EN BANC
GR No. 93262, Nov 29, 1991
DAVAO LIGHT v. CA
In relation to SECTION 13, RULE 57
Facts:
Davao Light & Power Co., Inc. filed:
1. a verified complaint for recovery of a sum of
money and damages against Queensland Hotel, etc. and
2. The complaint contained
an ex parte appplication for a writ of preliminary
attachment.
The ex parte application for the writ was GRANTED and
fixing the attachment bond at P4,600,513.37.
The attachment bond having been submitted
by Davao Light, the writ of attachment issued.
Afterwhich, the summons and a copy of the complaint,
as well as the writ of attachment and a copy of the
attachment bond, were SERVED on the defendants, and
pursuant to the writ, the sheriff seized properties
belonging to the latter.
OPPOSITION OF THE DEFENDANTS:
When the ORDER OF ATTACHEMENT was promulgated
and a writ ISSUED, the court had no jurisdiction over their
persons as they were not yet served a copy of the
complaint and the writ issued.
Issue:
Whether or not a writ of preliminary attachment may
issue ex parte against a defendant before acquisition of
jurisdiction of the latters person by service of summons
or his voluntary submission to the Courts authority.
Ruling:
Yes.
WRIT MAY BE ISSUED EX-PARTE. What the rule is
saying quite clearly is that after an action is properly
commenced by the filing of the complaint and the
payment of all requisite docket and other fees the
plaintiff may apply for and obtain a writ of preliminary
attachment upon fulfillment of the pertinent requisites
laid down by law, and that he may do so at any time,
either before or after service of summons on the
defendant. And this indeed, has been the immemorial
practice sanctioned by the courts: for the plaintiff or
other proper party to incorporate the application for
attachment in the complaint or other appropriate
pleading (counterclaim, cross-claim, third-party claim)
and for the Trial Court to issue the writ ex-parte at the
commencement of the action if it finds the application
otherwise sufficient in form and substance.
The proper recourse of the defendants against the
attachment could have been:
1. by the posting of a counterbond (Section 12 ; and
2. by a showing of its improper or irregular issuance
(Section 13)
Aside from the filing of a counterbond, a preliminary
attachment may also be lifted or discharged on the
ground that it has been irregularly or improperly issued,
in accordance with Section 13 of Rule 57. Like the first,
this second mode of lifting an attachment may be
resorted to even before any property has been levied on.
Indeed, it may be availed of after property has been
released from a levy on attachment, as is made clear by
said Section 13.
SECTION 13 CANNOT BE APPLIED WHEN:
". . . (W)hen the preliminary attachment is issued upon a
ground which is at the same time the applicants cause of
action e.g., an action for money or property embezzled or
fraudulently misapplied or converted to his own use by a
public officer, or an officer of a corporation, or an attorney,
factor, broker, agent, or clerk, in the course of his employment
as such, or by any other person in a fiduciary capacity, or for a
willful violation of duty. (Sec. 1 [b], Rule 57), or an action
against a party who has been guilty of fraud in contracting the
debt or incurring the obligation upon which the action is
brought (Sec. 1 [d], Rule 57), the defendant is not allowed to
file a motion to dissolve the attachment under Section 13 of
Rule 57 by offering to show the falsity of the factual averments
in the plaintiffs application and affidavits on which the writ was
based and consequently that the writ based thereon had
been improperly or irregularly issued (SEE Benitez v. I.A.C., 154
SCRA 41) the reason being that the hearing on such a motion
for dissolution of the writ would be tantamount to a trial of the
merits of the action. In other words, the merits of the action
would be ventilated at a mere hearing of a motion, instead of
at the regular trial. Therefore, when the writ of attachment is
of this nature, the only way it can be dissolved is by a
counterbond (G.B. Inc. v. Sanchez, 98 Phil. 886)."
GR Nos. 65957-58, Jul 05, 1994
ADLAWAN v. TORRES
Facts
Petitioner Adlawan was indebted to Respondent
company Aboitiz for construction projects the former
was awarded with. However, due to inability to pay,
Aboitiz filed for collection of sum of money against
petitioner in the CFI of Cebu.
It also moved for preliminary attachment on some of
Adlawans properties after filing a bond. Aboitiz filed a
notice of dismissal for the above mention case. When
Adlawan moved for the enforcement of the dismissal, it
was denied by the court on account of the filing by
respondent Aboitiz an action or delivery of personal
property before the CFI of Lapu-Lapu and petitioner
Adlawans filing for damages in the same court for the
seizure of his property by virtue of the preliminary
attachment.
Respondent Aboitiz alleged that the voluntary dismissal
of the previous case was without prejudice to the
institution of another action based on the same subject
matter and that the issuance of the writ was justified
because the petitioners were intending to defraud
Aboitiz by mortgaging 11 parcels of land to PCIB thereby
making PCIB a preferred creditor to the prejudice of
Aboitiz.
Issue:
Was the writ of attachment legal or valid?
Ruling:
Negative. The affidavit submitted by Aboitiz in support of
its prayer for the writ of attachment does NOT meet the
requirements of Rule 57 of the Rules of Court regarding
allegations on impending fraudulent removal,
concealment and disposition of defendants property.
To justify a preliminary attachment, the removal or
disposal must have been made with intent to defraud
defendants creditors.
The factual basis must be alleged in the affidavit in
support of the prayer for the writ of attachment if not so
specifically alleged in the verified complaint. (See full text
for the copy of the affidavit)
The Supreme Court have found that there is no factual
allegation which may constitute as a valid basis for the
contention that the mortgage was in fraud of Aboitiz.
The affidavit is the foundation of the writ and if none be
filed or one be filed which wholly fails to set out some
facts required by law to be stated therein, there is no
jurisdiction and the proceedings are null and void. Bare
allegation that an encumbrance of a property is in fraud
of the creditor does NOT suffice.
Factual bases for such conclusion must be clearly
averred. By mortgaging a piece of property, a debtor
merely subjects it to a lien but ownership thereof is not
parted with.
The inability to pay ones creditors is not necessarily
synonymous with fraudulent intent not to honor an
obligation (Insular Bank of Asia & America, Inc. v. Court
of Appeals, 190 SCRA 629 [1990]).
Consequently, when petitioners filed a motion for the
reconsiderations of the order directing the issuance of
the writ of attachment, respondent Judge should have
considered it as a motion for the discharge of the
attachment and should have conducted a hearing or
required submission of counter-affidavits from the
petitioners, if only to gather facts in support of the
allegation of fraud. This is what Section 13 of rule 57
mandates.
This procedure should be followed because, as the Court
has time and again said, attachment is a harsh,
extraordinary and summary remedy and the rules
governing its issuance must be construed strictly against
the applicant. Verily, a writ of attachment can only be
granted on concrete and specific grounds and not on
general averments quoting perfunctorily the words of
the Rules (D.P. Lub Oil Marketing Center, Inc. v. Nicolas,
191 SCRA 423 [1990]).