Soriano v. Rural Bank of San Miguel, Inc.

[SEC-SICD * CASE NO. 4314. March 11, 1994.] ANTONIO MA. P. SORIANO , complainant , vs .RURAL BANK OF SAN MIGUEL, INC.,ET AL. , respondents . D E C I S I O N This is a complaint for specific performance and reconveyance of shares of stock with prayer for damages which the respondents opposed in their answer filed with this Commission. dctai Prior to the filing of answer, respondents filed a motion to dismiss the complaint on October 20, 1992 which this Hearing Officer denied on December 17, 1993 for lack of merit. Upon admission of the answer after the denial of complainant's motion to declare respondent in default preliminary conference was initially set on April 13, 1993 and later reset to April 26, 1993. It was upon respondents' failure to appear at the May 11, 1993 preliminary conference, despite notice, that respondents were declared in default during the June 1, 1993 preliminary conference, for repeated failure to appear at the scheduled preliminary conference. Notice of default order was sent and received by the counsel for the respondents on June 15, 1993 but respondents made no response or reaction to the said order. Hence, the reception of evidence ex-parte for the complainant. Complainant, the lone witness presented, testified on various points to prove his allegations in the complaint. Among the allegations which the complainant testified upon delved on the shareholding of the stockholders and their divestment allegedly perpetrated by respondents Hilario Ma. P. Soriano and Luzviminda L. Cabungcal, as President and Chairman, and Corporate Secretary, respectively, of the respondent bank. Complainants presented and testified as to the list of stockholder of the Rural Bank of San Miguel, Inc. (RBSM),and their individual subscription (Exhibit "B") to prove the equity participation of complainant's parents Tomas Q. Soriano (T.Q.S.) and Josefina P. Soriano (J.P.S.),particularly that of the complainant's shareholdings of 311 shares. Also testified to by the complainant is his additional subscription to 220 shares of stock in the RBSM (Exhibits "E" and "E-1") and the endorsement on June 1, 1985 of the Stock Certificate No. 8 of T.Q.S. in favor of the complainant (Exhibits "E" to "E-1"),on the alleged waiver of pre-emptive right to subscribe to the increase of capital of RBSM, complainant presented Exhibits "L to L-4" on the alleged forgery of complainant's signature on the waiver, the spurious notarization of the waiver and the specimen signature of the complainant, as well as his signature appearing on his Bankard, to prove and show the difference of the signatures appearing in the waiver and his specimen signature. He also testified on the increase of the RBSM authorized capital stock, the subscription of the stockholders and the alleged divestment of complainant's shares and that of his parents, as well as the alleged acquisition by respondent Hilario P. Soriano of RBSM shares which are allegedly prejudicial to the interest of the stockholders. Based on the evidence adduced by the complainant, this Hearing Officer finds merit in his testimony regarding his shareholdings in RBSM totaling 1,531 shares which are all properly documented and covered by Exhibits "B","E" and "E-1".The endorsement of 1,000 shares owned by TQS in favor of the complainant is likewise supported by Exhibits "F" to "F-4".All the respondents did was to state in their answer that the complainant's shareholdings in the respondent bank have been reduced to zero balance occasioned by the transfers of his shares in favor of Hilario Soriano and that there was no valid transfer of certificate of share No. 8 for 1,000 shares of the late TQS in favor of the complainant without substantiating the said allegations. In the absence of any proof to the contrary, the complainant is considered to be the rightful owner of 1,531 shares of stock of RBSM. On the alleged waiver of pre-emptive right to the increases in the authorized capital stock of the respondent bank where the complainant's signature and that of the notary public were allegedly forged, the mere presentation of the specimen signature by the complainant for the purpose of comparison with the signature appearing in the waiver of pre-emptive right will not suffice to establish the forgery of complainant's signature on the waiver of pre-emptive right. This calls for the testimony of an expert witness and this Hearing Officer is incompetent to make any comment on the alleged forgery. In both cases, the applicable and pertinent provisions of law covering the matter appears to be the provisions of Section 5(M) and (P), Rule 131 of the Rules of Court, which provide Section 5 Disputable presumptions. "The following presumptions are satisfactory if uncontradicted, but may be overcome by other evidence. xxx xxx xxx (M) That official duty has been regularly performed; and xxx xxx xxx (P) That private transactions have been fair and regular." On the strength of the afore-quoted provisions, it can then be said that the issuance of the list of stockholders of RBSM containing the name of the complainant Antonio P. Soriano who owns 311 shares of RBSM (Exh. "B-1"),complainant's additional subscription of 220 shares (Exh. "E-1") and the endorsement of 1,000 shares of TQS in favor of the complainant are presumed by law to be regular private transactions, notwithstanding respondents' effort to deny the same in their answer but were not proven by other evidence. Hence, their regularity is presumed. However, the questioned divestment of shares of other stockholders allegedly committed by respondents Hilario P. Soriano and Luzviminda Cabungcal could not be resolved in this case considering that they are not parties to the instant case. On the complainant's allegation that his signature on the waiver of pre-emptive right to subscribe to the proposed increase of capital stock of RBSM from P2.M to P5.M and the notarization thereon as spurious, said document marked as Exhibit "L" likewise enjoys the presumption of regularity, despite the presentation of complainant's specimen signature as no one was ever presented to prove the forgery. On the basis alone of the specimen signature furnished by the complainant, this Hearing Officer is not in a position to say whether or not the complainant's signature is forged and the notarization thereon is spurious. Hence, the questioned waiver of pre-emptive right is deemed regularly executed. In the light of the foregoing, respondents are hereby directed to reconvey in favor of the complainant One Thousand Five Hundred Thirty One (1,531) common shares in the respondent Rural Bank of San Miguel, Inc. LLpr NO COSTS. SO ORDERED. (SGD.) MANUEL P. PEREA Hearing Officer