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128606
December 4, 2000
1997, the motion for leave to intervene was granted and the Comment-inIntervention was admitted.11
The petition is without merit.
The records of the case clearly show that the written notice by UNIMOLCO, the
Offeror, of its intention to sell its 196,000 shares of stock was duly received on April
24, 1996 by the President and Chairman of the Board of ETPI. The Sandiganbayan
correctly held that this was valid service of the written offer to the corporation,
applying by analogy the Rules of Court provisions on service of summons. Petitioner
does not dispute that the written notice to the President and Chairman of the Board
of ETPI was service to the corporation. It merely argues that after receipt of the
offer, ETPI did not act in accordance with the procedure laid down in the Articles of
Incorporation. Thus, in its petition for review, petitioner states:
The April 24, 1996 offer sent to ETPI Chairman and President Melquiades Gutierrez
did not become valid and effective as it was not able to completely comply with the
requirements of Article 10 of the ETPI Articles of Incorporation. Indeed, after
receipt by ETPI of the April 24, 1996 offer, ETPI never acted on it. Assuming
that ETPI, as a corporation did not exercise its right of first refusal within the first
thirty day period pursuant to Article 10, it did not send notices to then stockholders
of record of ETPI about the offered sale and their privilege to exercise their rights of
first refusal. In other words, the ETPI stockholders were denied of its formal notice
from ETPI about the said offer to sell the 196,000 share of stock. 12
Hence, the First Period of thirty days contemplated in the Articles of Incorporation
commenced to run on April 24, 1996, giving the corporation until May 24, 1996
within which to exercise its right of first refusal. ETPIs inaction simply means that it
did not desire to purchase the shares of stock. The stockholders right of first refusal,
thus, accrued upon the expiration of the First Period and within the succeeding thirty
days, known as the Second Period. The Sandiganbayan held that the First Period and
the Second Period are "continuous in character because the Second Period ends, in
the very words of Article 10 of the ETPI Articles, thirty (30) days after the First
Period, and the expiry date being thirty (30) days after the end of the First
Period."13 The Second Period, therefore, covered the period from May 24, 1996 to
June 23, 1996.
Petitioner maintains that under the Articles of Incorporation, the Corporate Secretary
of ETPI should have given the stockholders written notice of the offer to sell on or
before the expiration of the First Period. However, Resolution No. 96-142, adopted by
PCGG on June 21, 1996, states among others:
WHEREAS, on 4 June 1996, the PCGG received copy of a letter of 29 May 1996 from
Atty. Juan de Ocampo, alleging that he is the Corporate Secretary of ETPI, copy of
which is hereto attached, stating that under Article Tenth of the ETPI articles of
Incorporation, all stockholders of record have the right of first refusal to purchase
pro rata to their holdings in ETPI to expire 20 days (supposed to be 30) from expiry
date of ETPIs right of first refusal which was allegedly 24 May 1996, giving the
From the above, it clearly appears that, by petitioners own admission and contrary
to its belated protestation, the procedure outlined in the Articles of Incorporation
relating to the right of first refusal was observed. But petitioner takes exception to
Atty. De Ocampos authority to act as Corporate Secretary of ETPI. In this
connection, the Sandiganbayan held:
xxx. The question of who are the legitimate directors and officers of ETPI has been
elevated to the Supreme Court but has not yet been finally resolved. This should
not, however, detract from the fact that PCGG has actually been informed of the
intended sale.15
We agree with the Sandiganbayan. The purpose of the notice requirement in Article
10 of the ETPI Articles of Incorporation is to give the stockholders knowledge of the
intended sale of shares of stock of the corporation, in order that they may exercise
their preemptive right. Where it is shown that a stockholder had actual knowledge of
the intended sale within the period prescribed to exercise the right, the notice
requirement had been sufficiently met. In the case at bar, PCGG had actual
knowledge of UNIMOLCOs offer to sell its shares of stock. In fact, it issued
Resolution No. 96-142 enjoining the sale of the said shares of stock to Smart.
Petitioner, thus, cannot feign lack of notice.16
Parenthetically, PCGG had no more authority to enjoin the sale of UNIMOLCOs
196,000 shares of stock, as it endeavored to do in Resolution No. 96-142. As
correctly found by the Sandiganbayan, since the 196,000 shares of stock had
already been adjudicated by final judgment to Benedicto and UNIMOLCO, PCGG
could no longer exercise power and authority over the same.17
Therefore, we sustain the Sandiganbayans ruling that petitioners right of first
refusal was not seasonably exercised.18
Even on the assumption that petitioner exercised its right of first refusal on time, it
nonetheless failed to follow the requirement in the Articles of Incorporation that
payment must be tendered in "cash or certified checks or checks drawn on a
Philippine bank or banks". The set-off or compensation it proposed does not fall
under any of the recognized modes of payment in the Articles. In order that
compensation may be proper, Article 1279 of the Civil Code requires:
(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 are
consumable, they be of the same kind, and also of the same quality if the
later has been stated;
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.
concerning sale of merchandise to Dole Philippines, Inc.; and [b] Silahis' claim that it
is entitled to return the stainless steel screen covered by Exhibits '6-A' and '6-B'
which was found defective by its client, Borden International, Davao City, and to
have the corresponding amount cancelled from its account with de Leon.
In a decision dated August 25, 1978, 1 the lower court confirmed the liability of
Silahis for the claim of de Leon but at the same time ordered that it be partially
offset by Silahis' counterclaim as contained in the debit memo for unrealized profit
and commission. Judge Bienvenido C. Ejercito of said court held:
SO ORDERED. 2
De Leon appealed from the said decision insofar as it directed partial compensation
and its failure to award interest on his principal claim as well as attomey's fees in his
favor. In a decision dated March 1 7, 1986, 3 respondent Intermediate Appellate
Court 4 set aside the decision of the lower court and dismissed herein petitioner's
(therein defendant- appellee's) counterclaim for lack of factual or legal basis. The
appellate court found that there was no agreement, verbal or otherwise, nor was
there any contractual obligation between De Leon and Silahis prohibiting any direct
sales to Dole Philippines, Inc. by de Leon; nor was there anything in the debit memo
obligating de Leon to pay a commission to Silahis for the sale of P 111,000.00 worth
of sprockets to Dole Philippines although in the past, the former did supply certain
items to the latter for delivery to Dole Philippines, Incorporated.
Hence, in this petition for review on certiorari, the central issue is whether or not
private respondent is liable to the petitioner for the commission or margin for the
direct sale which the former concluded and consummated with Dole Philippines,
Incorporated without coursing the same through herein petitioner.
We have carefully gone over the record of this case particularly the debit memo
upon which petitioner's counterclaim rests and found nothing contained therein to
show that private respondent obligated himself to set-off or compensate petitioner's
outstanding accounts with the alleged unrealized commission from the assailed sale
of sprockets in the amount of P 111,000.00 to Dole Philippines, Inc.
It must be remembered that compensation takes place when two persons, in their
own right, are creditors and debtors to each other. Article 1279 of the Civil Code
provides that: "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; [5] that over neither of them there be any retention or
controversy, commenced by third persons and communicated in due time to the
debtor.
When all the requisites mentioned in Art. 1279 of the Civil Code are present,
compensation takes effect by operation of law, even without the consent or
knowledge of the creditors and debtors. 5 Article 1279 requires, among others, that
in order that legal compensation shall take place, "the two debts be due" and "they
be liquidated and demandable." Compensation is not proper where the claim of the
person asserting the set-off against the other is not clear nor liquidated;
compensation cannot extend to unliquidated, disputed claim existing from breach of
contract. 6
Undoubtedly, petitioner admits the validity of its outstanding accounts with private
respondent in the amount of P 22,213.75 as contained in its answer. But whether
private respondent is liable to pay the petitioner a 20% margin or commission on the
December 6, 2010
Type of Loan
Date Granted
Amount
Packing Credit
P19,000.00
Packing Credit
P25,000.00
Packing Credit
P12,500.00
Packing Credit
P 2,900.00
Packing Credit
April 4, 1978
P18,000.00
Packing Credit
P23,000.00
On June 22, 1977, petitioner transferred the amount of P1,150.00 from respondents
current account to their savings account, which was erroneously posted
as P1,500.00 but later corrected to reflect the figure P1,150.00 in the savings
account passbook. By the second quarter of 1978, the loans began to mature and
the letters of credit against which the packing advances were granted started to
expire. Meanwhile, on December 7, 1979, petitioner, without notifying the
respondents, applied to the payment of respondents outstanding obligations the
sum of $4,220.00 or P30,930.49 which was remitted to the respondents thru
In a Joint Decision11 dated August 26, 1998, the RTC ruled in favor of the petitioner,
as follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered in Civil Case No.
R-22608 in favor of the plaintiff and against the defendants directing the defendants
jointly and solidarily to pay plaintiff the sum of P83,397.68 with legal rate of interest
to be computed from November 24, 1981 (the date of the auction sale) until full
payment thereof. They are likewise directed to pay plaintiff attorneys fees in the
sum of P10,000.00 plus litigation expenses in the amount of P2,500.00.
With cost against defendants.
In CEB-112, judgment is hereby rendered dismissing the complaint.
With cost against the plaintiff.
SO ORDERED.12
The trial court found that despite respondents insistence that the REM covered only
a separate loan for P86,000.00 which they believed petitioner committed to lend
them, the evidence clearly shows that said REM was constituted as security for all
the promissory notes. No separate demand was made for the amount of P86,000.00
stated in the REM, as the demand was limited to the amounts of the promissory
notes. The trial court further noted that respondents never questioned the judgment
for extrajudicial foreclosure, the certificate of sale and the deficiency in that case. 13
The CA thus held that petitioners remedy would be to file a collection case on the
unpaid promissory notes which were not secured by the REMs.
With respect to the passbook entries, the trial court stated that no objection thereto
was made by the respondents until five years later when in a letter dated August 10,
1982, respondents counsel asked petitioner to be enlightened on the matter.
Neither did respondents protest the application of the balance (P1,150.00) in the
passbook to his account with petitioner. More important, respondent Norberto
Castaares in his testimony admitted that the matter was already clarified to him by
petitioner and that the latter had the right to apply his deposit to his loan accounts.
Admittedly, his complaint has to do more with the lack of consent on his part and
the non-issuance of official receipt. However, he did not follow up his request for
official receipt as he did not want to be going back and forth to the bank. 14
As to the $4,220.00 telegraphic transfer, the CA ruled that petitioner had no basis
for withholding and applying the said amount to respondents loan account. Said
transaction was separate and distinct from the contract of loan between petitioner
and respondents. Petitioner had no authority to convert the said telegraphic transfer
into cash since the participation of respondents was necessary to sign and indorse
the disbursement voucher and check. Moreover, petitioner was not transparent in its
actions as it did not inform the respondents of its intention to apply the proceeds of
the telegraphic transfer to their loan account and worse, it did not even present an
official receipt to prove payment. Section 5 of Republic Act No. 6426, otherwise
known as the Foreign Currency Deposit Act, provides that there shall be no
restriction on the withdrawability by the depositor of his deposit or the
transferability of the same abroad except those arising from contract between the
depositor and the bank.21
CA Ruling
The Petition
With the trial courts denial of their motion for reconsideration, respondents
appealed to the CA. Finding merit in respondents arguments, the appellate court set
aside the trial courts judgment under its Decision 15 dated January 11, 2006, thus:
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us
GRANTING the appeal filed in this case and REVERSING AND SETTING ASIDE the Joint
Decision dated August 26, 1998, Regional Trial Court, 7th Judicial Region, Branch 13,
in Civil Case No. R-22608 and Civil Case No. CEB-112. With regard to Civil Case No.
R-22608, the real estate mortgage dated April 18, 1977 is hereby DECLARED as
valid in part as to the amount of P35,000.00 actually released in favor of appellants,
while the real estate mortgage dated January 26, 1978 is hereby declared as null
and void. Furthermore, in Civil Case No. CEB-112, TRB is hereby ordered to release
the amount of US$4,220.90 to the appellants at its current rate of exchange. No
pronouncement as to costs.
SO ORDERED.16
The CA held that the RTC overlooked the fact that there were no adequate evidence
presented to prove that petitioner released in full to the respondents the proceeds of
the REM loan. Citing Filipinas Marble Corporation v. Intermediate Appellate
Court17 and Naguiat v. Court of Appeals,18 the appellate court declared that where
there was failure of the mortgagee bank to deliver the consideration for which the
mortgage was executed, the contract of loan was invalid and consequently the
accessory contract of mortgage is likewise null and void. In this case,
only P35,000.00 out of theP86,000.00 stated in the REM dated April 18, 1977 was
released to respondents, and hence the REM was valid only to that extent. For the
same reason, the second REM was null and void since no actual loan proceeds were
released to the respondents-mortgagors. The REMs are not connected to the
subsequent promissory notes because these were signed by respondents for the
sole purpose of securing packing credits and export advances. Further citing Acme
Shoe, Rubber and Plastic Corp. v. Court of Appeals, 19 the CA stated that the rule is
that a pledge, real estate mortgage or antichresis may exceptionally secure afterincurred obligations only as long as these debts are accurately described therein. In
this case, neither of the two REMs accurately described or even mentioned the
securing of future debts or obligations.20
too impossible that future loans can be accurately described, as the CA opined, at
the time that a deed of real estate mortgage is executed. The CAs reliance on the
case of Filipinas Marble Corporation, is likewise misplaced as it finds no application
under the facts obtaining in the present case. The misappropriation by some
individuals of the loan proceeds secured by petitioner was the consideration which
compelled this Court to rule that there was failure on the part of DBP to deliver the
consideration for which the mortgage was executed. Similarly, the case of Naguiat is
inapplicable in that there was evidence that an agent of the creditor withheld from
the debtor the checks representing the proceeds of the loan pending delivery of
additional collateral.
Finally, petitioner reiterates that it had the right by way of set-off the telegraphic
transfer in the sum of $4,220.00 against the unpaid loan account of respondents.
Citing Bank of the Philippine Islands v. Court of Appeals,23 petitioner asserts that
they are bound principally as both creditors and debtors of each other, the debts
consisting of a sum of money, both due, liquidated and demandable, and are not
claimed by a third person. Hence, the RTC did not err in holding that petitioner
validly applied the amount of P30,930.20 (peso equivalent of $4,220.00) to the loan
account of the respondents.
Our Ruling
We rule for the petitioner.
The subject REMs contain the following provision:
That, for and in consideration of certain loans, overdrafts and other credit
accommodations obtained, from the Mortgagee by the Mortgagor and/or SPS.
NORBERTO V. CASTAARES & MILAGROS M. CASTAARES and to secure the payment
of the same, the principal of all of which is hereby fixed at EIGHTY-SIX THOUSAND
PESOS ONLY (P86,000.00) Pesos, Philippine Currency, as well as those that the
Mortgagee may hereafter extend to the Mortgagor x x x, 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 x x x.24 (Emphasis supplied.)
The above stipulation is also known as "dragnet clause" or "blanket mortgage
clause" in American jurisprudence that would subsume all debts of past and future
origins. It has been held as a valid and legal undertaking, the amounts specified as
consideration in the contracts do not limit the amount for which the pledge or
mortgage stands as security, if from the four corners of the instrument, the intent to
secure future and other indebtedness can be gathered. A pledge or mortgage given
to secure future advancements is a continuing security and is not discharged by the
repayment of the amount named in the mortgage until the full amount of all
advancements shall have been paid.25
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.26 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. 27
In holding that the REMs were null and void, the CA opined that the full amount of
the principal loan stated in the deed should have been released in full, sustaining
the position of the respondents that the promissory notes were not secured by the
mortgage and unrelated to it. However, a reading of the afore-quoted provision of
the REMs shows that its terms are broad enough to cover packing credits and export
advances granted by the petitioner to respondents. That the respondents
subsequently availed of letters of credit and export advances in various amounts as
reflected in the promissory notes, buttressed the claim of petitioner that the
amounts of P86,000.00 and P60,000.00 stated in the REMs merely represent the
maximum total loans which will be secured by the mortgage. This must be so as
respondents confirmed that the mortgage was constituted for the purpose of
obtaining additional capital as dictated by the needs of their export business.
Significantly, no complaint was made by the respondents as to the non-release
of P86,000.00 and P60,000.00, in full, simultaneous or immediately following the
execution of the REMs -- under a single promissory note each equivalent to the said
sums -- and no demand for the said specific amounts was ever made by the
petitioner. Even the letter-complaint sent by respondents to the Central Bank almost
a year after the extrajudicial foreclosure sale mentioned only the questioned entries
in their passbook and the $4,220.00 telegraphic transfer. Considering that
respondents deemed it a serious "banking malpractice" for petitioner not to release
in full the loan amount stated in the REMs, it can only be inferred that respondents
themselves understood that the P86,000.00 and P60,000.00 indicated in the REMs
was intended merely to fix a ceiling for the loan accommodations which will be
secured thereby and not the actual principal loan to be released at one time. Thus,
the RTC did not err in upholding the validity of the REMs and ordering the
respondents to pay the deficiency in the foreclosure sale to satisfy the remaining
mortgage indebtedness.
The cases relied upon by the CA are all inapplicable to the present
controversy.lawph!1 In Filipinas Marble Corporation, we held that pending the
outcome of litigation between DBP which together with Bancom officers were
alleged by the petitioner-mortgagor to have misspent and misappropriated the $5
million loan granted by DBP, the provisions of P.D. No. 385 prohibiting injunctions
against foreclosures by government financial institutions, cannot be automatically
applied. Foreclosure of the mortgaged properties for the whole amount of the loan
was deemed prejudicial to the petitioner, its employees and their families since the
true amount of the loan which was applied for the benefit of the petitioner can be
determined only after a trial on the merits. 28 No such act of misappropriation by
corporate officers appointed by the mortgagee is involved in this case. Besides, the
respondents never denied receiving the amounts under the promissory notes which
were all covered by the REMs and the very obligations subject of the extrajudicial
foreclosure.
As to the ruling in Naguiat, we found therein no compelling reason to disturb the
lower courts finding that the lender did not remit and the borrower did not receive
the proceeds of the loan. Hence, we held the mortgage contract, being just an
accessory contract, as null and void for absence of consideration. 29 In this case,
however, respondents admitted they received all the amounts under the promissory
notes presented by the petitioner. The consideration in the execution of the REMs
consist of those credit accommodations to fund their export transactions.
Respondents as an afterthought raised issue on the nature of the amounts of
principal loan indicated in the REMs long after these obligations have matured and
the mortgage foreclosed due to their failure to fully settle their outstanding accounts
with petitioner. Having expressly agreed to the terms of the REMs which are phrased
to secure all such loans and advancements to be obtained from petitioner, although
the principal amount stated therein were not released at one time and under
several, not just one, subsequently issued promissory notes, respondents may not
be allowed to complain later that the amounts they received were unrelated to the
REMs.
On the issue of the $4,220.00 telegraphic transfer which was applied by the
petitioner to the loan account of respondents, we hold that the CA erred in holding
that petitioner had no authority to do so by way of compensation or set off. In this
case, the parties stipulated on the manner of such set off in case of non-payment of
the amount due under each promissory note.
The subject promissory notes thus provide:
In case of non-payment of this note or any installments thereof at maturity, I/We
jointly and severally, agree to pay an additional amount equivalent to two per cent
(2%) per annum of the amount due and demandable as penalty and collection
charges, in the form of liquidated damages, until fully paid; and the further sum of
ten per cent (10%) thereof in full, without any deduction, as and for attorneys fees
whether actually incurred or not, exclusive of costs and judicial/extrajudicial
expenses; moreover, I/We, jointly and severally, further empower and authorize the
TRADERS ROYAL BANK, at its option, and without notice, to set-off or to apply to the
payment of this note any and all funds, which may be in its hands on deposit or
otherwise belonging to anyone or all of us, and to hold as security therefor any real
or personal property, which may be in its possession or control by virtue of any other
contract.30 (Emphasis supplied.)
Agreements for compensation of debts or any obligations when the parties are
mutually creditors and debtors are allowed under Art. 1282 of the Civil Code even
though not all the legal requisites for legal compensation are present. Voluntary or
conventional compensation is not limited to obligations which are not yet due. 31 The
only requirements for conventional compensation are (1) that each of the parties
can fully dispose of the credit he seeks to compensate, and (2) that they agree to
the extinguishment of their mutual credits.32 Consequently, no error was committed
by the trial court in holding that petitioner validly applied, by way of compensation,
the $4,220.00 telegraphic transfer remitted by respondents foreign client through
the petitioner.
WHEREFORE, the petition is GRANTED. The Decision dated January 11, 2006 of the
Court of Appeals in CA-G.R. CV No. 67257 is REVERSED and SET ASIDE. The Joint
Decision dated August 26, 1998 of the Regional Trial Court of Cebu City, Branch 13
in Civil Case Nos. R-22608 and CEB-112 is REINSTATED and UPHELD.
FELICIANO, J.:
On 9 February 1981, petitioner Raul Sesbreo made a money market placement in
the amount of P300,000.00 with the Philippine Underwriters Finance Corporation
("Philfinance"), Cebu Branch; the placement, with a term of thirty-two (32) days,
would mature on 13 March 1981, Philfinance, also on 9 February 1981, issued the
following documents to petitioner:
(a) the Certificate of Confirmation of Sale, "without recourse," No.
20496 of one (1) Delta Motors Corporation Promissory Note ("DMC
PN") No. 2731 for a term of 32 days at 17.0% per annum;
(b) the Certificate of securities Delivery Receipt No. 16587
indicating the sale of DMC PN No. 2731 to petitioner, with the
notation that the said security was in custodianship of Pilipinas
Bank, as per Denominated Custodian Receipt ("DCR") No. 10805
dated 9 February 1981; and
(c) post-dated checks payable on 13 March 1981 (i.e., the maturity
date of petitioner's investment), with petitioner as payee,
Philfinance as drawer, and Insular Bank of Asia and America as
drawee, in the total amount of P304,533.33.
On 13 March 1981, petitioner sought to encash the postdated checks issued by
Philfinance. However, the checks were dishonored for having been drawn against
insufficient funds.
On 26 March 1981, Philfinance delivered to petitioner the DCR No. 10805 issued by
private respondent Pilipinas Bank ("Pilipinas"). It reads as follows:
PILIPINAS BANK
Makati Stock Exchange Bldg.,
Ayala Avenue, Makati,
Metro ManilaFebruary 9, 1981
VALUE DATE
No pronouncement as to costs.
G.R. No. 89252 May 24, 1993
RAUL SESBREO, petitioner,
vs.
HON. COURT OF APPEALS, DELTA MOTORS CORPORATION AND PILIPINAS
BANK, respondents.
Salva, Villanueva & Associates for Delta Motors Corporation.
TO Raul Sesbreo
April 6, 1981
MATURITY DATE
NO. 10805
did not provide the appropriate instructions; Pilipinas never released DMC PN No.
2731, nor any other instrument in respect thereof, to petitioner.
DENOMINATED CUSTODIAN RECEIPT
Petitioner also made a written demand on 14 July 1981 3 upon private respondent
Delta for the partial satisfaction of DMC PN No. 2731, explaining that Philfinance, as
payee thereof, had assigned to him said Note to the extent of P307,933.33. Delta,
however, denied any liability to petitioner on the promissory note, and explained in
turn that it had previously agreed with Philfinance to offset its DMC PN No. 2731
(along with DMC PN No. 2730) against Philfinance PN No. 143-A issued in favor of
Delta.
In the meantime, Philfinance, on 18 June 1981, was placed under the joint
management of the Securities and exchange commission ("SEC") and the Central
Bank. Pilipinas delivered to the SEC DMC PN No. 2731, which to date apparently
remains in the custody of the SEC. 4
As petitioner had failed to collect his investment and interest thereon, he filed on 28
September 1982 an action for damages with the Regional Trial Court ("RTC") of Cebu
City, Branch 21, against private respondents Delta and Pilipinas. 5 The trial court, in
a decision dated 5 August 1987, dismissed the complaint and counterclaims for lack
of merit and for lack of cause of action, with costs against petitioner.
Petitioner appealed to respondent Court of Appeals in C.A.-G.R. CV No. 15195. In a
Decision dated 21 March 1989, the Court of Appeals denied the appeal and held: 6
Be that as it may, from the evidence on record, if there is anyone
that appears liable for the travails of plaintiff-appellant, it is
Philfinance. As correctly observed by the trial court:
This act of Philfinance in accepting the
investment of plaintiff and charging it against
DMC PN No. 2731 when its entire face value was
already obligated or earmarked for set-off or
compensation is difficult to comprehend and
may have been motivated with bad faith.
Philfinance, therefore, is solely and legally
obligated to return the investment of plaintiff,
together with its earnings, and to answer all the
damages plaintiff has suffered incident thereto.
Unfortunately for plaintiff, Philfinance was not
impleaded as one of the defendants in this case
at bar; hence, this Court is without jurisdiction to
pronounce judgement against it. (p. 11,
Decision)
WHEREFORE, finding no reversible error in the decision appealed
from, the same is hereby affirmed in toto. Cost against plaintiffappellant.
of such transfer, Delta as debtor-maker of the Note, was obligated to pay petitioner
the portion of that Note assigned to him by the payee Philfinance.
DMC PN No. 2731, while marked "non-negotiable," was not at the same time
stamped "non-transferable" or "non-assignable." It contained no stipulation which
prohibited Philfinance from assigning or transferring, in whole or in part, that Note.
Petitioner admits that DMC PN No. 2731 was non-negotiable but contends that the
Note had been validly transferred, in part to him by assignment and that as a result
Delta adduced the "Letter of Agreement" which it had entered into with Philfinance
and which should be quoted in full:
Apropos Delta's complaint that the partial assignment by Philfinance of DMC PN No.
2731 had been effected without the consent of Delta, we note that such consent was
not necessary for the validity and enforceability of the assignment in favor of
petitioner. 14 Delta's argument that Philfinance's sale or assignment of part of its
rights to DMC PN No. 2731 constituted conventional subrogation, which required its
(Delta's) consent, is quite mistaken. Conventional subrogation, which in the first
place is never lightly inferred, 15 must be clearly established by the unequivocal
terms of the substituting obligation or by the evident incompatibility of the new and
old obligations on every point. 16 Nothing of the sort is present in the instant case.
It is in fact difficult to be impressed with Delta's complaint, since it released its DMC
PN No. 2731 to Philfinance, an entity engaged in the business of buying and selling
debt instruments and other securities, and more generally, in money market
transactions. In Perez v. Court of Appeals, 17 the Court, speaking through Mme.
Justice Herrera, made the following important statement:
There is another aspect to this case. What is involved here is a
money market transaction. As defined by Lawrence Smith "the
money market is a market dealing in standardized short-term
credit instruments (involving large amounts) where lenders and
borrowers do not deal directly with each other but through a
middle manor a dealer in the open market." It involves
"commercial papers" which are instruments "evidencing
indebtness of any person or entity. . ., which are issued, endorsed,
sold or transferred or in any manner conveyed to another person
or entity, with or without recourse". The fundamental function of
the money market device in its operation is to match and bring
together in a most impersonal manner both the "fund users" and
the "fund suppliers." The money market is an "impersonal
market", free from personal considerations. "The market
mechanism is intended to provide quick mobility of money and
securities."
The impersonal character of the money market device overlooks
the individuals or entities concerned. The issuer of a commercial
paper in the money market necessarily knows in advance that it
would be expenditiously transacted and transferred to any
investor/lender without need of notice to said issuer. In practice,
no notification is given to the borrower or issuer of commercial
paper of the sale or transfer to the investor.
xxx xxx xxx
There is need to individuate a money market transaction, a
relatively novel institution in the Philippine commercial scene. It
has been intended to facilitate the flow and acquisition of capital
on an impersonal basis. And as specifically required by Presidential
Decree No. 678, the investing public must be given adequate and
The record shows, however, that petitioner notified Delta of the fact of the
assignment to him only on 14 July 1981, 19 that is, after the maturity not only of the
money market placement made by petitioner but also of both DMC PN No. 2731 and
Philfinance PN No. 143-A. In other words, petitioner notified Delta of his rights as
assignee after compensation had taken place by operation of law because the
offsetting instruments had both reached maturity. It is a firmly settled doctrine that
the rights of an assignee are not any greater that the rights of the assignor, since
the assignee is merely substituted in the place of the assignor 20 and that the
assignee acquires his rights subject to the equities i.e., the defenses which the
debtor could have set up against the original assignor before notice of the
assignment was given to the debtor. Article 1285 of the Civil Code provides that:
Art. 1285. The debtor who has consented to the assignment of
rights made by a creditor in favor of a third person, cannot set up
against the assignee the compensation which would pertain to him
against the assignor, unless the assignor was notified by the
debtor at the time he gave his consent, that he reserved his right
to the compensation.
If the creditor communicated the cession to him but the debtor did
not consent thereto, the latter may set up the compensation of
debts previous to the cession, but not of subsequent ones.
made by Philfinance; at that time, compensation had yet to set in and discharge
DMC PN No. 2731. Again petitioner could have notified Delta on 26 March 1981
when petitioner received from Philfinance the Denominated Custodianship Receipt
("DCR") No. 10805 issued by private respondent Pilipinas in favor of petitioner.
Petitioner could, in fine, have notified Delta at any time before the maturity date of
DMC PN No. 2731. Because petitioner failed to do so, and because the record is bare
of any indication that Philfinance had itself notified Delta of the assignment to
petitioner, the Court is compelled to uphold the defense of compensation raised by
private respondent Delta. Of course, Philfinance remains liable to petitioner under
the terms of the assignment made by Philfinance to petitioner.
II.
We turn now to the relationship between petitioner and private respondent Pilipinas.
Petitioner contends that Pilipinas became solidarily liable with Philfinance and Delta
when Pilipinas issued DCR No. 10805 with the following words:
Upon your written instruction, we [Pilipinas] shall
undertake physical delivery of the above securities fully assigned
to you . 23
The Court is not persuaded. We find nothing in the DCR that establishes an
obligation on the part of Pilipinas to pay petitioner the amount of P307,933.33 nor
any assumption of liability in solidum with Philfinance and Delta under DMC PN No.
2731. We read the DCR as a confirmation on the part of Pilipinas that:
(1) it has in its custody, as duly constituted custodian bank, DMC
PN No. 2731 of a certain face value, to mature on 6 April 1981 and
payable to the order of Philfinance;
(2) Pilipinas was, from and after said date of the assignment by
Philfinance to petitioner (9 February 1981), holding that Note on
behalf and for the benefit of petitioner, at least to the extent it had
been assigned to petitioner by payee Philfinance; 24
(3) petitioner may inspect the Note either "personally or by
authorized representative", at any time during regular bank hours;
and
(4) upon written instructions of petitioner, Pilipinas would
physically deliver the DMC PN No. 2731 (or a participation therein
to the extent of P307,933.33) "should this Denominated
Custodianship receipt remain outstanding in [petitioner's] favor
thirty (30) days after its maturity."
Thus, we find nothing written in printers ink on the DCR which could reasonably be
read as converting Pilipinas into an obligor under the terms of DMC PN No. 2731
assigned to petitioner, either upon maturity thereof or any other time. We note that
both in his complaint and in his testimony before the trial court, petitioner referred
merely to the obligation of private respondent Pilipinas to effect the physical
delivery to him of DMC PN No. 2731. 25 Accordingly, petitioner's theory that Pilipinas
had assumed a solidary obligation to pay the amount represented by a portion of
the Note assigned to him by Philfinance, appears to be a new theory constructed
only after the trial court had ruled against him. The solidary liability that petitioner
seeks to impute Pilipinas cannot, however, be lightly inferred. Under article 1207 of
the Civil Code, "there is a solidary liability only when the law or the nature of the
obligation requires solidarity," The record here exhibits no express assumption of
solidary liability vis-a-vispetitioner, on the part of Pilipinas. Petitioner has not pointed
to us to any law which imposed such liability upon Pilipinas nor has petitioner argued
that the very nature of the custodianship assumed by private respondent Pilipinas
necessarily implies solidary liability under the securities, custody of which was taken
by Pilipinas. Accordingly, we are unable to hold Pilipinas solidarily liable with
Philfinance and private respondent Delta under DMC PN No. 2731.
We do not, however, mean to suggest that Pilipinas has no responsibility and liability
in respect of petitioner under the terms of the DCR. To the contrary, we find, after
prolonged analysis and deliberation, that private respondent Pilipinas had breached
its undertaking under the DCR to petitioner Sesbreo.
We believe and so hold that a contract of deposit was constituted by the act of
Philfinance in designating Pilipinas as custodian or depositary bank. The depositor
was initially Philfinance; the obligation of the depository was owed, however, to
petitioner Sesbreo as beneficiary of the custodianship or depository agreement. We
do not consider that this is a simple case of a stipulation pour autri. The
custodianship or depositary agreement was established as an integral part of the
money market transaction entered into by petitioner with Philfinance. Petitioner
bought a portion of DMC PN No. 2731; Philfinance as assignor-vendor deposited that
Note with Pilipinas in order that the thing sold would be placed outside the control of
the vendor. Indeed, the constituting of the depositary or custodianship agreement
was equivalent to constructive delivery of the Note (to the extent it had been sold or
assigned to petitioner) to petitioner. It will be seen that custodianship agreements
are designed to facilitate transactions in the money market by providing a basis for
confidence on the part of the investors or placers that the instruments bought by
them are effectively taken out of the pocket, as it were, of the vendors and placed
safely beyond their reach, that those instruments will be there available to the
placers of funds should they have need of them. The depositary in a contract of
deposit is obliged to return the security or the thing deposited upon demand of the
depositor (or, in the presented case, of the beneficiary) of the contract, even though
a term for such return may have been established in the said
contract. 26 Accordingly, any stipulation in the contract of deposit or custodianship
that runs counter to the fundamental purpose of that agreement or which was not
brought to the notice of and accepted by the placer-beneficiary, cannot be enforced
as against such beneficiary-placer.
We believe that the position taken above is supported by considerations of public
policy. If there is any party that needs the equalizing protection of the law in money
market transactions, it is the members of the general public whom place their
savings in such market for the purpose of generating interest revenues. 27 The
custodian bank, if it is not related either in terms of equity ownership or
management control to the borrower of the funds, or the commercial paper dealer,
is normally a preferred or traditional banker of such borrower or dealer (here,
Philfinance). The custodian bank would have every incentive to protect the interest
of its client the borrower or dealer as against the placer of funds. The providers of
such funds must be safeguarded from the impact of stipulations privately made
between the borrowers or dealers and the custodian banks, and disclosed to fundproviders only after trouble has erupted.
In the case at bar, the custodian-depositary bank Pilipinas refused to deliver the
security deposited with it when petitioner first demanded physical delivery thereof
on 2 April 1981. We must again note, in this connection, that on 2 April 1981, DMC
PN No. 2731 had not yet matured and therefore, compensation or offsetting against
Philfinance PN No. 143-A had not yet taken place. Instead of complying with the
demand of the petitioner, Pilipinas purported to require and await the instructions of
Philfinance, in obvious contravention of its undertaking under the DCR to effect
physical delivery of the Note upon receipt of "written instructions" from petitioner
Sesbreo. The ostensible term written into the DCR (i.e., "should this [DCR] remain
outstanding in your favor thirty [30] days after its maturity") was not a defense
against petitioner's demand for physical surrender of the Note on at least three
grounds: firstly, such term was never brought to the attention of petitioner Sesbreo
at the time the money market placement with Philfinance was made; secondly, such
term runs counter to the very purpose of the custodianship or depositary agreement
as an integral part of a money market transaction; and thirdly, it is inconsistent with
the provisions of Article 1988 of the Civil Code noted above. Indeed, in principle,
petitioner became entitled to demand physical delivery of the Note held by Pilipinas
as soon as petitioner's money market placement matured on 13 March 1981 without
payment from Philfinance.
We conclude, therefore, that private respondent Pilipinas must respond to petitioner
for damages sustained by arising out of its breach of duty. By failing to deliver the
Note to the petitioner as depositor-beneficiary of the thing deposited, Pilipinas
effectively and unlawfully deprived petitioner of the Note deposited with it. Whether
or not Pilipinas itself benefitted from such conversion or unlawful deprivation
inflicted upon petitioner, is of no moment for present purposes. Prima facie, the
damages suffered by petitioner consisted of P304,533.33, the portion of the DMC PN
No. 2731 assigned to petitioner but lost by him by reason of discharge of the Note
by compensation, plus legal interest of six percent (6%) per annum containing from
14 March 1981.
The conclusion we have reached is, of course, without prejudice to such right of
reimbursement as Pilipinas may have vis-a-visPhilfinance.
III.
The third principal contention of petitioner that Philfinance and private
respondents Delta and Pilipinas should be treated as one corporate entity need
not detain us for long.
In the first place, as already noted, jurisdiction over the person of Philfinance was
never acquired either by the trial court nor by the respondent Court of Appeals.
Petitioner similarly did not seek to implead Philfinance in the Petition before us.
Secondly, it is not disputed that Philfinance and private respondents Delta and
Pilipinas have been organized as separate corporate entities. Petitioner asks us to
pierce their separate corporate entities, but has been able only to cite the presence
of a common Director Mr. Ricardo Silverio, Sr., sitting on the Board of Directors of
all three (3) companies. Petitioner has neither alleged nor proved that one or
another of the three (3) concededly related companies used the other two (2) as
mere alter egosor that the corporate affairs of the other two (2) were administered
and managed for the benefit of one. There is simply not enough evidence of record
to justify disregarding the separate corporate personalities of delta and Pilipinas and
to hold them liable for any assumed or undetermined liability of Philfinance to
petitioner. 28
WHEREFORE, for all the foregoing, the Decision and Resolution of the Court of
Appeals in C.A.-G.R. CV No. 15195 dated 21 march 1989 and 17 July 1989,
respectively, are hereby MODIFIED and SET ASIDE, to the extent that such Decision
and Resolution had dismissed petitioner's complaint against Pilipinas Bank. Private
respondent Pilipinas bank is hereby ORDERED to indemnify petitioner for damages in
the amount of P304,533.33, plus legal interest thereon at the rate of six percent
(6%) per annum counted from 2 April 1981. As so modified, the Decision and
Resolution of the Court of Appeals are hereby AFFIRMED. No pronouncement as to
costs.
SO ORDERED.
Bidin, Davide, Jr., Romero and Melo, JJ., concur.