Associated Bank v.

CA

G.R. No. 123793

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Republic of the Philippines

G.R. No. 123793 June 29, 1998

PANGANIBAN, J.:
In a merger, does the surviving corporation have a right to enforce a contract entered into by the absorbed company
subsequent to the date of the merger agreement, but prior to the issuance of a certificate of merger by the Securities
and Exchange Commission?
The Case
This is a petition for review under Rule 45 of the Rules of Court, seeking to set aside the Decision 1 of the Court of
Appeals 2 in CA-GR CV No. 26465 promulgated on January 30, 1996, which answered the above question in the
negative. The challenged Decision reversed and set aside the October 17, 1986 Decision 3 in Civil Case No. 8532243, promulgated by the Regional Trial Court of Manila, Branch 48, which disposed of the controversy in favor
of herein petitioner as follows: 4
WHEREFORE, judgment is hereby rendered in favor of the plaintiff Associated Bank. The
defendant Lorenzo Sarmiento, Jr. is ordered to pay plaintiff:
1. The amount of P4,689,413.63 with interest thereon at 14% per annum until fully paid;
2. The amount of P200,000.00 as and for attorney's fees; and
3. The costs of suit.
On the other hand, the Court of Appeals resolved the case in this wise: 5
WHEREFORE, premises considered, the decision appealed from, dated October 17, 1986 is
REVERSED and SET ASIDE and another judgment rendered DISMISSING plaintiff-appellee's
complaint, docketed as Civil Case No. 85-32243. There is no pronouncement as to costs.
The Facts
The undisputed factual antecedents, as narrated by the trial court and adopted by public respondent, are as follows:
6
. . . [O]n or about September 16, 1975 Associated Banking Corporation and Citizens Bank and Trust
Company merged to form just one banking corporation known as Associated Citizens Bank, the

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surviving bank. On or about March 10, 1981, the Associated Citizens Bank changed its corporate
name to Associated Bank by virtue of the Amended Articles of Incorporation. On September 7,
1977, the defendant executed in favor of Associated Bank a promissory note whereby the former
undertook to pay the latter the sum of P2,500,000.00 payable on or before March 6, 1978. As per
said promissory note, the defendant agreed to pay interest at 14% per annum, 3% per annum in the
form of liquidated damages, compounded interests, and attorney's fees, in case of litigation
equivalent to 10% of the amount due. The defendant, to date, still owes plaintiff bank the amount of
P2,250,000.00 exclusive of interest and other charges. Despite repeated demands the defendant
failed to pay the amount due.
xxx xxx xxx
. . . [T]he defendant denied all the pertinent allegations in the complaint and alleged as affirmative
and[/]or special defenses that the complaint states no valid cause of action; that the plaintiff is not
the proper party in interest because the promissory note was executed in favor of Citizens Bank and
Trust Company; that the promissory note does not accurately reflect the true intention and
agreement of the parties; that terms and conditions of the promissory note are onerous and must be
construed against the creditor-payee bank; that several partial payments made in the promissory note
are not properly applied; that the present action is premature; that as compulsory counterclaim the
defendant prays for attorney's fees, moral damages and expenses of litigation.
On May 22, 1986, the defendant was declared as if in default for failure to appear at the Pre-Trial
Conference despite due notice.
A Motion to Lift Order of Default and/or Reconsideration of Order dated May 22, 1986 was filed by
defendant's counsel which was denied by the Court in [an] order dated September 16, 1986 and the
plaintiff was allowed to present its evidence before the Court ex-parte on October 16, 1986.
At the hearing before the Court ex-parte, Esteban C. Ocampo testified that . . . he is an accountant of
the Loans and Discount Department of the plaintiff bank; that as such, he supervises the accounting
section of the bank, he counterchecks all the transactions that transpired during the day and is
responsible for all the accounts and records and other things that may[ ]be assigned to the Loans and
Discount Department; that he knows the [D]efendant Lorenzo Sarmiento, Jr. because he has an
outstanding loan with them as per their records; that Lorenzo Sarmiento, Jr. executed a promissory
note No. TL-2649-77 dated September 7, 1977 in the amount of P2,500,000.00 (Exhibit A); that
Associated Banking Corporation and the Citizens Bank and Trust Company merged to form one
banking corporation known as the Associated Citizens Bank and is now known as Associated Bank
by virtue of its Amended Articles of Incorporation; that there were partial payments made but not
full; that the defendant has not paid his obligation as evidenced by the latest statement of account
(Exh. B); that as per statement of account the outstanding obligation of the defendant is
P5,689,413.63 less P1,000,000.00 or P4,689,413.63 (Exh. B, B-1); that a demand letter dated June 6,
1985 was sent by the bank thru its counsel (Exh. C) which was received by the defendant on
November 12, 1985 (Exh. C, C-1, C-2, C-3); that the defendant paid only P1,000,000.00 which is
reflected in the Exhibit C.
Based on the evidence presented by petitioner, the trial court ordered Respondent Sarmiento to pay the bank his
remaining balance plus interests and attorney's fees. In his appeal, Sarmiento assigned to the trial court several

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errors, namely: 7
I The [trial court] erred in denying appellant's motion to dismiss appellee bank's complaint on the
ground of lack of cause of action and for being barred by prescription and laches.
II The same lower court erred in admitting plaintiff-appellee bank's amended complaint while
defendant-appellant's motion to dismiss appelle bank's original complaint and using/availing [itself
of] the new additional allegations as bases in denial of said appellant's motion and in the
interpretation and application of the agreement of merger and Section 80 of BP Blg. 68, Corporation
Code of the Philippines.
III The [trial court] erred and gravely abuse[d] its discretion in rendering the two as if in default
orders dated May 22, 1986 and September 16, 1986 and in not reconsidering the same upon
technical grounds which in effect subvert the best primordial interest of substantial justice and
equity.
IV The court a quo erred in issuing the orders dated May 22, 1986 and September 16, 1986
declaring appellant as if in default due to non-appearance of appellant's attending counsel who had
resigned from the law firm and while the parties [were] negotiating for settlement of the case and
after a one million peso payment had in fact been paid to appellee bank for appellant's account at the
start of such negotiation on February 18, 1986 as act of earnest desire to settle the obligation in good
faith by the interested parties.
V The lower court erred in according credence to appellee bank's Exhibit B statement of account
which had been merely requested by its counsel during the trial and bearing date of September 30,
1986.
VI The lower court erred in accepting and giving credence to appellee bank's 27-year-old witness
Esteban C. Ocampo as of the date he testified on October 16, 1986, and therefore, he was merely an
eighteen-year-old minor when appellant supposedly incurred the foisted obligation under the subject
PN No. TL-2649-77 dated September 7, 1977, Exhibit A of appellee bank.
VII The [trial court] erred in adopting appellee bank's Exhibit B dated September 30, 1986 in its
decision given in open court on October 17, 1986 which exacted eighteen percent (18%) per annum
on the foisted principal amount of P2.5 million when the subject PN, Exhibit A, stipulated only
fourteen percent (14%) per annum and which was actually prayed for in appellee bank's original and
amended complaints.
VIII The appealed decision of the lower court erred in not considering at all appellant's affirmative
defenses that (1) the subject PN No. TL-2649-77 for P2.5 million dated September 7, 1977, is
merely an accommodation pour autrui of any actual consideration to appellant himself and (2) the
subject PN is a contract of adhesion, hence, [it] needs [to] be strictly construed against appellee bank
assuming for granted that it has the right to enforce and seek collection thereof.
IX The lower court should have at least allowed appellant the opportunity to present countervailing
evidence considering the huge amounts claimed by appellee bank (principal sum of P2.5 million
which including accrued interests, penalties and cost of litigation totaled P4,689,413.63) and
appellant's affirmative defenses pursuant to substantial justice and equity.
The appellate court, however, found no need to tackle all the assigned errors and limited itself to the question of

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"whether [herein petitioner had] established or proven a cause of action against [herein private respondent]."
Accordingly, Respondent Court held that the Associated Bank had no cause of action against Lorenzo Sarmiento
Jr., since said bank was not privy to the promissory note executed by Sarmiento in favor of Citizens Bank and Trust
Company (CBTC). The court ruled that the earlier merger between the two banks could not have vested Associated
Bank with any interest arising from the promissory note executed in favor of CBTC after such merger.
Thus, as earlier stated, Respondent Court set aside the decision of the trial court and dismissed the complaint.
Petitioner now comes to us for a reversal of this ruling. 8
Issues
In its petition, petitioner cites the following "reasons": 9
I The Court of Appeals erred in reversing the decision of the trial court and in declaring that
petitioner has no cause of action against respondent over the promissory note.
II The Court of Appeals also erred in declaring that, since the promissory note was executed in favor
of Citizens Bank and Trust Company two years after the merger between Associated Banking
Corporation and Citizens Bank and Trust Company, respondent is not liable to petitioner because
there is no privity of contract between respondent and Associated Bank.
III The Court of Appeals erred when it ruled that petitioner, despite the merger between petitioner
and Citizens Bank and Trust Company, is not a real party in interest insofar as the promissory note
executed in favor of the merger.
In a nutshell, the main issue is whether Associated Bank, the surviving corporation, may enforce the promissory
note made by private respondent in favor of CBTC, the absorbed company, after the merger agreement had been
signed.
The Court's Ruling
The petition is impressed with merit.
The Main Issue:
Associated Bank Assumed
All Rights of CBTC
Ordinarily, in the merger of two or more existing corporations, one of the combining corporations survives and
continues the combined business, while the rest are dissolved and all their rights, properties and liabilities are
acquired by the surviving corporation. 10 Although there is a dissolution of the absorbed corporations, there is no
winding up of their affairs or liquidation of their assets, because the surviving corporation automatically acquires
all their rights, privileges and powers, as well as their liabilities. 11
The merger, however, does not become effective upon the mere agreement of the constituent corporations. The
procedure to be followed is prescribed under the Corporation Code. 12 Section 79 of said Code requires the
approval by the Securities and Exchange Commission (SEC) of the articles of merger which, in turn, must have
been duly approved by a majority of the respective stockholders of the constituent corporations. The same
provision further states that the merger shall be effective only upon the issuance by the SEC of a certificate of
merger. The effectivity date of the merger is crucial for determining when the merged or absorbed corporation

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ceases to exist; and when its rights, privileges, properties as well as liabilities pass on to the surviving corporation.
Consistent with the aforementioned Section 79, the September 16, 1975 Agreement of Merger, 13 which
Associated Banking Corporation (ABC) and Citizens Bank and Trust Company (CBTC) entered into, provided that
its effectivity "shall, for all intents and purposes, be the date when the necessary papers to carry out this [m]erger
shall have been approved by the Securities and Exchange Commission." 14 As to the transfer of the properties of
CBTC to ABC, the agreement provides:
10. Upon effective date of the Merger, all rights, privileges, powers, immunities, franchises, assets
and property of [CBTC], whether real, personal or mixed, and including [CBTC's] goodwill and
tradename, and all debts due to [CBTC] on whatever act, and all other things in action belonging to
[CBTC] as of the effective date of the [m]erger shall be vested in [ABC], the SURVIVING BANK,
without need of further act or deed, unless by express requirements of law or of a government
agency, any separate or specific deed of conveyance to legally effect the transfer or assignment of
any kind of property [or] asset is required, in which case such document or deed shall be executed
accordingly; and all property, rights, privileges, powers, immunities, franchises and all
appointments, designations and nominations, and all other rights and interests of [CBTC] as trustee,
executor, administrator, registrar of stocks and bonds, guardian of estates, assignee, receiver, trustee
of estates of persons mentally ill and in every other fiduciary capacity, and all and every other
interest of [CBTC] shall thereafter be effectually the property of [ABC] as they were of [CBTC],
and title to any real estate, whether by deed or otherwise, vested in [CBTC] shall not revert or be in
any way impaired by reason thereof; provided, however, that all rights of creditors and all liens upon
any property of [CBTC] shall be preserved and unimpaired and all debts, liabilities, obligations,
duties and undertakings of [CBTC], whether contractual or otherwise, expressed or implied, actual
or contingent, shall henceforth attach to [ABC] which shall be responsible therefor and may be
enforced against [ABC] to the same extent as if the same debts liabilities, obligations, duties and
undertakings have been originally incurred or contracted by [ABC], subject, however, to all rights,
privileges, defenses, set-offs and counterclaims which [CBTC] has or might have and which shall
pertain to [ABC]. 15
The records do not show when the SEC approved the merger. Private respondent's theory is that it took effect on
the date of the execution of the agreement itself, which was September 16, 1975. Private respondent contends that,
since he issued the promissory note to CBTC on September 7, 1977 two years after the merger agreement had
been executed CBTC could not have conveyed or transferred to petitioner its interest in the said note, which was
not yet in existence at the time of the merger. Therefore, petitioner, the surviving bank, has no right to enforce the
promissory note on private respondent; such right properly pertains only to CBTC.
Assuming that the effectivity date of the merger was the date of its execution, we still cannot agree that petitioner
no longer has any interest in the promissory note. A closer perusal of the merger agreement leads to a different
conclusion. The provision quoted earlier has this other clause:
Upon the effective date of the [m]erger, all references to [CBTC] in any deed, documents, or other
papers of whatever kind or nature and wherever found shall be deemed for all intents and purposes,
references to [ABC], the SURVIVING BANK, as if such references were direct references to [ABC]. .
. . 6 (Emphasis supplied)

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Thus, the fact that the promissory note was executed after the effectivity date of the merger does not militate
against petitioner. The agreement itself clearly provides that all contracts irrespective of the date of execution
entered into in the name of CBTC shall be understood as pertaining to the surviving bank, herein petitioner. Since,
in contrast to the earlier aforequoted provision, the latter clause no longer specifically refers only to contracts
existing at the time of the merger, no distinction should be made. The clause must have been deliberately included
in the agreement in order to protect the interests of the combining banks; specifically, to avoid giving the merger
agreement a farcical interpretation aimed at evading fulfillment of a due obligation.
Thus, although the subject promissory note names CBTC as the payee, the reference to CBTC in the note shall be
construed, under the very provisions of the merger agreement, as a reference to petitioner bank, "as if such
reference [was a] direct reference to" the latter "for all intents and purposes."
No other construction can be given to the unequivocal stipulation. Being clear, plain and free of ambiguity, the
provision
must
be
given
its
literal
meaning 17 and applied without a convoluted interpretation. Verba lelegis non est recedendum. 18
In light of the foregoing, the Court holds that petitioner has a valid cause of action against private respondent.
Clearly, the failure of private respondent to honor his obligation under the promissory note constitutes a violation
of petitioner's right to collect the proceeds of the loan it extended to the former.
Secondary Issues:
Prescription, Laches, Contract
Pour Autrui, Lack of Consideration
No Prescription
or Laches
Private respondent's claim that the action has prescribed, pursuant to Article 1149 of the Civil Code, is legally
untenable. Petitioner's suit for collection of a sum of money was based on a written contract and prescribes after ten
years from the time its right of action arose. 19 Sarmiento's obligation under the promissory note became due and
demandable on March 6, 1978. Petitioner's complaint was instituted on August 22, 1985, before the lapse of the
ten-year prescriptive period. Definitely, petitioner still had every right to commence suit against the payor/obligor,
the private respondent herein.
Neither is petitioner's action barred by laches. The principle of laches is a creation of equity, which is applied not to
penalize neglect or failure to assert a right within a reasonable time, but rather to avoid recognizing a right when to
do so would result in a clearly inequitable situation 20 or in an injustice. 21 To require private respondent to pay
the remaining balance of his loan is certainly not inequitable or unjust. What would be manifestly unjust and
inequitable is his contention that CBTC is the proper party to proceed against him despite the fact, which he
himself asserts, that CBTC's corporate personality has been dissolved by virtue of its merger with petitioner. To
hold that no payee/obligee exists and to let private respondent enjoy the fruits of his loan without liability is surely
most unfair and unconscionable, amounting to unjust enrichment at the expense of petitioner. Besides, this Court
has held that the doctrine of laches is inapplicable where the claim was filed within the prescriptive period set forth
under the law. 22
No Contract
Pour Autrui

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Private respondent, while not denying that he executed the promissory note in the amount of P2,500,000 in favor of
CBTC, offers the alternative defense that said note was a contract pour autrui.
A stipulation pour autrui is one in favor of a third person who may demand its fulfillment, provided he
communicated his acceptance to the obligor before its revocation. An incidental benefit or interest, which another
person gains, is not sufficient. The contracting parties must have clearly and deliberately conferred a favor upon a
third person. 23
Florentino vs. Encarnacion Sr. 24 enumerates the requisites for such contract: (1) the stipulation in favor of a third
person must be a part of the contract, and not the contract itself; (2) the favorable stipulation should not be
conditioned or compensated by any kind of obligation; and (3) neither of the contracting parties bears the legal
representation or authorization of the third party. The "fairest test" in determining whether the third person's
interest in a contract is a stipulation pour autrui or merely an incidental interest is to examine the intention of the
parties as disclosed by their contract. 25
We carefully and thoroughly perused the promissory note, but found no stipulation at all that would even resemble
a provision in consideration of a third person. The instrument itself does not disclose the purpose of the loan
contract. It merely lays down the terms of payment and the penalties incurred for failure to pay upon maturity. It is
patently devoid of any indication that a benefit or interest was thereby created in favor of a person other than the
contracting parties. In fact, in no part of the instrument is there any mention of a third party at all. Except for his
barefaced statement, no evidence was proffered by private respondent to support his argument. Accordingly, his
contention cannot be sustained. At any rate, if indeed the loan actually benefited a third person who undertook to
repay the bank, private respondent could have availed himself of the legal remedy of a third-party complaint. 26
That he made no effort to implead such third person proves the hollowness of his arguments.
Consideration
Private respondent also claims that he received no consideration for the promissory note and, in support thereof,
cites petitioner's failure to submit any proof of his loan application and of his actual receipt of the amount loaned.
These arguments deserve no merit. Res ipsa loquitur. The instrument, bearing the signature of private respondent,
speaks for itself. Respondent Sarmiento has not questioned the genuineness and due execution thereof. No further
proof is necessary to show that he undertook to pay P2,500,000, plus interest, to petitioner bank on or before
March 6, 1978. This he failed to do, as testified to by petitioner's accountant. The latter presented before the trial
court private respondent's statement of account 27 as of September 30, 1986, showing an outstanding balance of
P4,689,413.63 after deducting P1,000,000.00 paid seven months earlier. Furthermore, such partial payment is
equivalent to an express acknowledgment of his obligation. Private respondent can no longer backtrack and deny
his liability to petitioner bank. "A person cannot accept and reject the same instrument." 28
WHEREFORE, the petition is GRANTED. The assailed Decision is SET ASIDE and the Decision of RTC-Manila,
Branch 48, in Civil Case No. 26465 is hereby REINSTATED.
SO ORDERED.
Davide, Jr., Bellosillo, Vitug and Quisumbing, JJ., concur.