THIRD DIVISION
PHILIPPINE
COMMERCIAL
INTERNATIONAL BANK,
Petitioner, |
G.R.
No.
127275
June 20, 2003
-versus-
COURT OF
APPEALS,
WILLIAM GOLANGCO CONSTRUCTION CORP.,CHAIRMAN ERNESTO
S. DE CASTRO, AND MEMBERS LAURO M. CRUZAND VICTOR P.
LAZATIN
OF THE ARBITRAL TRIBUNAL OF THECONSTRUCTION
INDUSTRY
ARBITRATION COMMISSION,
Respondents. |
D E C I S I
O N
CARPIO-MORALES,
J.:chanroblesvirtuallawlibrary
.
Petitioner Philippine Commercial
Industrial Bank (PCIB) assails, by the present Petition for Certiorari
and Mandamus, the September 25, 1996 Resolution of the Court of Appeals
(CA) dismissing its petition for "Certiorari and/or Partial Review of
CIAC
Case No. 07-95," on motion of private respondent William Golangco
Construction
Corporation (WGCC).
PCIB contracted WGCC
to construct the 5th to 21st floors of PCIB Tower II in Makati.
Alleging
that the "granite finish [of the tower] proved to be defective such
that
after all efforts at negotiations proved futile" it hired another
contractor
to redo the "defective finish", but that WGCC refused to pay it actual
damages incurred in the process, PCIB filed a request for arbitration
with
the Construction Industry Arbitration Commission (CIAC), which docketed
it as CIAC Case No. 07-95, praying that WGCC be held liable for
"construction
deficiencies."
WGCC denied PCIB’s claim,
it alleging that it accomplished the project faithfully and in
accordance
with the specifications-requirements of PCIB which accepted it after
due
inspection. It counterclaimed that PCIB was actually indebted to
it for material cost adjustment since the cost of materials
substantially
increased in the course of the construction of the project.chanrobles virtual law library
The CIAC, by decision[1]
of June 21, 1996, found that PCIB was entitled to recover from WGCC the
sum of P9,741,829.00 representing cost of repairs done by another
contractor
on the project. On WGCC’s counterclaim, finding that under the parties’
contract, increase for labor and materials under certain conditions was
allowed but that PCIB presented no strong, or at best, token opposition
to the evidence presented by WGCC for the escalated cost of materials,
the CIAC awarded WGCC the amount of P5,777,157.84. The CIAC
accordingly
disposed as follows:
After summing up the
award to both parties this TRIBUNAL hereby awards the amount of THREE
MILLION
NINE HUNDRED SIXTY-FOUR THOUSAND SIX HUNDRED SEVENTY[-]ONE PESOS AND
SIXTEEN
CENTAVOS (P3,964,671.16) to CLAIMANT Philippine Commercial Industrial
Bank.
Respondent William Golangco Construction is hereby ordered to pay the
stated
amount with legal interest of six (6%) percent from date of this
decision
until fully paid.[2]
PCIB filed on June 28,
1996 a Motion for Partial Reconsideration[3]
of the CIAC Decision which is not allowed under Section 9, Article XV
of
the CIAC Rules of Procedure. It subsequently filed on July 12,
1996
before the CA a petition for "Certiorari and/or Partial Review"[4]
which "may be treated as an original action for certiorari under Rule
65
of the Rules of Court or as a petition for review under Circular 1-95
of
the Supreme Court," alleging that the CIAC acted in excess of its
jurisdiction
and contrary to law in awarding, without basis, an amount in favor of
WGCC.cralaw:red
To PCIB’s petition filed
before the CA WGCC filed a Motion to Dismiss with Motion to Cite PCIB
Counsel
for Contempt[5]
on the ground that it was filed beyond the 15-day reglementary period
for
filing an appeal, in support of which it alleged that, contrary to the
allegation of counsel for PCIB that he acquired actual knowledge of the
CIAC decision on June 28, 1996, PCIB actually received a copy thereof
on
June 24, 1996, hence, it had only until July 9, 1996 within which to
file
before the CA a petition for review. Since PCIB filed before the
CA its petition for "Certiorari and/or Partial Review" on July 12,
1996,
WGCC concluded that it was late by 3 days. WGCC attached to its
motion
a certified photocopy[6]
of the pertinent entry in the CIAC logbook showing that Engineer Bong
Nuno
received a copy of the decision for PCIB on June 24, 1996.chanrobles virtual law library
By its assailed Resolution,[7]
the CA granted WGCC’s Motion to Dismiss PCIB’s petition upon a finding
that indeed PCIB received a copy of the CIAC decision on June 24, 1996
and, therefore, its petition was belatedly filed. On the nature
of
the petition, the CA held that an original action for certiorari under
Rule 65 and a petition for review under Circular 1-95 of the Supreme
Court
cannot be the subject of a single pleading.cralaw:red
PCIB’s Motion for Reconsideration
having been denied by the CA, it comes to this Court by the present
petition
for Certiorari and Mandamus upon the following grounds:
I
THE RESPONDENT COURT
GRAVELY ABUSED ITS DISCRETION TO THE GRAVE AND IRREPARABLE DAMAGE TO
THE
PETITIONER AND FAILED OR UNLAWFULLY NEGLECTED TO DO AN ACT WHICH THE
LAW
ENJOINS IT TO DO WHEN IT DISMISSED THE PETITION IN CA G.R. SP NO. 41227.
II
THE RESPONDENT COURT
GRAVELY ABUSED ITS DISCRETION TO THE GRAVE AND IRREPARABLE DAMAGE AND
INJURY
TO THE PETITIONER AND FAILED OR UNLAWFULLY NEGLECTED TO DO AN ACT WHICH
THE LAW ENJOINS IT TO DO WHEN IT REFUSED TO ALLOW THE PETITIONER’S
ALTERNATIVE
RELIEFS FOR REVIEW AND/OR FOR CERTIORARI. (Underscoring supplied)
PCIB’s counsel disclaims
that Engineer Bong Nuno is his employee but submits anyway that he was
not authorized to receive the CIAC decision for him in his (counsel’s)
capacity as, by his claim, "the authorized representative" of PCIB.chanrobles virtual law library
The present petition
fails.cralaw:red
In the Petition for
"Certiorari and/or Partial Review of CIAC Case No. 07-95"[8]
filed before the CA by PCIB, its counsel alleged, inter alia, as
follows,
quoted verbatim:
"Inasmuch as the undersigned
counsel ha[s] not officially received its copy of the Decision sought
to
be reviewed because the Arbitral Tribunal had such copy served only on
[PCIB], the reglementary period should be reckoned from the date when
the
undersigned counsel actually acquired knowledge thereof which was on 28
June 1996 when it filed [PCIB’s] Motion for Partial
Reconsideration.
Accordingly, treated as a Petition for Review, pursuant to resolution
No.
2-95, this petition is seasonable.cralaw:red
A copy of the Decision
as served upon [PCIB] itself is attached marked as Annex ‘A’ and made a
part thereof."[9]
(Underscoring supplied)
The copy of the CIAC
decision attached to PCIB’s petition before the CA is a computer
print-out
bearing the original signatures of the Chairman and two members of the
Arbitral Tribunal.[10]
When PCIB received that copy of the CIAC decision, the petition filed
before
the CA did not state.cralaw:red
As earlier stated, WGCC
filed before the CA a Motion to Dismiss with Motion to Cite PCIB
Counsel
for Contempt,[11]
on the grounds that:
THE PETITION HAS BEEN
FILED BEYOND THE REGLEMENTARY PERIOD OF FIFTEEN DAYS FROM PETITIONER’S
RECEIPT OF THE ASSAILED DECISION.cralaw:red
PETITIONER’S COUNSEL
IS GUILTY OF MISREPRESENTING FACTS IN A BLATANT ATTEMPT TO HIDE THE
BELATED
FILING OF THE PETITION;
and in said Motion to
Dismiss, WGCC alleged that per CIAC records, petitioner received its
copy
of the CIAC decision on June 24, 1996, hence, the petition filed before
the CA on July 12, 1996 was late by 3 days.chanrobles virtual law library
In its Opposition [to
WGCC’s Motion to Dismiss], and Countermotion for Contempt,[12]
PCIB’s counsel admitted that PCIB was indeed served copy of the CIAC
decision
through Engineer Nuno but that it was only on June 28, 1996 that PCIB
sent
him a copy thereof. Thus PCIB’s counsel alleged:
In its petition filed
with this Honorable Court [of Appeals], the petitioner was candid in
alleging
that although it received a copy of a decision of the Arbitral
Tribunal,
no actual service thereof was made on the undersigned counsel.
Receipt
by the petitioner itself of the decision did not start the running of
the
period to appeal. It is basic that:
"x
x x. The moment an attorney appears for any party,
notice
should be given to the furnished. ‘xxx where a party appears by
attorney
in an action or proving in a court of record all notices thereafter
requires
to be given in the action or providing must be given to the attorney
and
not to the client; and a notice given to the client and not to
his
attorney is not a notice in law’ (Palad vs. Cui, et al., 28 Phil.
44).
In legal contemplation, therefore, and under the fact, the present
case,
there was no legal service of the notice, and the defendants creed not
be in default." (Elli, et al. vs. Ditan, et al., 5 SCRA 503, 506).
When, therefore,
the
undersigned submitted in the petition that it had actual knowledge of
the
decision on 28 June 1996 when the petitioner sent it a copy thereof, it
was not only being candid, but was also admitting that it already had
actual
notice of the decision as of then, hence, the running of the period to
appeal must commence as of then. (Emphasis supplied, underscoring
by petitioner)
In the present petition
before this Court, PCIB’s counsel now alleges that in the CIAC
decision,
he was specifically named as "the representative and counsel for
[PCIB],"
but since the decision was not served on him as the authorized
representative
of PCIB "but to an employee of [PCIB] on June 24, 1996, it was only on
June 27 (sic), 1996 that [he] had actual knowledge of the content of
the
decision." mphasis supplied). PCIB’s counsel’s
latest position may not be entertained given his glaring admission that
copy of the CIAC decision was duly served on June 24 1996 on PCIB, a
party
to the case which, as will now be discussed, CIAC Rules mandates should
be the one to be notified of the "text" of the decision.
The CIAC Rules of Procedure
does not contain a provision similar to Section 2, Rule 13 of the
Revised
Rules of Court, reiterated in the 1997 Rules of Civil Procedure, which
provides that service to any party represented by counsel should be
made
upon his counsel, unless service upon the party himself is ordered by
the
court. Instead, Section 7, Article XV of the CIAC Rules of
Procedure
provides:chanrobles virtual law library
Section
7.
Notification of Award to Parties — Once an award has been made,
provided
that the costs of the arbitration have been fully paid to the
Secretariat
by the parties or by one of them, the Secretariat shall notify the
parties
of the text signed by the Arbitrator or Arbitral Tribunal.
Additional copies
certified
true by the Executive Director of the Secretariat shall be made
available,
on request and at any time, to the parties or their counsel
-
but to no one else. (Emphasis and underscoring supplied)
From the
immediately-quoted
provision of the CIAC Rules, it is the parties who are to be notified
of
the "text" of the CIAC decision. This answers PCIB’s counsel’s jarring
complaint that he was not officially served with a copy of the CIAC
decision.
In fine, copy of the
CIAC decision having admittedly been served on and received by PCIB on
June 24, 1996, PCIB’s counsel cannot assail the validity of such
service
by now claiming that the same was ineffective as it was not served on
him
(counsel) as the duly authorized representative of PCIB.cralaw:red
It is an elementary
rule of procedure that "perfection of an appeal within the reglementary
period is not only mandatory but also jurisdictional so that failure to
do so renders the questioned decision final and executory, and deprives
an appellate court of jurisdiction to alter the final judgment, much
less
to entertain the appeal."[13]
PCIB having filed its
petition for "Certiorari and/or Partial Review" after the CIAC decision
had become final and executory, the CA correctly granted WGCC’s Motion
to Dismiss the same. This leaves it unnecessary to pass upon
PCIB’s
plaint about the CA’s "refus[al] to allow [its] alternative
reliefs
for review and/or certiorari." Suffice it to state that the
following
ruling of this Court instructs:chanrobles virtual law library
We have time and again
reminded members of the bench and bar that a special civil action for
certiorari
under Rule 65 lies only when "there is no appeal nor plain, speedy and
adequate remedy in the ordinary course of law." Certiorari cannot
be allowed when a party to a case fails to appeal a judgment despite
the
availability of that remedy, certiorari not being a substitute for lost
appeal. The remedies of appeal and certiorari are mutually
exclusive
and not alternative or successive (Emphasis supplied, citations omitted)[14]
PCIB, at all events,
appeals for a relaxation of the Rules given "the [substantial] issues
and
amounts involved." But even its present petition for certiorari and
mandamus
is not the proper remedy from the CA Resolution. What it should
have
filed was a petition for review under Rule 45 of the Rules of
Court.
But even if, in accordance with the liberal spirit pervading the Rules
of Court and in the interest of justice, this Court, in the exercise of
its discretion, treats the present petition for certiorari as one for
review
under Rule 45, petitioner has failed to proffer meritorious reasons or
arguments for its allowance.cralaw:red
WHEREFORE, the present
petition is hereby DISMISSED.cralaw:red
SO ORDERED.cralaw:red
Puno, J., (Chairman), Panganiban,
Sandoval-Gutierrez, and Corona, JJ.,
concur.
____________________________
Endnotes:
[1]
Annex "A" to Petition for Certiorari and Mandamus, Rollo, pp. 18-29.
[2]
Id., p. 29.chanrobles virtual law library
[3]
Annex "B" to Respondent’s Motion to Dismiss with Motion to Cite PCIB
Counsel
for Contempt, id., pp. 49-53.
[4]
Annex "B" to Petition for Certiorari and Mandamus, id., pp. 30-40.
[5]
Annex "C," id., pp. 41-53.chanrobles virtual law library
[6]
Annex "A-1" to Motion to Dismiss with Motion to Cite PCIB Counsel for
Contempt,
id., p. 48.
[7]
Annex "D" to Petition for Certiorari and Mandamus, id., pp. 58-61.chanrobles virtual law library
[8]
CA Rollo, pp. 2-12; also, Amended Petition for Certiorari and/or
Partial
Review of CIAC Case No. 07-95, CA Rollo, pp. 126-136.
[9]
Id., p. 3; also in the Amended Petition, id., p. 127.chanrobles virtual law library
[10]
CA Rollo, pp. 13-24.chanrobles virtual law library
[11]
Supra, footnote 5.
[12]
Rollo, pp. 54-56.chanrobles virtual law library
[13]
Banco Filipino Savings and Mortgage Bank v. Court of Appeals, G.R. No.
132703, June 23, 2000, 334 SCRA 305, 318.
[14]
Republic v. Court of Appeals, G.R. No. 129846, January 18, 2000, 322
SCRA
81, 87, citing Bernardo v. Court of Appeals, G. R. No. 106153, July 14,
1997, 275 SCRA 413, 426. |