Evelyn L. Perlas, et al. vs. Dominador D. Lacerna, Jr., et al.

[SEC-SICD * CASE NO. 3575. August 27, 1990.] EVELYN L. PERLAS, ET AL. , complainants , vs . DOMINADOR D. LACERNA, JR., ET AL. , respondents . D E C I S I O N This is an amended complaint seeking that judgment be rendered ordering the respondents (1) to submit an inventory of assets; (2) to submit an updated financial statement; (3) to submit an accounting to determine networth; (4) to submit a disposition of shares of stock; and likewise, for this Honorable Commission; (5) to order the annulment, cancellation or declaration of nullity of sale pertaining to "Sakamura Restaurant"; (6) to order imposition of penalties on erring officers of the corporation; and (7) to grant such further relief as may be deemed just, proper and equitable. prcd In support thereof, complainants alleged, among others, that "Porvenir Foods, Inc." (Porvenir, for brevity) is a firm duly registered with the Securities and Exchange Commission with the complainant Evelyn L. Perlas, respondents Dominador Lacerna, Jr. and Cynthia L. Pineda, Belen D. Lacerna and Emilio Tuazon, Sr. as the original incorporators and officers of the corporation and members of the Board of Directors; that on September 20, 1981, Belen D. Lacerna, the Treasurer, died leaving 420 shares of stock where the complainants and respondents, with other persons not parties herein, are forced heirs; that in the course of the business, Porvenir operating "Sakamura Restaurant", acquired a house and lot in BF Executive Village, and received a fixed cash refund in the sum of P84,061.38 from Banco Filipino; that in 1982, the Sakamura Restaurant was fraudulently sold by the respondents to respondent Custodio for only P20,000.00 but its operation remains with respondents Lacerna, Jr. and Pineda; that in 1988, the house and lot owned by Porvenir were sold by the respondents for P1,000,000.00 and that since the inception of the business, there has not been any inventory of assets, accounting, dividends, financial statements, change of officers and directors of the Porvenir. In the answer with compulsory counterclaim, respondents specifically denied the material averments in the complaint alleging, inter alia, that Belen D. Lacerna, who died on September 20, 1981, has already transferred her 420 shares of stock in the corporation on January 30, 1981 to respondent Lacerna, Jr. as evidenced by certificate of stock dated January 15, 1975; that it was complainant Iigo who was solely benefited by the sale of Sakamura Restaurant to respondent Custodio who never got her share therein; and by way of special and/or affirmative defenses, respondents state that the complainants have no capacity to sue; that the complainants are not the real parties in-interest; that complainants are guilty of estoppel; and that the instant action is a nuisance suit. There is no question that complainant Iigo, who is not a stockholder of record of Porvenir Food, Inc., has no legal capacity to bring the instant suit against the respondents who are stockholders of the corporation. Not being a stockholder of the corporation, complainant Iigo has no intra-corporate relation with the respondents and hence, no intra-corporate dispute could possibly arise between them within the purview of P.D. 902-A. prLL Respondents' contention that complainant Perlas also has no legal personality to file the instant suit is premised on the allegation of the respondents that her certificate of stock covering twenty (20) shares of stock of Porvenir Foods, Inc. has already been transferred in favor of respondent Lacerna, Jr. by endorsing the said certificate on July 23, 1982. The said transfer has been approved by the Board of Directors at its special meeting and certified by respondent Pineda as the Corporate Secretary attesting to the approval of the transfer of the shares in favor of respondent Lacerna, Jr. To rebut the argument of the respondents, complainants cited a portion of the testimony of respondent Lacerna, Jr. in which he said complainant Perlas transferred her shares to him in 1981 when the correct date of transfer was on July 23, 1982. Complainants likewise stressed how respondent Lacerna, Jr. tried to evade the issue of whether or not there was consideration involved in the transaction. And on the allegation that respondents Lacerna, Jr. and Pineda were both present when complainant Perlas endorsed her stock certificate to respondent Lacerna, Jr., respondent Pineda could not, when asked, categorically state and attest to the fact that she saw complainant Perlas affixed her signature on the certificate of stock. A closer look and analysis of the evidence and the testimonies of witnesses will show that respondent Lacerna, Jr.'s failure to state the exact date the certificate of stock was endorsed to him by complainant Perlas may be attributed to the length of time separating the date of endorsement of the certificate of stock on July 23, 1982 and his testimony as a witness on March 3, 1990. Such a mistake in remembering the exact date of the endorsement of the certificate of stock which happened more than seven (7) years ago is not sufficient to render the transaction invalid, considering that the existence of the certificate, the genuineness of the signature of the endorser and the entry of the transfer of the shares of stock in the corporate book were not disproved by the complainants. The reason as well as the motive behind the transfer, including the consideration or the lack of it; should not really concern the Commission in resolving the issue because before it is the certificate of stock which has been properly endorsed by its owner. In passing it may also be said that a certificate of stock endorsed in blank gives the holder of the certificate the right to place his/her name thereon as endorsee. On the contention of the complainants that the respondents failed to clarify the exact date of the transfer of the shares of stock of complainant Perlas to respondent Lacerna, Jr. and that the Board's approval of the transfer was merely invented by the respondents, suffice it to say that it was merely a conclusion of the complainants which was not substantiated with concrete evidence. Considering that complainant Iigo has no legal capacity to bring this action and that complainant Perlas ceased to be stockholder of Porvenir Foods, Inc. when she endorsed her certificate of stock to respondent Lacerna, Jr. on July 23, 1982, there is no more valid reason to resolve the other issues including the transfer of the certificate of stock of Belen Lacerna to respondent Lacerna, Jr., and the validity of the sale of Sakamura Restaurant to respondent Custodio on the ground that the complainants have no legal capacity to institute the present suit against the respondents. dctai There being no intra-corporate dispute between the complainants and the respondents in the instant case within the purview of P.D. 902-A, this Commission has no jurisdiction over the persons of the complainants who were not stockholders of Porvenir Foods, Inc. when this case was instituted (Union Glass and Container Corp. vs. Securities and Exchange Commission, G.R. No. L-64013, November 28, 1983 and Sunset View Condominium Corp. vs. Campos, Jr., G.R. No. 52361, April 27, 1981). WHEREFORE, the instant case should be, as it is hereby, DISMISSED. SO ORDERED. (SGD.) MANUEL P. PEREA Hearing Officer