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THE
Supreme Court (SC) has affirmed the ruling of the Court
of Appeals (CA) finding the management of Edsa
Shangri-La Hotel and Resort Inc. (Eshri) liable to the
construction firm BF Corporation in the amount of P33.59
million for the construction of the Edsa Shangri-La
Hotel in Mandaluyong City.
Associate Justice Presbitero Velasco Jr. of the Court’s
Second Division dismissed the petition for review filed
by petitioner Eshri, seeking to nullify the November 12,
1999, decision of the Court of Appeals.
The
Regional Trial Court in Pasig had ordered the Eshri
management led by its president Rufo Calayco and other
officials—Rufino L. Samaniego, Kuok Khoon Chen, and Kuok
Khoon Tsen—to pay jointly and severally BF Corp. the
P24.8 million for unpaid billings; to return to
petitioner the retention sum of P5.81 million, and to
pay a total of P3 million representing attorney’s fees,
moral and exemplary damages.
The
lower court declared that Eshri’s refusal to pay BF’s
valid claims constituted evident bad faith, entitling BF
to moral damages and attorney’s fees.
The SC
did not give credence to the argument of Eshri that the
CA and the trial court should not have accepted as part
of BF Corp.’s evidence photocopies of the progress
billings Nos. 14-19 and the complementing Project
Manager’s Instructions and the Work Variation Orders (WVOs);
and that instead the BF should have laid the basis for
the presentation of the photocopies as secondary
evidence.
BF Corp.
earlier insisted that it adhered to the procedures
agreed in all its billings for the period May 1, 1991 to
June 30, 1992, submitting for the purpose the required
Builders Work Summary, the monthly progress billings,
including an evaluation of the work in accordance with
the PMIs, and the detailed valuations contained in the
WVOs.
The
construction firm said that it could not present the
original of the documents since they were in possession
of Eshri, which refused to hand them over to BF despite
requests.
“A party
may present secondary evidence of the contents of a
writing not only when the original is lost or destroyed,
but also when it is in the custody or under the control
of the adverse party… In our view, the trial court
correctly allowed the presentation of the photocopies’
documents in question as secondary evidence. Any
suggestion that BF failed to lay the required basis for
presenting the photocopies of progress billings Nos. 14
to 19 instead of their originals has to be dismissed,”
said the SC.
Records
showed that BF Corp submitted a total of 19 progress
billings from May 1, 1991 to June 30, 1992. Based on
progress billings Nos. 1 to 13, Eshri paid BF P86.5
million for the construction of the hotel.
After
several futile attempts to collect the unpaid billings,
BF filed on June 26, 1993 a suit for a sum of money and
damages.
In its
defense, Eshri claimed having overpaid BF Corp. for
progress billing Nos. 1 to 13 and, by way of
counterclaim with damages, asked that the construction
firm be ordered to refund the excess payments. |
