Lim Che Boon v. Yao Chek

[SEC-SICD * CASE NO. 09-93-4581. January 31, 1995.] LIM CHE BOON, ET AL. , petitioners , vs . YAO CHEK, ET AL. , respondents . LEANDRO BASA, ET AL. , third-party complainants, vs. ALFREDO LONG, ET AL. , third-party respondents . O R D E R For resolution is petitioners' motion to dismiss dated July 7, 1994, as well as the comment thereto dated July 22, 1994 of the respondents/third-party complainants and the petitioners' reply. LLpr The instant motion to dismiss filed by the petitioners is based on the ground that on June 20, 1994, elections were allegedly held among members of the corporation, "The Church in Quezon City" for a new set of directors to sit in its board for the term 1994-1995 and that this has allegedly rendered the instant petition moot and academic. Respondents/third-party complainants in their comment registered no objection to the dismissal of the petition provided the dismissal should be with prejudice allegedly because petitioners and their cohorts are trifling with judicial processes to obtain their objectives of usurping the powers of the duly elected board of directors of the corporation. However, they pray that their counterclaims should not be affected by the dismissal of the petition and instead the said counterclaims should be tried, citing jurisprudence in support thereof. In their reply, petitioners pointed out that respondents/third-party complainants' counterclaims though denominated as compulsory counterclaims which according to the petitioners are ancillary to the principal controversy should likewise be dismissed. It appears that there is no serious dispute with respect to the dismissal of petition because respondents/third-party complainants do not object thereto and the petitioners themselves admitted in their motion to dismiss that their petition has been rendered moot and academic by subsequent events. The first compulsory counterclaim of respondents/third-party complainants' consolidated answer which prays for an award of P500,000.00 as moral damages and the second compulsory counterclaim which prays for an amount of P500,000.00 as attorney's fees are clearly compulsory counterclaims which should be dismissed together with the petition as they both arise out or are necessarily connected with the transaction or occurrence that is the subject matter of the petitioners' claim. Besides, these compulsory counterclaims could not remain pending for independent adjudication by this Commission. The permissive counterclaim in the consolidated answer prays for the return or surrender to the Treasurer and Corporate Secretary the corporate funds and documents allegedly temporarily turned over to petitioner Lim Che Boon does not appear to have arisen out of or is necessarily connected with the transaction or occurrence which is the subject matter of petitioner's claim. Hence, it could remain pending for an independent adjudication by the Commission. "Where the counterclaim is permissive in character, the plaintiff may submit to a voluntary non-suit as to his own course of action, although he cannot, by so doing, terminate the defendant's right to litigate his own counterclaim in a separate action." (Vol. I, San Francisco, Rules of Court, p. 987, citing 17 Am. Jur. 78, Belleza v. Huntington, G.R. No. L-3319, August 16, 1951, 89 Phil. 689). In the light of the foregoing, the instant motion to dismiss is hereby granted with prejudice and the respondents/third-party complainants' compulsory counterclaims are likewise dismissed. SO ORDERED. (SGD.) MANUEL P. PEREA Hearing Officer