Josefina A. Zulueta-Pisang, et al. vs. Zulueta Realty Compnay, et al.

[SEC CASE NO. 2862. October 19, 1987.] JOSEFINA A. ZULUETA-PISANG, ET AL. , petitioner , vs . ZULUETA REALTY COMPANY, ET AL. , respondents . O R D E R Submitted for resolution is Complainants' Very Urgent Motion for the Issuance of an Interlocutory Order dated June 11, 1987. Complainants, in their said motion, prayed that because of the failure of respondent Jose A. Zulueta, Jr., to call for the special stockholders' meeting, as directed by the Commission in its order of April 29, 1987, petitioner Josefina Zulueta-Pisang be authorized to call and preside the special stockholders' meeting and election of officers and members of the Board of Directors of Zulueta Realty Company, Inc.(ZRCI) at the earliest opportune time possible, and thereafter to submit a formal to the Honorable commission of the said election. Petitioners further prayed that respondent Jose Zulueta, Jr. be cited for contempt for maliciously and intentionally defying the order of the Commission dated April 29, 1987. In retrospect, the Commission, in its order of April 29, 1987, issued a writ of preliminary injunction against respondent Jose Zulueta, Jr. from representing himself as President and General Manager of Zulueta Realty company, Inc. Further, the said Order directed respondent Jose Zulueta, Jr. to call for a special stockholders' meting for the purpose of electing the new members of the Board of Directors and Officers of ZRCI for the current year, within thirty (30) days from receipt of the order, considering that the present Board of Directors and Officers are already holding their positions in hold-over capacity and in order not to prejudice or jeopardize the management of the corporation. Furthermore, the said order likewise enumerated the stockholder with their respective shareholdings, who will be entitled to vote and to be notified of the proposed meeting. The aforesaid motion was filed by the petitioners on June 11, 1987, copy furnished counsel for the respondents, who personally received the same on the same day, June 11, 1987. The said motion was set for hearing on June 17, 1987, 10:00 o'clock in the morning during the said hearing only counsel for the petitioners appeared inspite due notice to respondents' counsel. cAHDES However, on June 15, 1987, respondents filed a Very Urgent Opposition to the instant motion, alleging among other, that the Order of April 29, 1987, which is the basis of the instant motion, for the calling of special stockholders' meeting and for citing respondents in contempt for defying the said order, is still being questioned in the Commission en banc and in the Supreme Court. He further claims that he filed a counterbond with respect to the issuance of Writ of Preliminary Injunction. cCAaHD In the meantime, the Commission en banc dismissed respondents' petition for "Certiorari with Writ of Preliminary Injunction and Inhibition" filed on March 4, 1987 as well as respondents' Petition for Certiorari filed three (3) days later, or on July 24, 1987, questioning the Order of April 29, 1987, which among others, granted the issuance of a Writ of Preliminary Injunction against respondent Jose Zulueta, Jr. and at the same time calling for a special stockholders' meeting to elect a new set of Board of Directors of the corporation. However, respondents filed a motion for reconsideration of the commission en banc's Order of July 24, 1987, for which the resolution of the aforesaid motion of July 11, 1987 was held in abeyance pending resolution of respondents' motion for reconsideration of the Commission en banc's Order dated July 24, 1987. the said motion for reconsideration was denied by the Commission en banc in its Order of September 10, 1987. There being no more legal impediment and considering that the continued refusal of respondent Jose Zuleta, Jr. to call for a special stockholders' meeting would prejudice and/or jeopardize the affair of the corporation, which is now left without a President, as well as an effective management administrators, the remaining directors and officers, if there are still any, are already holding in a hold-over capacity, and considering, further, that the petitions for certiorari, questioning the Order of April 29, 1987, were already dismissed by the Commission en banc on July 24, 1987, and the motion for reconsideration thereto was also denied by the Commission en banc's order dated September 10, 1987, the Very Urgent Motion for the Issuance of an Interlocutory Order dated June 11, 1987 should be, as it is hereby GRANTED. As to the filing by respondents of counterbond, through Manifestation dated May 10, 1987, we agree with the observation of petitioners that the same has no bearing at all. If respondents' purpose in filing a counterbond is to vacate the issuance of a Writ of Preliminary Injunction, then he should file a motion for reconsideration of such issuance with prayer for the filing of counterbond. In this case, no motion for reconsideration with prayer for the filing of a counterbond has ever been filed, and therefore, no relief can be granted where none is prayed for. TcaAID WHEREFORE, petitioner Josefina Zulueta-Pisang is hereby directed to call for a special stockholders' meeting for the election of the members of the Board of Directors and Officers of the corporation within thirty (30) days from receipt hereof. FURTHER, petitioner Josefina Zulueta-Pisang is hereby directed to fix the date, time and place, of the meeting, sent notices and agenda of the meeting to the stockholders, in accordance with the Order of April 29, 1987, preside temporarily the said meeting until after the election of the new President, and submit a formal report to the Commission as to the result of the meeting. CAaDTH Relative thereto, Atty. James Abugan is hereby designated as SEC representative to supervise the said meeting. As regards the motion to cite respondent Jose Zulueta, Jr. in contempt, it appears that the defiance by the said respondent of the Order of April 29, 1987 is not willful and deliberate, the same is hereby DENIED. SO ORDERED. (SGD.) JUANITO B. ALMOSA, JR. Hearing Officer