Herbert Malmis General Merchandise & Contractor, Inc. v. Cogon Commercial

THIRD DIVISION

[G.R. No. 249707. February 10, 2020.]

HERBERT MALMIS GENERAL MERCHANDISE & CONTRACTOR, INC., REPRESENTED BY ITS PRESIDENT, ENGR. HERBERT MALMIS, petitioner,vs. COGON COMMERCIAL, HEREIN REPRESENTED BY THE HEIRS OF WASON C. LIM, DECEASED, NAMELY: EXPEDITA U. LIM, MARK EDISON U. LIM, * MIKE EDMUND U. LIM, EDWARDSON U. LIM, MACK EMERSON U. LIM and ERICKSON U. LIM, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Third Division, issued a Resolution datedFebruary 10, 2020, which reads as follows:

"G.R. No. 249707 (Herbert Malmis General Merchandise & Contractor, Inc., represented by its president, Engr. Herbert Malmis, Petitioner, v. Cogon Commercial, herein represented by the heirs of Wason C. Lim, deceased, namely: Expedita U. Lim, Mark Edison U. Lim, Mike Edmund U. Lim, Edwardson U. Lim, Mack Emerson U. Lim and Erickson U. Lim, Respondent). — The Court NOTES the Ex-Parte Manifestation dated October 30, 2019, filed by Atty. Florendo C. Columnas, counsel for petitioner, stating that he caused the submission of the soft copy of the motion for extension of time to file petition for review on certiorari through email on October 29, 2019, nevertheless, he is submitting anew a compact disc containing the soft copy of the said motion with hard copy of the verified declaration of completeness.

After a judicious study of the records of the case, the Court resolves to DENY the petition for review for failure of petitioner to show that the Court of Appeals (CA), in its Decision 1 dated 28 June 2019 and Resolution 2 dated 08 October 2019 in CA-G.R. CV No. 05749, committed reversible error in upholding the Decision 3 05 February 2015 of Branch 47, Regional Trial Court (RTC) of Tagbilaran City, in favor of respondent. Likewise, the petition raises questions of fact that are not within the province of this Court. However, to conform with the prevailing jurisprudence, the decision must be modified to include the imposition of interest on the monetary award. 4

WHEREFORE, the assailed Decision dated 28 June 2019 and Resolution dated 08 October 2019 of Court of Appeals in CA-G.R. CV No. 05749, affirming the Decision dated 05 February 2015 rendered by Branch 47, Regional Trial Court of Tagbilaran City, ordering petitioner to either:

1) Return the twenty (20) empty oxygen (12 units) and acetylene (8 units) cylinders to the plaintiff plus to pay a rental of Five Pesos (P5.00) per day computed from the date the thirty (30)-day period to return the cylinders expired, up to the date of filing of the case (Jan. 14, 2009); OR

2) To pay plaintiff the cost or value of the twenty (20) empty cylinders, plus a rental of Five Pesos (P5.00) a day up to December 31, 2008 as computed by the plaintiff, in the total amount of Two Hundred Eighty Seven Thousand Eight Hundred Eighty Five Pesos (P287,855.00) * (Exh. 3).

No award however for damages, litigation expenses and attorneys fees, bad faith not being clearly established. Besides, the general rule is that, there is no premium to litigation.

SO ORDERED.

are hereby AFFIRMED with MODIFICATION. An interest of six percent (6%) per annum is imposed on the total monetary award to be computed from 14 January 2009 until finality of this Resolution, and six percent (6%) per annum computed from the finality of this Resolution until full payment. CAIHTE

SO ORDERED." (Carandang, J., on special leave.)

By authority of the Court:

(SGD.) MISAEL DOMINGO C. BATTUNG IIIDivision Clerk of Court

Footnotes

*Mark Edison U. Lim included as one of the respondents in the title of the case.

* Exhibit 3 in parenthesis inserted in the 2nd paragraph of the quoted CA Decision. The word "premium" is spelled correctly.

1. Rollo, pp. 51-62; penned by Associate Justice Dorothy P. Montejo-Gonzaga and concurred in by Associate Justices Edgardo L. Delos Santos (now a Member of this Court) and Marilyn B. Lagura-Yap of the Eighteenth Division, Court of Appeals, Cebu City.

2. Id. at 74-77.

3. Id. at 29-35; penned by RTC Presiding Judge Suceso A. Arcamo.

4. See Eastern Shipping v. Court of Appeals, G.R. No. 97412, 12 July 1994. "Accordingly, where the demand is established with reasonable certainty, the interest shall begin to run from the time the claim is made judicially or extrajudicially." See also Nacar v. Gallery Frames, G.R. No. 189871, 13 August 2013, where the Court held that when the judgment of the court becomes final and executory, the principal amount shall earn an interest of six percent (6%) per annum from the finality of the decision until full payment, the interim period being "deemed to be by then an equivalent to a forbearance of credit."