G.R. No. 81024 - ASSET PRIVATIZATION TRUST, VS. COURT OF APPEALS, HON. JESUS F. GUERRERO, JUDGE OF THE REGIONAL TRIAL COURT OF MAKATI, BRANCH 148, STA. INES MELALE FOREST PRODUCTS CORPORATION, RODOLFO M. CUENCA AND MANUEL I. TINIO.D E C I S I O N - Supreme Court E-Library

Ruling

WHEREFORE, it is most respectfully prayed that, after hearing on the merits, judgment be rendered: Making the injunction permanent; Declaring that the defendant DBP is not entitled to foreclose the mortgage under the Deed of Mortgage; Ordering defendant DBP to restructure the indebtedness of plaintiff SIM to defendant DBP; Sentencing the defendant DBP to pay to plaintiff SIM the following items of damages - a) actual and consequential damages of not less that P21M; b) moral damages of not less than P1M; c) exemplary damages of not less than P1M; d) 25% of whatever may be recovered by plaintiff SIM from defendant DBP as attorneys fees; e) costs of suit; Granting to the plaintiff SIM such further and other reliefs to which it may be entitled in law and in equity." Should the prayer for a permanent injunction be considered in connection with the writ of injunction that enjoined the DBP from "pursuing any other deficiency claims or any other claim of any nature, whether judicial or extrajudicial, arising out of, bred by or incident to the transactions covered by the complaint," then SIMs primordial aim in filing the supplemental complaint is to end DBPs continued possession of the Agusan del Sur plant. That would of course mean that the court had to deal with a transaction that is not "covered by the (original) complaint" as the November 8, 1984 mortgage is not alleged therein. Moreover, upon admission of the supplemental complaint, the Makati court would have to enforce the writ of injunction in Agusan del Sur. As regards the prayer that the DBP be declared as "not entitled to foreclose" the November 8, 1984 mortgage that private respondent SIM admitted it had entered into with the DBP, it might as well be read as a prayer for the setting aside of the provisions of said mortgage, if not its nullification, in light of the following allegations in the supplemental complaint: "VII The only instrument signed by the plaintiff SIM in favor of the defendant DBP is a mortgage dated November 8, 1984, which does not provide extrajudicial and forcible taking over of the mortgaged properties by defendant DBP, a copy of which is hereto attached as Annex C and made an integral part hereof; VIII The forcible and extrajudicial taking over possession of the Magallanes plant of the plaintiff SIM is null and void ab initio and unlawful, considering inter alia : a) There is no written contract, authorization, deed or instrument authorizing defendant DBP to extrajudicially possess and take over the said plant; b) The forcible taking over of the said plant by the defendant DBP constitutes a p actum commissorium for it amounts to an appropriation by defendant DBP of the mortgaged properties without any foreclosure thereof; c) The said extrajudicial taking over of possession also constitute a disobedience of the writ of preliminary injunction issued by this Honorable Court; d) Defendant DBP can not immediately take over possession without any writ of possession being