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The antecedent facts are substantially recited in the
Republic of the Philippines
decision under review, as follows: SUPREME COURT Manila It appears from the evidence that the plaintiff-appellee-Soco, for short-and the SECOND DIVISION 'defendant-appellant-Francisco, for G.R. No. L-58961 June 28, 1983 brevity- entered into a contract of lease on January 17, 1973, whereby Soco leased SOLEDAD SOCO, petitioner, her commercial building and lot situated vs. at Manalili Street, Cebu City, to Francisco HON. FRANCIS MILITANTE, Incumbent Presiding for a monthly rental of P 800.00 for a Judge of the Court of First Instance of Cebu, Branch period of 10 years renewable for another XII, Cebu City and REGINO FRANCISCO, JR., 10 years at the option of the lessee. The respondents. terms of the contract are embodied in the Chua & Associates Law Office (collaborating counsel) and Contract of Lease (Exhibit "A" for Soco Andales, Andales & Associates Law Office for petitioner. and Exhibit "2" for Francisco). It can Francis M. Zosa for private respondent. readily be discerned from Exhibit "A" that paragraphs 10 and 11 appear to have been cancelled while in Exhibit "2" only GUERRERO, J.: paragraph 10 has been cancelled. Claiming that paragraph 11 of the The decision subject of the present petition for review Contract of Lease was in fact not part of holds the view that there was substantial compliance with the contract because it was cancelled, the requisites of consignation and so ruled in favor of Soco filed Civil Case No. R-16261 in the private respondent, Regino Francisco, Jr., lessee of the Court of First Instance of Cebu seeking the building owned by petitioner lessor, Soledad Soco in the annulment and/or reformation of the case for illegal detainer originally filed in the City Court of Contract of Lease. ... Cebu City, declaring the payments of the rentals valid and effective, dismissed the complaint and ordered the lessor Sometime before the filing of Civil Case to pay the lessee moral and exemplary damages in the No. R-16261 Francisco noticed that Soco amount of P10,000.00 and the further sum of P3,000.00 did not anymore send her collector for the as attorney's fees. payment of rentals and at times there were payments made but no receipts We do not agree with the questioned decision. We hold were issued. This situation prompted that the essential requisites of a valid consignation must Francisco to write Soco the letter dated be complied with fully and strictly in accordance with the February 7, 1975 (Exhibit "3") which the law, Articles 1256 to 1261, New Civil Code. That these latter received as shown in Exhibit "3-A". Articles must be accorded a mandatory construction is After writing this letter, Francisco sent his clearly evident and plain from the very language of the payment for rentals by checks issued by codal provisions themselves which require absolute the Commercial Bank and Trust Company. compliance with the essential requisites therein provided. Obviously, these payments in checks were Substantial compliance is not enough for that would received because Soco admitted that prior render only a directory construction to the law. The use of to May, 1977, defendant had been the words "shall" and "must" which are imperative, religiously paying the rental. .... operating to impose a duty which may be enforced, positively indicate that all the essential requisites of a 1. The factual background setting of this valid consignation must be complied with. The Civil Code case clearly indicates that soon after Soco Articles expressly and explicitly direct what must be learned that Francisco sub-leased a essentially done in order that consignation shall be valid portion of the building to NACIDA, at a and effectual. Thus, the law provides: monthly rental of more than P3,000.00 which is definitely very much higher than 1257. In order that the consignation of the what Francisco was paying to Soco under thing due may release the obligor, it must the Contract of Lease, the latter felt that first be announced to the persons she was on the losing end of the lease interested in the fulfillment of the agreement so she tried to look for ways obligation. and means to terminate the contract. ... The consignation shall be ineffectual if it is In view of this alleged non-payment of not made strictly in consonance with the rental of the leased premises beginning provisions which regulate payment. May, 1977, Soco through her lawyer sent Art. 1258. Consignation shall be made by a letter dated November 23, 1978 (Exhibit depositing the things due at the disposal "B") to Francisco serving notice to the of judicial authority, before whom the latter 'to vacate the premises leased.' In tender of payment shall be proved, in a answer to this letter, Francisco through his proper case, and the announcement of lawyer informed Soco and her lawyer that the consignation in other cases. all payments of rental due her were in fact paid by Commercial Bank and Trust The consignation having been made, the Company through the Clerk of Court of the interested parties shall also be notified City Court of Cebu (Exhibit " 1 "). Despite thereof. this explanation, Soco filed this instant Art. 1249. The payment of debts in money case of Illegal Detainer on January 8, shall be made in the currency stipulated, 1979. ... and if it is not possible to deliver such 2. Pursuant to his letter dated February 7, currency, then in the currency which is 1975(Exhibit"3") and for reasons stated legal tender in the Philippines. therein, Francisco paid his monthly rentals The delivery of promissory notes payable to Soco by issuing checks of the to order, or bills of exchange or other Commercial Bank and Trust Company mercantile documents shall produce the where he had a checking account. On May effect of payment only when they have 13, 1975, Francisco wrote the Vice- been cashed, or when through the fault of President of Comtrust, Cebu Branch the creditor they have been impaired. (Exhibit "4") requesting the latter to issue checks to Soco in the amount of P 840.00 In the meantime, the action derived from every 10th of the month, obviously for the original obligation shall be held in payment of his monthly rentals. This abeyance. request of Francisco was complied with by We have a long line of established precedents and Comtrust in its letter dated June 4, 1975 doctrines that sustain the mandatory nature of the above (Exhibit "5"). Obviously, these payments provisions. The decision appealed from must, therefore, by checks through Comtrust were be reversed. received by Soco from June, 1975 to April, 1977 because Soco admitted that an rentals due her were paid except the As indicated earlier, the above decision of rentals beginning May, 1977. While Soco the Court of First Instance reversed the alleged in her direct examination that judgment of the City Court of Cebu, 'since May, 1977 he (meaning Francisco) Branch 11, the dispositive portion of the stopped paying the monthly rentals' (TSN, latter reading as follows: Palicte, p. 6, Hearing of October 24, WHEREFORE, judgment is hereby 1979), yet on cross examination she rendered in favor of the plaintiff, ordering admitted that before the filing of her the defendant, Regino Francisco, Jr.: complaint in the instant case, she knew that payments for monthly rentals were (1) To vacate immediately the premises in deposited with the Clerk of Court except question, consisting of a building located rentals for the months of May, June, July at Manalili St., Cebu City; and August, 1977. ... (2) To pay to the plaintiff the sum of Pressing her point, Soco alleged that 'we P40,490.46 for the rentals, covering the personally demanded from Engr. period from May, 1977 to August, 1980, Francisco for the months of May, June, July and starting with the month of September, and August, but Engr. Francisco did not 1980, to pay to the plaintiff for one (1) pay for the reason that he had no funds year a monthly rental of P l,072.076 and available at that time.' (TSN-Palicte, p. 28, an additional amount of 5 per cent of said Hearing October 24, 1979). This allegation amount, and for so much amount every of Soco is denied by Francisco because month thereafter equivalent to the rental per his instructions, the Commercial Bank of the month of every preceding year plus and Trust Company, Cebu Branch, in fact, 5 percent of same monthly rental until the issued checks in favor of Soco defendant shall finally vacate said representing payments for monthly premises and possession thereof wholly rentals for the months of May, June, July restored to the plaintiff-all plus legal and August, 1977 as shown in Debit interest from date of filing of the Memorandum issued by Comtrust as complaint; follows: (3) To pay to the plaintiff the sum of (a) Exhibit "6"-Debit Memo dated May 11, P9,000.00 for attorney's fee; 1977 for P926.10 as payment for May, (4) To pay to the plaintiff the sum of 1977; P5,000.00 for damages and incidental (b) Exhibit"7"-Debit Memo dated June l5, litigation expenses; and 197 7for P926.10 as payment for June, (5) To pay the Costs. 1977; SOORDERED. (c) Exhibit "8"-Debit Memo dated July 11, 1977 for P1926.10 as payment for July, Cebu City, Philippines, November 21, 1977; 1980. (d) Exhibit "9"-Debit Memo dated August (SGD.) PATERNO D. MONTESCLAROS 10, 1977 for P926. 10 as payment for Acting Presiding Judge August, 1977. According to the findings of fact made by the City Court, These payments are further bolstered by the defendant Francisco had religiously paid to the the certification issued by Comtrust dated plaintiff Soco the corresponding rentals according to the October 29, 1979 (Exhibit "13"). Indeed terms of the Least Contract while enjoying the leased the Court is convinced that payments for premises until one day the plaintiff had to demand upon rentals for the months of May, June, July the defendant for the payment of the rentals for the and August, 1977 were made by Francisco month of May, 1977 and of the succeeding months. The to Soco thru Comtrust and deposited with plaintiff also demanded upon the defendant to vacate the the Clerk of Court of the City Court of premises and from that time he failed or refused to vacate Cebu. There is no need to determine his possession thereof; that beginning with the month of whether payments by consignation were May, 1977 until at present, the defendant has not made made from September, 1977 up to the valid payments of rentals to the plaintiff who, as a filing of the complaint in January, 1979 consequence, has not received any rental payment from because as earlier stated Soco admitted the defendant or anybody else; that for the months of May that the rentals for these months were to August, 1977, evidence shows that the plaintiff through deposited with the Clerk of Court. ... her daughter, Teolita Soco and salesgirl, Vilma Arong, went to the office or residence of defendant at Sanciangko Taking into account the factual St., Cebu City, on various occasions to effect payment of background setting of this case, the Court rentals but were unable to collect on account of the holds that there was in fact a tender of defendant's refusal to pay; that defendant contended that payment of the rentals made by Francisco payments of rental thru checks for said four months were to Soco through Comtrust and since these made to the plaintiff but the latter refused to accept payments were not accepted by Soco them; that in 1975, defendant authorized the Commercial evidently because of her intention to evict Bank and Trust Company to issue checks to the plaintiff Francisco, by all means, culminating in the chargeable against his bank account, for the payment of filing of Civil Case R-16261, Francisco was said rentals, and the delivery of said checks was coursed impelled to deposit the rentals with the by the bank thru the messengerial services of the FAR Clerk of Court of the City Court of Cebu. Corporation, but the plaintiff refused to accept them and Soco was notified of this deposit by virtue because of such refusal, defendant instructed said bank to of the letter of Atty. Pampio Abarientos make consignation with the Clerk of Court of the City dated June 9, 1977 (Exhibit "10") and the Court of Cebu as regard said rentals for May to August, letter of Atty. Pampio Abarientos dated 1977 and for subsequent months. July 6. 1977 (Exhibit " 12") as well as in the answer of Francisco in Civil Case R- The City Court further found that there is no showing that 16261 (Exhibit "14") particularly the letter allegedly delivered to the plaintiff in May, 1977 paragraph 7 of the Special and Affirmative by Filomeno Soon, messenger of the FAR Corporation Defenses. She was further notified of contained cash money, check, money order, or any other these payments by consignation in the form of note of value, hence there could never be any letter of Atty. Menchavez dated November tender of payment, and even granting that there was, but 28, 1978 (Exhibit " 1 "). There was plaintiff refused to accept it without any reason, still no therefore substantial compliance of the consignation for May, 1977 rental could be considered in requisites of consignation, hence his favor of the defendant unless evidence is presented to payments were valid and effective. establish that he actually made rental deposit with the Consequently, Francisco cannot be court in cash money and prior and subsequent to such ejected from the leased premises for non- deposit, he notified the plaintiff thereof. payment of rentals. ... Notwithstanding the contradictory findings of fact and the Pampio Abarintos dated July 6, 1977; Exhibit 14, the resulting opposite conclusions of law by the City Court Answer of respondent Francisco in Civil Case R- 16261, and the Court of First Instance, both are agreed, however, particularly paragraph 7 of the Special and Affirmative that the case presents the issue of whether the lessee Defenses; and Exhibit 1, letter of Atty. Eric Menchavez failed to pay the monthly rentals beginning May, 1977 up dated November 28, 1978. All these evidences, according to the time the complaint for eviction was filed on January to respondent Judge, proved that petitioner lessor was 8, 1979. This issue in turn revolves on whether the notified of the deposit of the monthly rentals. consignation of the rentals was valid or not to discharge We have analyzed and scrutinized closely the above effectively the lessee's obligation to pay the same. The exhibits and We find that the respondent Judge's City Court ruled that the consignation was not valid. The conclusion is manifestly wrong and based on Court of First Instance, on the other hand, held that there misapprehension of facts. Thus- was substantial compliance with the requisites of the law on consignation. (1) Exhibit 10 reads: (see p. 17, Records) Let us examine the law and consider Our jurisprudence on June 9, 1 the matter, aside from the codal provisions already cited Miss Soledad Soco herein. Soledad Soco Retazo According to Article 1256, New Civil Code, if the creditor P. Gullas St., Cebu City to whom tender of payment has been made refuses Dear Miss Soco: without just cause to accept it, the debtor shall be released from responsibility by the consignation of the This is in connection with the payment of thing or sum due. Consignation alone shall produce the rental of my client, Engr. Regino same effect in the following cases: (1) When the creditor Francisco, Jr., of your building situated at is absent or unknown, or does not appear at the place of Manalili St., Cebu City. payment; (2) When he is incapacitated to receive the It appears that twice you refused payment at the time it is due; (3) When, without just acceptance of the said payment made by cause, he refuses to give a receipt; (4) When two or more my client. persons claim the same right to collect; (5) When the title of the obligation has been lost. It appears further that my client had called your office several times and left a Consignation is the act of depositing the thing due with message for you to get this payment of the court or judicial authorities whenever the creditor rental but until the present you have not cannot accept or refuses to accept payment and it sent somebody to get it. generally requires a prior tender of payment. (Limkako vs. Teodoro, 74 Phil. 313). In this connection, therefore, in behalf of my client, you are hereby requested to In order that consignation may be effective, the debtor please get and claim the rental payment must first comply with certain requirements prescribed by aforestated from the Office of my client at law. The debtor must show (1) that there was a debt due; Tagalog Hotel and Restaurant, Sanciangko (2) that the consignation of the obligation had been made St., Cebu City. within three (3) days from because the creditor to whom tender of payment was receipt hereof otherwise we would be made refused to accept it, or because he was absent or constrained to make a consignation of the incapacitated, or because several persons claimed to be same with the Court in accordance with entitled to receive the amount due (Art. 1176, Civil Code); law. (3) that previous notice of the consignation had been given to the person interested in the performance of the Hoping for your cooperation on this obligation (Art. 1177, Civil Code); (4) that the amount due matter, we remain. was placed at the disposal of the court (Art. 1178, Civil Very truly yours, Code); and (5) that after the consignation had been made the person interested was notified thereof (Art. 1178, Civil (SGD.) PAMPIO A. ABARINTOS Code). Failure in any of these requirements is enough Counsel for Engr. REGINO FRANCISCO, Jr. ground to render a consignation ineffective. (Jose Ponce We may agree that the above exhibit proves tender of de Leon vs. Santiago Syjuco, Inc., 90 Phil. 311). payment of the particular monthly rental referred to (the Without the notice first announced to the persons letter does not, however, indicate for what month and also interested in the fulfillment of the obligation, the the intention to deposit the rental with the court, which is consignation as a payment is void. (Limkako vs. Teodoro, the first notice. But certainly, it is no proof of tender of 74 Phil. 313), payment of other or subsequent monthly rentals. Neither is it proof that notice of the actual deposit or consignation In order to be valid, the tender of payment must be made was given to the lessor, which is the second notice in lawful currency. While payment in check by the debtor required by law. may be acceptable as valid, if no prompt objection to said payment is made (Desbarats vs. Vda. de Mortera, L-4915, (2) Exhibit 12 (see p. 237, Records) states: May 25, 1956) the fact that in previous years payment in July 6, 1977 check was accepted does not place its creditor in estoppel from requiring the debtor to pay his obligation in cash (Sy Miss Soledad Soco vs. Eufemio, L-10572, Sept. 30, 1958). Thus, the tender of Soledad Soco Reta a check to pay for an obligation is not a valid tender of P. Gullas St., Cebu City payment thereof (Desbarats vs. Vda. de Mortera, supra). Dear Miss Soco: See Annotation, The Mechanics of Consignation by Atty. S. Tabios, 104 SCRA 174-179. This is to advise and inform you that my client, Engr. Regino Francisco, Jr., has Tender of payment must be distinguished from consigned to you, through the Clerk of consignation. Tender is the antecedent of consignation, Court, City Court of Cebu, Cebu City, the that is, an act preparatory to the consignation, which is total amount of Pl,852.20, as evidenced the principal, and from which are derived the immediate by cashier's checks No. 478439 and consequences which the debtor desires or seeks to obtain. 47907 issued by the Commercial Bank Tender of payment may be extrajudicial, while and Trust Company (CBTC) Cebu City consignation is necessarily judicial, and the priority of the Branch, dated May 11, 1977 and June 15, first is the attempt to make a private settlement before 1977 respectively and payable to your proceeding to the solemnities of consignation. (8 Manresa order, under Official Receipt No. 0436936 325). dated July 6,1977. Reviewing carefully the evidence presented by This amount represents payment of the respondent lessee at the trial of the case to prove his rental of your building situated at Manalili compliance with all the requirements of a valid tender of St., Cebu City which my client, Engr. payment and consignation and from which the respondent Regino Francisco, Jr., is renting. You can Judge based his conclusion that there was substantial withdraw the said amount from the Clerk compliance with the law on consignation, We note from of Court, City Court of Cebu, Cebu City at the assailed decision hereinbefore quoted that these any time. evidences are: Exhibit 10, the letter of Atty. Pampio Abarintos dated June 9, 1977: Exhibit 12, letter of Atty. Please be further notified that all notice to consign. We hold that the best evidence of the subsequent monthly rentals will be rental deposits with the Clerk of Court are the official deposited to the Clerk of Court, City Court receipts issued by the Clerk of Court. These the of Cebu, Cebu City. respondent lessee utterly failed to present and produce during the trial of the case. As pointed out in petitioner's Very truly yours, Memorandum, no single official receipt was presented in (SGD.) PAMPIO A. ABARINTOS the trial court as nowhere in the formal offer of exhibits Counsel for ENGR. REGINO FRANCISCO, JR. for lessee Francisco can a single official receipt of any deposit made be found (pp. 8-9, Memorandum for The above evidence is, of course, proof of notice to the Petitioner; pp. 163-164, Records). lessor of the deposit or consignation of only the two payments by cashier's checks indicated therein. But Summing up Our review of the above four (4) exhibits, We surely, it does not prove any other deposit nor the notice hold that the respondent lessee has utterly failed to prove thereof to the lessor. It is not even proof of the tender of the following requisites of a valid consignation: First, payment that would have preceded the consignation. tender of payment of the monthly rentals to the lessor except that indicated in the June 9, l977 Letter, Exhibit 10. (3) Exhibit 14, paragraph 7 of the Answer (see p. 246, In the original records of the case, We note that the Records) alleges: certification, Exhibit 11 of Filemon Soon, messenger of the 7. That ever since, defendant had been FAR Corporation, certifying that the letter of Soledad Soco religiously paying his rentals without any sent last May 10 by Commercial Bank and Trust Co. was delay which, however, the plaintiff had in marked RTS (return to sender) for the reason that the so many occasions refused to accept addressee refused to receive it, was rejected by the court obviously in the hope that she may for being immaterial, irrelevant and impertinent per its declare non-payment of rentals and claim Order dated November 20, 1980. (See p. 117, CFI it as a ground for the cancellation of the Records). contract of lease. This, after seeing the Second, respondent lessee also failed to prove the first improvements in the area which were notice to the lessor prior to consignation, except the effected, at no small expense by the payment referred to in Exhibit 10. defendant. To preserve defendant's rights and to show good faith in up to date In this connection, the purpose of the notice is in order to payment of rentals, defendant had give the creditor an opportunity to reconsider his authorized his bank to issue regularly unjustified refusal and to accept payment thereby cashier's check in favor of the plaintiff as avoiding consignation and the subsequent litigation. This payment of rentals which the plaintiff had previous notice is essential to the validity of the been accepting during the past years and consignation and its lack invalidates the same. (Cabanos even for the months of January up to May vs. Calo, 104 Phil. 1058; Limkako vs. Teodoro, 74 Phil. of this year, 1977 way past plaintiff's 313). claim of lease expiration. For the months There is no factual basis for the lower court's finding that of June and July, however, plaintiff again the lessee had tendered payment of the monthly rentals, started refusing to accept the payments in thru his bank, citing the lessee's letter (Exh. 4) requesting going back to her previous strategy which the bank to issue checks in favor of Soco in the amount of forced the defendant to consign his P840.00 every 10th of each month and to deduct the full monthly rental with the City Clerk of Court amount and service fee from his current account, as well and which is now the present state of as Exhibit 5, letter of the Vice President agreeing with the affairs in so far as payment of rentals is request. But scrutinizing carefully Exhibit 4, this is what concerned. These events only goes to the lessee also wrote: "Please immediately notify us show that the wily plaintiff had thought of everytime you have the check ready so we may send this mischievous scheme only very somebody over to get it. " And this is exactly what the recently and filed herein malicious and bank agreed: "Please be advised that we are in conformity unfounded complaint. to the above arrangement with the understanding that The above exhibit which is lifted from Civil Case No. R- you shall send somebody over to pick up the cashier's 16261 between the parties for annulment of the lease check from us." (Exhibit 4, see p. 230, Original Records; contract, is self-serving. The statements therein are mere Exhibit 5, p. 231, Original Records) allegations of conclusions which are not evidentiary. Evidently, from this arrangement, it was the lessee's duty (4) Exhibit 1 (see p. 15, Records) is quoted thus: to send someone to get the cashier's check from the bank and logically, the lessee has the obligation to make and November 28, 1978 tender the check to the lessor. This the lessee failed to do, Atty. Luis V. Diores which is fatal to his defense. Suite 504, SSS Bldg. Third, respondent lessee likewise failed to prove the Jones Avenue, Cebu City second notice, that is after consignation has been made, Dear Compañero: to the lessor except the consignation referred to in Exhibit Your letter dated November 23, 1978 12 which are the cashier's check Nos. 478439 and 47907 which was addressed to my client, Engr. CBTC dated May 11, 1977 and June 15, 1977 under Regino Francisco, Jr. has been referred to Official Receipt No. 04369 dated July 6, 1977. me for reply. Respondent lessee, attempting to prove compliance with It is not true that my client has not paid the requisites of valid consignation, presented the the rentals as claimed in your letter. As a representative of the Commercial Bank and Trust Co., matter of fact, he has been religiously Edgar Ocañada, Bank Comptroller, who unfortunately paying the rentals in advance. Payment belied respondent's claim. We quote below excerpts from was made by Commercial Bank and Trust his testimony, as follows: Company to the Clerk of Court, Cebu City. ATTY. LUIS DIORES: Attached herewith is the receipt of Q What month did you say payment made by him for the month of you made ,you started November, 1978 which is dated November making the deposit? When 16, 1978. you first deposited the You can check this up with the City Clerk check to the Clerk of of Court for satisfaction. Court? Regards. A The payment of (SGD.) ERIC MENCHAVEZ Counsel for cashier's check in favor of Regino Francisco, Jr. Miss Soledad Soco was 377-B Junquera St., Cebu City coursed thru the City (new address) Clerk of Court from the letter of request by our Again, Exhibit 1 merely proves rental deposit for the client Regino Francisco, particular month of November, 1978 and no other. It is no Jr., dated September 8, proof of tender of payment to the lessor, not even proof of 1977. From that time on, based on his request, we Q You did not also notify delivered the check direct Soledad Soco for the to the City Clerk of Court. month December, 1977, so also from January, Q What date, what month February, March, April, was that, you first May, June, July until delivered the check to the December, 1978, you did Clerk of Court.? not also notify Miss A We started September Soledad Soco all the 12, 1977. deposits of the manager's check which you said you Q September 1977 up to deposited with the Clerk the present time, you of Court in every end of delivered the cashier's the month? So also from check to the City Clerk of each and every month Court? from January 1979 up to A Yes. December 1979, you did Q You were issued the not also serve notice upon receipts of those checks? Soledad Socco of the deposit in the Clerk of A Well, we have an Court, is that correct? acknowledgment letter to be signed by the one who A Yes. received the check. Q So also in January 1980 Q You mean you were up to this month 1980, issued, or you were not you did not instructed by issued any official receipt? your client Mr. and Mrs. My question is whether Regino Francisco, jr. to you were issued any make also serve notice official receipt? So, were upon Soledad Soco of the you issued, or you were Manager's check which not issued? you said you deposited to the Clerk of Court? A We were not issued. A I did not. Q On September, 1977, after you deposited the Q Now, you did not make manager's check for that such notices because you month with the Clerk of were not such notices Court, did you serve after the deposits you notice upon Soledad Soco made, is that correct? that the deposit was made A Yes, sir. on such amount for the Q Now, from 1977, month of September, September up to the 1977 and now to the Clerk present time, before the of Court? Did you or did deposit was made with you not? the Clerk of Court, did you A Well, we only act on serve notice to Soledad something upon the Soco that a deposit was request of our client. going to be made in each Q Please answer my and every month? question. I know that you A Not. are acting upon Q In other words, from instruction of your client. September 1977 up to the My question was-after you present time, you did not made the deposit of the notify Soledad Soco that manager's check whether you were going to make or not you notified the deposit with the Clerk Soledad Soco that such of Court, and you did not manager's check was also notify Soledad Soco deposited in the Clerk of after the deposit was Court from the month of made, that a deposit has September, 1977? been made in each and A We are not bound to. every month during that Q I am not asking whether period, is that correct? you are bound to or not. A Yes I'masking whether you did Q And the reason was or you did not? because you were not A I did not. instructed by Mr. and Mrs. Q Alright, for October, Regino Francisco, Jr. that 1977, after having made a such notification should be deposit for that particular made before the deposit month, did you notify Miss and after the deposit was Soledad Soco that the made, is that correct? deposit was in the Clerk of A No, I did not. (Testimony Court? of Ocanada pp. 32-41, A No, we did not. Hearing on June 3, 1980).
Q Now, on November, Recapitulating the above testimony of the Bank
1977, did you notify Comptroller, it is clear that the bank did not send notice to Soledad Soco that you Soco that the checks will be deposited in consignation deposited the manager's with the Clerk of Court (the first notice) and also, the bank check to the City Clerk of did not send notice to Soco that the checks were in fact Court for that month? deposited (the second notice) because no instructions were given by its depositor, the lessee, to this effect, and A I did not. 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 essential requisites of a valid consignation; the erroneous the fulfillment of the obligation after consignation had conclusion of the respondent Judge in reversing the been made, which is separate and distinct from the decision of the City Court, his grave abuse of discretion notification which is made prior to the consignation, is which, the petitioner argues, "has so far departed from stated in Cabanos vs. Calo, G.R. No. L-10927, October 30, the accepted and usual course of judicial proceeding in 1958, 104 Phil. 1058. thus: "There should be notice to the the matter of applying the law and jurisprudence on the creditor prior and after consignation as required by the matter." The Memorandum further cites other basis for Civil Code. The reason for this is obvious, namely, to petitioner's plea. enable the creditor to withdraw the goods or money In Our mind, the errors in the appealed decision are deposited. Indeed, it would be unjust to make him suffer sufficiently stated and assigned. Moreover, under Our the risk for any deterioration, depreciation or loss of such rulings, We have stated that: goods or money by reason of lack of knowledge of the consignation." This Court is clothed with ample authority to review matters, even if they are not And the fourth requisite that respondent lessee failed to assigned as errors in the appeal, if it finds prove is the actual deposit or consignation of the monthly that their consideration is necessary in rentals except the two cashier's checks referred to in arriving at a just decision of the case. Exhibit 12. As indicated earlier, not a single copy of the Also, an unassigned error closely related official receipts issued by the Clerk of Court was to an error properly assigned or upon presented at the trial of the case to prove the actual which the determination of the questioned deposit or consignation. We find, however, reference to raised by the error properly assigned is some 45 copies of official receipts issued by the Clerk of dependent, will be considered by the Court marked Annexes "B-1 " to "B-40" to the Motion for appellate court notwithstanding the failure Reconsideration of the Order granting execution pending to assign it as an error." (Ortigas, Jr. vs. appeal filed by defendant Francisco in the City Court of Lufthansa German Airlines, L-28773, June Cebu (pp, 150-194, CFI Original Records) as well as in the 30, 1975, 64 SCRA 610) Motion for Reconsideration of the CFI decision, filed by plaintiff lessor (pp. 39-50, Records, marked Annex "E ") Under Section 5 of Rule 53, the appellate the allegation that "there was no receipt at all showing court is authorized to consider a plain that defendant Francisco has deposited with the Clerk of error, although it was not specifically Court the monthly rentals corresponding to the months of assigned by appellants." (Dilag vs. Heirs May and June, 1977. And for the months of July and of Resurreccion, 76 Phil. 649) August, 1977, the rentals were only deposited with the Appellants need not make specific Clerk of Court on 20 November 1979 (or more than two assignment of errors provided they years later)."... The deposits of these monthly rentals for discuss at length and assail in their brief July and August, 1977 on 20 November 1979, is very the correctness of the trial court's findings significant because on 24 October 1979, plaintiff Soco had regarding the matter. Said discussion testified before the trial court that defendant had not paid warrants the appellate court to rule upon the monthly rentals for these months. Thus, defendant the point because it substantially complies had to make a hurried deposit on the following month to with Section 7, Rule 51 of the Revised repair his failure. " (pp. 43-44, Records). Rules of Court, intended merely to compel We have verified the truth of the above claim or allegation the appellant to specify the questions and We find that indeed, under Official Receipt No. which he wants to raise and be disposed 1697161Z, the rental deposit for August, 1977 in cashier's of in his appeal. A clear discussion check No. 502782 dated 8-10-77 was deposited on regarding an error allegedly committed by November 20, 1979 (Annex "B-15", p. 169, Original CFI the trial court accomplishes the purpose Records) and under Official Receipt No. 1697159Z, the of a particular assignment of error." rental deposit for July under Check No. 479647 was (Cabrera vs. Belen, 95 Phil. 54; Miguel vs deposited on November 20, 1979 (Annex "B-16", p. 170, Court of Appeals, L- 20274, Oct. 30, 1969, Original CFI Records). Indeed, these two rental deposits 29 SCRA 760-773, cited in Moran, were made on November 20, 1979, two years late and Comments on the Rules of Court, Vol. 11, after the filing of the complaint for illegal detainer. 1970 ed., p. 534). The decision under review cites Exhibits 6, 7, 8 and 9, the Pleadings as well as remedial laws should Debit Memorandum issued by Comtrust Bank deducting be construed liberally in order that the the amounts of the checks therein indicated from the litigants may have ample opportunity to account of the lessee, to prove payment of the monthly prove their respective claims, and that a rentals. But these Debit Memorandums are merely possible denial of substantial justice, due internal banking practices or office procedures involving to legal technicalities, may be avoided." the bank and its depositor which is not binding upon a (Concepcion, et al. vs. The Payatas Estate third person such as the lessor. What is important is Improvement Co., Inc., 103 Phil. 10 17). whether the checks were picked up by the lessee as per WHEREFORE, IN VIEW OF ALL THE FOREGOING, the the arrangement indicated in Exhibits 4 and 5 wherein the decision of the Court of First Instance of Cebu, 14th lessee had to pick up the checks issued by CBTC or to Judicial District, Branch XII is hereby REVERSED and SET send somebody to pick them up, and logically, for the ASIDE, and the derision of the City Court of Cebu, Branch lessee to tender the same to the lessor. On this vital II is hereby reinstated, with costs in favor of the petitioner. point, the lessee miserably failed to present any proof that he complied with the arrangement. SO ORDERED. We, therefore, find and rule that the lessee has failed to Makasiar (Chairman), Concepcion, Jr., Abad Santos, and prove tender of payment except that in Exh. 10; he has De Castro, JJ., concur. failed to prove the first notice to the lessor prior to Aquino and Escolin JJ., concurs in the result, 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. 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
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