Salvador Betasolo, et al., vs. Rodolfo Bernal, et al.

[SEC-SICD * CASE NO. 3303. August 31, 1990.] SALVADOR BETASOLO, ET AL. , petitioners , vs . RODOLFO BERNAL, ET AL. , respondents . D E C I S I O N The petition alleges that respondent Rodolfo Bernal is holding the position and exercising the functions of President of Marikina, Pasig, Pateros Operators and Drivers Association, Inc. hereinafter referred to as (MAPAPODA) without the benefit of an election duly called and held and in violation of the lawful order of this Commission, and that respondent Anatacio Luto is acting as the Bookkeeper, Operations and General Manager of MAPAPODA and holds and keeps the books and funds of the association. cdtech Further, petitioners claim that despite their repeated requests, respondents refused to have the funds and books of the association audited and inspected by the petitioners and to account said funds; that instead, petitioners are merely advised by respondents that the association has a meager balance left in the bank and respondents never disclosed that the funds of the association are disbursed; that petitioners in faithful compliance with their obligations under the by-laws of the association and per agreement between its members, deposit to the association and its agencies the sum of P2.00 for every trip made by the petitioners, aside from paying other dues for the benefit of the entire membership of the association. That, contrary to the provisions of the by-laws of the association and agreement between the members, the benefits accruing to the members have not been given to petitioners by respondents more particularly the deposits made to the association by each driver for every trip, which deposits were to be refunded to the members at the end of the year, without deduction; that being legitimate members of the association particularly the deposits held in trust by the association, as well as its profits, and that such properties and profits are in danger of being removed, materially injured and manipulated to the prejudice of petitioners and of the general public unless a receiver is appointed to guard and preserve the funds and assets of respondent association especially that respondents Rodolfo Bernal and Anatacio Luto are usurping the functions of President and Bookkeeper, Operations and General Manager. The appointment of a receiver is the most convenient and feasible means of preserving and administering the properties of the association. On October 1, 1987, the Corporate and Legal Department of this Commission directed the members of the association to hold the election of its officers; that likewise on January 9, 1988, the association held its election and elected the officers of the association for the year 1988-1989. On January 10, 1988, a majority of those elected officers of the association, including the newly elected Secretary informed respondent Rodolfo Bernal that the newly elected officers which constitute the board of directors shall hold its meeting on January 14, 1988; that at the meeting of the board of directors, some petitioners inquired from respondent the books of account and funds of the association, petitioner Ernesto Pago, as the newly elected auditor of the association requested respondent Rodolfo Bernal that he be allowed to inspect the books of the association as mandated by the by-laws; that respondent Rodolfo Bernal, without bothering to answer the queries and requests of petitioners, whimsically and capriciously declared that they are not elected officers of the association and thereafter unilaterally adjourned the said meeting; that respondent Rodolfo Bernal barred the petitioners from assuming and exercising their functions as officers and members of the board of directors and without informing the general membership, respondent Rodolfo Bernal unlawfully conducted another election and appointed the officers of the association. Respondent filed their answer and opposition to the application for receivership and alleged as affirmative defenses that petitioners compose of recalcitrant and disgruntled group who are personally motivated in grabbing the leadership of the association and in fact, petitioners, are also officers and directors of a similar association that exactly duplicated the operations of respondent operation. The instant petition is a sinister and petitioners' scheme to consolidate their control over respondent corporation and thru their own corporation which they surreptitiously registered with this Commission. On February 24, 1989, counsel for the petitioners filed a motion to exclude the Marikina, Pasig, Pateros Operators and Drivers Association (MAPAPODA) as party respondent. Thereafter, an order was issued excluding MAPAPODA as respondent in this case. Several hearings were conducted where both parties presented their evidence. However, while petitioners made their formal offer, respondents failed to formally offer its evidence notwithstanding sufficient time and opportunity to do so. Anent the appointment of a receiver it must be noted that the power to appoint the same is a delicate one and should be exercised with extreme caution and only under circumstances requiring summary relief as where the Commission is satisfied that there is imminent danger of loss, and the injury thereby caused be far greater than the injury sought to be averted. Jurisprudence is replete with rulings to the effect that the power to appoint a receiver should be exercised with great care and with the utmost caution, and only in case of emergency or while imperative necessity requires it. From the evidence on hand, it appears that there exist no sufficient basis to warrant the appointment of a receiver. Further, the issue of holding another election and to enjoin the respondents from further interfering with the operations of MAPAPODA has been rendered moot and academic in view of the resolution passed by the directors, officers and members of the association last July 18, 1988 removing respondent Rodolfo Bernal as President. Conformably, the operations of MAPAPODA are now being managed by the incumbent officers and directors led by petitioner Salvador Betasolo as President. Moreover, the evidence adduced by the petitioners clearly established their entitlement to an accounting, audit and inspection of the books and funds of MAPAPODA. WHEREFORE, judgment is hereby rendered directing respondents Rodolfo Bernal and Anatacio Luto to render an accounting and allowing the petitioners or their legal representative to audit and inspect all the books, funds and other pertinent records of MAPAPODA. No pronouncement as to costs. SO ORDERED. (SGD.) ENRIQUE L. FLORES, JR. Hearing Officer