Complaint-legal-forms.docx

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 subdistributors. 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 2

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 3

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 “P2a”, “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”; 4

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 5

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 6

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 Phpxxx,x00.00,

in

the

amount

of

b. Moral Damages Php150,000.00,

in

the

amount

of

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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