Republic of the Philippines

REGIONAL TRIAL COURT

7th Judicial Region
BRANCH ____,CEBU CITY

PENSHONE INC.,
Plaintiff,

-versus- CIVIL CASE NO: ________

For: Specific Performance &
Damages
YUNCHOW CORPORATION, ,
Defendants.

x------------------------------------------------------------x

COMPLAINT

PLAINTIFF, through counsels, to this Honorable Court

respectfully alleges:

1. The Plaintiff, PENSHONE INC. (Plaintiff, for brevity), is a duly

organized and existing under the laws of the Philippines with
office address at JDY BUILDING, A.S. FORTUNA STREET,
MANDAUE CITY where it could be furnished and served with
orders, notices, and other legal processes of this Honorable
Court, as well as the pleadings of the Defendants.
2. The Plaintiff is engaged in the business of providing
computer services, systems, and network administration and
assistance to BPO as well as Tech support providers in Visayas
and Mindanao. That Plaintiff is duly represented by Mr. Jordi
Sins, the President of the said company with a valid Board
Resolution No. 69-77-69 dated April 1, 2018.

3. Defendant YUNGCHOW CORPORATION (Defendant, for

brevity) is a duly organized corporation and existing under the
laws of the Philippines, which is likewise engaged in the
technical support business. He may be served with summons,
notices, orders, and other legal processes of this Honorable
Court at its office address at TGU TOWER, IT PARK, CEBU CITY;

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 4. Defendant JOHNNY EL NINO POLLA (JOHNNY, for brevity)
is of legal age, Filipino, married and a resident of Mandaue
City. He is under the employment of co-defendant SHAQ BELAR
as an Account Officer of YUNCHOW CORPORATION. She may
be served with summons, notices, orders and other legal
processes of this Honorable Court at MANGO GREEN VILLAGE,
A.S. FORTUNA, BANILAD, MANDAUE CITY;

5. Defendant SHAQ BELAR (SHAQ, for brevity) is of legal age,

Filipino, married and a resident of Cebu City. He is the duly
appointed President of YUNCHOW CORPORATION. He may be
served with summons, notices, orders and other legal processes
of this Honorable Court at NO. 14, ZODIAC DRIVE, PLEASANT
HOMES, PUNTA PRINCESA, CEBU CITY.;

STATEMENT OF FACTS AND CAUSES OF ACTION

6. ________________ Trading, co-owned by Plaintiff with his

brother and managed by Plaintiff, is engaged in the supply and
distribution of fuel products to various customers and fuel sub-
distributors. One of its clients is sub-distributor and herein
Defendant ________________ who is the owner and manager of
co-defendant ________________ Inc.;

7. Plaintiff stores his fuel products in various oil depots. When

customers place orders, Plaintiff receives payment or evidence
of indebtedness for such orders before authorizing the release
of fuel products from the source oil depot. The only instance
therefore when these products are released from oil depots is
when Plaintiff has authorized such release on account of an
order made by a customer;

8. Defendant ________________, through his companies

________________ Corp. and ________________ Inc., started
transacting with Plaintiff in 2013. Defendant
________________would purchase from Plaintiff fuel products, for
him (Defendant ________________) to sell and distribute to
various gasoline stations, government offices, and other private
companies;

9. In the beginning, Defendant ________________ was a good

payer. As such good payer, it was usual for Defendant
________________ and Plaintiff to respectively initiate and
receive orders for fuel products via mobile phones – through

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phone calls or text messages. It was likewise regular for
Defendant ________________ to place his order for fuel products
through his trusted employees including Defendant
________________ and/or Defendant ________________;

10. It was likewise regular for Plaintiff to receive these orders

through his own employees. As it went, Defendant
________________ would place orders of fuel products and
would, at times, issue post-dated checks as payment therefor.
Thus, even before these checks were encashed, fuel products
would be delivered to Defendant ________________;

11. For the delivery, Defendant ________________ would

apprise Plaintiff with the names of the truckers and Plaintiff in
turn would authorize the oil depot to release such number of
fuel products to the truck drivers communicated to him by
Defendant ________________'S employees. In other words,
Plaintiff would authorize Defendant’s hired truckers to pull out
fuel products and only in that instance will the fuel products of
Plaintiff be pulled out from the oil depots. And this authority
extended by Plaintiff is always preceded by supposed payment
or evidence of indebtedness issued by Defendant
________________;

12. After the fuel products are delivered and once the due
date arrives, and where checks are issued, such checks are to
be presented for encashment. In the past, most of the checks
were honored when presented. All was well and everything
was good;

13. Sometime in September 2014 however, one of these

checks bounced. The check, dated 1 June 2014, was issued to
the order of ________________ (Plaintiff) was presented on
September 2014 but was dishonored as the corresponding
Account was closed. The check is Chinabank check number
xxxxxxxx and is in the sum of seven hundred eighty-four
thousand and eight hundred pesos (Php784,800.00). A copy of
said check is hereto attached as Annex “P-1”, which check will
show that it has been rubberstamped “ACCOUNT CLOSED”;

14. Per usual practice, the check was issued by ________ to

the order of ________ (Plaintiff). Per usual practice, the check
was delivered to Plaintiff by Defendant ________’s employees,
co-Defendant ________ and ________. Plaintiff accepted the
post-dated check and authorized the release of the fuel

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products considering that Defendant ________ had been a
good payer in the past. Defendant ________, after all, assured
him that despite his big-volume orders, he had the money to
pay. Thus, thecheck was issued by ________ (Defendant
________) as payment and as evidence of
indebtedness,pertaining to the purchase on credit of 16,000
liters of “Extreme 95” fuel product (Extreme Fuel, henceforth)
from Plaintiff;

15. By such guile and representation, Defendant ________

earned Plaintiff’s trust; and because of the check he issued,
Defendant ________ convinced Plaintiff to approve his orders
and allow the usual course of their transactions to proceed;

16. Thus, due to the fuel orders made and by reason of the
check issued, Plaintiff granted an Authority to Load to
Defendant ________’s hired truckers;

17. The 16,000 liters of Extreme Fuel were pulled out from
Seaoil oil depot on 30 April 2014aboard two (2) trucks – one (1)
carrying 14,000 liters, and the other, carrying 2,000 liters. Per
usual practice, the oil depot was previously authorized by
Plaintiff to release 16,000 liters of Exreme Fuel, which Authority
was communicated via three (3) e-mails. Copies of the
printouts of these e-mails are hereto attachedas Annexes “P-
2a”, “P-2b” and “P-2c”;

18. In said e-mails, one ________ was authorized to pull out

14,000 liters of fuel products while a certain ________ was
authorized to load 2,000 liters of Plaintiff’s fuel products. True
enough, ________ and ________ came to ________ oil depot and
claimed the 16,000 liters of fuel products. Thus, 16,000 liters of
Extreme Fuel was loaded to the trucks of the two (2) drivers on
30 April 2014. Delivery Receipts issued by ________ oil depot
shows that 14,000 liters of Extreme Fuel was loaded to the truck
with plate number ________ and driven by ________ while
another 2,000 liters were loaded to a truck with plate number
________ and driven by ________;

19. Thus, Delivery Receipts were issued by ________

containing, among others, the quantity and kind of fuel
products owned by Plaintiff but loaded to Defendant ________’s
hired truckers on the strength of the aforementioned Authority
to Load. See copies of the Delivery Receipts dated 30 April
2014 hereto attached as Annexes “P-3a” and “P-3b”;

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 20. These deliveries were made on 30 April 2014. The
deliveries of 16,000 liters of Extreme Fuel, valued at Php 49.05
per liter, amount to Phpxxx,x00.00 – corresponding the check
issued by Defendant ________ and post-dated to 1 June 2014,
thirty(30) days after the delivery, per usual practice. The
Summary of Orders by ________/________ for April to June 2014
confirms this; a copy of such Summary is hereto attached as
Annex “P-4” and made an integral part hereof;

21. In the above-described Summary, it will be noted that on

30 April 2014, 16 000 liters of PRM (Extreme Fuel), valued at Php
49.05 were ordered. These are to be taken out from the
________oil depot and is priced at a total of Php xxx 800.00. This
corresponds to the check subject of the instant case.

22. Now, without such check issued by Defendant ________

and his representation that it will be amply funded, Plaintiff
would not have agreed to authorize the release of 16,000 liters
of fuel products to Defendant ________’s drivers. Without such
check delivered by Defendant ________’s employees, as is the
usual practice, Plaintiff would not have parted with his product;

23. Come September 2014 however, and well past the due
date of the checks, Plaintiff was apprised that the check was
worthless. When presented for payment, Chinabank Check
Number ________ was dishonored by the bank for the reason
that the pertinent account is closed; the bank stamped on the
face of the check the words, “ACCOUNT CLOSED”. The bank
likewise issued Details of Returned Check, which showed the
reason for the dishonor. A copy of said Details of Returned
Check is hereto attached as Annex “P-5”;

24. Following the Dishonor, Plaintiff wasted no time and

contacted his lawyers who advised the sending of a Final
Demand and Notice of Dishonor to the check’s drawer,
________. Defendant ________ received such Notice and asked
his authorized representative to acknowledge receipt on his
behalf;

25. In said Final Demand, Plaintiff informed Defendant

________ that the check he issued had bounced and was
dishonored for the reason that the account was closed. Thus,
Plaintiff gave Defendant ________ five (5) days from receipt of
the Notice with which to pay his accountabilities and make

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good the value of the check. A copy of the Final Demand and
Notice of Dishonor is hereto attached as Annex “P-6”and
made an integral part hereof;

26. Having received the Final Demand and Notice of

Dishonor, Defendant ________ allowed the period of five (5)
days to lapse without making good the value of the check.
Worse, he did not only fail to make good the value of the
check issued, he also refused and did not pay the value of the
fuel products delivered to him. He did not make any
arrangement with Plaintiff to pay the purchases on credit he
had made. He did not deposit in the bank the value of the
check after knowing about the dishonor of the check;

27. Although at first he promised to pay Plaintiff, Defendant

________ later told Plaintiff he could not make payments yet
because his customers, to whom the fuel products were
delivered by him, have not paid him yet. But Plaintiff
discovered that Defendant ________’s clients had in fact paid
him already. Some even showed documents or proofs of
payments. See copy of Certification hereto attached as Annex
“P-7”, which should show that Defendant ________ had indeed
benefitted from the fuel products, at the expense and to the
prejudice of Plaintiff, whose only mistake was to trust in
Defendant ________’s promises and ascribing good faith in his
dealings;

28. In all Defendant ________’s purchases, it will be interesting

to note that Defendant ________ has represented to Plaintiff that
his employees are always acting under his command. Plaintiff
therefore had all the reason and was in fact induced by
Defendant ________ to rely on the representations of his
employees, ________and ________, at the time of the purchase
transactions. Recognizing the authority given by Defendant
________ to ________ and ________ to negotiate and transact
business on his behalf, and being parties who took part in the
transactions, ________ and ________, who facilitated the
acquisition and delivery of the fuel products are solidarily liable
with Defendant ________ for the amount of the check and the
purchases made;

29. It is likewise clear that Defendant ________ never

intended to fulfill his obligation to Plaintiff. He defrauded Plaintiff
by inducing the latter to believe that he would pay when he
issued the post-dated check and made representations that he

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had funds in the bank, when in fact, he had none. The injury
caused to Plaintiff was the product of Defendant ________’s
false pretenses and fraudulent actuations;

30. Additionally, due to the business losses incurred by the

Plaintiff brought about by the constant refusal of the
Defendants to pay their total obligations, Plaintiff experienced
and continues to experience sleepless nights, wounded
feelings, and great mental anguish which entitles him to moral
damages in the amount of Php 150,000.00. In the same
manner, contemplating on the highly reprehensible conduct of
the defendants to evade their obligations, and for their bad
faith, Plaintiff likewise prays that exemplary damages be also
awarded in the amount of Php 50 000.00;

31. Moreover, Article 33 of the Civil Code clearly provides:

Art. 33. In cases of defamation, fraud and physical injuries a

civil action for damages, entirely separate and distinct from
the criminal action, may be brought by the injured party.
Such civil action shall proceed independently of the criminal
prosecution, and shall require only a preponderance of
evidence.

ALLEGATIONS TO SUPPORT THE

APPLICATION FOR A WRIT OF PRELIMINARY
ATTACHMENT

32. Plaintiff repleads the foregoing allegations, and further

alleges that:

a. Plaintiff has a good and valid cause of action. He

parted with his fuel products on the strength and
solely because of the post-dated checks issued to
him by Defendant Tan. Plaintiff therefore has been
defrauded and deceived by the
misrepresentations made by Defendants that he
has the money to pay the purchased fuel
products, and even issued a post-dated check as
payment therefor. This post-dated check was
eventually dishonored because the Account was
Closed. The check was dishonored not because
there was an order to stop payment; it was
dishonored because Defendant ________ closed
his account. Defendants therefore are guilty of

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 fraud and deceit in incurring Defendant ________’s
obligation to Plaintiff;

b. Also, basing on the Defendant ________’s

conduct, it appears that he had no intention
whatsoever of paying his obligation. He is in fact
pointing fingers and trying to cover up his liability
by creating a scheme to evade paying the
amount of the check. He has tried to make it
appear that his trusted employees stole the
payments made by his customers for the fuel
transactions;

c. Considering that Defendants committed fraud

against the Plaintiff, which induced the latter to
agree on the transaction, then this action is one of
those specifically mentioned in Section 1 of Rule
57, Rules of Court entitling Plaintiff the provisional
remedy of Writ of Preliminary Attachment. The
Section reads,

Section 1. Grounds upon which attachment may

issue. – At the commencement of the action or at
any time before entry of judgment, a plaintiff or any
proper party may have the property of the adverse
party attached as security for the satisfaction of any
judgment that may be recovered in the following
cases:

xxx xxx xxx

(d) In an action against a party who has been guilty

of a fraud in contracting the debt or incurring the
obligation upon which the action is brought, or in
the performance thereof.

xxx xxx xxx

d. There is likewise no sufficient security for the claim

sought to be enforced in this present action. The
check, which was supposed to secure the
indebtedness of Defendant ________, was already
dishonored. Furthermore, Plaintiff is ready and
willing to file a bond in such reasonable amount
as the Court may fix for the purpose of the
application for attachment.

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 PRAYER

WHEREFORE, premises considered, Plaintiff respectfully

prays of this Honorable Court that Judgment rendered in favor
of Plaintiff and against Defendants as follows:

1) FIND and HOLD Defendants ________, ________

Inc., ________, and ________ solidarily liable to Plaintiff
for the amount of the ChinaBank Check with Check
No. ________ containing the sum of Phpxxx,x00.00
plus the legal interest from the time of filing this
complaint until fully paid;

2) ORDER Defendants ________, ________ Inc.,

________, and ________ to solidarily PAY Plaintiff the
following sums:

a. Actual Damages in the amount of

Phpxxx,x00.00,

b. Moral Damages in the amount of

Php150,000.00,

c. Exemplary Damages in the amount of

Php50,000.00;

d. Attorney’s Fee in the sum of Php50,000.00

as engagement fee and Php3,000.00 as
appearance fee per hearing; and

e. Cost of litigation.

3) Ordering that a Writ of Preliminary Attachment

be issued pursuant to Rule 57 of the Rules of Court.

Other just and equitable reliefs are likewise prayed for.

Cebu City Philippines. 11 January 2017.

Rm. xxx, xxxx, xxxxxxx Ave,

Brgy. ________, Cebu City, Philippines 6000
Tel. No. ________| Fax: (________| email: ________gmail.com

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By:

________ Roll No. xxxxx

IBP Lifetime Member Roll No. xxxx, 01/04/08
PTR No. xxxx, Cebu City, 02/01/2016
MCLE Compliance No. V - xxxxx , 03/09/16

________
Roll No. xxxx0
IBP No. xxxxx, Cebu, 06/15/16
PTR No. xxxxxx, Mandaue City, 7/01/16
MCLE Exempt - Admitted 2016

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