II.E.2 Affidavit and Bond (secs 3 & 4)
FIRST DIVISION
[G.R. No. 11567. !e"#$a#% 23 2''1
*I+I *I+IIN INE E BAN, BAN, -! -//0N -//0NIA IA I-N I-N petitioner, vs. *-N. *-N. -0 -0R -! AEA+ and BERNARIN- I++AN0EA I++AN0EA respondents.
[G.R. No. 11723. !e"#$a#% 23 2''1
*I+I *I+IIN INE E BAN, BAN, -! -//0N -//0NIA IA I-N I-N petitioner vs. *-N. -0R -! AEA+ and !I+IINA EI+E /I++ IN. respondents. EII-N NARE8ANIAG- J .9 .9
Before us are consolidated petitions for review both filed by Philippine Ban of !o""u !o""uni nicat catio ions# ns# one a$ain a$ainst st the the %ay &'( &'( )**' )**' Decis Decisio ion n of respo responde ndent nt !our !ourtt of +ppeals in !+,-.R. SP No. /&01/ 2)3 and the other a$ainst its %arch /)( )**4 Decision in !+,-.R. SP No. /&51&. 2&3 Both Decisions set aside and nullified the +u$ust +u$ust ))( )**/ Order 2/3 of the Re$ional Trial !ourt of %anila( Branch 5( $rantin$ the issuance of a writ of preli"inary attach"ent in !ivil !ase No. *),415)). The case co""enced with the filin$ by petitioner( on +pril 0( )**)( of a !o"plaint a$ainst private respondent Bernardino Villanueva( private respondent Filipinas Te6tile %ills and one Sochi Villanueva 7now deceased8 before the Re$ional Trial !ourt of %anil %anila. a. In the said said !o"pl !o"plain aint( t( petit petition ioner er sou$h sou$htt the the pay"en pay"entt of P&(&' P&(&''(* '(*&1 &1./ ./9 9 representin$ representin$ the proceeds or value of various te6tile $oods( the purchase purchase of which was covered by irrevocable letters of credit and trust receipts e6ecuted by petitioner with private respondent Filipinas Te6tile %ills as obli$or# which( in turn( were covered by surety a$ree"ents e6ecuted by private respondent Bernardino Villanueva and Sochi Villanueva. In their +nswer( private respondents ad"itted the e6istence of the surety a$ree"ents and trust receipts but countered that they had already "ade pay"ents on the a"ount de"anded and that the interest and other char$es i"posed by petitioner were onerous.
On %ay /)( )**/( petitioner filed a %otion for +ttach"ent( 2'3 contendin$ that violation of the trust receipts law constitutes estafa( thus providin$ $round for the issuance of a writ of preli"inary attach"ent# specifically under para$raphs b and d( Section )( Rule 45 of the Revised Rules of !ourt. Petitioner further clai"ed that attach"ent was necessary since private respondents were disposin$ of their properties to its detri"ent as a creditor. Finally( petitioner offered to post a bond for the issuance of such writ of attach"ent. The %otion was duly opposed by private respondents and( after the filin$ of a Reply thereto by petitioner( the lower court issued its +u$ust ))( )**/ Order for the issuance of a writ of preli"inary attach"ent( conditioned upon the filin$ of an attach"ent bond. Followin$ the denial of the %otion for Reconsideration filed by private respondent Filipinas Te6tile %ills( both private respondents filed separate petitions for certiorari before respondent !ourt assailin$ the order $rantin$ the writ of preli"inary attach"ent. Both petitions were $ranted( albeit on different $rounds. In !+,-.R. SP No. /&51&( respondent !ourt of +ppeals ruled that the lower court was $uilty of $rave abuse of discretion in not conductin$ a hearin$ on the application for a writ of preli"inary attach"ent and not re:uirin$ petitioner to substantiate its alle$ations of fraud( e"be;;le"ent or "isappropriation. On the other hand( in !+,-.R. SP No. /&01/( respondent !ourt of +ppeals found that the $rounds cited by petitioner in its %otion do not provide sufficient basis for the issuance of a writ of preli"inary attach"ent( they bein$ "ere $eneral aver"ents. Respondent !ourt of +ppeals held that neither e"be;;le"ent( "isappropriation nor incipient fraud "ay be presu"ed# they "ust be established in order for a writ of preli"inary attach"ent to issue.
did not sufficiently establish the $rounds relied upon in applyin$ for the writ of preli"inary attach"ent. The %otion for +ttach"ent of petitioner states that ). The instant case is based on the failure of defendants as entrustee to pay or re"it the proceeds of the $oods entrusted by plaintiff to defendant as evidenced by the trust receipts 7+nne6es B( ! and D of the co"plaint8( nor to return the $oods entrusted thereto( in violation of their fiduciary duty as a$ent or entrustee# &. >nder Section )/ of P.D. ))4( as a"ended( violation of the trust receipt law constitute7s8 estafa 7fraud and?or deceit8 punishable under +rticle /)4 par. )2b3 of the Revised Penal !ode# /. On account of the fore$oin$( there e6ist7s8 valid $round for the issuance of a writ of preli"inary attach"ent under Section ) of Rule 45 of the Revised Rules of !ourt particularly under sub,para$raphs b and d( i.e. for e"be;;le"ent or fraudulent "isapplication or conversion of "oney 7proceeds8 or property 7$oods entrusted8 by an a$ent 7entrustee8 in violation of his fiduciary duty as such( and a$ainst a party who has been $uilty of fraud in contractin$ or incurrin$ the debt or obli$ation# '. The issuance of a writ of preli"inary attach"ent is liewise ur$ently necessary as there e6ist7s8 no sufficient security for the satisfaction of any @ud$"ent that "ay be rendered a$ainst the defendants as the latter appears to have disposed of their properties to the detri"ent of the creditors lie the herein plaintiff# 4.
factor( broer( a$ent or cler( in the course of his e"ploy"ent as such( or by any other person in a fiduciary capacity( or for a willful violation of duty# 666666666 7d8 In an action a$ainst a party who has been $uilty of fraud in contractin$ the debt or incurrin$ the obli$ation upon which the action is brou$ht( or in concealin$ or disposin$ of the property for the tain$( detention or conversion of which the action is brou$ht# 666666666 =hile the %otion refers to the transaction co"plained of as involvin$ trust receipts( the violation of the ter"s of which is :ualified by law as constitutin$ estafa( it does not follow that a writ of attach"ent can and should auto"atically issue. Petitioner cannot "erely cite Section )7b8 and 7d8( Rule 45( of the Revised Rules of !ourt( as "ere reproduction of the rules( without "ore( cannot serve as $ood $round for issuin$ a writ of attach"ent. +n order of attach"ent cannot be issued on a $eneral aver"ent( such as one cere"oniously :uotin$ fro" a pertinent rule. 253 The supportin$ +ffidavit is even less instructive. It "erely states( as follows ,, I( DO%IN-O S. +>RA( of le$al a$e( "arried( with address at No. &)',&)1 Cuan una Street( Binondo( %anila( after havin$ been sworn in accordance with law( do hereby depose and say( T<+T ). I a" the +ssistant %ana$er for !entral !ollection >nits +c:uired +ssets Section of the plaintiff( Philippine Ban of !o""unications( and as such I have caused the preparation of the above "otion for issuance of a writ of preli"inary attach"ent# &. I have read and understood its contents which are true and correct of "y own nowled$e# /. There e6ist7s8 sufficient cause of action a$ainst the defendants in the instant case# '. The instant case is one of those "entioned in Section ) of Rule 45 of the Revised Rules of !ourt wherein a writ of preli"inary attach"ent "ay be issued a$ainst the defendants( particularly sub,para$raphs b and d of said section# 4. There is no other sufficient security for the clai" sou$ht to be enforced by the instant case and the a"ount due to herein plaintiff or the value of the property sou$ht to be recovered is as "uch as the su" for which the order for attach"ent is $ranted( above all le$al counterclai"s.
+$ain( it lacs particulars upon which the court can discern whether or not a writ of attach"ent should issue. Petitioner cannot insist that its alle$ation that private respondents failed to re"it the proceeds of the sale of the entrusted $oods nor to return the sa"e is sufficient for attach"ent to issue. =e note that petitioner anchors its application upon Section )7d8( Rule 45. This particular provision was ade:uately e6plained in Liberty Insurance Corporation v. Court of Appeals (203 as follows To sustain an attach"ent on this $round( it "ust be shown that the debtor in contractin$ the debt or incurrin$ the obli$ation intended to defraud the creditor. The fraud "ust relate to the e6ecution of the a$ree"ent and "ust have been the reason which induced the other party into $ivin$ consent which he would not have otherwise $iven. To constitute a $round for attach"ent in Section ) 7d8( Rule 45 of the Rules of !ourt( fraud should be co""itted upon contractin$ the obli$ation sued upon. A de"t is f#a$d$:ent:% cont#acted if at t;e ti
#econceived >:an o# intention not to >a% ( as it is in this case. Fraud is a state of "ind and need not be proved by direct evidence but "ay be inferred fro" the circu"stances attendant in each case (Republic v. Gonzales, ! "CRA #!!$ .7A"phasis ours8 =e find an absence of factual alle$ations as to how the fraud alle$ed by petitioner was co""itted. +s correctly held by respondent !ourt of +ppeals( such fraudulent intent not to honor the ad"itted obli$ation cannot be inferred fro" the debtors inability to pay or to co"ply with the obli$ations. 2*3 On the other hand( as stressed( above( fraud "ay be $leaned fro" a preconceived plan or intention not to pay. This does not appear to be so in the case at bar. In fact( it is alle$ed by private respondents that out of the total P')*(1)/.*1 covered by the sub@ect trust receipts( the a"ount of P'99(999.99 had already been paid( leavin$ only P)*(1)/.*1 as balance.
The petitioners prayer for a writ of preli"inary attach"ent hin$es on the alle$ations in para$raph )1 of the co"plaint and para$raph ' of the affidavit of Daniel Pe which are couched in $eneral ter"s devoid of particulars of ti"e( persons and places to support such a serious assertion that defendants are disposin$ of their properties in fraud of creditors. There is thus the necessity of $ivin$ to the private respondents an opportunity to ventilate their side in a hearin$( in accordance with due process( in order to deter"ine the truthfulness of the alle$ations. But no hearin$ was afforded to the private respondents the writ havin$ been issued e parte. + writ of attach"ent can only be $ranted on concrete and specific $rounds and not on $eneral aver"ents "erely :uotin$ the words of the rules. +s was frowned upon in %.&. Lub 'il ar)etin* Center, Inc. (2))3 not only was petitioners application defective for havin$ "erely $iven $eneral aver"ents# what is worse( there was no hearin$ to afford private respondents an opportunity to ventilate their side( in accordance with due process( in order to deter"ine the truthfulness of the alle$ations of petitioner. +s already "entioned( private respondents clai"ed that substantial pay"ents were "ade on the proceeds of the trust receipts sued upon. They also refuted the alle$ations of fraud( e"be;;le"ent and "isappropriation by averrin$ that private respondent Filipinas Te6tile %ills could not have done these as it had ceased its operations startin$ in Cune of )*0' due to worers strie. These are "atters which should have been addressed in a preli"inary hearin$ to $uide the lower court to a @udicious e6ercise of its discretion re$ardin$ the attach"ent prayed for. On this score( respondent !ourt of +ppeals was correct in settin$ aside the issued writ of preli"inary attach"ent. Ti"e and a$ain( we have held that the rules on the issuance of a writ of attach"ent "ust be construed strictly a$ainst the applicants. This strin$ency is re:uired because the re"edy of attach"ent is harsh( e6traordinary and su""ary in nature. If all the re:uisites for the $rantin$ of the writ are not present( then the court which issues it acts in e6cess of its @urisdiction. 2)&3 ?*ERE!-RE( for the fore$oin$ reasons( the instant petitions are DANIAD. The decision of the !ourt of +ppeals in !+,-.R. SP No. /&01/ and !+,-.R. SP No. /&51& are +FFIR%AD. No pronounce"ent as to costs. - -RERE. %avide, -r., C.-., (Chairman$, &uno, apunan, and &ardo, --., concur.
