Guevarra v. NLC Credit Corp.

[SEC-SICD * CASE NO. 05-96-5349. November 18, 1996.] CHARITO V. GUEVARRA and LLEWEL NIGEL MANCEBO , petitioners , vs . NLC CREDIT CORPORATION and NAM LIP CHON , respondents . D E C I S I O N This treats of the Petition for Injunction with Ex-parte Motion for the Issuance of Temporary Restraining Order, dated May 27, 1996, filed by petitioners Charito V. Guevarra and Llewel Nigel Mancebo praying that respondent Nam Lip Chon be enjoined from transacting business and/or withdrawing corporate funds from Security Bank and Trust Co., and Far East Bank and Trust Co., both at their branches at Ortigas Ave., Pasig City and after hearing a writ of preliminary injunction be issued. On June 11, 1996, respondents filed their Answer with Counter-Petition for the Issuance of a Writ of Preliminary Mandatory Injunction. Under date of July 24, 1996, petitioners' prayed for the issuance of a temporary restraining order was denied by virtue of the Order of then Hearing Officer Alberto P. Atas. Then on August 23, 1996, intervenor Security Bank Corporation filed its Motion for Leave to Intervene which was subsequently denied by this Hearing Officer pursuant to his Order of November 5, 1996. By agreement of both parties, they were directed to submit their respective memorandum in support of their positions in lieu of the presentation of evidence, after which the case shall be resolved by the Hearing Officer on the basis thereof. Respondents submitted their memorandum within the fifteen (15)-day period given by this Hearing Officer, while petitioners belatedly delivered their memorandum which, in the interest of justice and fair play, this Hearing Officer admitted and considered. The only ISSUE to be resolved in this case is whether or not petitioners are entitled to the injunctive relief prayed for. It is well-settled that for a writ of preliminary injunction to issue, two general requisites must be established, namely: (1) clear, positive and present right that must be protected; (2) the acts against-which the injunction is to be directed are violative of said right. (North Negros Sugar Co. vs. Hidalgo, G.R. No. 42334, October 31, 1936, 63 Phil. 664) Petitioners dismally failed to prove and establish their clear, positive and legal right that would entitle them to the issuance of a writ of preliminary injunction. A cursory examination of the petition presents a host of supposed acts committed by respondent Nam Lip Chon, petitioners miserably failed to offer justifiable proof and convincing evidence that would warrant a deeper consideration of the propriety of granting the writ prayed for. In cases where the gravity of the offenses allegedly committed by a director is of the same magnitude as those now claimed to have been committed by respondent Nam Lip Chon, it would be exceedingly necessary to adduce sufficient proof therefore. The narration of the supposed acts committed by respondent Nam Lip Chon, standing in the records alone and uncorroborated by proof and formidable showing of credibility, would not bear any probative worth and are purely anecdotal. To pass upon the merits and legal propriety of the instant petition would not therefore be difficult. This Hearing Officer has no other recourse but to rely on the records at hand and the arguments of the parties in their respective pleadings. The records indubitably show that there is simply no strand of valid argument that could hold the instant petition on firm legal mooring. The alleged Resolution No. 003 passed by the petitioners between the two of them disauthorizing respondent Nam Lip Chon to negotiate with Security Bank is obviously void and legally inexistent because the same was allegedly passed and approved in a board meeting without the proper quorum. The articles of incorporation of the respondent corporation disclose that it is has only five (5) directors, and pursuant to Section 25 of the Corporation Code, a majority of the number of directors or trustees as fixed in the articles of incorporation shall constitute a quorum for the transaction of business and that a decision of the majority of directors or trustees present at a meeting at which a quorum is present shall be valid as a corporate act. Anything that falls short of this legal requirement would necessarily be invalid. Needless to emphasize, the instant petition must perforce fail and accordingly, Resolution No. 003 should not and ought not be given the scantest consideration. Petitioners, in their memorandum, even admitted that there were five (5) directors in the corporation at the time Resolution No. 003 was passed, namely Lip Chon, Charito Guevarra, Llewel Nigel Mancebo, Antonio de Mesa and Jun Mi Youn Park; that on the alleged board meeting of April 16, 1996, Jun Mi Youn Park was in Korea, while Antonio de Mesa cannot be located; that there were only three directors available at the time, namely: Nam Lip Chon, Charito V. Guevarra and Llewel Nigel Mancebo; and that Nam Lip Chon refused to participate as he sensed that the resolution that would be passed would be against him. Perforce, the alleged board meeting of April 16, 1996 where resolution No. 003 was passed was invalidly and improperly constituted as, by petitioners' own admission, Nam Lip Chon did not participate therein, ergo, there was no quorum. Consequently, Resolution No. 003 allegedly passed and approved during the said board meeting is void ab initio . WHEREFORE, premises considered, petitioner's application for the issuance of a writ of preliminary injunction is hereby DENIED. Thusly, the instant case is DISMISSED for lack of merit. On the matter of the respondents' counter-petition that it should be their resolution passed on the meeting of the board on May 13, 1996 which should be declared legal and proper for purposes of granting respondent Nam Lip Chon the authority to transact with Security Bank, this Hearing Officer finds the same to be meritorious since the said resolution was passed with the necessary quorum as borne by the documents on record, and this is not disputed by petitioners. Accordingly, respondent Nam Lip Chon is authorized to transact business with Security Bank in behalf of the respondent corporation as he is the properly designated officer on the strength of the aforesaid resolution passed and approved in accordance with the Corporation Code. LLjur SO ORDERED. (SGD.) MARCIANO S. BACALLA, JR. Hearing Officer