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PHILIPPINE SUPREME COURT DECISIONS

THIRD DIVISION

[G.R. No. 127275. June 20, 2003.]

PHILIPPINE COMMERCIAL INTERNATIONAL BANK, Petitioner, v. COURT OF APPEALS, WILLIAM GOLANGCO CONSTRUCTION CORP., Chairman ERNESTO S. DE CASTRO, and members LAURO M. CRUZ and VICTOR P. LAZATIN of the ARBITRAL TRIBUNAL of the CONSTRUCTION INDUSTRY ARBITRATION COMMISSION, Respondents.

D E C I S I O N


CARPIO MORALES, J.:


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).chanrob1es virtua1 1aw 1ibrary

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."cralaw virtua1aw library

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.

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:chanrob1es virtual 1aw library

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.

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.

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.

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:chanrob1es virtual 1aw library

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. (Emphasis 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.chanrob1es virtua1 1aw 1ibrary

The present petition fails.

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:jgc:chanrobles.com.ph

"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.

A copy of the Decision as served upon PCIB itself is attached marked as Annex ‘A’ and made a part thereof." 9 (Emphasis 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.

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:chanrob1es virtual 1aw library

THE . . . PETITION HAS BEEN FILED BEYOND THE REGLEMENTARY PERIOD OF FIFTEEN DAYS FROM PETITIONER’S RECEIPT OF THE ASSAILED DECISION.

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.

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:chanrob1es virtual 1aw library

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:jgc:chanrobles.com.ph

". . . . The moment an attorney appears for any party, notice should be given to the furnished.’ . . . 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’ (Paled v. 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. v. Ditan, Et Al., 5 SCRA 503, 506). (emphasis by petitioner)

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)

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." (Emphasis 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:chanrob1es virtual 1aw 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 Italics 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.

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:chanrob1es virtual 1aw 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.

WHEREFORE, the present petition is hereby DISMISSED.chanrob1es virtua1 1aw 1ibrary

SO ORDERED.

Puno, 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.

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.

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.

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.

10. CA Rollo, pp. 13–24.

11. Supra footnote 5.

12. Rollo, pp. 54–56.

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.

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