Engineering Equipment, Inc. vs. Bagwis Air Cargo Services Inc., et al.

[SEC-SICD * CASE NO. 1865. August 5, 1981.] ENGINEERING EQUIPMENT, INC. , petitioner , vs . BAGWIS AIR CARGO SERVICES INC. and URSO D. BELLO, ALBERTO V. JOCSON JOSEFINA SALVACRUZ, MANUEL B. LUKBAN LINA ENRIQUEZ BELLO and MILAGROS ESPINILLI LUKBAN , respondents . D E C I S I O N This is an action filed by petitioner Engineering Equipment, Inc. against Bagwis Air Cargo Services, Inc. and its stockholders to compel the latter to pay their unpaid subscriptions to respondent corporation. It appears that in Engineering Equipment, Inc. versus Bagwis Air Cargo & Services, Inc., docketed as Civil Case No. 28811 of the Court of First Instance of Rizal, Branch XX, Judge Numeriano O. Estenzo rendered a judgment ordering respondent corporation to pay petitioner the amount of Twenty Thousand (P20,000.00) Pesos. As judgment creditor, petitioner filed this instant suit to compel the stockholders of respondent Bagwis Air Cargo Services, Inc. to pay their unpaid subscriptions invoking the trust fund doctrine in order that petitioner may be paid the amount stated in the aforementioned decision. Respondent Bagwis Air Cargo Services, Incorporated is a corporation primarily engaged in operating pick-up and delivery services on air freight shipments. It was incorporated on August 25, 1972 with an authorized capital stock of One Hundred Thousand (P100,000.00) Pesos divided into one thousand (1,000) shares. At the time of its incorporation, four hundred shares (400) in the amount of Forty Thousand (P40,000.00) Pesos had been subscribed of which one hundred (100) shares in the amount of Ten Thousand (P10,000.00) Pesos had been paid. What transpired in respondent corporation after its incorporation is borne out by the evidence presented during the trial. It was adduced that on December 1, 1972, respondent corporation petitioned the Securities and Exchange Commission for exemption from the registration requirements of the Securities Act to sell its Fifty Thousand (P50,000.00) Pesos worth of unissued shares which the Commission granted through a resolution dated December 5, 1972 (Exh. B). As of 1975, as reflected in the Balance Sheet dated December 31, 1975; the capital stock paid-in of respondent corporation is Ninety-Thousand (P90,000.00) Pesos with a remaining unissued capital stock in the amount of Ten Thousand (P10,000.00) Pesos (Exh. 19-B). On March 28, 1977, Capt. Alberto V. Jocson addressed a letter to the Securities and Exchange Commission requesting authority to sell the remaining unissued one hundred (100) shares of the corporation worth Ten Thousand (P10,000.00) Pesos. Witness for the respondents testified that the aforementioned remaining shares amounting to Ten Thousand (P10,000.00) Pesos had already been paid, hence there was an increase in the payment of the subscribed capital stock from Ten Thousand (P10,000.00) Pesos to Ninety Thousand (P90,000.00) Pesos and subsequently, to One Hundred Thousand (P100,000.00) Pesos, making the total authorized capital stock of One Hundred Thousand (P100,000.00) Pesos fully paid. For one reason or another, respondent corporation ceased active operations. Petitioner claims that out of the original subscription of four hundred (400) shares amounting to Forty Thousand (P40,000.00) Pesos, only Ten Thousand (P10,000.00) Pesos had been paid, leaving a balance of Thirty Thousand (P30,000.00) Pesos, which, it further claims, is the only remaining asset of the corporation and which it is compelling respondent-stockholders to pay. This allegation however, is negated by the evidence presented by respondents as may be seen from above. The evidence further shows that as of February 12, 1976, spouses Manuel B. Lukban and Milagros Espinilli Lukban were no longer stockholders in respondent corporation. Their stockholdings representing one-third of the entire capitalization of the corporation were sold to respondents Alberto Jocson and Urso Bello. The sole issue in this case as to whether or not the stockholders of record of respondent Bagwis Air Cargo Services, Incorporated have fully paid their original subscriptions is, therefore, answered in the positive. WHEREFORE, considering that this action was filed by petitioner under the trust fund doctrine in order that respondent corporation may be able to pay its indebtedness, and considering that the evidence presented show that respondent-stockholders have already fully paid their original and subsequent subscriptions, the petition is, as it is, hereby ordered DISMISSED, with no pronouncement as to costs. SO ORDERED. (SGD.) FE ELOISA C. GLORIA Hearing Officer