgment that may be rendered in their favor. Rule 57,
Section 1 of the Rules of Court provides:

SECTION 1. Grounds upon which attachment

may issue. – At the commencement of the
action or at any time before entry of
judgment, a plaintiff or any proper party
may have the property of the adverse party
attached as security for the satisfaction
of any judgment that may be recovered in
the following cases:

(a) In an action for the recovery of a

specified amount of money or
damages, other than moral and
exemplary, on a cause of action
arising from law, contract, quasi-
contract, delict or quasi-delict
against a party who is about to
depart from the Philippines with
intent to defraud his creditors;

(b) In an action for money or property

embezzled or fraudulently misapplied
or converted to his own use by a
public officer, or an officer of a
corporation, or an attorney, factor,
broker, agent, or clerk, in the
course of his employment as such, or
by any other person in a fiduciary
capacity, or for a willful violation
of duty;

(c) In an action to recover the

possession of property unjustly or
fraudulently taken, detained or
 21 - -

converted, when the property, or any

part thereof, has been concealed,
removed, or disposed of to prevent
its being found or taken by the
applicant or an authorized person

(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 the performance
thereof;

(e) In an action against a party who

has removed or disposed of his
property, or is about to do so, with
intent to defraud his creditors; or

(f) In an action against a party who

does not reside and is not found in
the Philippines, or on whom summons
may be served by publication;

78. Clearly, Plaintiff Sybex’s right to the issuance of a Writ of

Preliminary Injunction is anchored on Sections 1(b) and (f) of Rule 57,
based on the fact that it was through the fraudulent acts of the
defendants that the money owing to Plaintiff Sybex never reached
them and that Defendant Eurotec Thailand is a foreign based
corporation residing outside the Philippines;

79. On the ground of fraud, it is sufficiently clear from the

facts that Defendants took advantage of their close relations with
Plaintiff Sybex’s representative, Mr. Nequinto into making them
believe that they would be religious in their obligation of remitting
the indent payments to Plaintiff Sybex;

80. In addition, Defendants act of (1) suddenly withholding

numerous remittance payments for indent orders for the month of
October 2015 to February 2016, (2) failure to give any explanation as
to why they never remitted any amount or any justification for their
acts, (3) failure to heed any demand or pleas for the remittance
payments to be returned to Plaintiff Sybex that Mr. Nequinto made
with Defendants, and (4) their continued refusal to remit the
payments due to Plaintiff Sybex up to date is constitutive of fraud
 22 - -

and embezzlement of the money that rightfully belongs to Plaintiff

Sybex;

81. There is no other sufficient security for the claim sought

to be enforced by this action;

82. Plaintiff Sybex is ready, able and willing to post bond for
the issuance of a writ of preliminary attachment in an amount to be
fixed by the court, conditioned upon the payment of all cost which
may be adjudged by reason of the attachment, if the Honorable Court
shall finally adjudge that herein plaintiff is not entitled thereto.

PRAYER

WHEREFORE, it is respectfully prayed of this Honorable Court

that after hearing, judgment be rendered:

1. Upon the filing of this complaint, a Writ of Preliminary

Attachment be immediately issued in favor of Plaintiff Sybex
and against the properties of the Defendants as security for
the satisfaction of any judgment that may be recovered
therein;

2. That judgment be rendered in favor of Plaintiff and against

the Defendants, ordering them to pay as follows:

a. The sum of money amounting to $693,132.00 and

€243,200.00 under the first cause of action plus interest
of 6% interest per annum from date of judgment;

b. The amount of not less than P300,000.00 as exemplary

damages under the third cause of action plus 6%
interest per annum from date of judgment;

c. The amount of not less than P300,000.00 as attorney’s

fees and litigation expenses, plus cost of suit under the
fourth cause of action plust 6% interest from date of
judgment.
 23 - -

Other reliefs just and equitable are likewise prayed for.

Makati City for Manila. __ August 2016.

BELLO VALDEZ CALUYA & FERNANDEZ

JGLaw
Counsel for the Petitioner
th
6 Floor, SOL Bldg., 112 Amorsolo Street,
Legaspi Village, 1229 Makati City
Tel. Nos. 8159071 to 78
Office Mobile Nos. 0917-8570680/0917-8828309
E-mail: info@jglawph.com

By:

WINSTON P.L. ESGUERRA

IBP Lifetime No. 012237/ 06 January 2014/ Quezon City
PTR No. 5324658/ 05 January 2016/ Makati City
MCLE Compliance No. V-0015289/ 08 March 2016
Roll No. 47382

JOHN PHILIPPS M. REPOSO

IBP No. 1041782 / 01 June 2016 / RSM
PTR No. 203907ME / 19 July 2016 / Pasig City
MCLE Compliance No.: Newly Admitted to the Bar
Roll No. 66410
 24 - -

AFFIDAVIT OF MERIT
VERIFICATION/CERTIFICATION

I, NILO C. NEQUINTO of legal age, Filipino, with office address

at 107 Chateau Verde Building, Valle Verde 1, E. Rodriguez Jr.
Avenue, Pasig City, Philippines, after having been sworn in
accordance with law, depose and state that:

1. I am the President and Managing Director of Sybex

Animal Health and Nutrition Inc., a corporation duly organized and
existing under Philippine laws;

2. I have been authorized by Sybex Animal Health and

Nutrition Inc., through its Board of Directors to institute the instant
Complaint;

3. I have caused the preparation of the foregoing Complaint,

have read the same and confirm that the contents thereto are true and
correct to the best of my knowledge and authentic records;

4. Sybex Animal Health and Nutrition Inc. has not

commenced any other action or proceeding involving the same issues
in the Supreme Court, the Court of Appeals or different division
thereof, any other, tribunal or agency, and that to the best of my
knowledge, no such action or proceeding is pending in the Supreme
Court, Court of Appeals or different divisions thereof or any other
tribunal or agency;

5. I hereby undertake to notify this Honorable Court within

five (5) days from notice should we learn that a similar action or
proceeding has been filed or is pending before the Supreme Court,
Court of Appeals or different divisions or any other tribunal or
agency;

6. The manner by which Defendants withheld the

remittance payments due to Plaintiff Sybex was characterized by bad
faith and fraud as Defendants deliberately stopped remitting any of
the payments for indent orders and without any warning or any sort
of communication;
 25 - -

7. Knowing fully well that the payment for the indent

orders would answer for the cost of the goods sold by Plaintiff Sybex,
Defendants still withheld the remittances of the same to the point that
Plaintiff Sybex and Eurotec Philippines had to advance the necessary
amounts just to cover the cost of goods sold that Plaintiff Sybex needs
to pay to its suppliers. As a consequence, it has severely impacted
Plaintiff Sybex’s financial state and viability;

8. Defendants, fraudulently and mercilessly withheld the

proceeds of various indent orders placed by San Miguel amounting
to a total of $693,132.00 and €243,2000.00. It never made a single
remittance for any of the indent orders which have remained unpaid;

9. Considering the position of the Defendants as the one

charged with the acceptance of payments from the clients of Plaintiff
Sybex, Defendants are the ones who are in the best position to receive
the said payments. Naturally, Defendants would have possession of
the payments prior to remitting the same to Plaintiff Sybex. Thus, any
anomaly or non-reception of any of the proceeds could only point to
either the indent customer or the Defendants as the one charged with
accepting payments;

10. It is not far-fetched that given the silence of Defendants

regarding the issue on the remittance proceeds, the same have been
converted to the use and enjoyment of the Defendants to the
detriment of Plaintiff Sybex;

11. Indeed, it was an unfortunate and sinister scheme

employed by the Defendants in withholding the payment proceeds,
taking advantage of the trust and confidence reposed upon them by
the Plaintiff Sybex and it’s President and Managing Director, Mr.
Nequinto, considering that they have been long time partners in the
venture. As in fact, prior to pointing the blame to Defendants, Mr.
Nequinto had to verify with San Miguel on whether the payments
have already been remitted to Defendant’s bank, Siam Commercial
Bank. Despite requests to verify on whether the transactions have
been coursed through, the same only fell on deaf ears;

12. The actuations of Defendants indubitably lead to the

conclusion that they never entertained the idea of fulfilling their
obligations under the agreement by the time that they had ceased
 26 - -

communications with Plaintiff Sybex and Mr. Nequinto. They were

bent on defrauding the plaintiff from the start, with the mindset that
they would no longer comply with their obligations on the
agreement. Considering the number of invoice orders which
payments remained unremitted up to date and the length of time that
Defendant Eurotec Thailand and Defendant Watuma’s was
indiffirent to the pleas of Mr. Nequinto, there could be no measure of
justification for the acts of the Defendants in this case, moreso when
such acts have caused great damage to the business of Plaintiff Sybex.
Thus, Defendants should be held solidarily liable for the total balance
of all the unremitted payments owing to Plaintiff Sybex;

13. Ultimately, the fraud, malice and bad faith of the

Defendants in their failure to perform their obligations under the
agreement are clear and patent from the foregoing allegations;

14. Considering also the fact that Defendant Eurotec

Thailand is a foreign corporation based in Thailand and that
Defendants Watsuma, Surasak Srisa-Ard and Bongkot Sutikommala
are similarly situated therein, it follows that a ground exists for the
issuance of a Writ of Preliminary Attachment against the Defendants
in this case;

15. There is no sufficient security for the claims sought to be

enforced by the action and the amount due to the Plaintiff is as much
as the sum for which the order of attachment is sought to be granted
above all legal counterclaims on the part of the Defendants;

16. Plaintiff is ready, able and willing to post bond for the
issuance of a Writ of Preliminary Attachment in an amount to be
fixed by the court, conditioned upon the payment of all cost which
may be adjudged by reason of the attachment, if the Honorable Court
shall finally adjudge that herein Plaintiff was not entitled thereto.

AFFIANT FURTHER SAYETH NAUGHT.

NILO C. NEQUINTO
Affiant
 27 - -

SUBSCRIBED AND SWORN to before me, this __th day of

______________ affiant exhibiting to me her/his government issued
I.D. _______________ issued on ___________ at ____________and will
expire on ______________.

Doc. No. _____

Page No. _____
Book No. _____
Series of 2016.