SECOND DIVISION
PHILIPPINE
AIRLINES,
INC.,REPRESENTED
BY
EDUARDO
CENIZA,
Petitioner,
A.
M.
No. P-04-1767
(formerly OCA
IPI No.
03-1576-P)
August 12, 2004
-versus-
SEVERINO DC
BALUBAR,
JR.,SHERIFF IV, RTC,
BRANCH 118, PASAY CITY,
Respondent.
chanroblesvirtualawlibrary
R E S O L U T I O
N
AUSTRIA-MARTINEZ,
J.:chanroblesvirtuallawlibrary
Before us is an Affidavit-Complaint
dated January 13, 2003, filed by Philippine Airlines, Inc. (PAL),
represented
by Eduardo R. Ceniza, against Severino DC Balubar, Jr., Deputy Sheriff
of Branch 118 of the Regional Trial Court of Pasay City (RTC for
brevity),
for violation of Section 3(e) of the Anti-Graft and Corrupt Practices
Act
relative to the implementation of the writ of execution and his refusal
to lift notices of garnishments on PAL’s depository banks. The
complaint
was originally filed with the Ombudsman and through its Fact Finding,
Intelligence
and Research Office, it was referred to us on February 11, 2003 for
appropriate
action.[1]
PAL Employees Savings
and Loan Association, Inc. (PESALA), a savings and loan association
whose
members are employees of PAL, filed an action for specific performance,
damages, or declaratory relief against PAL and Jose Blanco in the RTC,
docketed as Civil Case No. 97-1026. PESALA sought to enjoin PAL
from
implementing a ceiling of 40%, that is, only 40% of the salary of a PAL
employee borrower can be deducted to pay the loan secured from
PESALA.
While the case was being tried, PESALA filed a motion to direct PAL to
remit to them the amount of P44,488,716.41, representing the amount
which
were not deducted from the salaries of PESALA members from September
1997
to February 1998 by reason of the 40% limitation. On March 11,
1998,
the trial court issued its Order as follows:
WHEREFORE,
and based on the foregoing considerations, finding the motion of the
plaintiff
to be meritorious, the same is hereby GRANTED. Defendants are
hereby
ordered to remit to the plaintiff PESALA the total undeducted amount of
P44,488,716.41 which corresponds to pay periods from September 1997 to
February 15, 1998, and to cause the deductions in full in the
succeeding
pay periods in accordance with the deduction advice of the plaintiff.[2]chanrobles virtual law library
PESALA moved for the
issuance
of a writ of execution to collect the said amount from PAL which was
denied
by the trial court on the ground that the order sought to be executed
was
merely an interlocutory order and not yet final and executory.
Subsequently,
on December 4, 1998, the trial court issued an Order stating:
At today’s hearing,
Atty. Emmanuel Peña, defendants’ counsel, and defendant Atty.
Jose
Blanco assured the Court that: 1) PAL will regularly remit to PESALA
the
full amount per pay period that is due to the latter; and (2) PAL will
likewise pay PESALA the balance on the previously undeducted amount of
P44,488,716.41 by January 1999 (details on the payment were manifested
by Atty. Blanco in open Court).[3]chanrobles virtual law library
The Order, dated March
11, 1998, requiring PAL to remit the amount of P44,488,716.41 to
PESALA,
elevated by PAL to the Court of Appeals through a petition for
certiorari,[4]
was denied. Entry of judgment was made on May 14, 1999.cralaw:red
PESALA subsequently
filed a charge of indirect contempt against Jose Blanco, PAL President
Avelino L. Zapanta, and PAL Chief Financial Officer Andrew L. Huang,
docketed
as Civil Case No. 00-0016, for the former’s failure to comply with the
Orders dated March 11, 1998 and December 4, 1998.cralaw:red
On November 6, 2002,
the RTC rendered a decision finding respondents in Civil Case No.
00-0016
guilty of indirect contempt and ordered them to remit the sum of
P44,488,716.41
to PESALA within three days from receipt of the decision.cralaw:red
PAL filed a notice of
appeal in both Civil Cases Nos. 97-1026 and 00-0016. PESALA moved for
execution
pending appeal which was granted by Judge Gutierrez in an Order dated
December
10, 2002.[5]
The corresponding writ was issued the next day directing respondent
sheriff
Balubar, Jr. to:
Make effective the above-stated
Orders of this Honorable Court and that you cause Philippine Airlines,
Inc., Jose C. Blanco, and Avelino Zapanta as representatives of PAL to
implement/enforce the Orders dated March 11, 1998 and December 4, 1998
particularly for said defendants to immediately remit to the plaintiff
PESALA the total amount of P44,488,716.41 which corresponds to pay
period
from September 1997 to February 15, 1998.[6]
On December 11, 2002,
respondent sheriff served the writ of execution on PAL through its
Legal
Department.[7]
On the same day, respondent sheriff served notices of garnishment[8]
on PAL’s depository banks, to wit: Allied Banking Corporation, Chase
Manhattan
Bank, China Banking Corporation, Equitable-PCI Bank, and Hongkong and
Shanghai
Banking Corporation.chanrobles virtual law library
On December 12, 2002,
Allied Banking Corporation informed respondent that PAL has an account
with it sufficient to cover the amount stated in the garnishment.[9]
On December 16, 2002,
respondent served on Allied Bank, through its Senior Manager, copy
furnished
PAL, an order for the delivery of money.[10]
On December 18, 2002,
complainant Ceniza, PAL’s General Counsel and Corporate
Secretary,
wrote a letter to respondent sheriff requesting him to lift the notices
of garnishment on the other bank deposits of PAL in excess of
P44,488,716.41
since Allied Bank had already informed him of the sufficiency of PAL’s
account to cover the amount stated in the garnishment; and claiming
that
it is in violation of Section 9(c), Rule 39 of the Rules of Civil
Procedure
which provides that the garnishment shall cover only such amount as
will
satisfy the judgment and all lawful fees.[11]
On December 27, 2002,
respondent served on Allied Bank a final order to deliver the money and
copy furnished PAL.[12]
On January 14, 2003,
respondent wrote Allied Bank a letter copy furnished PAL, through its
Legal
Office, as follows:
As of to date you have
not delivered the garnished money of Php44,488,176.41 despite the two
(2)
Orders of Delivery of Money dated December 16 and 27, 2002 served
upon you by the undersigned. Since you have failed/refused to deliver
the
same within ten (10) days limit as prescribed by the Rules of Court,
the
undersigned will not lift the garnishment to the other depository banks
of the defendants. Final demand is being requested for your
compliance.
Immediate lifting of garnishment on the other banks will be made after
delivery of the garnished money. Your disobedience in the
delivery
of the money per writ of execution and garnishment is contemptuous of
the
Orders of the Court.[13]chanrobles virtual law library
In his complaint, Ceniza
claims that respondent did not furnish them with copies of the order
granting
PESALA’s motion for execution pending appeal and the writ of execution
in violation of Section 2, Rule 13 of the 1997 Rules of Civil Procedure
which provides that if any party appeared by counsel, service shall be
made upon his counsel. He avers that the sheriff’s act of
ordering
the Allied and the Chase Manhattan Banks to deliver the money would
mean
a total amount of P88,977,432.82, which is in excess of the amount
ordered
by the writ to be collected from PAL; that the sheriff’s act of unusual
and excessive haste in collecting the amounts in excess of
P44,488,716.41
is proof of his corrupt motive in the execution of the appealed
decision
and his malicious intent to cause material damage and prejudice to PAL;
that his refusal to lift the garnishment of PAL’s deposit in
excess
of P44,488,716.41 shows his malicious intent to give PESALA unwarranted
benefits, advantage, and preference in violation of Section 3(e) of the
Anti-Graft and Corrupt Practices Act.cralaw:red
Respondent filed his
Comment wherein he alleges: He served the writ of execution
pending
appeal issued on December 11, 2002 on PAL through its legal
department.
Section 2, Rule 13 of the Rules of Court requiring service to counsel
invoked
by complainant does not apply to writ of execution as the Rule only
applies
to pleading, judgment, and other papers. Section 11 of Rule 39
shows
that the writ should be served upon the party against whom the same is
rendered. Thus, Rule 39 which specifically deals with writs of
execution,
should be applied rather than Rule 13 which is a general
provision.
He served the subject writ upon complainant’s counsel thru registered
mail.
Due to PAL’s failure to pay the judgment debt despite demand, he caused
the garnishment of PAL’s bank accounts in accordance with Section 9(c),
Rule 39 of the Rules of Court. While Allied Bank informed him of
PAL’s sufficient account to cover the amount subject of the writ, the
bank
failed to deliver the same despite repeated demands. He informed
Allied Bank, through a letter, that as soon as the garnished amount is
delivered, the garnishment on the other banks shall be immediately
lifted.
PAL, using its influence on Allied Bank, refused the payment of
judgment
debt which is an open and clear defiance of the court
proceedings.
The delay in the lifting of the garnishment on the garnishee is caused
by incidents beyond his control since garnishment cannot be lifted
unilaterally
by him but only upon order of the court which may be made upon report
of
the sheriff that the judgment has already been satisfied. None of
the garnishee had delivered the garnished amount despite repeated
demands,
thus, the judgment has not been satisfied in part or in full.cralaw:red
Complainant submitted
a Manifestation and Motion averring that respondent lied when he said
that
“he nevertheless caused the service of the subject writ upon
defendant’s
counsel thru registered mail.” Complainant attached the affidavit
of its paralegal who personally went to the trial court to secure
copies
of the Order and the writ of execution.chanrobles virtual law library
We referred the case
to the Office of the Court Administrator (OCA) for evaluation, report,
and recommendation. The OCA’s findings are as follows:
Respondent
sheriff committed a simple neglect of duty when it did not observe the
procedure in the execution of money judgment under Section 9(a), Rule
39
of the Rules of Court. Under the rule, respondent should have
first
demanded the immediate payment of the judgment debt from any of the
persons
named or impleaded as parties in Civil Cases Nos. 97-1026 and 00-0016
and
not merely serve the writ. It is only when the proper party
refused
to pay the judgment debt that respondent sheriff may proceed to levy
the
properties of PAL which shall then be applied to satisfy the amount
stated
in the writ.cralaw:red
Respondent should not
be faulted for the alleged material damage suffered by PAL for the
former’s
refusal to lift the notice of garnishment on PAL’s other depository
banks
since the continued inaction of Allied Bank despite demands to deliver
the money in their possession, delayed the full implementation of the
subject
writ. Thus, respondent is found not guilty of violation of
Republic
Act (R.A.) No. 3019 (Anti-Graft and Corrupt Practices Act).chanrobles virtual law library
The OCA recommended
the reprimand of respondent sheriff for simple neglect of duty with
warning
that a repetition of a similar offense shall be dealt with more
severely.cralaw:red
We agree with the findings
of OCA with modification as to the imposable penalty.cralaw:red
Preliminary, we must
first resolve the issue raised by complainant regarding the non-service
to PAL’s counsel of the Order granting the motion for execution pending
appeal and the writ of execution allegedly in violation of Section 2,
Rule
13 of the Rules of Court which provides:
Sec.
2
Filing and service, defined – Filing is the act of presenting the
pleading
or other paper to the clerk of court.
Service is the act of
providing
a party with a copy of the pleading or paper concerned. If any party
has
appeared by counsel, service upon him shall be made upon his counsel or
one of them, unless service upon the party himself is ordered by the
court.
Where one counsel appears for several parties, he shall only be
entitled
to one copy of any paper served upon him by the opposite side.chanrobles virtual law library
While it is true that
the Order dated December 10, 2002 and the writ of execution dated
December
11, 2002 were served on PAL’s legal department and not to counsel, the
latter, however, obtained from the court a copy of the same on December
12, 2002. And on the basis of said copy, counsel was able to file
motions to reconsider the order granting execution pending appeal, to
quash
the writ of execution, and to lift notices of garnishment issued by the
respondent.[14]
The filing of such motions indicate that counsel was already informed
of
the court orders, and the fact that he had obtained copies of the
orders
serve as a substantial compliance with the requirement of the notice
of
orders. In the case of City of Laoag vs. Public Service
Commission,[15]
where counsel for the petitioner actually obtained a copy of the
decision
of the Commission from its Secretary, and on the basis of said copy, he
was able to prepare the motion for reconsideration. The Court
ruled
that the copy of the decision obtained by counsel serves as a
substantial
compliance with the requirement of notice of judgment.cralaw:red
Complainant alleges
that despite the information given by Allied Bank that PAL has an
account
with it sufficient to cover the amount stated in the garnishment,
respondent
still refused to lift the notice of garnishment on other PAL’s
depository
banks which had caused damage to its operations. The same does not
warrant
any sanction from us.cralaw:red
When Allied Bank informed
respondent, through a letter dated December 12, 2002, of the
sufficiency
of the account of PAL to cover the amount stated in the garnishment,
respondent
subsequently issued an Order of delivery of money dated December 16,
2002
addressed to the bank’s Senior Manager. Under Section 9(c), Rule
39, Allied Bank should deliver the garnished amount in cash or
certified
bank check issued in the name of PESALA which shall be delivered
directly
to the latter within ten (10) working days from service of notice
requiring
such delivery. Allied Bank, however, failed to do so prompting
respondent
to issue on December 27, 2002 a final order of delivery of money on the
Bank. Despite these two orders and coupled with respondent’s
letter,
dated January 14, 2003, demanding delivery of money with the
information
that notice of garnishment on other banks would not be lifted until
compliance,
Allied Bank and PAL had not delivered.cralaw:red
Respondent could not
be faulted for not lifting the notices of garnishment on other
depository
banks since the writ has not been satisfied yet. It is surprising
to note why Allied Bank unjustifiably refused to heed the orders to
deliver
the money and why PAL, despite knowledge of the Orders for Allied Bank,
to delivery the money did not act accordingly by asking Allied Bank to
deliver the same. Since the writ has not yet been satisfied with
no fault on the part of respondent, he could not return the writ and
could
not lift the notice of garnishment on the other depository banks
without
a court order.chanrobles virtual law library
We adopt OCA’s findings
on this issue, thus:
Complainant
contends that by garnishing the bank deposits of PAL in all its
depository
banks, respondent caused material damage and injury in its
operation.
We, however, are not convinced that respondent should be faulted for
the
damage or injury suffered by PAL. Records show that respondent
issued
Notices of Garnishment to the following banks, all dated December 11,
2002:
1.
Allied Banking Corporation;
2.
Chase Manhattan Bank;
3.
China Banking Corporation;
4.
Equitable-PCI Bank; and
5.
Hongkong and Shanghai Banking Corporation.
At the time when
respondent
levied upon the bank deposits of PAL with the above-listed banks, he
had
no personal knowledge whether there was a sufficient amount of deposit
in any or all of the said banks which could satisfy the full amount of
the judgment debt. When the Senior Manager of Allied banking
Corporation
informed respondent, thru a letter dated 12 December 2002, that PAL had
an account with them which was sufficient to cover the amount stated in
the notice of garnishment, respondent issued an “Order of Delivery of
Money”
to Allied Bank dated December 16, 2002, demanding from the said bank
the
payment and/or delivery of the amount stated in the garnishment (Annex
“5” of Comment). As the first demand was ignored by Allied Bank,
respondent issued another Order (Final Order of Delivery of Money)
dated
December 27, 2002, containing the same subject but to no avail.
With
the second demand having the same fate as the first, respondent wrote a
letter addressed to the President of Allied Bank dated January 14,
2003,
demanding payment from the said bank with a warning that the
garnishment
issued to the other banks will not be lifted until it obliges.chanrobles virtual law library
The continued inaction
on the part of Allied Bank unreasonably delayed the full implementation
of the subject writ. Despite several demands for payment by
herein
respondent, the bank failed and refused to heed said demand for
reason(s)
only known to it. Under Rule 39, Section 9 (c) of the Revised
Rules
of Civil Procedure, the garnishee is obligated to deliver directly to
the
judgment oblige the garnished amount in cash or in certified bank check
issued in the name of the judgment oblige within ten (10) working days
from service of notice on said garnishee requiring such delivery.
Clearly then, should the Allied Bank only comply with what had been
ordered
of it to perform, the garnishment of PAL’s account in the other banks
would
have been lifted immediately, thus, avoiding the damage or injury
claimed
to be suffered by PAL. Respondent herein had reason to suspect
that
PAL could be behind the continued inaction of Allied Bank.[16]
We agree with OCA that
there is no substantial evidence to warrant a finding of a violation of
R.A. No. 3019 (Anti-Graft and Corrupt Practices Act) by the respondent.cralaw:red
This notwithstanding,
respondent is guilty of simple neglect.cralaw:red
When the writ is placed
in the hands of the respondent, it is his mandated ministerial duty, in
the absence of any instructions to the contrary, to proceed with
reasonable
celerity and promptness to implement the writ according to his
mandate.
Only by doing so could he ensure that the order is executed without
undue
delay. However, he must observe the procedure laid down under
Section
9, Rule 39 of the Rules of Court, on execution of money judgment which
provides:
Section
9.
Execution of judgments for money, how enforced – (a) immediate payment
on demand – The officer shall enforce an execution of a judgment for
money
by demanding from the judgment obligor the immediate payment of the
full
amount stated in the writ of execution and all lawful fees. .
(b) Satisfaction
by
levy – If the judgment obligor cannot pay all or part of the
obligation
in cash, certified bank check or other mode of payment acceptable to
the
judgment obligee, the officer shall levy upon the properties of the
judgment
obligor of every kind and nature whatsoever which may be disposed of
for
value and not otherwise exempt from execution giving the latter the
option
to immediately choose which property or part thereof may be levied
upon,
sufficient to satisfy the judgment. If the judgment obligor does
not exercise the option, the officer shall first levy on the personal
properties,
if any, and then on the real properties if the personal properties are
insufficient to answer for the judgment.chanrobles virtual law library
(c)
Garnishment
of debts and credits – The officer may levy on debts due the judgment
obligor
and other credits, including bank deposits, financial interests,
royalties,
commissions and other personal property not capable of manual
delivery
in the possession or control of third parties. Levy shall be made by
serving
notice upon the person owing such debts or having in his possession or
control such credits to which the judgment obligor is entitled.
The
garnishment shall cover only such amount as will satisfy the judgment
and
all lawful fees.
The garnishee shall
make
a written report to the court within five (5) days from service of the
notice of garnishment stating whether or not the judgment obligor has
sufficient
funds or credits to satisfy the amount of the judgment. If not,
the
report shall state how much funds or credits the garnishee holds for
the
judgment obligor. The garnished amount in cash, or certified bank
check issued issued in the name of the judgment obligee, shall be
delivered
directly to the judgment obligee within ten (10) working days from
service
of notice on said garnishee requiring such delivery, except the lawful
fees which shall be paid directly to the court.
In the event there are
two or more garnishees holding deposits or credits sufficient to
satisfy
the judgment, the judgment obligor, if available, shall have the right
to indicate the garnishee or garnishees who shall be required to
deliver
the amount due; otherwise, the choice shall be made by the judgment
oblige.cralaw:red
Based on the foregoing,
the sheriff is required to first make a demand of the obligor the
immediate
payment of the full amount stated in the writ of execution before a
levy
can be made. In the instant case, respondent had shown that he caused
the
service of the writ of execution pending appeal upon PAL thru its legal
department on December 11, 2002 at 3:25 p.m. Records will show
that
while PAL received the copy of the writ on December 11, 2002, its
depository
banks received copies of the writ as well as notices of garnishment on
the same day at an earlier time than PAL received the writ of execution
as shown by the stamped receipt[17]
thereon, thus, China Bank at 2:32 p.m., JPMorgan Chase Bank at 2:48
p.m.,
Hongkong and Shanghai Bank at 2:54 p.m., and Allied Banking Corporation
at 3:20 p.m. Notably, respondent did not observe the procedure
mandated
under the Rules of Court that he should first make a demand of the
obligor
the immediate payment of the full amount stated in the writ of
execution.
In fact, the evidence of the respondent showing the time when PAL’s
depository
banks received copies of writ and notices of garnishment indubitably
shows
that he did not give any of the officers of PAL, impleaded as
defendants,
the opportunity to pay the judgment debt. Thus, he is remiss in
his
duty in the manner of executing the money judgment for which he should
be administratively liable. Commendable is the expeditious
execution
of the writ; however, it should not be done at the expense of depriving
the obligor the chance to pay the judgment debt.chanrobles virtual law library
WHEREFORE, respondent
sheriff Severino DC Balubar, Jr. is found guilty of simple neglect of
duty
and hereby fined Two Thousnd Pesos (P2,000.00) with A STERN WARNING
that
the commission of the same or similar acts in the future will be dealt
with more severely.cralaw:red
SO ORDERED.cralaw:red
Puno J., (Acting Chairman),
Callejo, Sr., Tinga and Chico-Nazario, JJ., concur.
____________________________
Endnotes:
[1]
Rollo, p. 1
[2]
Ibid., p. 20.
[3]
Ibid., pp. 20-21.chanrobles virtual law library
[4]
Docketed as CA-G.R. SP No. 48654.
[5]
Rollo, pp. 18-25.chanrobles virtual law library
[6]
Ibid., p.29.chanrobles virtual law library
[7]
Ibid., p.53. Respondent’s Annex “1.”
[8]
Ibid., p. 55, Respondent’s Annex “3.”
[9]
Ibid., p.56, Annex “4.”chanrobles virtual law library
[10]
Ibid., pp.57-58, Annex “5.”
[11]
Ibid., p. 41, Annex ”E.”chanrobles virtual law library
[12]
Ibid., pp. 59-60, Annex “6.”
[13]
Ibid., p.64, Annex “10.”
[14]
Ibid., p. 12; Complainant’s affidavit, p. 2.chanrobles virtual law library
[15]
89 SCRA 207 (1979), citing the case of De los Reyes vs. Ugarte, 75 Phil
505 (1945).
[16]
Rollo, pp. 4-5.chanrobles virtual law library
[17]
Ibid., p. 53 |