ManilaSECOND
DIVISION
SOLEDAD
SOCO,
Petitioner,
G. R. No. L-58961
June 28, 1983
-versus-
HON.
FRANCIS MILITANTE,Incumbent Presiding Judge
of the Court of First Instance of Cebu,Branch XII, Cebu City
andREGINO FRANCISCO, JR.,
Respondents.
R
E S O L U T I O N
GUERRERO, J.:
The Decision
subject of the present Petition
for Review holds the view that there was substantial compliance with
the
requisites of consignation and so ruled in favor of private respondent,
Regino Francisco, Jr., lessee of the building owned by petitioner
lessor,
Soledad Soco, in the case for illegal detainer originally filed in the
City Court of Cebu City, declaring the payments of the rentals valid
and
effective, dismissed the complaint and ordered the lessor to pay the
lessee
moral and exemplary damages in the amount of P10,000.00 and the further
sum of P3,000.00 as attorney's fees.
We do not agree
with the questioned Decision.
We hold that the essential requisites of a valid consignation must be
complied
with fully and strictly in accordance with the law, Articles 1256 to
1261,
New Civil Code. That these Articles must be accorded a mandatory
construction
is clearly evident and plain from the very language of the codal
provisions
themselves which require absolute compliance with the essential
requisites
therein provided. Substantial compliance is not enough, for that would
render only a directory construction to the law. The use of the words
"shall"
and "must" which are imperative, operating to impose a duty which may
be
enforced, positively indicate that all the essential requisites of a
valid
consignation must be complied with. The Civil Code Articles expressly
and
explicitly direct what must be essentially done in order that
consignation
shall be valid and effectual. Thus, the law provides:
Art. 1257. In order that the consignation
of
the thing due may release the obligor, it must first be announced to
the
persons interested in the fulfillment of the obligation.
The consignation shall be ineffectual
if it
is
not made strictly in consonance with the provisions which regulate
payment.
Art. 1258. Consignation shall be
made
by
depositing the things due at the disposal of judicial authority, before
whom the tender of payment shall be proved, in a proper case, and the
announcement
of the consignation in other cases.
The consignation having been made, the
interested
parties shall also be notified thereof.
Art. 1249. The payment of debts
in
money
shall be made in the currency stipulated, and if it is not possible to
deliver such currency, then in the currency which is legal tender in
the
Philippines.
The delivery of promissory notes payable
to
order,
or bills of exchange or other mercantile documents shall produce the
effect
of payment only when they have been cashed, or when through the fault
of
the creditor they have been impaired.
In the meantime, the action derived from
the
original obligation shall be held in abeyance.
We have a long
line of established precedents and
doctrines that sustain the mandatory nature of the above provisions.
The
decision appealed from must, therefore, be reversed.
The antecedent
facts are substantially recited
in the decision under review, as follows:
It appears from
the evidence that the plaintiff-appellee-Soco,
for short-and the defendant-appellant Francisco, for brevity, entered
into
a Contract of Lease on January 17, 1973, whereby Soco leased her
commercial
building and lot situated at Manalili Street, Cebu City, to Francisco
for
a monthly rental of P800.00 for a period of 10 years renewable for
another
10 years at the option of the lessee. The terms of the contract are
embodied
in the Contract of Lease. [Exhibit "A" for Soco and Exhibit "2"
for
Francisco]. It can readily be discerned from Exhibit "A" that
paragraphs
10 and 11 appear to have been cancelled while in Exhibit "2" only
paragraph
10 has been cancelled. Claiming that paragraph 11 of the Contract of
Lease
was in fact not part of the contract because it was cancelled, Soco
filed
Civil Case No. R-16261 in the Court of First Instance of Cebu seeking
the
annulment and/or reformation of the Contract of Lease.
Sometime before
the filing of Civil Case No. R-16261,
Francisco noticed that Soco did not anymore send her collector for the
payment of rentals and at times, there were payments made but no
receipts
were issued. This situation prompted Francisco to write Soco the letter
dated February 7, 1975 [Exhibit "3"] which the latter received as shown
in Exhibit "3-A". After writing this letter, Francisco sent his payment
for rentals by checks issued by the Commercial Bank and Trust Company.
Obviously, these payments in checks were received because Soco admitted
that prior to May, 1977, defendant had been religiously paying the
rental.cralaw:red
1. The
factual background setting of this
case clearly indicates that soon after Soco learned that Francisco
sub-leased
a portion of the building to NACIDA, at a monthly rental of more than
P3,000.00
which is definitely very much higher than what Francisco was paying to
Soco under the Contract of Lease, the latter felt that she was on the
losing
end of the lease agreement so she tried to look for ways and means to
terminate
the contract.cralaw:red
In view of this
alleged non-payment of rental
of the leased premises beginning May, 1977, Soco through her lawyer,
sent
a letter dated November 23, 1978 [Exhibit "B"] to Francisco serving
notice
to the latter "to vacate the premises leased." In answer to this
letter,
Francisco, through his lawyer, informed Soco and her lawyer that all
payments
of rental due her were in fact paid by Commercial Bank and Trust
Company
through the Clerk of Court of the City Court of Cebu [Exhibit "1"].
Despite
this explanation, Soco filed this instant case of Illegal Detainer on
January
8, 1979.cralaw:red
2. Pursuant
to his letter dated February
7, 1975 [Exhibit"3"] and for reasons stated therein, Francisco paid his
monthly rentals to Soco by issuing checks of the Commercial Bank and
Trust
Company where he had a checking account. On May 13, 1975, Francisco
wrote
the Vice-President of Comtrust, Cebu Branch [Exhibit "4"] requesting
the
latter to issue checks to Soco in the amount of P 840.00 every 10th of
the month, obviously for payment of his monthly rentals. This request
of
Francisco was complied with by Comtrust in its letter dated June 4,
1975
[Exhibit "5"]. Obviously, these payments by checks through Comtrust
were
received by Soco from June, 1975 to April, 1977 because Soco admitted
that
an rentals due her were paid except the rentals beginning May, 1977.
While
Soco alleged in her direct examination that "since May, 1977, he
[meaning
Francisco] stopped paying the monthly rentals" [TSN, Palicte, p. 6;
Hearing
of October 24, 1979], yet on cross examination she admitted that before
the filing of her complaint in the instant case, she knew that payments
for monthly rentals were deposited with the Clerk of Court except
rentals
for the months of May, June, July and August, 1977.cralaw:red
Pressing her
point, Soco alleged that "we personally
demanded from Engr. Francisco for the months of May, June, July and
August,
but Engr. Francisco did not pay for the reason that he had no funds
available
at that time." [TSN-Palicte, p. 28; Hearing October 24, 1979]. This
allegation
of Soco is denied by Francisco because per his instructions, the
Commercial
Bank and Trust Company, Cebu Branch, in fact, issued checks in favor of
Soco representing payments for monthly rentals for the months of May,
June,
July and August, 1977 as shown in Debit Memorandum issued by Comtrust
as
follows:
[a] Exhibit "6"-Debit Memo dated
May 11,
1977 for P926.10 as payment for May, 1977;
[b] Exhibit"7"-Debit Memo dated
June
l5,
197 7for P926.10 as payment for June, 1977;
[c] Exhibit "8"-Debit Memo dated
July
11,
1977 for P1926.10 as payment for July, 1977;
[d] Exhibit "9"-Debit Memo dated
August
10, 1977 for P926. 10 as payment for August, 1977.
These payments
are further bolstered by the certification
issued by Comtrust dated October 29, 1979 [Exhibit "13"]. Indeed the
Court
is convinced that payments for rentals for the months of May, June,
July
and August, 1977 were made by Francisco to Soco thru Comtrust and
deposited
with the Clerk of Court of the City Court of Cebu. There is no need to
determine whether payments by consignation were made from September,
1977
up to the filing of the complaint in January, 1979 because as earlier
stated,
Soco admitted that the rentals for these months were deposited with the
Clerk of Court.
Taking into
account the factual background setting
of this case, the Court holds that there was in fact a tender of
payment
of the rentals made by Francisco to Soco through Comtrust and since
these
payments were not accepted by Soco evidently because of her intention
to
evict Francisco, by all means, culminating in the filing of Civil Case
R-16261, Francisco was impelled to deposit the rentals with the Clerk
of
Court of the City Court of Cebu. Soco was notified of this deposit by
virtue
of the letter of Atty. Pampio Abarientos dated June 9, 1977 [Exhibit
"10"]
and the letter of Atty. Pampio Abarientos dated July 6. 1977 [Exhibit
"12"]
as well as in the answer of Francisco in Civil Case R-16261 [Exhibit
"14"]
particularly paragraph 7 of the Special and Affirmative Defenses. She
was
further notified of these payments by consignation in the letter of
Atty.
Menchavez dated November 28, 1978 [Exhibit "1"]. There was, therefore,
substantial compliance of the requisites of consignation, hence his
payments
were valid and effective. Consequently, Francisco cannot be ejected
from
the leased premises for non-payment of rentals.cralaw:red
As indicated
earlier, the above decision of the
Court of First Instance reversed the judgment of the City Court of
Cebu,
Branch 11, the dispositive portion of the latter reading as follows:
WHEREFORE, judgment is hereby rendered in
favor
of the plaintiff, ordering the defendant, Regino Francisco, Jr.:
[1] To vacate immediately the
premises
in question, consisting of a building located at Manalili St., Cebu
City;
[2] To pay to the plaintiff
the sum
of P40,490.46
for the rentals, covering the period from May, 1977 to August, 1980,
and
starting with the month of September, 1980, to pay to the plaintiff for
one [1[ year a monthly rental of P l,072.076 and an additional amount
of
5 per cent of said amount, and for so much amount every month
thereafter
equivalent to the rental of the month of every preceding year plus 5
percent
of same monthly rental until the defendant shall finally vacate said
premises
and possession thereof wholly restored to the plaintiff-all plus legal
interest from date of filing of the complaint;
[3] To pay to the plaintiff
the sum
of P9,000.00
for attorney's fee;
[4] To pay to the plaintiff
the sum
of P5,000.00
for damages and incidental litigation expenses; and
[5] To pay the Costs.
According to
the findings of fact made by the City
Court, the defendant Francisco had religiously paid to the plaintiff
Soco
the corresponding rentals according to the terms of the Least Contract
while enjoying the leased premises until one day, the plaintiff had to
demand upon the defendant for the payment of the rentals for the month
of May, 1977 and of the succeeding months. The plaintiff also demanded
upon the defendant to vacate the premises and from that time he failed
or refused to vacate his possession thereof; that beginning with the
month
of May, 1977 until at present, the defendant has not made valid
payments
of rentals to the plaintiff who, as a consequence, has not received any
rental payment from the defendant or anybody else; that for the months
of May to August, 1977, evidence shows that the plaintiff through her
daughter,
Teolita Soco and salesgirl, Vilma Arong, went to the office or
residence
of defendant at Sanciangko St., Cebu City, on various occasions to
effect
payment of rentals but were unable to collect on account of the
defendant's
refusal to pay; that defendant contended that payments of rental thru
checks
for said four months were made to the plaintiff but the latter refused
to accept them; that in 1975, defendant authorized the Commercial Bank
and Trust Company to issue checks to the plaintiff chargeable against
his
bank account, for the payment of said rentals, and the delivery of said
checks was coursed by the bank thru the messengerial services of the
FAR
Corporation, but the plaintiff refused to accept them and because of
such
refusal, defendant instructed said bank to make consignation with the
Clerk
of Court of the City Court of Cebu as regards said rentals for May to
August,
1977 and for subsequent months.
The City Court
further found that there is no
showing that the letter allegedly delivered to the plaintiff in May,
1977
by Filomeno Soon, messenger of the FAR Corporation contained cash
money, check, money order, or any other form of note of value, hence,
there
could never be any tender of payment, and even granting that there was,
but plaintiff refused to accept it without any reason, still no
consignation
for May, 1977 rental could be considered in favor of the defendant
unless
evidence is presented to establish that he actually made rental deposit
with the court in cash money and prior and subsequent to such deposit,
he notified the plaintiff thereof.cralaw:red
Notwithstanding
the contradictory findings of
fact and the resulting opposite conclusions of law by the City Court
and
the Court of First Instance, both are agreed, however, that the case
presents
the issue of whether the lessee failed to pay the monthly rentals
beginning
May, 1977 up to the time the complaint for eviction was filed on
January
8, 1979. This issue in turn revolves on whether the consignation of the
rentals was valid or not to discharge effectively the lessee's
obligation
to pay the same. The City Court ruled that the consignation was not
valid.
The Court of First Instance, on the other hand, held that there was
substantial
compliance with the requisites of the law on consignation.cralaw:red
Let us examine
the law and consider Our jurisprudence
on the matter, aside from the codal provisions already cited herein.cralaw:red
According to
Article 1256, New Civil Code, if
the creditor to whom tender of payment has been made refuses without
just
cause to accept it, the debtor shall be released from responsibility by
the consignation of the thing or sum due. Consignation alone shall
produce
the same effect in the following cases: [1] When the creditor is absent
or unknown, or does not appear at the place of payment; [2] When he is
incapacitated to receive the payment at the time it is due; [3] When,
without
just cause, he refuses to give a receipt; [4] When two or more persons
claim the same right to collect; [5] When the title of the obligation
has
been lost.cralaw:red
Consignation is
the act of depositing the thing
due with the court or judicial authorities whenever the creditor cannot
accept or refuses to accept payment and it generally requires a prior
tender
of payment. [Limkako vs. Teodoro, 74 Phil. 313].cralaw:red
In order that
consignation may be effective, the
debtor must first comply with certain requirements prescribed by law.
The
debtor must show [1] that there was a debt due; [2] that the
consignation
of the obligation had been made because the creditor to whom tender of
payment was made refused to accept it, or because he was absent or
incapacitated,
or because several persons claimed to be entitled to receive the amount
due (Art. 1176, Civil Code); [3] that previous notice of the
consignation
had been given to the person interested in the performance of the
obligation
(Art. 1177, Civil Code); [4] that the amount due was placed at the
disposal
of the court (Art. 1178, Civil Code); and [5] that after the
consignation
had been made the person interested was notified thereof (Art. 1178,
Civil
Code). Failure in any of these requirements is enough ground to render
a consignation ineffective. [Jose Ponce de Leon vs. Santiago Syjuco,
Inc.,
90 Phil. 311].cralaw:red
Without the
notice first announced to the persons
interested in the fulfillment of the obligation, the consignation as a
payment is void. [Limkako vs. Teodoro, 74 Phil. 313].cralaw:red
In order to be
valid, the tender of payment must
be made in lawful currency. While payment in check by the debtor may be
acceptable as valid, if no prompt objection to said payment is made
[Desbarats
vs. Vda. de Mortera, L-4915, May 25, 1956] the fact that in previous
years
payment in check was accepted does not place its creditor in estoppel
from
requiring the debtor to pay his obligation in cash (Sy vs. Eufemio,
L-10572,
Sept. 30, 1958). Thus, the tender of a check to pay for an obligation
is
not a valid tender of payment thereof [Desbarats vs. Vda. de Mortera,
supra; See Annotation, The Mechanics of Consignation by Atty. S.
Tabios,
104 SCRA 174-179].cralaw:red
Tender of payment
must be distinguished from consignation.
Tender is the antecedent of consignation, that is, an act preparatory
to
the consignation, which is the principal, and from which are derived
the
immediate consequences which the debtor desires or seeks to obtain.
Tender
of payment may be extrajudicial, while consignation is necessarily
judicial,
and the priority of the first is the attempt to make a private
settlement
before proceeding to the solemnities of consignation. [8 Manresa 325].cralaw:red
Reviewing
carefully the evidence presented by
respondent lessee at the trial of the case to prove his compliance with
all the requirements of a valid tender of payment and consignation and
from which the respondent Judge based his conclusion that there was
substantial
compliance with the law on consignation, We note from the assailed
decision
hereinbefore quoted that these evidences are: Exhibit "10", the letter
of Atty. Pampio Abarintos dated June 9, 1977 [Exhibit "12"]; letter of
Atty. Pampio Abarintos dated July 6, 1977; [Exhibit "14"]; the Answer
of
respondent Francisco in Civil Case R- 16261, particularly paragraph 7
of
the Special and Affirmative Defenses; and Exhibit "1", letter of Atty.
Eric Menchavez dated November 28, 1978. All these evidences, according
to respondent Judge, proved that petitioner lessor was notified of the
deposit of the monthly rentals.cralaw:red
We have analyzed
and scrutinized closely the above
exhibits and We find that the respondent Judge's conclusion is
manifestly
wrong and based on misapprehension of facts. Thus:
[1] Exhibit 10 reads: (see p. 17, Records)
June 9, 1977
Miss Soledad Soco
Retazo P. Gullas St.,
Cebu City
Dear Miss Soco:
This is in connection with the
payment of
rental
of my client, Engr. Regino Francisco, Jr., of your building situated at
Manalili St., Cebu City.
It appears that twice you refused
acceptance of
the said payment made by my client.
It appears further that my client
had
called your
office several times and left a message for you to get this payment of
rental but until the present you have not sent somebody to get it.
In this connection, therefore, in
behalf
of my
client, you are hereby requested to please get and claim the rental
payment
aforestated from the Office of my client at Tagalog Hotel and
Restaurant,
Sanciangko St., Cebu City. within three (3) days from receipt hereof
otherwise
we would be constrained to make a consignation of the same with the
Court
in accordance with law.
Hoping for your cooperation on this
matter, we
remain.
Very truly yours,
[Sgd.] PAMPIO A. ABARIENTOS
Counsel for Engr. REGINO FRANCISCO, Jr.
We may agree
that the above exhibit proves tender
of payment of the particular monthly rental referred to [the letter
does
not, however, indicate for what month and also the intention to deposit
the rental with the court], which is the first notice. But certainly,
it
is no proof of tender of payment of other or subsequent monthly
rentals.
Neither is it proof that notice of the actual deposit or consignation
was
given to the lessor, which is the second notice required by law.
[2] Exhibit 12 (see p. 237, Records)
states:
July 6, 1977
Miss Soledad Soco
Retazo P. Gullas St.,
Cebu City
Dear Miss Soco:
This is to advise and inform you
that my
client,
Engr. Regino Francisco, Jr., has consigned to you, through the Clerk of
Court, City Court of Cebu, Cebu City, the total amount of Pl,852.20, as
evidenced by cashier's checks No. 478439 and 47907 issued by the
Commercial
Bank and Trust Company (CBTC) Cebu City Branch, dated May 11, 1977 and
June 15, 1977 respectively and payable to your order, under Official
Receipt
No. 0436936 dated July 6,1977.
This amount represents payment of
the
rental of
your building situated at Manalili St., Cebu City which my client,
Engr.
Regino Francisco, Jr., is renting. You can withdraw the said amount
from
the Clerk of Court, City Court of Cebu, Cebu City at any time.
Please be further notified that all
subsequent
monthly rentals will be deposited to the Clerk of Court, City Court of
Cebu, Cebu City.
Very truly yours,
[Sgd.] PAMPIO A. ABARIENTOS
Counsel for ENGR. REGINO FRANCISCO, JR.
The above
evidence is, of course, proof of notice
to the lessor of the deposit or consignation of only the two payments
by
cashier's checks indicated therein. But surely, it does not prove any
other
deposit nor the notice thereof to the lessor. It is not even proof of
the
tender of payment that would have preceded the consignation.
[3] Exhibit 14, paragraph 7 of the Answer
(See
p. 246, Records) alleges:
7. That ever since, defendant had
been
religiously paying his rentals without any delay which, however, the
plaintiff
had in so many occasions refused to accept obviously in the hope that
she
may declare non-payment of rentals and claim it as a ground for the
cancellation
of the contract of lease. This, after seeing the improvements in the
area
which were effected, at no small expense by the defendant. To preserve
defendant's rights and to show good faith in up to date payment of
rentals,
defendant had authorized his bank to issue regularly cashier's check in
favor of the plaintiff as payment of rentals which the plaintiff had
been
accepting during the past years and even for the months of January up
to
May of this year, 1977 way past plaintiff's claim of lease
expiration.
For the months of June and July, however, plaintiff again started
refusing
to accept the payments in going back to her previous strategy which
forced
the defendant to consign his monthly rental with the City Clerk of
Court
and which is now the present state of affairs in so far as payment of
rentals
is concerned. These events only goes to show that the wily plaintiff
had
thought of this mischievous scheme only very recently and filed herein
malicious and unfounded complaint.
The above
exhibit which is lifted from Civil Case
No. R-16261 between the parties for annulment of the lease contract, is
self-serving. The statements therein are mere allegations of
conclusions
which are not evidentiary.
[4] Exhibit 1 (See p. 15, Records)
is
quoted,
thus:
November 28, 1978
Atty. Luis V. Diores
Suite 504, SSS Bldg.
Jones Avenue
Cebu City
Dear Compañero:
Your letter dated November 23, 1978
which
was
addressed to my client, Engr. Regino Francisco, Jr. has been referred
to
me for reply.
It is not true that my client has
not paid
the
rentals as claimed in your letter. As a matter of fact, he has
been
religiously paying the rentals in advance. Payment was made by
Commercial
Bank and Trust Company to the Clerk of Court, Cebu City. Attached
herewith
is the receipt of payment made by him for the month of November, 1978
which
is dated November 16, 1978.
You can check this up with the City
Clerk
of Court
for satisfaction.
Regards.
[Sgd.] ERIC MENCHAVEZ
Counsel for Regino Francisco, Jr.
377-B Junquera St.,
Cebu City [new address]
Again, Exhibit
"1" merely proves rental deposit for
the particular month of November, 1978 and no other. It is no proof of
tender of payment to the lessor, not even proof of notice to consign.
We
hold that the best evidence of the rental deposits with the Clerk of
Court
are the official receipts issued by the Clerk of Court. These the
respondent
lessee utterly failed to present and produce during the trial of the
case.
As pointed out in petitioner's Memorandum, no single official receipt
was
presented in the trial court as nowhere in the formal offer of exhibits
for lessee Francisco can a single official receipt of any deposit
made be found [pp. 8-9, Memorandum for Petitioner; pp. 163-164,
Records].
Summing up Our
review of the above four [4] exhibits,
We hold that the respondent lessee has utterly failed to prove the
following
requisites of a valid consignation:
First, tender of
payment of the monthly rentals
to the lessor except that indicated in the June 9, l977 Letter, Exhibit
"10". In the original records of the case, We note that the
certification,
Exhibit "11" of Filemon Soon, messenger of the FAR Corporation,
certifying
that the letter of Soledad Soco sent last May 10 by Commercial Bank and
Trust Co. was marked RTS [return to sender] for the reason that the
addressee
refused to receive it, was rejected by the court for being immaterial,
irrelevant and impertinent per its Order dated November 20, 1980. [See
p. 117, CFI Records].cralaw:red
Second,
respondent lessee also failed to prove
the first notice to the lessor prior to consignation, except the
payment
referred to in Exhibit "10". In this connection, the purpose of
the
notice is in order to give the creditor an opportunity to reconsider
his
unjustified refusal and to accept payment thereby avoiding consignation
and the subsequent litigation. This previous notice is essential to the
validity of the consignation and its lack invalidates the same.
[Cabanos
vs. Calo, 104 Phil. 1058; Limkako vs. Teodoro, 74 Phil. 313].cralaw:red
There is no
factual basis for the lower court's
finding that the lessee had tendered payment of the monthly rentals,
thru
his bank, citing the lessee's letter [Exh. "4"] requesting the bank to
issue checks in favor of Soco in the amount of P840.00 every 10th of
each
month and to deduct the full amount and service fee from his current
account,
as well as Exhibit "5", letter of the Vice President agreeing with the
request. But scrutinizing carefully Exhibit "4", this is what the
lessee
also wrote: "Please immediately notify us everytime you have the check
ready so we may send somebody over to get it. " And this is exactly
what
the bank agreed: "Please be advised that we are in conformity to the
above
arrangement with the understanding that you shall send somebody over to
pick up the cashier's check from us." [Exhibit "4", see p. 230,
Original
Records; Exhibit "5", p. 231, Original Records].cralaw:red
Evidently, from
this arrangement, it was the lessee's
duty to send someone to get the cashier's check from the bank and
logically,
the lessee has the obligation to make and tender the check to the
lessor.
This the lessee failed to do, which is fatal to his defense.cralaw:red
Third, respondent
lessee likewise failed to prove
the second notice, that is after consignation has been made, to the
lessor
except the consignation referred to in Exhibit "12" which are the
cashier's
check Nos. 478439 and 47907 CBTC dated May 11, 1977 and June 15, 1977
under
Official Receipt No. 04369 dated July 6, 1977.cralaw:red
Respondent
lessee, attempting to prove compliance
with the requisites of valid consignation, presented the representative
of the Commercial Bank and Trust Co., Edgar Ocañada, Bank
Comptroller,
who unfortunately belied respondent's claim. We quote below excerpts
from
his testimony, as follows:
ATTY. LUIS DIORES:
Q What month did you say you
made ,you
started
making the deposit? When you first deposited the check to the Clerk of
Court?
A The payment of cashier's check
in
favor
of Miss Soledad Soco was coursed thru the City Clerk of Court from the
letter of request by our client Regino Francisco, Jr., dated September
8, 1977. From that time on, based on his request, we delivered the
check
direct to the City Clerk of Court.
Q What date, what month was
that, you
first
delivered the check to the Clerk of Court.?
A We started September 12, 1977.
Q September 1977 up to the
present
time,
you delivered the cashier's check to the City Clerk of Court?
A Yes.
Q You were issued the receipts
of
those
checks?
A Well, we have an
acknowledgment
letter
to be signed by the one who received the check.
Q You mean you were issued, or you
were not
issued
any official receipt? My question is whether you were issued any
official
receipt? So, were you issued, or you were not issued?
A We were not issued.
Q On September, 1977, after you
deposited
the manager's check for that month with the Clerk of Court, did you
serve
notice upon Soledad Soco that the deposit was made on such amount for
the
month of September, 1977 and now to the Clerk of Court? Did you or did
you not?
A Well, we only act on something
upon
the
request of our client.
Q Please answer my question. I
know
that
you are acting upon instruction of your client. My question was-after
you
made the deposit of the manager's check whether or not you notified
Soledad
Soco that such manager's check was deposited in the Clerk of Court from
the month of September, 1977?
A We are not bound to.
Q I am not asking whether you
are
bound
to or not. I'masking whether you did or you did not?
A I did not.
Q Alright, for October, 1977,
after
having
made a deposit for that particular month, did you notify Miss Soledad
Soco
that the deposit was in the Clerk of Court?
A No, we did not.
Q Now, on November, 1977, did you
notify
Soledad
Soco that you deposited the manager's check to the City Clerk of Court
for that month?
A I did not.
Q You did not also notify
Soledad Soco
for
the month December, 1977, so also from January, February, March, April,
May, June, July until December, 1978, you did not also notify Miss
Soledad
Soco all the deposits of the manager's check which you said you
deposited
with the Clerk of Court in every end of the month? So also from each
and
every month from January 1979 up to December 1979, you did not also
serve
notice upon Soledad Socco of the deposit in the Clerk of Court, is that
correct?
A Yes.
Q So also in January 1980 up to
this
month
1980, you did not instructed by your client Mr. and Mrs. Regino
Francisco,
jr. to make also serve notice upon Soledad Soco of the Manager's
check
which you said you deposited to the Clerk of Court?
A I did not.
Q Now, you did not make such
notices
because
you were not such notices after the deposits you made, is that
correct?
A Yes, sir.
Q Now, from 1977, September up to the
present
time, before the deposit was made with the Clerk of Court, did you
serve
notice to Soledad Soco that a deposit was going to be made in each and
every month?
A Not.
Q In other words, from September
1977
up
to the present time, you did not notify Soledad Soco that you were
going
to make the deposit with the Clerk of Court, and you did not also
notify
Soledad Soco after the deposit was made, that a deposit has been made
in
each and every month during that period, is that correct?
A Yes
Q And the reason was because you
were
not
instructed by Mr. and Mrs. Regino Francisco, Jr. that such notification
should be made before the deposit and after the deposit was made, is
that
correct?
A No, I did not. [Testimony of
Ocañada
pp. 32-41, Hearing on June 3, 1980].
Recapitulating
the above testimony of the Bank Comptroller,
it is clear that the bank did not send notice to Soco that the checks
will
be deposited in consignation with the Clerk of Court [the first notice]
and also, the bank did not send notice to Soco that the checks were in
fact deposited [the second notice] because no instructions were given
by
its depositor, the lessee, to this effect, and this lack of notices
started
from September, 1977 to the time of the trial, that is June 3, 1980.
The reason for
the notification to the persons
interested in the fulfillment of the obligation after consignation had
been made, which is separate and distinct from the notification which
is
made prior to the consignation, is stated in Cabanos vs. Calo, G. R.
No.
L-10927, October 30, 1958, 104 Phil. 1058. thus: "There should be
notice
to the creditor prior and after consignation as required by the Civil
Code.
The reason for this is obvious, namely, to enable the creditor to
withdraw
the goods or money deposited. Indeed, it would be unjust to make him
suffer
the risk for any deterioration, depreciation or loss of such goods or
money
by reason of lack of knowledge of the consignation."
And the fourth
requisite that respondent lessee
failed to prove is the actual deposit or consignation of the monthly
rentals
except the two cashier's checks referred to in Exhibit 12. As indicated
earlier, not a single copy of the official receipts issued by the Clerk
of Court was presented at the trial of the case to prove the actual
deposit
or consignation. We find, however, reference to some 45 copies of
official
receipts issued by the Clerk of Court marked Annexes "B-1 " to "B-40"
to
the Motion for Reconsideration of the Order granting execution pending
appeal filed by defendant Francisco in the City Court of Cebu [pp.
150-194,
CFI Original Records] as well as in the Motion for Reconsideration of
the
CFI decision, filed by plaintiff lessor [pp. 39-50, Records, marked
Annex
"E "] the allegation that "there was no receipt at all showing that
defendant
Francisco has deposited with the Clerk of Court the monthly rentals
corresponding
to the months of May and June, 1977. And for the months of July and
August,
1977, the rentals were only deposited with the Clerk of Court on 20
November
1979 [or more than two years later]."The deposits of these monthly
rentals
for July and August, 1977 on 20 November 1979, is very significant
because
on 24 October 1979, plaintiff Soco had testified before the trial court
that defendant had not paid the monthly rentals for these months. Thus,
defendant had to make a hurried deposit on the following month to
repair
his failure." [pp. 43-44, Records].cralaw:red
We have verified
the truth of the above claim
or allegation and We find that indeed, under Official Receipt No.
1697161Z,
the rental deposit for August, 1977 in cashier's check No. 502782 dated
8-10-77 was deposited on November 20, 1979 [Annex "B-15", p. 169,
Original
CFI Records) and under Official Receipt No. 1697159Z, the rental
deposit
for July under Check No. 479647 was deposited on November 20, 1979
(Annex
"B-16", p. 170, Original CFI Records]. Indeed, these two rental
deposits
were made on November 20, 1979, two years late and after the filing of
the complaint for illegal detainer.cralaw:red
The decision
under review cites Exhibits "6",
"7", "8" and "9", the Debit Memorandum issued by Comtrust Bank
deducting
the amounts of the checks therein indicated from the account of the
lessee,
to prove payment of the monthly rentals. But these Debit Memorandums
are
merely internal banking practices or office procedures involving the
bank
and its depositor which is not binding upon a third person such as the
lessor. What is important is whether the checks were picked up by the
lessee
as per the arrangement indicated in Exhibits "4" and "5" wherein the
lessee
had to pick up the checks issued by CBTC or to send somebody to pick
them
up, and logically, for the lessee to tender the same to the lessor. On
this vital point, the lessee miserably failed to present any proof that
he complied with the arrangement.cralaw:red
We, therefore,
find and rule that the lessee has
failed to prove tender of payment except that in Exh. "10"; he has
failed
to prove the first notice to the lessor prior to consignation except
that
given in Exh. "10"; he has failed to prove the second notice after
consignation
except the two made in Exh. "12"; and he has failed to pay the rentals
for the months of July and August, 1977 as of the time the complaint
was
filed for the eviction of the lessee. We hold that the evidence is
clear,
competent and convincing showing that the lessee has violated the terms
of the lease contract and he may, therefore, be judicially ejected.cralaw:red
The other matters
raised in the appeal are of
no moment. The motion to dismiss filed by respondent on the ground of
"want
of specific assignment of errors in the appellant's brief, or of page
references
to the records as required in Section 16 [d] of Rule 46," is without
merit.
The petition itself has attached the decision sought to be reviewed.
Both
Petition and Memorandum of the petitioner contain the summary statement
of facts; they discuss the essential requisites of a valid
consignation;
the erroneous conclusion of the respondent Judge in reversing the
decision
of the City Court, his grave abuse of discretion which, the petitioner
argues, "has so far departed from the accepted and usual course of
judicial
proceeding in the matter of applying the law and jurisprudence on the
matter."
The Memorandum further cites other basis for petitioner's plea.cralaw:red
In Our mind, the
errors in the appealed decision
are sufficiently stated and assigned. Moreover, under Our rulings, We
have
stated that:
This Court is clothed with ample
authority to
review matters, even if they are not assigned as errors in the appeal,
if it finds that their consideration is necessary in arriving at a just
decision of the case. Also, an unassigned error closely related to an
error
properly assigned or upon which the determination of the questioned
raised
by the error properly assigned is dependent, will be considered by the
appellate court notwithstanding the failure to assign it as an error."
[Ortigas, Jr. vs. Lufthansa German Airlines, L-28773, June 30, 1975, 64
SCRA 610].
Under Section 5
of Rule 53, the appellate court is
authorized to consider a plain error, although it was not specifically
assigned by appellants." [Dilag vs. Heirs of Resurreccion, 76 Phil.
649].
Appellants need not make specific assignment of errors provided they
discuss
at length and assail in their brief the correctness of the trial
court's
findings regarding the matter. Said discussion warrants the appellate
court
to rule upon the point because it substantially complies with Section
7,
Rule 51 of the Revised Rules of Court, intended merely to compel the
appellant
to specify the questions which he wants to raise and be disposed of in
his appeal. A clear discussion regarding an error allegedly committed
by
the trial court accomplishes the purpose of a particular assignment of
error." [Cabrera vs. Belen, 95 Phil. 54; Miguel vs Court of Appeals, L-
20274, Oct. 30, 1969, 29 SCRA 760-773, cited in Moran, Comments on the
Rules of Court, Vol. 11, 1970 ed., p. 534].
Pleadings as well
as remedial laws should be construed
liberally in order that the litigants may have ample opportunity to
prove
their respective claims, and that a possible denial of substantial
justice,
due to legal technicalities, may be avoided." [Concepcion, et al. vs.
The
Payatas Estate Improvement Co., Inc., 103 Phil. 10 17].cralaw:red
WHEREFORE, in
view of all the foregoing, the Decision
of the Court of First Instance of Cebu, 14th Judicial District, Branch
XII is hereby reversed and set aside, and the Decision of the City
Court
of Cebu, Branch II is hereby reinstated, with costs in favor of the
petitioner.cralaw:red
SO ORDERED.
Makasiar,
Concepcion, Jr., Abad Santos, and De
Castro, JJ., concur.
Aquino and Escolin JJ., concurs in the
result. |