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[ G.R. No. 131358. January 13, 1999]

CARLOS ANG GOBONSENG, JR. vs. RONALDO P. ABILLA, et al.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JAN 13, 1999.

G.R. No. 131358 (Carlos Ang Gobonseng, Jr. and Theresita Mimie Ong vs. Ronaldo P. Abilla and Geralda Dizon)

On June 17, 1998, the Court denied with finality petitioner's motion for reconsideration of the resolution of February 11, 1998 dismissing the petition at bar.

On August 10, 1998, petitioner filed a Second Motion for Reconsideration with leave of Court.

Acting on said motion, the Court ordered the respondents to comment on the third argument raised by the petitioners regarding the applicability of Art. 1606 of the New Civil Code to the case at bar.

Respondents filed their Comment on November 9, 2998 and petitioners filed their Reply thereto on December 9, 1998 and a Supplemental Reply on December 15, 1998.

It appears from the records that the issue regarding the applicability of Art. 1606 of the New Civil Code was raised for the first time in petitioners' motion for clarification of the decision of the Court of Appeals. The original complaint was one for specific performance seeking to compel respondents (herein petitioners) (1) to submit to the BIR the capital gains tax return in connection with the sale of the lots, (2) to reimburse the plaintiffs the amount they have advanced for the preparation and registration of the deed of sale and all taxes, fees and charges paid in relation thereto, and (3) to Asia and America to obtain the release of the title to one of the lots. Respondents raised the affirmative defense of lack of cause of action as the alleged sale was actually a mortgage. Respondents also made a counterclaim for moral and exemplary damages, attorney's fees and costs. Respondents were silent about their option to buy the lots within 30 days under Article 1606 of the New Civil Code in case the court declares the transaction to be a sale and not a mortgage. Respondents also made no mention of such provision in their appeal to the Court of Appeals. As earlier mentioned, respondents only raised the issue in their motion for clarification of the decision of the Court of Appeals. The Court, therefore, may not rule on the issue at this point in time.

IN VIEW WHEREOF, the Second Motion for Reconsideration is DENIED for lack of merit.

Very truly yours,

TOMASITA B. MAGAY-DRIS

Clerk of Court

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