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VOL. 164, AUGUST 11, 1988 247

People’s Bank and Trust Co. vs. Syvel’s Incorporated

*
No. L-29280. August 11, 1988.

PEOPLE’S BANK AND TRUST COMPANY, plaintiff-

appellee, vs. SYVEL’S INCORPORATED, ANTONIO Y.
SYYAP and ANGEL Y SYYAP, defendants-appellants.

Civil Law; Obligations; Novation; When does novation take

place; Novation is never presumed.—Novation takes place when
the object or principal condition of an obligation is changed or
altered. It is elementary that novation is never presumed; it must
be explicitly stated or there must be manifest incompatibility
between the old and the new obligations in every aspect (Goni v.
CA, 144 SCRA 223 [1986]; National Power Corp. v. Dayrit, 125
SCRA 849 [1983]).
Same; Same; Same; Absence of existence of an explicit
novation nor incompatibility between the old and the new
agreements.—In the case at bar, there is nothing in the Real
Estate Mortgage which supports appellants’ submission. The
contract on its face does not show the existence of an explicit
novation nor incompatibility on every point between the “old” and
the “new agreements as the second contract evidently indicates
that the same was executed as new additional security to the
chattel mortgage previously entered into by the parties.
Same; Same; Same; Novation was not intended in the case at
bar as the real estate mortgage was taken as additional security
for the performance of the contract.—It is clear, therefore, that a
novation was not intended. The real estate mortgage was
evidently taken as additional security for the performance of the
contract (Bank of P.I. v. Herrige, 47 Phil. 57).
Remedial Law; Special Civil Actions; Attachment; Grant or
denial of a writ of attachment rests upon the sound discretion of
the court.—In the determination of the legality of the writ of
attachment by the Court of First Instance of Manila, it is a well
established rule that the grant or denial of a writ of attachment
rests upon the sound discretion of the court. Records are bereft of
any evidence that grave abuse of discretion was committed by
respondent judge in the issuance of the writ of attachment.
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_______________

* SECOND DIVISION.

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248 SUPREME COURT REPORTS ANNOTATED

People’s Bank and Trust Co. vs. Syvel’s Incorporated

Same; Same; Same; The attachment grounded on the actual

removal of property is justified when there is physical removal
thereof by the debtor.—Appellants contend that the affidavits of
Messrs. Rivera and Berenguer on which the lower court based the
issuance of the writ of preliminary attachment relied on the
reports of credit investigators sent to the field and not on the
personal knowledge of the affiants. Such contention deserves
scant consideration. Evidence adduced during the trial strongly
shows that the witnesses have personal knowledge of the facts
stated in their affidavits in support of the application for the writ.
They testified that Syvel’s Inc. had disposed of all the articles
covered by the chattel mortgage but had not remitted the
proceeds to appellee bank; that the Syvel’s Stores at the Escolta,
Rizal Avenue and Morayta Street were no longer operated by
appellants and that the latter were disposing of their properties to
defraud appellee bank. Such testimonies and circumstances were
given full credit by the trial court in its decision (Brief for
Appellee, p. 14). Hence, the attachment sought on the ground of
actual removal of property is justified where there is physical
removal thereof by the debtor, as shown by the records
(McTaggert v. Putnam Corset Co., 8 N.Y. S 800 cited in Moran,
Comments on the Rules of Court, 1970 Ed., Vol. 3, p. 7.
Same; Same; Same; Same; Fraudulent concealment of
property to delay and defraud creditors supports the attachment.—
Besides, the actuations of appellants were clearly seen by the
witnesses who “saw a Fiat Bantam Car—fiat Car, a small car and
about three or four persons hurrying; they were carrying goods
coming from the back portion of this store of Syvel’s at the
Escolta, between 5:30 and 6:30 o’clock in the evening.” (Record on
Appeals, pp. 45-46). Therefore, “the act of debtor (appellant) in
taking his stock of goods from the rear of his store at night, is
sufficient to support an attachment upon the ground of the
fraudulent concealment of property for the purpose of delaying
and defrauding creditors.” (4 am. Jur., 841 cited in Francisco,
Revised Rules of Court, Second Edition, 1985, p. 24).
Same; Same; Same; Same; Same; Intent to defraud is inferred
from facts and circumstances of the case; Principle that every
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person is presumed to intend the natural consequences of his acts.

—In any case, intent to defraud may be and usually is inferred
from the facts and circumstances of the case; it can rarely be
proved by direct evidence. It may be gleaned also from the
statements and conduct of the debtor, and in this connection, the
principle may be applied that every person is presumed to intend
the natural consequences of his

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People’s Bank and Trust Co. vs. Syvel’s Incorporated

acts (Francisco, Revised Rules of Court, supra, pp. 24-25). In fact

the trial court is impressed “that not only has the plaintiff acted
in perfect good faith but also on facts sufficient in themselves to
convince an ordinary man that the defendants were obviously
trying to spirit away a portion of the stocks of Syvel’s
Incorporated in order to render ineffectual at least partially any
judgment that may be ren dered in favor of the plaintiff.”
(Decision, Civil Case No. 68095; Record on Appeal, pp. 88-89).
Same; Same; Same; Damages; Where evidence of bad faith or
malice in the procurement of the writ of preliminary attachment is
absent, the claim for damages is not proper.—Appellants having
failed to adduce evidence of bad faith or malice on the part of
appellee in the procurement of the writ of preliminary
attachment, the claim of the former for damages is evidently
negated. In fact, the allegations in the appellee’s complaint more
than justify the issuance of the writ of attachment.

APPEAL from the decision of the Court of First Instance of

Manila, Br. XII.

The facts are stated in the opinion of the Court.

     Araneta, Mendoza & Papa for plaintiff-appellee.
     Quasha, Asperilla, Zafra, Tayag & Ancheta for defen-
dants-appellants.

PARAS, J.:

This is an appeal from the decision dated May 16, 1968

rendered by the Court of First Instance of Manila, Branch
XII in Civil Case No. 68095, the decretal portion of which
states:

“IN VIEW OF THE FOREGOING, judgment is rendered sen-

tencing all the defendants to pay the plaintiff jointly and severally
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the sum of P601,633.01 with interest thereon at the rate of 11%

per annum from June 17, 1967, until the whole amount is paid,
plus 10% of the total amount due for attorney’s fees and the costs
of suit. Should the defendants fail to pay the same to the plaintiff,
then it is ordered that all the effects, materials and stocks covered
by the chattel mortgages be sold at public auction in conformity
with the provisions of Sec. 14 of the Chattel Mortgage Law, and
the proceeds thereof applied to satisfy the judgment herein
rendered. The counter-claim of the defendants, upon the evidence
presented and in the light

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People’s Bank and Trust Co. vs. Syvel’s Incorporated

of the authorities above cited, is dismissed for lack of merit.

“SO ORDERED.”
(pp. 89-90, Record on Appeal; p. 15, Rollo)

The facts of the case based on the statement of facts, made

by the trial court in its decision as cited in the briefs of both
parties are as follows:

“This is an action for foreclosure of chattel mortgage executed in

favor of the plaintiff by the defendant Syvel’s Incorporated on its
stocks of goods, personal properties and other materials owned by
it and located at its stores or warehouses at No. 406, Escolta,
Manila; Nos. 764-766 Rizal Avenue, Manila; Nos. 10-11 Cartimar
Avenue, Pasay City; No. 886 Nicanor Reyes, Sr. (formerly
Morayta), Manila; as evidenced by Annex ‘A.’ The chattel
mortgage was duly registered in the corresponding registry of
deeds of Manila and Pasay City. The chattel mortgage was in
connection with a credit commercial line in the amount of
P900,000.00 granted the said defendant corporation, the expiry
date of which was May 20, 1966. On May 20, 1965, defendants
Antonio V. Syyap and Angel Y. Syyap executed an undertaking in
favor of the plaintiff whereby they both agreed to guarantee
absolutely and unconditionally and without the benefit of
excussion the full and prompt payment of any indebtedness to be
incurred on account of the said credit line. Against the credit line
granted the defendant Syvel’s Incorporated the latter drew
advances in the form of promissory notes which are attached to
the complaint as Annexes ‘C’ to ‘I.’ In view of the failure of the
defendant corporation to make payment in accordance with the
terms and conditions agreed upon in the Commercial Credit
Agreement the plaintiff started to foreclose extrajudicially the
chattel mortgage. However, because of an attempt to have the
matter settled, the extra-judicial foreclosure was not pushed thru.
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As no payment had been paid, this case was eventually filed in

this Court.
“On petition of the plaintiff based on the affidavits executed by
Mr. Leopoldo R. Rivera, Assistant Vice President of the plaintiff
bank and Atty. Eduardo J. Berenguer on January 12, 1967, to the
effect, among others, that the defendants are disposing of their
properties with intent to defraud their creditors, particularly the
plaintiff herein, a preliminary writ of attachment was issued. As a
consequence of the issuance of the writ of attachment, the
defendants, in their answer to the complaint set up a compulsory
counterclaim for damages.
“After the filing of this case in this court and during its
pendency defendant Antonio v. Syyap proposed to have the case
settled amica-

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People’s Bank and Trust Co. vs. Syvel’s Incorporated

bly and to that end a conference was held in which Mr. Antonio de
las Alas, Jr., Vice President of the Bank, plaintiff, defendant
Antonio V. Syyap and Atty. Mendoza were present. Mr. Syyap
requested that the plaintiff dismiss this case because he did not
want to have the goodwill of Syvel’s Incorporated impaired, and
offered to execute a real estate mortgage on his real property
located in Bacoor, Cavite. Mr. De las Alas consented, and so the
Real Estate Mortgage, marked as Exhibit A, was executed by the
defendant Antonio V. Syyap and his wife Margarita Bengco Syyap
on June 22, 1967. In that deed of mortgage, defendant Syyap
admitted that as of June 16, 1967, the indebtedness of Syvel’s
Incorporated was P601,633.01, the breakdown of which is as
follows: P568,577.76 as principal and P33,055.25 as interest.
Complying with the promise of the plaintiff thru its Vice
President to ask for the dismissal of this case, a motion to dismiss
this case without prejudice was prepared, Exhibit C, but the
defendants did not want to agree if the dismissal would mean also
the dismissal of their counterclaim against the plaintiff. Hence,
trial proceeded.
“As regards the liabilities of the defendants, there is no dispute
that a credit line to the maximum amount of P900,000.00 was
granted to the defendant corporation on the guaranty of the
merchandise or stocks in goods of the said corporation which were
covered by chattel mortgage duly registered as required by law.
There is likewise no dispute that the defendants Syyap
guaranteed absolutely and unconditionally and without the
benefit of excussion the full and prompt payment of any
indebtedness incurred by the defendant corporation under the

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credit line granted it by the plaintiff. As of June 16, 1967, its

indebtedness was in the total amount of P601,633.01. This was
admitted by defendant Antonio V. Syyap in the deed of real estate
mortgage executed by him. No part of the amount has been paid
by either of the defendants. Hence their liabilities cannot be
questioned.” (pp. 3-6, Brief for Appellee; p. 26, Rollo)

In their brief, appellants assign the following errors:

The lower court erred in not holding that the obligation secured
by the Chattel Mortgage sought to be foreclosed in the above-
entitled case was novated by the subsequent execution between
appellee and appellant Antonio V, Syyap of a real estate mortgage
as additional collateral to the obligation secured by said chattel
mortgage.

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People’s Bank and Trust Co. vs. Syvel’s Incorporated

II

The lower court erred in not dismissing the above-entitled case

and in finding appellants liable under the complaint.

III

The lower court erred in not holding that the writ of

preliminary attachment is devoid of any legal and factual basis
whatsoever.

IV

The lower court erred in dismissing appellants’ counterclaim

and in not holding appellee liable to appellants for the consequent
damages arising out of a wrongful attachment. (pp. 1-2, Brief for
the Appellants, p. 25, Rollo)

Appellants admit that they are indebted to the appellee

bank in the amount of P601,633.01, breakdown of which is
as follows: P568,577.76 as principal and P33,055.25 as
interest. After the filing of the case and during its
pendency, defendant Antonio V. Syyap proposed to have
the case amicably settled and for that purpose a conference
was held in which Mr. Antonio de las Alas, Jr., Vice
President of plaintiff People’s Bank and Trust Company,
defendant Antonio V. Syyap and Atty. Mendoza were
present. Mr. Syyap requested that the plaintiff dismiss this
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case as he did not want to have the goodwill of Syvel’s

Incorporated impaired, and offered to execute a real estate
mortgage on his real property located in Bacoor, Cavite.
Mr. de las Alas consented, and so the Real Estate Mortgage
(Exhibit “A”) was executed by defendant Antonio Syyap
and his wife Margarita Bengco Syyap on June 22, 1967.
Defendants did not agree with plaintiff’s motion to dismiss
which included the dismissal of their counterclaim and
filed instead their own motion to dismiss (Record on
Appeal, pp. 68-72) on the ground that by the execution of
said real estate mortgage, the obligation secured by the
chattel mortgage subject of this case was novated, and
therefore, appellee’s cause of action thereon was
extinguished.
In an Order dated September 23, 1967, the motion was
denied for not being well founded (record on Appeal, p. 78).
Appellants contention is without merit.
Novation takes place when the object or principal
condition
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People’s Bank and Trust Co. vs. Syvel’s Incorporated

of an obligation is changed or altered. It is elementary that

novation is never presumed; it must be explicitly stated or
there must be manifest incompatibility between the old and
the new obligations in every aspect (Goni v. CA, 144 SCRA
223 [1986]; National Power Corp. v. Dayrit, 125 SCRA 849
[1983]).
In the case at bar, there is nothing in the Real Estate
Mortgage which supports appellants’ submission. The
contract on its face does not show the existence of an
explicit novation nor incompatibility on every point
between the “old and the “new” agreements as the second
contract evidently indicates that the same was executed as
new additional security to the chattel mortgage previously
entered into by the parties.
Moreover, records show that in the real estate mortgage,
appellants agreed that the chattel mortgage “shall remain
in full force and shall not be impaired by this (real estate)
mort-gage.”
The pertinent provision of the contract is quoted as
follows:

“That the chattel mortgage executed by Syvel’s Inc. (Doc. No. 439,
Book No. I, Series of 1965, Notary Public Jose C. Merris, Manila);

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real estate mortgage executed by Angel V. Syyap and Rita V.

Syyap (Doc. No. 441, Page No. 90, Book No. I, Series of 1965,
Notary Public Jose C. Merris, Manila) shall remain in full force
and shall not be impaired by this mortgage (par. 5, Exhibit ‘A,’
italics ours).”

It is clear, therefore, that a novation was not intended. The

real estate mortgage was evidently taken as additional
security for the performance of the contract (Bank of P.I. v.
Her-rige, 47 Phil. 57).
In the determination of the legality of the writ of
attachment by the Court of First Instance of Manila, it is a
well established rule that the grant or denial of a writ of
attachment rests upon the sound discretion of the court.
Records are bereft of any evidence that grave abuse of
discretion was committed by respondent judge in the
issuance of the writ of attachment.
Appellants contend that the affidavits of Messrs. Rivera
and Berenguer on which the lower court based the issuance
of the writ of preliminary attachment relied on the reports
of credit investigators sent to the field and not on the
personal knowledge of the affiants. Such contention
deserves scant consideration. Evidence adduced during the
trial strongly shows that

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People’s Bank and Trust Co. vs. Syvel’s Incorporated

the witnesses have personal knowledge of the facts stated

in their affidavits in support of the application for the writ.
They testified that Syvel’s Inc. had disposed of all the
articles covered by the chattel mortgage but had not
remitted the proceeds to appellee bank; that the Syvel’s
Stores at the Escolta, Rizal Avenue and Morayta Street
were no longer operated by appellants and that the latter
were disposing of their properties to defraud appellee bank.
Such testimonies and circumstances were given full credit
by the trial court in its decision (Brief for Appellee, p. 14).
Hence, the attachment sought on the ground of actual
removal of property is justified where there is physical
removal thereof by the debtor, as shown by the records
(McTaggert v. Putnam Corset Co., 8 N.Y. S 800 cited in
Moran, Comments on the Rules of Court, 1970 Ed., Vol. 3,
p. 7).
Besides, the actuations of appellants were clearly seen
by the witnesses who “saw a Fiat Bantam Car—Fiat Car, a
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small car and about three or four persons hurrying; they

were carrying goods coming from the back portion of this
store of Syvel’s at the Escolta, between 5:30 and 6:00
o’clock in the evening.” (Record on Appeal, pp. 45-46).
Therefore, “the act of debtor (appellant) in taking his stock
of goods from the rear of his store at night, is sufficient to
support an attachment upon the ground of the fraudulent
concealment of property for the purpose of delaying and
defrauding creditors.” (4 Am. Jur., 841 cited in Francisco,
Revised Rules of Court, Second Edition, 1985, p. 24).
In any case, intent to defraud may be and usually is
inferred from the facts and circumstances of the case; it can
rarely be proved by direct evidence. It may be gleaned also
from the statements and conduct of the debtor, and in this
connection, the principle may be applied that every person
is presumed to intend the natural consequences of his acts
(Francisco, Revised Rules of Court, supra, pp. 24-25), In
fact the trial court is impressed “that not only has the
plaintiff acted in perfect good faith but also on facts
sufficient in themselves to convince an ordinary man that
the defendants were obviously trying to spirit away a
portion of the stocks of Syvel’s Incorporated in order to
render ineffectual at least partially any judgment that may
be rendered in favor of the plaintiff.” (Decision; Civil Case
No. 68095; Record on Appeal, pp. 88-89).
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Heirs of Pedro Gacutan vs. Sucaldito

Appellants having failed to adduce evidence of bad faith or

malice on the part of appellee in the procurement of the
writ of preliminary attachment, the claim of the former for
damages is evidently negated. In fact, the allegations in the
appellee’s complaint more than justify the issuance of the
writ of attachment.
PREMISES CONSIDERED, this appeal is DISMISSED
for lack of merit and the judgment appealed from is
AFFIRMED.
SO ORDERED.

     Melencio-Herrera, (Chairman) and Sarmiento, JJ.,

concur.
          Padilla, J., no part; was counsel for plaintiff-
appellee bank.

Appeal dismissed and judgment affirmed.

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Note.—Attachment cannot issue where amount sued

upon is fully secured by mortgages. (Salgado vs. Court of
Appeals, 128 SCRA 395.)

——o0o——

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