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SUPREME COURT REPORTS ANNOTATED 830 10/10/20, 01:55
G.R. No. 220926. July 5, 2017.*
LUIS JUAN L. VIRATA and UEM-MARA PHILIPPINES

CORPORATION (now known as CAVITEX
INFRASTRUCTURE CORPORATION), petitioners, vs.
ALEJANDRO NG WEE, WESTMONT INVESTMENT
CORP., ANTHONY T. REYES, SIMEON CUA, VICENTE
CUALOPING, HENRY CUALOPING, MARIZA SANTOS--
TAN, and MANUEL ESTRELLA, respondents.
G.R. No. 221058. July 5, 2017.*
WESTMONT INVESTMENT CORPORATION, petitioner,

vs. ALEJANDRO NG WEE, respondent.
G.R. No. 221109. July 5, 2017.*
MANUEL ESTRELLA, petitioner, vs. ALEJANDRO NG

WEE, respondent.
_______________
* THIRD DIVISION.
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Virata vs. Ng Wee
G.R. No. 221135. July 5, 2017.*
SIMEON CUA, VICENTE CUALOPING, and HENRY

CUALOPING, petitioners, vs. ALEJANDRO NG WEE,
respondent.
G.R. No. 221218. July 5, 2017.*
ANTHONY T. REYES, petitioner, vs. ALEJANDRO NG

WEE, LUIS JUAN VIRATA, UEM-MARA PHILIPPINES
CORP., WESTMONT INVESTMENT CORP., MARIZA
SANTOS-TAN, SIMEON CUA, VICENTE CUALOPING,
HENRY CUALOPING, and MANUEL ESTRELLA,
respondents.
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Remedial Law; Civil Procedure; Real Party-in-Interest; Section

2, Rule 3 of the Rules of Court defines a real party-in-interest as „the
party who stands to be benefited or injured by the judgment in the
suit, or the party entitled to the avails of the suit.‰·As a general
rule, every action must be prosecuted or defended in the name of
the real party-in-interest. Section 2, Rule 3 of the Rules of Court
defines a real party-in-interest as „the party who stands to be
benefited or injured by the judgment in the suit, or the party entitled
to the avails of the suit.‰ In this case, it is worth recalling that the
procedural issue on whether or not Ng Wee is the real party-in-
interest had already been resolved by this Court in G.R. No.
162928. There, the Court found neither abuse of discretion on the
part of the RTC nor reversible error on the CA when they ruled that
Ng Wee had the legal personality to file the Complaint to recover
his investments. The resolutions by the CA and this Court
sustaining the October 4, 2001 Order had already attained finality
and could no longer be modified. Concomitantly, the parties are
barred from reraising the issues settled therein, pursuant to the
law of the case doctrine.
Same; Same; Judgments; Law of the Case Doctrine; The law of
the case doctrine applies in a situation where an appellate court has
made a ruling on a question on
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appeal and thereafter remands the case to the lower court for
further proceedings; the question settled by the appellate court
becomes the law of the case at the lower court and in any subsequent
appeal.·The law of the case doctrine applies in a situation where
an appellate court has made a ruling on a question on appeal and
thereafter remands the case to the lower court for further
proceedings; the question settled by the appellate court becomes the
law of the case at the lower court and in any subsequent appeal. It
means that whatever is irrevocably established as the controlling
legal rule or decision between the same parties in the same case
continues to be the law of the case, whether correct on general
principles or not, so long as the facts on which the legal rule or
decision was predicated continue to be the facts of the case before
the court.
Same; Same; Dismissal of Actions; Failure to State a Cause of
Action; Hornbook doctrine is that when the affirmative defense of
dismissal is grounded on the failure to state a cause of action, a
ruling thereon should be based on the facts alleged in the complaint.
·Hornbook doctrine is that when the affirmative defense of
dismissal is grounded on the failure to state a cause of action, a
ruling thereon should be based on the facts alleged in the
complaint. Otherwise stated, whether or not Ng Wee successfully
stated a cause of action requires hypothetically admitting and

scrutinizing the allegations in his Complaint.
Same; Same; Appeals; Petition for Review on Certiorari; As a
general rule, only questions of law may be raised in a Petition for
Review on Certiorari under Rule 45 of the Rules of Court.·
Axiomatic in this jurisdiction is that, as a general rule, only
questions of law may be raised in a Petition for Review on
Certiorari under Rule 45 of the Rules of Court. The appellate courtÊs
findings of fact being conclusive, the jurisdiction of this Court in
appealed cases is limited to reviewing and revising the errors of law.
As We have emphatically declared in a long line of cases, „it is not
the function of the Supreme Court to analyze or weigh such evidence
all over again, its jurisdiction being limited to reviewing errors of
law that might have been committed by the lower court.‰
Fraud; In its general sense, fraud is deemed to comprise
anything calculated to deceive, including all acts and omissions and
concealment involving a breach of legal or equitable duty, trust, or
confidence justly reposed, resulting in damage to another, or by
which an undue and unconscientious advantage is taken of another.
·Jurisprudence defines „fraud‰ as the voluntary execution of a
wrongful act, or a willful omission, knowing and intending the
effects which naturally and necessarily arise from such act or
omission. In
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its general sense, fraud is deemed to comprise anything

calculated to deceive, including all acts and omissions and
concealment involving a breach of legal or equitable duty, trust, or
confidence justly reposed, resulting in damage to another, or by
which an undue and unconscientious advantage is taken of another.
Fraud is also described as embracing all multifarious means which
human ingenuity can device, and which are resorted to by one
individual to secure an advantage over another by false suggestions
or by suppression of truth and includes all surprise, trick, cunning,
dissembling, and any unfair way by which another is cheated.
Same; Under Article 1170 of the New Civil Code, those who in
the performance of their obligations are guilty of fraud are liable for
damages.·Under Article 1170 of the New Civil Code, those who in
the performance of their obligations are guilty of fraud are liable for
damages. The fraud referred to in this Article is the deliberate and
intentional evasion of the normal fulfillment of obligation. Clearly,
this provision is applicable in the case at bar. It is beyond quibble
that Wincorp foisted insidious machinations upon Ng Wee in order
to inveigle the latter into investing a significant amount of his
wealth into a mere empty shell of a corporation. And instead of
guarding the investments of its clients, Wincorp executed Side
Agreements that virtually exonerated Power Merge of liability to

them; Side Agreements that the investors could not have been
aware of, let alone authorize.
Mercantile Law; Investment House; Words and Phrases; An
investment house is an enterprise that engages in the underwriting
of securities of other corporations.·An investment house is an
enterprise that engages in the underwriting of securities of other
corporations. Securities underwriting, in turn, refers to the process
by which underwriters raise capital investments on behalf of the
corporation issuing the securities. Thus, aside from performing the
regular powers of a corporation under the Corporation Code, a duly
licensed investment house is granted additional powers under Sec.
7 of Presidential Decree (PD) No. 129.
Same; Same; Quasi-Banking Functions; Conspicuously absent
in the enumerated additional powers of an investment house is the
authority to perform quasi-banking functions.·Conspicuously
absent in the enumerated additional powers of an investment
house,
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however, is the authority to perform quasi-banking functions.

Even as a financial intermediary, investment houses are not
allowed to engage in quasi-banking functions, unless authorized by
the Monetary Board through the issuance of a Certificate of
Authority. The Omnibus Rules and Regulations for Investment
Houses and Universal Banks Registered as Underwriters defines
„quasi-banking function‰ as the function of „borrowing funds for
the borrowerÊs own account from 20 or more persons or
corporate lenders at any one time, through the issuance,
endorsement or acceptance of debt instruments of any kind
other than deposits which may include but need not be limited to
acceptances, promissory notes, participations, certificates of
assignment or similar instruments with recourse, trust certificates
or of repurchase agreements for purposes of relending or purchasing
of receivables and other obligations.‰
Same; Same; Same; It would appear on paper that offering the
„sans recourse‰ transactions does not qualify as the performance of a
quasi-banking function specifically because it is „sans recourse‰
against Wincorp.·Given the definition, it would appear on paper
that offering the „sans recourse‰ transactions does not qualify as the
performance of a quasi-banking function specifically because it is
„sans recourse‰ against Wincorp. As provided under S4101Q.3 of the
Manual of Regulations for Non-bank Financial Institutions:
S4101Q.3. Transactions not considered quasi-banking. The
following shall not constitute quasi-banking: x x x x a. The mere
buying and selling without recourse of instruments
mentioned in Sec. 4101Q: Provided, that: (1) The institution selling

without recourse shall indicate or stamp in conspicuous print on the
instrument/s, as well as on the confirmation of sale (COS), the
phrase without recourse or sans recourse and the following
statement: (name of financial intermediary) assumes no liability for
the payment directly or indirectly, of the instrument (2) In the
absence of the phrase without recourse or sans recourse and without
the above required accompanying statement, the instrument so
issued, endorsed or accepted shall automatically be considered as
falling within the purview of the rules on quasi-banking. (emphasis
added) However, the Court affirms the appellate courtÊs finding that
the true nature of the „sans recourse‰ transactions contradicts
WincorpÊs averment. A perusal of the records would show that
Wincorp engaged in practices that rendered the transactions to be
„with recourse‰ and, consequently, within the ambit of quasi-
banking rules.
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Same; Securities; As a general rule, securities are not to be sold

or offered for sale or distribution without due registration, and
provided that information on the securities shall be made available
to prospective purchasers.·Securities are shares, participation or
interests in a corporation or in a commercial enterprise or profit-
making venture and evidenced by a certificate, contract,
instruments, whether written or electronic in character. As a
general rule, securities are not to be sold or offered for sale or
distribution without due registration, and provided that
information on the securities shall be made available to prospective
purchasers.
Same; Same; Investment Contracts; Words and Phrases;
Included in the list of securities that require registration prior to
offer sale, or distribution are investment contracts. An investment
contract refers to a contract, transaction or scheme whereby a person
invests his money in a common enterprise and is led to expect profits
primarily from the efforts of others.·Included in the list of
securities that require registration prior to offer, sale, or
distribution are investment contracts. An investment contract
refers to a contract, transaction or scheme whereby a person invests
his money in a common enterprise and is led to expect profits
primarily from the efforts of others. It is presumed to exist
whenever a person seeks to use the money or property of others on
the promise of profits. In this jurisdiction, the Court employs the
Howey test, named after the landmark case of Securities and
Exchange Commission v. W.J. Howey Co., 328 US 293 (1946), to
determine whether or not the security being offered takes the form
of an investment contract. The case served as the foundation for the
domestic definition of the said security. Under the Howey test, the
following must concur for an investment contract to exist: (1) a

contract, transaction, or scheme; (2) an investment of money; (3)
investment is made in a common enterprise; (4) expectation of
profits; and (5) profits arising primarily from the efforts of others.
Indubitably, all of the elements are present in the extant case.
Same; Same; Same; The license requirement to operate as an
investment houses is separate and distinct from the registration
requirement for the securities they are offering, if any.·No error can
then be attributed to the CA when it designated the „sans recourse‰
transactions as investment contracts. No fault can also be ascribed
to the appellate court in finding that Wincorp virtually purchased
and resold securities, and not just brokered a loan. The most telling
circumstance
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that negate WincorpÊs claim of mere brokerage, as mentioned

earlier, is the fact that it paid for the interest payments due from
the corporate borrowers that defaulted. This effectively estopped
Wincorp from denying liability from its investors in this case.
Wincorp cannot hide behind its license to operate as an investment
house when it offered the „sans recourse‰ transactions to the public.
For though investment houses are authorized to do the following:
x x x x 6. Act as financial consultant, investment adviser, or broker;
7. Act as portfolio manager, and/or financial agent x x x; 8.
Encourage companies to go public, and initiate and/or promote,
whenever warranted, the formation, merger, consolidation,
reorganization, or recapitalization of productive enterprises, by
providing assistance or participation in the form of debt or equity
financing or through the extension of financial or technical advice
or service. x x x their license to perform investment house functions
does not excuse them from complying with the security registration
requirements under the law. For clarity, the license requirement to
operate as an investment houses is separate and distinct from the
registration requirement for the securities they are offering, if any.
In dealing in securities, Wincorp was under legal obligation to
comply with the statutory registration and disclosure requirements.
Under BP 178, otherwise known as the Revised Securities Act,
which was still in force at the time material in this case, investment
contracts are securities, and their sale, transactions that are not
exempt from these requirements. As such, adherence to Sections 4
and 8 of BP 178 must be strictly observed.
Same; Same; Same; Warranties; Just as in any other contracts
of sale, the vendor of securities is likewise bound by certain
warranties, including those contained in Article 1628 of the New
Civil Code on assignment of credits.·Aside from its liability arising
from its fraudulent transactions, Wincorp is also liable to Ng Wee
for breach of warranty. It cannot be emphasized enough that

Wincorp is not the mere agent that it claims to be; its operations
ought not be reduced to the mere matching of investors with
corporate borrowers. Instead, it must be borne in mind that it not
only performed the functions of a financial intermediary duly
registered and licensed to perform the powers of an investment
house, it is also engaged in the selling of securities, albeit in
violation of various commercial laws. And just as in any other
contracts of sale, the vendor of securities is likewise bound by
certain warranties, including those contained in Article 1628 of the
New Civil Code on assignment of credits, to wit: Article
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1628. The vendor in good faith shall be responsible for the

existence and legality of the credit at the time of the sale,
unless it should have been sold as doubtful; but not for the solvency
of the debtor, unless it has been so expressly stipulated or unless
the insolvency was prior to the sale and of common knowledge.
x x x x The vendor in bad faith shall always be answerable for
the payment of all expenses, and for damages.
Civil Law; Agency; Through the contract of agency, a person
binds himself to render some service or to do something in
representation or on behalf of another, with the consent or authority
of the latter.·The argument that Wincorp is a mere agent that
could not be held liable for Power MergeÊs unpaid loan is equally
unavailing. For even if the Court were to accede to the argument
and undercut the significance of WincorpÊs participation from
vendor of securities to purely attorney-in-fact, the investment house
would still not be immune. Agency, in WincorpÊs case, is not a
veritable defense. Through the contract of agency, a person binds
himself to render some service or to do something in representation
or on behalf of another, with the consent or authority of the latter.
As the basis of agency is representation, there must be, on the part
of the principal, an actual intention to appoint, an intention
naturally inferable from the principalÊs words or actions. In the
same manner, there must be an intention on the part of the agent to
accept the appointment and act upon it. Absent such mutual intent,
there is generally no agency.
Same; Same; Though he may perform acts in a manner more
advantageous to the principal than that specified by him, in no case
shall the agent carry out the agency if its execution would manifestly
result or damage to the principal.·There is no dearth of statutory
provisions in the New Civil Code that aim to preserve the fiduciary
character of the relationship between principal and agent. Of the
established rules under the code, one cannot be more basic than the
obligation of the agent to carry out the purpose of the agency within
the bounds of his authority. Though he may perform acts in a

manner more advantageous to the principal than that specified by
him, in no case shall the agent carry out the agency if its execution
would manifestly result or damage to the principal.
Mercantile Law; Negotiable Instruments Law; Promissory
Notes; A promissory note is a specie of negotiable instruments. Under
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Section 60 of the Negotiable Instruments Law, the maker of a

promissory note engages that he will pay it according to its tenor.·A
promissory note is a specie of negotiable instruments. Under
Section 60 of the Negotiable Instruments Law, the maker of a
promissory note engages that he will pay it according to its tenor.
Same; Same; Accommodation Party; In Gonzales v. Philippine
Commercial and International Bank, 644 SCRA 180 (2011), the
Supreme Court (SC) held that an accommodation party lends his
name to enable the accommodated party to obtain credit or to raise
money; he receives no part of the consideration for the instrument
but assumes liability to the other party or parties thereto.·In
Gonzales v. Philippine Commercial and International Bank, 644
SCRA 180 (2011), the Court held that an accommodation party
lends his name to enable the accommodated party to obtain credit
or to raise money; he receives no part of the consideration for the
instrument but assumes liability to the other party or parties
thereto. Prescinding from the foregoing, an accommodation party is
one who meets all the following three requisites, viz.: (1) he must be
a party to the instrument, signing as maker, drawer, acceptor, or
indorser; (2) he must not receive value therefor; and (3) he must
sign for the purpose of lending his name or credit to some other
person.
Same; Same; Sureties; The basis for the liability under Section
29 is the underlying relation between the accommodated party and
the accommodation party, which is one of principal and surety. In a
contract of surety, a person binds himself solidarily
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liable with the principal debtor of an obligation.·In gratia

argumenti that the above elements are established facts herein,
liability will still attach to the accommodation parties pursuant to

Sec. 29 of the Negotiable Instruments Law. The provision states:
Sec. 29. Liability of accommodation party.·An accommodation
party is one who has signed the instrument as maker, drawer,
acceptor, or indorser, without receiving value therefor, and for the
purpose of lending his name to some other person. Such a person
is liable on the instrument to a holder for value,
notwithstanding such holder, at the time of taking the
instrument, knew him to be only an accommodation party.
(emphasis added) The basis for the liability under Section 29 is the
underlying relation between the accommodated party and the
accommodation party, which is one of principal and surety. In a
contract of surety, a person binds himself solidarily liable with the
principal debtor of an obligation. But though a suretyship
agreement is, in essence, accessory or collateral to a valid principal
obligation, the suretyÊs liability to the creditor is immediate,
primary, and absolute. He is directly and equally bound with the
principal. In a similar fashion, the accommodation party cum surety
in a negotiable instrument is deemed an original promisor and
debtor from the beginning; he is considered in law as the same
party as the debtor in relation to whatever is adjudged touching the
obligation of the latter since their liabilities are so interwoven as to
be inseparable. It is beyond cavil then that Power Merge and Virata
can be held liable for the amounts stated in the Promissory Notes.
Consequently, they are also liable for the assignment to Ng Wee of
portions thereof as embodied in the Confirmation Advices.
Same; Contracts; Relativity of Contracts; The basic principle of
relativity of contracts is that, as a general rule, contracts take effect
only between the parties, their assigns and heirs.·The basic
principle of relativity of contracts is that, as a general rule,
contracts take effect only between the parties, their assigns and
heirs. The sound reason for the exclusion of nonparties to an
agreement is the absence of a vinculum or juridical tie which is the
efficient cause for the establishment of an obligation. Needless to
state, Ng Wee does not fall under any of the classes that are deemed
privy as far as the Side Agreements are concerned. At most, he only
authorized Wincorp, through the SPAs, to „agree, deliver, sign, [and]
execute loan documents‰ relative to the borrowing of Power Merge.
This authority does not extend to excusing Power Merge from
paying its obligations under the Promissory Notes that it issued for
the benefit of the investors. Thus, even if we were to assume that
the execution of the Side Agreements was with the imprimatur of
the Wincorp board of directors, Power Merge would still have been
able to determine, based on a cursory reading of the SPAs, that
WincorpÊs acquiescence to the Side Agreements is an ultra vires act
insofar as its principals, Ng Wee included, are concerned.
Same; Corporations; Separate Legal Personality; Piercing the
Veil of Corporate Fiction; When the notion of separate juridical
personality is used (1) to defeat public convenience, justify wrong,
protect fraud or defend crime; (2) as a device to defeat the labor laws;
or (3) when the corporation is merely an adjunct, a business conduit
or an alter ego of another corporation, this separate personality of
the cor-
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poration may be disregarded or the veil of corporate fiction

pierced.·Concept Builders, Inc. v. NLRC, 257 SCRA 149 (1996),
instructs that as a fundamental principle of corporation law, a
corporation is an entity separate and distinct from its stockholders
and from other corporations to which it may be connected. But, this
separate and distinct personality of a corporation is merely a fiction
created by law for convenience and to promote justice. Thus,
authorities discuss that when the notion of separate juridical
personality is used (1) to defeat public convenience, justify wrong,
protect fraud or defend crime; (2) as a device to defeat the labor
laws; or (3) when the corporation is merely an adjunct, a business
conduit or an alter ego of another corporation, this separate
personality of the corporation may be disregarded or the veil of
corporate fiction pierced.
Remedial Law; Civil Procedure; Cause of Action; Words and
Phrases; A cause of action is the act or omission by which a party
violates a right of another.·A cause of action is the act or omission
by which a party violates a right of another. The essential elements
of a cause of action are (1) a right in favor of the plaintiff by
whatever means and under whatever law it arises or is created; (2)
an obligation on the part of the named defendant to respect or not
to violate such right; and (3) an act or omission on the part of such
defendant in violation of the right of the plaintiff or constituting a
breach of the obligation of the defendant to the plaintiff for which
the latter may maintain an action for recovery of damages or other
appropriate relief.
Mercantile Law; Corporations; Liability of Corporate Officers;
Separate Legal Personality; Obligations incurred by the corporation,
acting through its directors, officers and employees, are its sole
liabilities, and said personalities are generally not held personally
liable thereon; By way of exception, a corporate director, a trustee or
an officer, may be held solidarily liable with the corporation under
Sec. 31 of the Corporation Code.·Basic is the rule that a
corporation is invested by law with a personality separate and
distinct from that of the persons composing it as well as from that of
any other legal entity to which it may be related. Following this,
obligations incurred by the corporation, acting through its directors,
officers and employees, are its sole liabilities, and said personalities
are generally not held personally liable thereon. By way of
exception, a corporate director, a trustee or an officer, may be held
solidarily liable with the corporation under Sec. 31 of the
Corporation Code which
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reads: Section 31. Liability of directors, trustees or officers.

·Directors or trustees who willfully and knowingly vote for or
assent to patently unlawful acts of the corporation or who are guilty
of gross negligence or bad faith in directing the affairs of the
corporation or acquire any personal or pecuniary interest in conflict
with their duty as such directors or trustees shall be liable jointly
and severally for all damages resulting therefrom suffered by the
corporation, its stockholders or members and other persons. When
a director, trustee or officer attempts to acquire or acquire, in
violation of his duty, any interest adverse to the corporation in
respect of any matter which has been reposed in him in confidence,
as to which equity imposes a disability upon him to deal in his own
behalf, he shall be liable as a trustee for the corporation and must
account for the profits which otherwise would have accrued to the
corporation.
Same; Same; Same; Ascribing liability to a corporate director,
trustee, or officer by invoking Sec. 31 of the Corporation Code is
distinct from the remedial concept of piercing the corporate veil.·
Ascribing liability to a corporate director, trustee, or officer by
invoking Sec. 31 of the Corporation Code is distinct from the
remedial concept of piercing the corporate veil. While Sec. 31
expressly lays down specific instances wherein the mentioned
personalities can be held liable in their personal capacities, the
doctrine of piercing the corporate veil, on the other hand, is an
equitable remedy resorted to only when the corporate fiction is
used, among others, to defeat public convenience, justify wrong,
protect fraud or defend a crime. Applying the doctrine, petitioner
cannot escape liability by claiming that he was merely performing
his function as Vice President for Operations and was duly
authorized to sign the Side Agreements in WincorpÊs behalf. The
Credit Line Agreement is patently contradictory if not irreconcilable
with the Side Agreements, which he executed on the same day as
the representative for Wincorp. The execution of the Side
Agreements was the precursor to the fraud. Taken with WincorpÊs
subsequent offer to its clients of the „sans recourse‰ transactions
allegedly secured by the Promissory Notes, it is a clear indicia of
fraud for which Reyes must be held accountable.
Same; Same; Same; Board of Directors; The board of directors
is expected to be more than mere rubber stamps of the corporation
and its subordinate departments; Being stewards of the company,
the board is primarily charged with protecting the assets of the
corporation proper-
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ties and the conduct of its business in behalf of its stakeholders.

·Cua and the Cualopings cannot effectively distance themselves
from liability by raising the defenses they did. As ratiocinated by
the CA: Such submission creates a loophole, especially in this age of
compartmentalization, that would create a nearly foolproof scheme
whereby well-organized enterprises can evade liability for financial
fraud. Behind the veil of compartmentalized departments, such
enterprise could induce the investing public to invest in a
corporation which is financially unable to pay with promises of
definite returns on investment. If we follow the reasoning of
defendants-appellants, we allow the masterminds and profiteers
from the scheme to take the money and run without fear of liability
from law simply because the defrauded investor would be hard-
pressed to identify or pinpoint from among the various departments
of a corporation which directly enticed him to part with his money.
Petitioners Cua and the Cualopings bewail that the above quoted
statement is overarching, sweeping, and bereft of legal or factual
basis. But as per the records, the totality of circumstances in this
case proves that they are either complicit to the fraud, or at the
very least guilty of gross negligence, as regards the „sans recourse‰
transactions from the Power Merge account. The board of directors
is expected to be more than mere rubber stamps of the corporation
and its subordinate departments. It wields all corporate powers
bestowed by the Corporation Code, including the control over its
properties and the conduct of its business. Being stewards of the
company, the board is primarily charged with protecting the assets
of the corporation in behalf of its stakeholders.
Same; Same; Same; Same; The fiduciary duty of a company
director cannot conveniently be separated
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from the position he occupies on the trifling argument that no

monetary benefit was being derived therefrom. The gratuitous
performance of his duties and functions is not sufficient justification
to do a poor job at steering the company away from foreseeable
pitfalls and perils.·The practice of installing undiscerning
directors cannot be tolerated, let alone allowed to perpetuate. This
must be curbed by holding accountable those who fraudulently and
negligently perform their duties as corporate directors, regardless of
the accident by which they acquired their respective positions. In
this case, the fact remains that petitioner Estrella accepted the
directorship in the Wincorp board, along with the obligations
attached to the position, without question or qualification. The
fiduciary duty of a company director cannot conveniently be
separated from the position he occupies on the trifling argument
that no monetary benefit was being derived therefrom. The
gratuitous performance of his duties and functions is not sufficient

justification to do a poor job at steering the company away from
foreseeable pitfalls and perils. The careless management of
corporate affairs, in itself, amounts to a betrayal of the trust
reposed by the corporate investors, clients, and stakeholders,
regardless of whether or not the board or its individual members
are being paid. The RTC and the CA, therefore, correctly
disregarded the defense of Estrella that he is a mere nominee.
Civil Law; Contracts; Interest Rate; Article 1306 of the Civil
Code precludes the contracting parties from establishing
stipulations, clauses, terms, and conditions that are contrary to law,
morals, good customs, public order, and public policy.·The freedom
to contract is not absolute. And one of the more general restrictions
thereon is enshrined in Article 1306 of the Civil Code which
precludes the contracting parties from establishing stipulations,
clauses, terms, and conditions that are contrary to law, morals, good
customs, public order, and public policy. In this jurisdiction, the
Court has never shied away from striking down iniquitous and
unconscionable interest rates for failing to meet this standard. We
see no reason to depart from the practice in this case.
Same; Liquidated Damages; Words and Phrases; Liquidated
damages are those agreed upon by the parties to a contract, to be
paid in case of breach thereof.·Anent the twenty percent (20%)
liquidated damages, the Court sees the need to reduce the amount.
Liquidated damages are those agreed upon by the parties to a
contract, to be paid in case of breach thereof. Although it can
conclusively be deduced from the contracts that the parties
intended to impose such additional charges, the Court nevertheless,
by express provision in Article 2227 of the New Civil Code, has the
right to temper them if they are unconscionable. Considering that
the base amount of the indebtedness in this case is by itself already
staggering, imposing an additional twenty percent (20%) interest
against the persons liable would prove to be too cumbersome. The
Court therefore sees the need to reduce the amount to only ten
percent (10%) of the total maturity value of Ng WeeÊs investment in
Power Merge.
AttorneyÊs Fees; In all cases, the attorneyÊs fees and expenses of
litigation must be reasonable.·The same downward modification is
285
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Virata vs. Ng Wee
in order as regards the award of attorneyÊs fees. Although Ng

Wee finds justification for the entitlement to the award under
Article 2208 of the New Civil Code, the same provision mandates
that „in all cases, the attorneyÊs fees and expenses of litigation must
be reasonable.‰ Just as We have reduced the rate for liquidated
damages, the Court likewise tempers the stipulated rate of
attorneyÊs fees to five percent (5%) of the total amount due on Ng

WeeÊs investment.
PETITIONS for review on certiorari of the decision and

resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Ronald Mark C. Lleno for Luis Juan Virata and UEM-
Mara Phils. Corp.
Cadiz, Tabayoyong & Partners for Alejandro Ng Wee.
Reyno, Tiu, Domingo, Santos for Westmont Investment
Corp.
Yorac, Sarmiento, Arroyo, Chua, Coronel & Reyes Law
Firm for Manuel A. Estrella.
Santos, Paruñgao, Aquino & Santos for Simeon Cua,
Vicente Cualoping and Henry Cualoping.
Abelardo B. Albis, Jr. for Mariza Santos-Tan.
Poblador, Bautista & Reyes for Anthony Reyes.
VELASCO, JR., J.:
Nature of the Case
For resolution is the consolidated petitions assailing the

September 30, 2014 Decision1 and October 14, 2015
Resolution2
_______________
1 Rollo (G.R. No. 220926), pp. 67-142. Penned by Associate Justice

Ramon A. Cruz, and concurred in by Associate Justices Hakim S.
Abdulwahid and Romeo F. Barza.
2 Id., at pp. 144-152.
286

Virata vs. Ng Wee
of the Court of Appeals (CA) in C.A.-G.R. CV No. 97817.3

Said rulings affirmed the trial court judgment declaring
petitioners solidarily liable to Alejandro Ng Wee (Ng Wee)
in the amount of P213,290,410.36, plus interests and
damages.
The Facts
Ng Wee was a valued client of Westmont Bank.

Sometime in 1998, he was enticed by the bank manager to
make money placements with Westmont Investment
Corporation (Wincorp), a domestic corporation organized
and licensed to operate as an investment house, and one of
the bankÊs affiliates.4 Offered to him were „sans recourse‰
transactions with the following mechanics as summarized

by the CA:
x x x A corporate borrower who needs financial assistance or

funding to run its business or to serve as working capital is
screened by Wincorp. Once it qualifies as an accredited borrower,
Wincorp enters into a Credit Line Agreement for a specific amount
with the corporation which the latter can draw upon in a series of
availments over a period of time. The agreement stipulates that
Wincorp shall extend a credit facility on „best effort‰ basis and that
every drawdown by the accredited borrower shall be evidenced by a
promissory note executed in favor of Wincorp and/or the investor/s
who has/have agreed to extend the credit facility. Wincorp then
scouts for investors willing to provide the funds needed by the
accredited borrower. The investor is matched with the accredited
borrower. An investor who provides the fund is issued a
Confirmation Advice which indicates the
_______________
3 Entitled „Alejandro Ng Wee (plaintiff-appellee) v. Luis Juan Virata,

UEM-MARA Philippines Corporation, Westmont Investment Corporation,
Anthony Reyes, Mariza Santos-Tan, Simeon Cua, Vicente Cualoping,
Henry Cualoping, and Manuel Estrella (defendants-appellants).‰
4 Rollo (G.R. No. 220926), p. 69.
287
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Virata vs. Ng Wee
amount of his investment, the due date, the term, the yield, the
maturity and the name of the borrower.5
Lured by representations that the „sans recourse‰

transactions are safe, stable, high-yielding, and involve
little to no risk, Ng Wee, sometime in 1998, placed
investments thereon under accounts in his own name, or in
those of his trustees: Angel Archangel, Elizabeth Ng Wee,
Roberto Tabada Tan, and Alex Lim Tan.6 In exchange,
Wincorp issued Ng Wee and his trustees Confirmation
Advices informing them of the identity of the borrower with
whom they were matched, and the terms under which the
said borrower would repay them. The contents of a
Confirmation Advice are typically as follows:
This is to confirm that pursuant to your authority, we have acted

in your behalf and/or for your benefit, risk or account without
recourse or liability, real or contingent, to Westmont Investment
Corporation in respect of the loan granted to the Borrower named
and under the terms specified hereunder.
Borrower: ____________
For your convenience but without any obligation on our part, we

may act as your collecting and paying agent for this transaction.
Kindly note that your receipt hereof is an indication of your
conformity to the foregoing terms and conditions of the transaction.7
Special Power of Attorneys (SPAs) are also prepared for

the signature of the lender investor. The SPAs uniformly
provide:
_______________
5 Id.
6 Id.
7 Id., at p. 482.
288

Virata vs. Ng Wee
The undersigned, whose personal circumstances are stated

hereunder, hereby, by these presents, appoints, names and
constitutes Westmont Investment Corporation (Wincorp), a
corporation duly organized and existing under and by virtue of the
laws of the Philippines, with office address at 7th Floor, Westmont
Bank Building, 411 Quintin Paredes Street, Binondo, Manila, as the
Attorney-in-Fact of the undersigned:
To agree, deliver, sign, execute loan documents relative to the
borrowing of: ______________________ ________ („The Borrower‰) to
whom the undersigned, thru Wincorp, agreed to lend the principal
sum of PESOS ________________________.
HEREBY GIVING AND GRANTING unto said Attorney-in-Fact
power and authority to do and perform all and every act and thing
whatsoever requisite or necessary to be done in and about the
premises, HEREBY RATIFYING AND CONFIRMING all that said
Attorney-in-Fact shall lawfully do or cause to be done by virtue of
these presents.8
Ng WeeÊs initial investments were matched with Hottick

Holdings Corporation (Hottick), one of WincorpÊs accredited
borrowers, the majority shares of which was owned by a
Malaysian national by the name of Tan Sri Halim Saad
(Halim Saad). Halim Saad was then the controlling
shareowner of UEM-MARA, which has substantial
interests in the Manila Cavite Express Tollway Project
(Cavitex).9
Hottick was extended a credit facility10 with a maximum
drawdown of P1,500,908,026.87 in consideration of the
following securities it issued in favor of Wincorp: (1) a
Suretyship Agreement11 executed by herein petitioner Luis
Juan Virata
_______________
8 Id., at p. 830.
9 Id., at p. 156.
10 Id., at p. 228.
11 Id., at p. 237.
289
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Virata vs. Ng Wee
(Virata); (2) a Suretyship Agreement12 executed by YBHG

Tan Sri Halim Saad; and (3) a Third Party Real Estate
Mortgage13 executed by National Steel Corporation (NSC).
Hottick fully availed of the loan facility extended by
Wincorp, but it defaulted in paying its outstanding
obligations when the Asian financial crisis struck. As a
result, Wincorp filed a collection suit against Hottick,
Halim Saad, and NSC for the repayment of the loan and
related costs.14 A Writ of Preliminary Attachment was then
issued against Halim SaadÊs properties, which included the
assets of UEM-MARA Philippines Corporation (UEM-
MARA).15 Virata was not impleaded as a party-defendant
in the case.
To induce the parties to settle, petitioner Virata offered
to guarantee the full payment of the loan. The guarantee
was embodied in the July 27, 1999 Memorandum of
Agreement16 between him and Wincorp. Virata was then
able to broker a compromise between Wincorp and Halim
Saad that paved the way for the execution of a Settlement
Agreement17 dated July 28, 1999. In the Settlement
Agreement, Halim Saad agreed to pay USD1,000,000.00 to
Wincorp in satisfaction of any and all claims the latter may
have against the former under the Surety Agreement that
secured HottickÊs loan. As a result, Wincorp dropped Halim
Saad from the case and the Writ of Preliminary
Attachment over the assets of UEM-MARA was dissolved.18
Thereafter, Wincorp executed a Waiver and Quitclaim19
dated December 1, 1999 in favor of Virata, releasing the
latter from any obligation arising from the Memorandum of
Agreement, except for his obligation to transfer forty
percent (40%)
_______________
12 Id., at p. 242.
13 Id., at p. 246.
14 Id., at p. 665.
15 Id., at p. 70.
16 Id., at p. 423.
17 Id., at p. 434.
18 Id., at pp. 70-71.
19 Id., at p. 481.
290

Virata vs. Ng Wee
equity of UEM Development Philippines, Inc. (UDPI) and

forty percent (40%) of UDPIÊs interest in the tollway project
to Wincorp. Apparently, the Memorandum of Agreement is
a mere accommodation that is not meant to give rise to any
legal obligation in WincorpÊs favor as against Virata, other
than the stipulated equity transfer.
Alarmed by the news of HottickÊs default and financial
distress, Ng Wee confronted Wincorp and inquired about
the status of his investments. Wincorp assured him that
the losses from the Hottick account will be absorbed by the
company and that his investments would be transferred
instead to a new borrower account. In view of these
representations, Ng Wee continued making money
placements, rolling over his previous investments in
Hottick and even increased his stakes in the new borrower
account · Power Merge Corporation (Power Merge).20
Incorporated on August 4, 1997, Power Merge21 is a
domestic corporation, the primary purpose of which is to
„invest in, purchase, or otherwise acquire and own, hold,
use, sell, assign, transfer, mortgage, pledge, exchange or
otherwise dispose of real or personal property of every kind
and description.‰22 Petitioner Virata is the majority
stockholder of the corporation, owning 374,996 out of its
375,000 subscribed capital stock.23
In a special meeting of WincorpÊs board of directors held
on February 9, 1999, the investment house resolved to file
the collection case against Halim Saad and Hottick,24 and,
on even date, approved Power MergeÊs application for a
credit line, extending a credit facility to the latter in the
maximum amount of P1,300,000,000.00.25 Based on the
minutes of the special meeting,26 board chairman John
Anthony B. Espiritu, Wincorp
_______________
20 Id., at p. 71.
21 Also referred to as „Powermerge.‰
22 Rollo (G.R. No. 220926), p. 647.
23 Id., at p. 648.
24 Id., at p. 1015.
25 Id., at p. 1013.
26 Id., at p. 1011.
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Virata vs. Ng Wee
President Antonio T. Ong (Ong), Mariza Santos-Tan

(Santos-Tan), Manuel N. Tankiansee (Tankiansee),27 and
petitioners Manuel A. Estrella (Estrella), Simeon Cua,
Henry T. Cualoping, and Vicente Cualoping (Cua and the
Cualopings) were allegedly in attendance. Thus, on
February 15, 1999, Wincorp President Ong and Vice
President for Operations petitioner Anthony Reyes (Reyes)
executed a Credit Line Agreement28 in favor of Power
Merge with petitioner VirataÊs conformity.
Barely a month later, on March 11, 1999, Wincorp,
through another board meeting allegedly attended by the
same personalities, increased Power MergeÊs maximum
credit limit to P2,500,000,000.00.29 Accordingly, an
Amendment to the Credit Line Agreement30 (Amendment)
was executed on March 15, 1999 by the same
representatives of the two parties.
Power Merge made a total of six (6) drawdowns from the
amended Credit Line Agreement in the aggregate amount
of P2,183,755,253.11.31 Following protocol, Power Merge
issued Promissory Notes in favor of Wincorp, either for
itself or as agent for or on behalf of certain investors, for
each drawdown. The Promissory Notes issued can be
summarized thusly:32
Promissory Availment Maturity

Principal
Note No. Date Date
February 12, February 12,
1411 P8,618,877.35
1999 2000
February 10, February 10,
1537 P1,124,781,081.10
1999 2000
March 12, March 11,
1538 P215,660.99
1999 2000
March 12, March 11,
1539 P671,402,608.61
1999 2000
March 17, March 16,
1540 P378,381,629.15
1999 2000
March 22, March 21,
1541 P355,395.91
1999 2000
Total P2,183,755,253.11
And pertinently, the template for the Promissory Notes

read:
_______________
27 Also referred to as „Tan Kian See.‰

28 Rollo (G.R. No. 220926), p. 385.
29 Id., at p. 1018.
30 Id., at p. 395.
31 Id., at p. 73.
32 Id., at pp. 411-422.
292

Virata vs. Ng Wee
PROMISSORY NOTE
For value received, I/We __________________, hereby promise to

pay WESTMONT INVESTMENT CORPORATION (WINCORP),
either for itself or as agent for and on behalf of certain INVESTORS
who have placed/invested funds with WINCORP the principal sum
of _________________________ (__________), Philippine Currency, on
____________________________ with interest rate of
____________________________ percent (___%)
per annum, or equivalently the Maturity Amount of
____________________________ PESOS (________________)
Philippine Currency.
Demand and Dishonor Waived: In case of default in the
payment of this Promissory Note, an additional interest on the
Maturity Amount at the rate of three percent (3%) per month shall
accrue from the date immediately following the Maturity Date
hereof until the same is fully paid. In addition, I/We shall be liable
to pay liquidated damages in the amount equivalent to twenty
percent (20%) of the Maturity amount.
If this Note is placed in the hands of an attorney for collection, or
if payment herein is collected by suit or through other legal
proceedings, I/We promise to pay WINCORP a sum equal to twenty-
five percent (25%) of the total amount due and payable as and for
attorneyÊs fees and cost of collection.33
After receiving the promissory notes from Power Merge,

Wincorp, in turn, issued Confirmation Advices to Ng Wee
and his trustees, as well as to the other investors who were
matched with Power Merge. A summary of the said
Confirmation Advices reveals that out of the
P2,183,755,253.11 drawn by Power Merge, the aggregate
amount of P213,290,410.36 was
_______________
33 Id., at p. 411.
293
VOL. 830, JULY 5, 2017 293
Virata vs. Ng Wee
sourced from Ng WeeÊs money placements under the names

of his trustees:34
_______________
34 Id., at pp. 482-499.
294

Virata vs. Ng Wee
295
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Virata vs. Ng Wee
Unknown to Ng Wee, however, was that on the very

same dates the Credit Line Agreement and its subsequent
Amendment were entered into by Wincorp and Power

Merge, additional contracts (Side Agreements) were
likewise executed by the two corporations absolving Power
Merge of liability as regards the Promissory Notes it
issued. Pertinently, the Side Agreement dated February 15,
1999 reads:
WHEREAS, Powermerge has entered into the Credit Line

Agreement with Wincorp as an accommodation in order to allow
Wincorp to hold Powermerge paper instead of the obligations of
Hottick which are right now held by Wincorp.
xxxx
1. Powermerge hereby agrees to execute promissory notes in the
aggregate principal sum of P1,200,000,000.00 in favor of Wincorp
and in exchange therefore, Wincorp hereby assigns, transfers,
and conveys to Powermerge all of its rights, titles and interests
by way of a subparticipation over the promissory notes and other
obligations executed by Hottick in favor of Wincorp; Provided,
however, that the only obligation of Powermerge to
Wincorp shall be to return and deliver to Wincorp all the
rights, title and interests conveyed by Wincorp hereby to
Powermerge over the Hottick obligations. Power-
296

Virata vs. Ng Wee
merge shall have no obligation to pay under its

promissory notes executed in favor of Wincorp but shall be
obligated merely to return whatever [it] may have received from
Wincorp pursuant to this agreement.
xxxx
3. Wincorp confirms and agrees that this accommodation being
entered into by the parties is not intended to create a
payment obligation on the part of Powermerge.35
(emphasis added)
Save for the amount, identical provisions were included

in the March 15, 1999 Side Agreement.36 By virtue of these
contracts, Wincorp was able to assign its rights to the
uncollected Hottick obligations and hold Power Merge
papers instead.37 However, this also meant that if Power
Merge subsequently defaults in the payment of its
obligations, it would refuse, as it did in fact refuse,
payment to its investors.
Despite repeated demands,38 Ng Wee was not able to
collect Power MergeÊs outstanding obligation under the
Confirmation Advices in the amount of P213,290,410.36.
This prompted Ng Wee, on October 19, 2000, to institute a
Complaint for Sum of Money with Damages with prayer for
the issuance of a Writ of Preliminary Attachment
(Complaint),39 docketed as Civil Case No. 00-99006 before

the Regional Trial Court (RTC), Branch 39 of Manila
(RTC). Of the seventeen (17) named defendants therein,
_______________
35 Id., at p. 392.
36 Id., at p. 405.
37 Id., at p. 73.
38 Id., at pp. 896-903.
39 Id., at p. 193. Entitled „Alejandro Ng Wee v. Luis Juan L. Virata,
Power Merge Corporation, UEM Development Phils., Inc., UEM-MARA
Philippines Corporation, United Engineers (Malaysia) Berhad, Majlis
Amanah Rakyat, RenongBerhad, Westmont Investment Corporation,
Antonio T. Ong, Anthony T. Reyes, Simeon S. Cua, Manuel N. Tan Kian
See, Mariza Santos-Tan, Vicente T. Cualoping, Henry T. Cualoping,
Manuel A. Estrella, and John Anthony B. Espiritu.‰
297
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Virata vs. Ng Wee
only Virata, Power Merge, UPDI, UEM-MARA, Wincorp,

Ong, Reyes, Cua, Tankiansee, Santos-Tan, Vicente and
Henry Cualoping, and Estrella were duly served with
summons.40
In his Complaint, Ng Wee claimed that he fell prey to
the intricate scheme of fraud and deceit that was hatched
by Wincorp and Power Merge. As he later discovered,
Power MergeÊs default was inevitable from the very start
since it only had subscribed capital in the amount of
P37,500,000.00, of which only P9,375,000.00 is actually
paid up. He then attributed gross negligence, if not fraud
and bad faith, on the part of Wincorp and its directors for
approving Power MergeÊs credit line application and its
subsequent increase to the amount of P2,500,000,000.00
despite its glaring inability to pay.
Wincorp officers Ong and Reyes were likewise impleaded
for signing the Side Agreements that would allow Power
Merge to avoid paying its obligations to the investors. Ng
Wee also sought to pierce the separate juridical personality
of Power Merge since Virata owns almost all of the
companyÊs stocks. It was further alleged that Virata
acquired interest in UEM-MARA using the funds swindled
from the Wincorp investors.
As an annex to the Complaint, Ng Wee cited the May 5,
2000 Cease and Desist Order41 issued by the Prosecution
and Enforcement Department of the Securities and
Exchange Commission (SEC) in PED Case No. 20-237842
after its routine audit of the operations of the investment
house. Data gathered by the SEC showed that, as of
December 31, 1999, Wincorp has sourced funds from 2,200

individuals with an average of P7,000,000,000.00 worth of
commercial papers per month.43 In its subsequent October
27, 2000 Resolution,44 the SEC found that the
Confirmation Advices that Wincorp had
_______________
40 Id., at pp. 153-154.

41 Id., at p. 508.
42 Entitled „In the Matter of Westmont Investment Corporation.‰
43 Rollo (G.R. No. 220926), p. 508.
44 Id., at p. 1030.
298

Virata vs. Ng Wee
been issuing to its investors takes the form of a security

that ought to have been registered before being offered to
the public,45 and that the investment house had also been
advancing the payment of interest to the investors to cover
up its borrowersÊ insolvency.46
The defendants moved for the dismissal of the case for
failure to state a cause of action, among other reasons,
moored on the fact that the investments were not recorded
in the name of Ng Wee. These motions, however, were
denied by the RTC on October 4, 2001, which denial was
elevated by way of certiorari to the CA, only for the trial
court ruling to be affirmed on August 21, 2003. The issue
eventually made its way to this Court and was docketed as
G.R. No. 162928. The Court however, found no reversible
error on the part of the CA when the appellate court
sustained the denial of the motions to dismiss.47
In their respective Answers, the Wincorp and Power
Merge camps presented opposing defenses.48
Wincorp admitted that it brokered Power Merge
Promissory Notes to investors through „sans recourse‰
transactions. It contended, however, that its only role was
to match an investor with corporate borrowers and, hence,
assumed no liability for the monies that Ng Wee loaned to
Power Merge. As proof thereof, Wincorp brought to the
attention of the RTC the language of the SPAs executed by
the investors.
„Sans recourse‰ transactions, Wincorp added, are
perfectly legal under Presidential Decree No. 129 (PD 129),
otherwise known as the Investment Houses Law, and forms
part of the brokering functions of an investment house. As
a duly licensed investment house, it was authorized to offer
the „sans recourse‰ transactions to the public, even without
a license to perform quasi-banking functions.
_______________
45 Id., at p. 1041.
46 Id., at pp. 509-510.
47 Id., at p. 77.
48 Id., at pp. 167-171.
299
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Virata vs. Ng Wee
For their part, the Wincorp directors argued that they

can only be held liable under Section 31 of Batas Pambansa
(BP) Blg. 68,49 the Corporation Code, if they assented to a
patently unlawful act, or are guilty of either gross
negligence or bad faith in directing the affairs of the
corporation. They explained that the provision is
inapplicable since the approval of Power MergeÊs credit line
application was done in good faith and that they merely
relied on the vetting done by the various departments of
the company. Additionally, Estrella and Tankiansee argued
that they were not present during the special meetings
when Power MergeÊs credit line application was approved
and even objected against the same when they came to
know of such fact.
Reyes meanwhile asseverated that the first paragraph of
Sec. 31 cannot find application to his case since he is not a
director of Wincorp, but its officer. It is his argument that
he can only be held liable under the second paragraph of
the provision if he is guilty of conflict of interest, which he
is not. He likewise claimed that he was duly authorized to
sign the side Credit Line Agreements and Side Agreements
on behalf of Wincorp.
_______________
49 Section 31. Liability of directors, trustees or officers.·Directors

or trustees who willfully and knowingly vote for or assent to patently
unlawful acts of the corporation or who are guilty of gross negligence or
bad faith in directing the affairs of the corporation or acquire any
personal or pecuniary interest in conflict with their duty as such
directors or trustees shall be liable jointly and severally for all damages
resulting therefrom suffered by the corporation, its stockholders or
members and other persons.
When a director, trustee or officer attempts to acquire or acquire, in
violation of his duty, any interest adverse to the corporation in respect of
any matter which has been reposed in him in confidence, as to which
equity imposes a disability upon him to deal in his own behalf, he shall
be liable as a trustee for the corporation and must account for the profits
which otherwise would have accrued to the corporation.
300

Virata vs. Ng Wee
The Wincorp camp reiterated that Ng WeeÊs Complaint

failed to state a cause of action because the money
placements were not registered under his name. It was
their postulation then that the alleged trustees should have
instituted the case in their own names.
On the other hand, petitioners Virata and UEM-MARA
harped on the underlying arrangement between Hottick,
Power Merge, and Wincorp. Under the framework, Hottick
will issue Promissory Notes to Wincorp, which will then
transfer the same to Power Merge. In exchange for the
transfer, Power Merge will issue its own Promissory Notes
to Wincorp. That way, Wincorp will be holding Power
Merge papers, instead of Hottick.
To implement this arrangement, Wincorp and Power
Merge entered into a Credit Line Agreement with the
understanding that Power Merge and VirataÊs only
obligation thereunder would be to collect payments on the
Hottick papers. The Credit Line Agreement and the
issuance of the promissory notes, according to Virata, were
mere accommodations to help Wincorp enforce the
outstanding obligations of Hottick. It was then contrary to
their agreement for Wincorp to have offered the Power
Merge papers to investors since it was allegedly agreed
upon that Power Merge would incur no liability to pay the
promissory notes it issued Wincorp.
Ruling of the Trial Court
On July 8, 2011, the RTC rendered a Decision50 in Civil

Case No. 00-99006 in favor of Ng Wee. The fallo of the
Decision reads:
WHEREFORE, premises considered, judgment is hereby

rendered in favor of plaintiff, ordering the defendants Luis L.
Virata, UEM-MARA Philippines Corpora-
_______________
50 Rollo (G.R. No. 220926), p. 153. Penned by Presiding Judge Noli C.

Diaz.
301
VOL. 830, JULY 5, 2017 301
Virata vs. Ng Wee
tion, Westmont Investment Corporation (Wincorp), Antonio T. Ong,

Anthony T. Reyes, Simeon Cua, Vicente and Henry Cualoping,
Mariza Santos-Tan, and Manuel Estrella to jointly and severally
pay plaintiff as follows:
1. The sum of Two Hundred Thirteen Million Two Hundred Ninety
Thousand Four Hundred Ten and 36/100 Pesos
(P213,290,410.36), which is the maturity amount of plaintiff Ês
investment with legal interest at the rate of twelve percent (12%)
per annum from the date of filing of the complaint until fully
paid;
2. Liquidated damages equivalent to twenty percent (20%) of the
maturity amount, and attorneyÊs fees equivalent to 25% of the
total amount due plus legal interest at the rate of twelve percent
(12%) per annum from the date of filing of the complaint until
fully paid;
3. P100,000.00 as moral damages;
4. The complaint against defendant Tankiansee is dismissed for
lack of merit.
DefendantsÊ counterclaim (sic) are dismissed for lack of merit,
while the crossclaims filed by defendants against each other are
likewise dismissed, there being no evidence to support the same.
Cost against the defendants, except defendant Tankiansee.
SO ORDERED.51
Disposing first the procedural issue, the RTC reminded

the parties that whether or not Ng Wee had legal standing
had already been settled when the defendantsÊ motions to
dismiss were denied with finality. They are then precluded
from reraising the issue in their memoranda.52
_______________
51 Id., at pp. 191-192.

52 Id., at pp. 171-172.
302

Virata vs. Ng Wee
On the merits, the trial court explained that there was

no dispute on the factual circumstances of the case and
that, based on these facts, Wincorp and Power Merge
colluded, if not connived, to defraud Ng Wee of his
investments. The RTC ratiocinated that the „sans recourse‰
transactions were used to conceal WincorpÊs direct
borrowing; that Wincorp negated its acts and practices
under the „sans recourse‰ transactions when it advanced
the accrued interest due to the investors to conceal the fact
that their borrowers have already defaulted in their

obligations; that Wincorp is a vendor in bad faith since it
knew that the Power Merge notes were uncollectible from
the beginning by virtue of the Side Agreements; and that,
in any event, Wincorp violated its fiduciary responsibilities
as the investorsÊ agent. The RTC held Power Merge equally
guilty because Wincorp could not have perpetrated the
fraud without its indispensable participation as a conduit
for the scheme.53
The RTC likewise ruled that Ng Wee presented
sufficient evidence against the individual directors and
officers for them to be held liable for fraud and/or bad faith
under Sec. 31 of the Corporation Code, except for
Tankiansee. The claim against Tankiansee was dropped
since his immigration records established that he could not
have participated in the special meetings of the Wincorp
directors, having been out of the country during the
material dates. Moreover, he filed a civil and criminal case
against Wincorp, negating any charge of conspiracy.54
The RTC further found compelling need to pierce
through the separate juridical personality of Power Merge
since Virata exercised complete control thereof, owning
374,996 out of 375,000 of its subscribed capital stock.
Similarly, the separate juridical personality of UEM-MARA
was pierced to reach the illegal proceeds of the funds
sourced from the defrauded investors.55
_______________
53 Id., at pp. 172-183.

54 Id., at pp. 183-187.
55 Id., at pp. 187-190.
303
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Virata vs. Ng Wee
The motions for reconsideration from the aforequoted

ruling were denied on September 9, 2011.56 Separate
appeals were then lodged by the following parties: (1)
Wincorp, (2) Santos-Tan, (3) Cua and the Cualopings, (4)
Virata and UEM-MARA Philippines Corp., (5) Reyes, and
(6) Estrella. In due time, the appellants and appellees filed
their respective briefs.57
Ruling of the Court of Appeals
On September 30, 2014, the CA promulgated the

challenged ruling substantially affirming the findings of
the trial court, viz.:
WHEREFORE, the appeal is DISMISSED. The Decision dated

July 8, 2011 and Order dated September 9, 2011 issued by the
Regional Trial Court of Manila, Branch 39 in Civil Case No. 00-
99006 are AFFIRMED with the modification in that defendants-
appellants are jointly and severally liable to pay an interest of
twelve percent (12%) per annum of the total monetary awards,
computed from the date of the filing of the complaint until June 30,
2013 and six percent (6%) per annum from July 1, 2013 until their
full satisfaction.
SO ORDERED.58
Preliminary, the CA upheld the finding of the RTC that

Ng Wee is a real party-in-interest and that the Complaint
stated a cause of action despite the money placements
being made under the name of Ng WeeÊs trustees.59
The CA likewise found that Wincorp and Power Merge
perpetrated an elaborate scheme of fraud to inveigle Ng
Wee into investing funds. Ng Wee would not have placed
his investments in the „sans recourse‰ transactions had he
not been
_______________
56 Id., at pp. 1508-1527.

57 Id., at pp. 80-95.
58 Id., at p. 130.
59 Id., at pp. 96-104.
304

Virata vs. Ng Wee
deceived into believing that Power Merge is financially

capable of paying the returns on his investments. In sync
with the RTC, the CA found that Wincorp misrepresented
Power MergeÊs financial capacity when it accredited Power
Merge as a corporate borrower and granted it a
P2,500,000,000.00 credit facility despite the telling signs
that the latter would not be able to perform its obligations,
to wit: (1) Power Merge had only been in existence for two
years when it was granted the credit facility; (2) Power
Merge was thinly capitalized with only P37,500,000.00
subscribed capital; (3) Power Merge was not an ongoing
concern since it never secured the necessary permits and
licenses to conduct business, it never engaged in any
lucrative business, and it did not file the necessary reports
with the SEC; and (4) No security was demanded by
Wincorp or was furnished by Power Merge in relation to
the latterÊs drawdowns.60
The intent of Wincorp to deceive became even more
manifest when it entered into the Side Agreements with

Power Merge. The Side Agreements rendered worthless
Power MergeÊs Promissory Notes that Wincorp offered to
Ng Wee and the other investors. Meanwhile, the „sans
recourse‰ nature of the transactions prevented the
investors from recovering their investments from the
investment house.61
Because of the foregoing fraudulent acts, Wincorp was
held liable to Ng Wee as a vendor of security in bad faith,
and for acting beyond the scope of its authority as Ng WeeÊs
agent when it knowingly purchased worthless securities for
him and his coinvestors.62
The CA likewise did not find merit in Power MergeÊs
defense that it was a mere accommodation party. Power
MergeÊs participation was indispensable in deceiving Ng
Wee into placing more investments and amounted to
actionable fraud.
_______________
60 Id., at p. 110.
61 Id., at p. 112.
62 Id., at pp. 113-115.
305
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Virata vs. Ng Wee
Its conduct that led to this conclusion include: (1) setting

up the Power Merge borrower account; (2) the laborious
execution of Credit Line Agreement, Side Agreements, and
promissory notes; (3) allowing Wincorp to sell worthless
Power Merge papers/notes; and (4) receiving valuable
consideration through its drawdowns.63
Anent the liability of the directors, the appellate court
sustained the trial courtÊs application of the doctrine on the
piercing of the corporate veil, and also held that under Sec.
31 of the Corporation Code, corporate officers can be held
liable for having assented to patently unlawful corporate
acts, and for having acted in gross negligence and/or bad
faith in management.64
Here, the CA ratiocinated that the perpetrated
investment scheme constituted estafa under either Art.
315(1)(b) or Art. 315(2)(a) of the Revised Penal Code65 due
to WincorpÊs viola-
_______________
63 Id., at pp. 116-117.

64 Id., at pp. 117-127.
65 Article 315. Swindling (estafa).·Any person who shall defraud
another by any of the means mentioned herein below shall be punished

by:
1. With unfaithfulness or abuse of confidence, namely:
xxxx
(b) By misappropriating or converting, to the prejudice of another,
money, goods, or any other personal property received by the offender in
trust or on commission, or for administration, or under any other
obligation involving the duty to make delivery of or to return the same,
even though such obligation be totally or partially guaranteed by a bond;
or by denying having received such money, goods, or other property.
xxxx
2. By means of any of the following false pretenses or fraudulent acts
executed prior to or simultaneously with the commission of the fraud:
(a) By using fictitious name, or falsely pretending to possess
power, influence, qualifications, property, credit,
306

Virata vs. Ng Wee
tion of its fiduciary relation with Ng Wee, and its

employment of fraud or deceit to the latterÊs damage and
prejudice. Moreover, Wincorp violated various commercial
laws when it offered the „sans recourse‰ transactions. For
though denominated as „sans recourse,‰ WincorpÊs
actuations reveal that the transactions are actually with
recourse since Wincorp virtually borrowed from itself, for
itself. Assenting to these patently unlawful acts, according
to the CA, exposed the corporate directors and officers to
liability.
Gross negligence can also be attributed to the Wincorp
directors when they approved Power MergeÊs credit line
application and the subsequent increase of its credit limit
to P2,500,000,000.00 despite Power MergeÊs evident weak
financial structure and poor capitalization, so the CA ruled.
The elaborate scheme of deceit and fraud, and the
corresponding liability therefrom, is then imputable to the
directors of Wincorp. Meanwhile, Reyes and Virata cannot
escape liability since they signed the Side Agreements that
rendered the Power Merge papers worthless.
The CA also did not find compelling reason to depart
from the RTCÊs conclusion as regards UEM-MARAÊs
liability. The appellate court saw the need to reach the
illegal proceeds of funds sourced from the defrauded
investors.
Lastly, the CA held that the appellants are jointly and
severally liable pursuant to Art. 1170 of the New Civil
Code.66
The motions for reconsideration from the September 30,
2014 Decision were denied on October 14, 2015 in the
following wise:
WHEREFORE, finding no rationally persuasive reasons which

would warrant a modification much less, a
_______________
agency, business or imaginary transactions, or by means of other

similar deceits.
66 Article 1170. Those who in the performance of their obligations
are guilty of fraud, negligence, or delay, and those who in any manner
contravene the tenor thereof, are liable for damages.
307
VOL. 830, JULY 5, 2017 307

Virata vs. Ng Wee
reversal of our Decision dated September 30, 2014, all the Motions
for Reconsideration filed by the defendants-appellants are
DENIED. The Notice of Change of Name filed by Defendant
Manuel Estrella, is hereby NOTED.
SO ORDERED.67
Grounds for the Petitions
Aside from Santos-Tan, defendants-appellants a quo

appealed the September 30, 2014 Decision and October 14,
2015 Resolution of the CA via the instant recourses.
G.R. No. 220926: Petition

for Review on Certiorari
of Luis Juan L. Virata
and UEM-MARA
In their Petition for Review on Certiorari,68 Virata and

UEM-MARA claim that there is no basis in implicating
them in the scheme to defraud Ng Wee and the other
investors since there was no privity of contract between
them; petitioners never inter-
_______________
67 Rollo (G.R. No. 220926), p. 150.

68 Id., at p. 18. The issues are:
I.
THE COURT OF APPEALS DECIDED CONTRARY TO LAW WHEN IT
FOUND PETITIONERS LIABLE TO RESPONDENT NG WEE
DESPITE THE ABSENCE OF ANY PRIVITY OF CONTRACT
BETWEEN THEM.
II.
THE COURT OF APPEALS DECIDED CONTRARY TO LAW IN
RULING THAT THE DOCTRINE OF PIERCING THE VEIL OF
CORPORATE FICTION APPLIES TO THIS CASE AND THAT
PETITIONER VIRATA, AS DIRECTOR OF POWER MERGE, SHOULD

BE PERSONALLY LIABLE TO RESPONDENT NG WEE.
III.
THE COURT OF APPEALS DECIDED CONTRARY TO LAW IN
RULING THAT UEM-MARA IS LIABLE TO RESPONDENT NG WEE.
308

Virata vs. Ng Wee
acted with Ng Wee. This is allegedly consistent with the CA

finding that Wincorp engaged in direct borrowing with its
investors. Thus, petitioners argue that Ng Wee cannot
subsequently claim that his funds were lent to Power
Merge. Ng Wee likewise allegedly failed to prove that
Power Merge derived pecuniary benefits from the
investment transactions.
Petitioners add that the Confirmation Advices were
issued by Wincorp alone. Wincorp had the sole discretion of
selecting which corporate borrower to match with whom.
Power Merge, Virata, and UEM-MARA therefore had no
control over the matter. Thus, applying the doctrine of res
inter alios acta alteri nocere non debet, third parties like
petitioners may not be prejudiced by the act, declaration, or
omission of Wincorp.
The propriety of piercing the corporate veil is also
challenged by petitioners. They argue that VirataÊs
ownership of almost all of the shares of Power Merge does
not automatically justify the application of the doctrine,
absent fraud. And according to petitioners, there was no
evidence of fraud, bad faith, or gross negligence on the part
of Virata in the case at bar. It is the postulation that Virata
could not be held liable for acts done in his official capacity,
including the execution of the Credit Line Agreement and
the Side Agreements, which allegedly are valid armÊs
length transactions duly authorized by Power Merge, and
that bad faith cannot be presumed from the mere failure of
Power Merge to pay its obligations.
Petitioners also see no valid reason to hold UEM-MARA
liable since there is no evidence of its participation in the
allegedly fraudulent act. There is no proof that the grant of
the credit line was for the purpose of acquiring interests in
UEM-MARA, or that the funds obtained by Power Merge
were the same funds used by Virata to acquire interests
therein. Petitioner Virata claims that he made use of a
P600,000,000.00 credit facility from Metrobank to facilitate
the acquisition.
309
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Virata vs. Ng Wee
G.R. No. 221058: Peti-

tion for Review on Cer-
tiorari of Wincorp
In its petition, Wincorp attributes reversible error69 to

the CA when it rendered judgment against the investment
house. It claims that it merely performed its normal
function as an investment house by matching and
marrying corporate borrowers with investors. The
arrangement it entered into was neither an investment
contract between it and Ng Wee nor an exercise of quasi-
banking function, but the brokerage of a legitimate loan
agreement between Ng Wee and Power Merge. Ng Wee
expected a fixed interest income at the end of the term of
the loan, and not a participation in the success or loss of
the borrower corporation.
Wincorp adds that it was clear to Ng Wee that what was
involved was a loan agreement, and that Wincorp was
merely
69 Rollo (G.R. No. 221058), p. 25. The issues are:

I.
THE HONORABLE COURT OF APPEALS ERRED IN FINDING
THE TRANSACTIONS AMONG THE PARTIES HEREIN AS
FRAUDULENT.
II.
THE HONORABLE COURT OF APPEALS ERRED IN
APPRECIATING THE NATURE OF THE MONEY MARKET
TRANSACTION AND THE CORRESPONDING DUTIES AND
LIABILITIES OF THE PARTIES, AND HOLDING INSTEAD
THAT PETITIONER WINCORP IS INVOLVED IN QUASI-
BANKING ACTIVITIES.
III.
THE HONORABLE COURT OF APPEALS ERRED IN RULING
THAT WINCORP IS LIABLE EVEN IN ITS CAPACITY AS MERE
AGENT/BROKER IN THE LOAN TRANSACTION.
IV.
THE HONORABLE COURT OF APPEALS ERRED IN RULING
THAT WINCORP IS SOLIDARILY LIABLE WITH THE OTHER
DEFENDANTS.
310

Virata vs. Ng Wee
brokering the transaction. As a mere broker of the
transaction, not the beneficiary thereof, Wincorp asserts

that it cannot be held liable for the amount borrowed by
Power Merge. Wincorp relies on the text of the
Confirmation Advices issued to Ng Wee to advance this
point.70
Based on the language of the Confirmation Advices, Ng
Wee knew of and approved the transactions that Wincorp
entered into with Power Merge as his agent; that Ng WeeÊs
conformity in the series of Confirmation Advices issued in
his favor, and his execution of the corresponding SPAs
thereafter, allegedly ratified WincorpÊs acts of agency in the
execution of the loan agreement; and that Ng Wee had been
renewing and rolling over his initial placement, despite
knowledge of this setup.
Wincorp further denies violating commercial laws since
the transactions are „without recourse,‰ in compliance with
the Bangko Sentral ng Pilipinas (BSP) rule that only
institutions that are granted license to perform quasi-
banking functions can engage in transactions „with
recourse.‰ Moreover, the agreement with Ng Wee to broker
a loan, not being a quasi-banking function, is required to be
marked as „without recourse‰ under Sec. 4103N.2 of the
BSP Manual of Regulations for Nonbank Financial
Institutions.
_______________
70 Id., at p. 20. This is to confirm that pursuant to your authority, we

have acted in your behalf and/or for your benefit, risk or account
without recourse or liability, real or contingent, to Westmont
Investment Corporation in respect of the loan granted to the
Borrower named and under the terms specified hereunder.
xxxx
For your convenience but without any obligation on our part,
we may act as your collecting and paying agent for this transaction.
Kindly note that your receipt hereof is an indication of your conformity to
the foregoing terms and conditions of the transaction. (emphasis added)
311
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Virata vs. Ng Wee
It is also the contention of Wincorp that it is within its

discretion whether or not to approve Power MergeÊs credit
line. It was not an ultra vires act, and is instead covered by
the business judgment rule. The fact that the business
strategy turned out to be unfavorable should not so
casually be used to impute liability to the corporation
absent showing of bad faith or gross negligence.
G.R. No. 221109:
Petition for Review

of Manuel Estrella
Petitioner Estrella, one of the directors of Wincorp,

instituted a separate petition71 anchored on the ground
that he was a mere nominee in Wincorp of his principals,
Eduardo Espiritu and Wincorp board chairperson John
Anthony Espiritu; that he did not have any real beneficial
interest in Wincorp as his appointment was a mere
accommodation to the Espiritus; and that he did not even
receive any compensation, salary, per diem or benefit of any
kind from either the Espiritus or from Wincorp.
_______________
71 Rollo (G.R. No. 221109), pp. 115-117. The issues are:

I.
xxxx
THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE
HEREIN PETITIONER [IS] GUILTY OF GROSS NEGLIGENCE AND
BAD FAITH IN DIRECTING THE AFFAIRS OF WINCORP.
II.
xxxx
THE COURT OF APPEALS GRAVELY ERRED IN FAILING TO RULE
THAT THE WRIT OF PRELIMINARY ATTACHMENT AGAINST
APPELLANT ESTRELLAÊS BEL-AIR PROPERTY WAS IRREGULAR
AND CONTRARY TO THE REVISED RULES OF PROCEDURE AND
SETTLED LEGAL PRINCIPLES.
312

Virata vs. Ng Wee
As a mere nominee, Estrella is involved solely in setting

down company policies and prescribing the general
guidelines for the direction of the business and affairs of
Wincorp. In the performance of his duties, he relies heavily
on the reports, memoranda, and information provided them
by management. He contends that he was never involved in
the day-to-day management and operations of the company.
He then had no knowledge and could not then have
approved of the Side Agreements entered into by Ong and
petitioner Reyes. The Side Agreements were never
presented in any of the meetings Estrella attended, or so he
claims.
He also questions the RTC and the CAÊs reliance on the
minutes of the special meetings naming him as one of the
directors who approved Power MergeÊs credit line
application and its subsequent amendment. He argues that
the minutes have already been discredited when the
charges against Tankiansee have been dropped. Estrella
reminds the Court that Tankiansee was likewise included

in the list of directors in attendance during the February 9,
1999 and March 11, 1999 special meetings, only to be
disproved later on by his immigration records that show
that he was out of the country during the material dates.
It was admitted that Estrella attended the February 9,
1999 special meeting, but claims that he already left before
the „other matters‰ in the agenda, which included Power
MergeÊs application, were discussed. He denies attending
the March 11, 1999 special meeting since he accompanied
his wife that day to the hospital for her cancer treatment.
To substantiate these defenses, he brings to the CourtÊs
attention the fact that he did not sign, as he refused to
sign, the minutes of the February 9, 1999 and March 11,
1999 special meetings.
313
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Virata vs. Ng Wee
G.R. No. 221135: Petition for

Review on Certiorari of
Simeon Cua, Henry Cualop-
ing, and Vicente Cualoping
For their defense72 against civil liability in this case,

petitioners Cua and the Cualopings claim that Ng Wee
failed to prove that they acted in bad faith or were grossly
negligent in managing the affairs of Wincorp, which is
required for directors to be held liable under Sec. 31 of the
Corporation Code. They argued that the extent of their
participation in the alleged fraudulent scheme was limited
to acting favorably on the executive committeeÊs
recommendations regarding Power MergeÊs credit line
application and its subsequent amendment. Mere approval
of Power MergeÊs applications, however, cannot be equated
with bad faith, for the directors relied on the vetting by the
departments responsible for doing so. They point out that
Power MergeÊs applications underwent scrutiny by the
credit committee and executive committee prior to their
approval. The approval cannot then be considered as
unlawful, and neither bad faith nor gross negligence can be
attributed to the directors. Rather, it was performed in the
legitimate pursuit of WincorpÊs business as a duly-licensed
investment house.
_______________

I.
THE COURT OF APPEALSÊ 30 SEPTEMBER 2014 DECISION AND 26
OCTOBER 2015 RESOLUTION OUGHT TO BE ANNULLED AND SET

ASIDE, FOR BEING CONTRARY TO SEC. 31 OF THE CORPORATION
CODE AS WELL AS TO THE DOCTRINE IN CARAG V. NATIONAL
LABOR RELATIONS COMMISSION, 520 SCRA 28 (2007), VDA. DE
ROXAS V. OUR LADYÊS FOUNDATION, INC., G.R. NO. 182378,
MARCH 6, 2013, 690 SCRA 578, HEIRS OF FE TAN UY V.
INTERNATIONAL EXCHANGE BANK, G.R. NO. 166282, FEBRUARY
13, 2013, 690 SCRA 519, AND OTHER CASES, HOLDING THAT
BEFORE THE CORPORATE
314

Virata vs. Ng Wee
Moreover, petitioners deny any knowledge and

participation in the execution of the Side Agreements with
Power Merge, and claim that the execution was performed
by Wincorp President Ong and petitioner Reyes without
proper authorization from the board and, hence, ultra vires.
They add
VEIL MAY BE PIERCED, AND THE SEPARATE PERSONALITY

MAY BE DISREGARDED SO THAT LIABILITIES ARE
ATTACHED TO INDIVIDUAL CORPORATE
DIRECTORS/OFFICERS, THERE MUST BE CLEAR AND
CONVINCING EVIDENCE OF ANY WRONGDOING
COMMITTED BY SAID CORPORATE DIRECTOR/OFFICER AND
THAT SUCH ILL MOTIVE OR BAD FAITH CANNOT BE
PRESUMED.
xxxx
(A)
PETITIONERS SHOULD NOT BE HELD JOINTLY AND
SOLIDARILY LIABLE WITH THE OTHER DEFENDANTS IN
CIVIL CASE NO. 00-99006 FOR ANY OF RESPONDENTÊS
CLAIMS. NO CLEAR AND CONVINCING EVIDENCE EXIST
THAT PETITIONERS SIMEON CUA, HENRY CUALOPING, AND
VICENTE CUALOPING ASSENTED TO THE PATENTLY
UNLAWFUL ACTS OF THE CORPORATION WINCORP WHICH
IS REQUIRED TO HOLD DIRECTORS LIABLE FOR
CORPORATE ACTS UNDER SECTION 31 OF THE
CORPORATION CODE AND APPLICABLE JURISPRUDENCE.
xxxx
(B)
NO CLEAR AND CONVINCING EVIDENCE EXIST THAT
PETITIONERS SIMEON CUA, HENRY CUALOPING, AND
VICENTE CUALOPING WERE GUILTY OF GROSS
NEGLIGENCE OR BAD FAITH IN DIRECTING THE AFFAIRS
OF THE CORPORATION WINCORP WHICH IS REQUIRED TO
HOLD DIRECTORS LIABLE UNDER SECTION 31 OF THE
CORPORATION CODE AND APPLICABLE JURISPRUDENCE.
xxxx
II.
PETITIONERS SIMEON CUA, VICENTE CUALOPING, AND
HENRY CUALOPING SHOULD BE ABSOLVED FROM
LIABILITY IN THIS CASE.
315
VOL. 830, JULY 5, 2017 315

Virata vs. Ng Wee
that they could not have defrauded Ng Wee since they had
no knowledge that the latter was matched with Power
Merge.
G.R. No. 221218: Petition

for Review on Certiorari
of Anthony Reyes
Finally, the grounds73 invoked by petitioner Reyes to

support his petition centered on the argument that he had
no
_______________

I.
THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN
RULING THAT PETITIONER REYES WAS A DIRECTOR OF
WINCORP. PETITIONER REYES SIMPLY WAS NOT, AND HAD
NEVER BEEN, A DIRECTOR OF RESPONDENT WINCORP.
II.
THE COURT OF APPEALS RULED IN A MANNER NOT IN ACCORD
WITH THIS HONORABLE COURTÊS APPLICABLE DECISIONS
WHEN IT HELD PETITIONER REYES PERSONALLY LIABLE TO
RESPONDENT NG WEE SIMPLY FOR BEING RESPONDENT
WINCORPÊS SIGNATORY IN THE SUBJECT TRANSACTIONS
BETWEEEN RESPONDENTS WINCORP AND POWER MERGE.
PETITIONER REYES ACTED IN GOOD FAITH AND WITHIN THE
SCOPE OF HIS AUTHORITY AS A CORPORATE OFFICER OF
RESPONDENT WINCORP.
III.
THE COURT OF APPEALS RULED IN A MANNER NOT IN ACCORD
WITH THIS HONORABLE COURTÊS APPLICABLE DECISIONS
WHEN IT HELD PETITIONER REYES SOLIDARILY LIABLE WITH
THE OTHER RESPONDENTS FOR LIQUIDATED AND MORAL
DAMAGES AND ATTORNEYÊS FEES TO RESPONDENT NG WEE.
THE PROVISION ON LIQUIDATED DAMAGES CANNOT APPLY TO
PETITIONER REYES, AS HE WAS NOT A PARTY TO THE
AGREEMENT. SIMILARLY, HE CANNOT BE HELD LIABLE FOR
MORAL DAMAGES WHEN IT WAS NOT ESTABLISHED THAT HE
ACTED IN BAD FAITH.
316

Virata vs. Ng Wee
hand in the approval of the credit line application or its

increase since he is not a director of Wincorp. He was
merely the Vice President for Operations of Wincorp, duly
authorized as the investment houseÊs signatory for and to
all its documents, transactions and accounts. Thus, he
alleges that he was under obligation to sign the Credit Line
Agreement, its Amendment, and the Side Agreements in
favor of Power Merge after the latterÊs application was
approved by WincorpÊs board of directors.
Furthermore, he argues that Sec. 31 of the Corporation
Code is inapplicable since he is neither a director nor
trustee of Wincorp, as required by the provision. And
assuming without conceding its applicability, he claims
that he cannot be held solidarily liable since he signed the
agreements on behalf of the company in good faith.
The issue of whether or not Ng Wee is a real party-in-
interest was again raised as an issue in ReyesÊ petition.
The Comments
Comments of Wincorp
In G.R. No. 220926, filed by petitioners Virata and

UEM-MARA, Wincorp admitted in its Comment74 that the
execution of the Side Agreements is highly irregular, but
argues that only Ong and Reyes should be held liable
therefor since they acted beyond the scope of their
authority. Wincorp claims that the execution of the Side
Agreements releasing Power Merge from its obligations are
ultra vires acts of the corporate officers, for which the
investment house cannot be held liable.
_______________
IV.
PETITIONER REYESÊ CROSS-CLAIMS SHOULD HAVE BEEN
GRANTED, INASMUCH AS THE COURT OF APPEALS FOUND
COLLUSION BETWEEN RESPONDENTS WINCORP AND VIRATA,
AND HELD THEM LIABLE TO RESPONDENT NG WEE.
74 Rollo (G.R. No. 220926), pp. 5045-5051.
317
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Virata vs. Ng Wee
This argument was further amplified in its Comment75

in G.R. No. 221218, filed by Reyes, wherein Wincorp
reiterated that the actions of the two officers (Ong and
Reyes) in executing the Side Agreements, and thereby
discharging Virata and Power Merge from their obligations,
was outside the scope of their authority and was not
approved its board of directors. Accordingly, their actions
could not legitimately be considered as actions of Wincorp.
Comment of Virata,
UEM-MARA
Petitioners Virata and UEM-MARA argued in their

Comment76 in G.R. No. 221218, the only petition where
they are impleaded as respondents, that petitioner ReyesÊ
cross-claim has no factual and legal basis. Aside from
ReyesÊ general averments that Wincorp and Power Merge
connived and colluded to defraud the investors, he did not
cite any specific basis for holding Virata and UEM-MARA
liable to him.
Comment of Ng Wee
Respondent Ng Wee filed his Comment77 on the

consolidated petitions but merely refuted petitioner ReyesÊ
claims. Ng Wee emphasized that Reyes did not assail the
findings of the CA that the transactions between Wincorp
and Power Merge were impressed with fraud. Moreover,
ReyesÊ indispensable participation in the fraud, especially
his signing of the Side Agreements, rendered him liable to
respondent Ng Wee. His signatures to the Side Agreements
meant that he adhered to its contents, including the release
of Power Merge from its obligations under the Promissory
Notes.
_______________
75 Rollo (G.R. No. 221218), pp. 1035-1040.

76 Id., at pp. 935-951.
77 Id., at pp. 1043-1106.
318

Virata vs. Ng Wee
Meanwhile, petitioners Reyes, Estrella, Cua, and the

Cualopings did not file their respective comments78 despite
due notice.79
The Issues
Succinctly stated, the issues raised in the consolidated

petitions boil down to the following:
1. Whether or not the case was prosecuted in the

name of the real party-in-interest;
2. Whether or not Ng Wee was able to establish
his cause/s of action against Wincorp and
Power Merge;
3. Whether or not it is proper to pierce the veil of
corporate fiction under the circumstances of
the case;
4. Whether or not the counterclaims and cross-
claims of the parties should prosper; and
5. Whether or not the award of damages to Ng
Wee is proper.
The Court now resolves these issues in seriatim.
The CourtÊs Ruling

I.
Ng Wee is the Real Party-in-Interest
Petitioners present legal issues on both procedure and

substance. Resolving first the procedural aspect of the case,
the
_______________
78 Cua, Vicente and Henry Cualoping, and Estrella are respondents

in G.R. No. 221218, and in G.R. No. 220926 along with Reyes.
79 Rollo (G.R. No. 221218), p. 901; Rollo (G.R. No. 220926), p. 5042.
319
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Virata vs. Ng Wee
Court rules that Ng Wee is a real party-in-interest,

contrary to the petitionersÊ claim.
Law of the Case doc-

trine bars the re-
litigation of a settled
issue
As a general rule, every action must be prosecuted or

defended in the name of the real party-in-interest.80
Section 2, Rule 3 of the Rules of Court defines a real party-
in-interest as „the party who stands to be benefited or

injured by the judgment in the suit, or the party entitled to
the avails of the suit.‰
In this case, it is worth recalling that the procedural
issue on whether or not Ng Wee is the real party-in-interest
had already been resolved by this Court in G.R. No.
162928. There, the Court found neither abuse of discretion
on the part of the RTC nor reversible error on the CA when
they ruled that Ng Wee had the legal personality to file the
Complaint to recover his investments. The resolutions by
the CA and this Court sustaining the October 4, 2001
Order had already attained finality and could no longer be
modified. Concomitantly, the parties are barred from
reraising the issues settled therein, pursuant to the law of
the case doctrine.
The law of the case doctrine applies in a situation where
an appellate court has made a ruling on a question on
appeal and thereafter remands the case to the lower court
for further proceedings; the question settled by the
appellate court becomes the law of the case at the lower
court and in any subsequent appeal. It means that
whatever is irrevocably established as the controlling legal
rule or decision between the same parties in the same case
continues to be the law of the case, whether correct on
general principles or not, so long as
_______________
80 RULES OF COURT, Rule 3, Section 2.
320

Virata vs. Ng Wee
the facts on which the legal rule or decision was predicated

continue to be the facts of the case before the court.81
It is inconsequential that the issue raised in G.R. No.
162928 pertained to the alleged grave abuse of discretion
committed by the RTC in denying the motions to dismiss,
and not to the merits of the motions to dismiss per se. For
as the Court has elucidated in Banco de Oro-EPCI, Inc. v.
Tansipek:
x x x there is no substantial distinction between an appeal

and a Petition for Certiorari when it comes to the
application of the Doctrine of the Law of the Case. The
doctrine is founded on the policy of ending litigation. The doctrine is
necessary to enable the appellate court to perform its duties
satisfactorily and efficiently, which would be impossible if a
question once considered and decided by it were to be litigated anew
in the same case upon any and every subsequent appeal.82
(emphasis added)
We are then constrained to abide by Our prior ruling in

G.R. No. 162928 that Ng Wee is a real party-in-interest in
this case.
Ng Wee successfully stated

a cause of action based on
a hypothetical admission
of the allegations in his
complaint
To be sure, hornbook doctrine is that when the

affirmative defense of dismissal is grounded on the failure
to state a cause of action, a ruling thereon should be based
on the facts alleged in the complaint.83 Otherwise stated,
whether or not
_______________
81 Vios v. Pantangco, Jr., G.R. No. 163103, February 6, 2009, 578

SCRA 129, 143.
82 G.R. No. 181235, July 22, 2009, 593 SCRA 456, 466-467.
83 Clidoro v. Jalmanzar, G.R. No. 176598, July 9, 2014, 729 SCRA
350.
321
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Virata vs. Ng Wee
Ng Wee successfully stated a cause of action requires

hypothetically admitting and scrutinizing the allegations in
his Complaint. A reproduction of its pertinent contents is
hence apropos:
xxxx
2.5 Relying on said representations, [Ng Wee] placed substantial
amounts of money in his own name and in the names of others with
defendant Wincorp on several occasions. Some of the outstanding
placements of [Ng Wee] with defendant Wincorp, which were loaned
to defendant Virata/Power Merge, are in the names of Robert
Tabada Tan, Elizabeth Ng Wee, Alex Lim Tan and Angel Archangel
who hold said placements in trust for [Ng Wee].84
As aptly noted by the trial court in its October 4, 2001

Order denying the motions to dismiss:
In the Complaint, [Ng Wee] has clearly averred that he placed some
of his money placements in the names of other persons and that
said persons held the said money placements in trust for him
(paragraph 2.5 of the complaint). With such allegation of ownership

of the funds, [Ng Wee] is clearly the real party-in-interest as he
stands to be benefited or injured by the judgment in the instant
case. (Section 2, Rule 3, Rules of Court)
xxxx
Hence, this Court cannot grant the dismissal of the Complaint on
this ground, since the allegations in the Complaint show, on the
contrary, that [Ng Wee] is the real party-in-interest.85 (words in
brackets added)
The RTC is correct in its observation that there is

sufficient allegation that Ng Wee is the actual injured
party in the
_______________
84 Rollo (G.R. No. 220926), p. 197.

85 Id., at pp. 97-98.
322

Virata vs. Ng Wee
failed investment. As the alleged owner of the funds placed

under the names of Robert Tabada Tan, Elizabeth Ng Wee,
Alex Lim Tan and Angel Archangel in Wincorp, Ng Wee
lost P213,290,410.36 from Power MergeÊs default and
nonpayment of its obligations under the credit facility
extended by the investment house. This controverts
petitionersÊ claim that Ng Wee is not the real party-in-
interest herein.
Testimonial evidence on
record established Ng
WeeÊs ownership over
the invested funds; Ng
Wee does not lack cause
of action
Even the evidence on record would belie petitionersÊ

claim that Ng Wee is not the real party-in-interest.
Elizabeth Ng Wee, Alex Lim Tan and Angel Archangel were
straightforward in their testimonies that the funds
invested in Power Merge belonged to Ng Wee, albeit
recorded under their names. They likewise executed
documents denominated as „Declaration of Trust‰ wherein
they categorically stated that they merely held the funds in
trust for Ng Wee, the beneficial owner.
Angel Archangel admitted the trust relation in the
following manner:
Q: What can you say about the money placement in Wincorp?

A: It is not my money, sir.
Q: And whose money is it, Madam Witness?
A: Alejandro Ng Wee.
Q: And what is your participation insofar as that money placement
is concerned?
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Virata vs. Ng Wee
A: None, sir.86
Elizabeth Ng Wee, meanwhile, testified in the following

wise:
Q: Now you said you transacted with this Gilda because you were
instructed by your brother to transact with her?
A: Yes, sir.
Q: And why did you follow his instruction?
A: It is his money.
Q: Which one?
A: Those placements, sir.
xxxx
Q: And why are these money placements under your name, Madam
Witness, if these are his money?
A: He requested me to handle this money on behalf of him, sir.
Q: And you earlier identified five (5) confirmation advices, what
relation do these confirmation advices have to the confirmation
which you have identified and said that you surrendered to your
brother?
A: They are the same, sir.
Q: I see. Why did you surrender them to your brother?
A: Simply because they are not my money, sir. Those are his, so it is
up to him to do something about what will happen.
xxxx
Q: I am holding before me a document introduced by the lawyer of
your brother previously marked as Exhibit „JJJ‰ entitled
Declaration of Trust, kindly go over the document.
_______________
86 TSN, August 17, 2005, pp. 14-33, as cited in the September 30,
2014 Court of Appeals Decision in C.A.-G.R. CV No. 97817, pp. 34-35; id.,
at pp. 100-101.
324

Virata vs. Ng Wee
A: Okay.
Q: There is a signature at the bottom portion of the
document, whose signature is that?
A: That is my signature, sir.87
And when Alex Lim Tan took the witness stand:
xxxx
A: He [referring to Alejandro Ng Wee] called me up and he
requested me if he can use my name in placing his money with
Westmont for money placement.
Q: You mentioned Westmont. What is that Westmont?
A: Westmont Investment Corporation, sir.
Q: And what was your response, if any, to the request of Plaintiff?
A: I agreed.
Q: And what happened next after you agreed?
A: He let me sign the documents specifically the Confirmation
Advices, sir.
xxxx
Q: And what did you do after he sent these Confirmation Advices to
you?
A: I signed it, sir.
Q: And after signing these documents, what else did you do if any?
A: I returned them to Mr. Wee, Sir.
Q: And why did you return these documents to him?
A: Because he owns it, sir.
xxxx
_______________
87 Id., August 24, 2005, pp. 40-52, as cited in the September 30, 2014
Court of Appeals Decision in C.A.-G.R. CV No. 97817, pp. 35-36; id., at
pp. 101-102.
325
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Virata vs. Ng Wee
Q: Apart from the Confirmation Advices that you identified today,

did you sign any other document in connection with the
investment represented by these Confirmation Advices?
A: There was, sir.
Q: Can you tell us what was that document, Mr. Witness?
A: The Declaration of Trust, Sir.88
Finally, Wincorp employees Ruben Tobias and Gilda
Lucena testified89 that they were instructed by Ng Wee to

rename several of his investments under the Power Merge
Account to the names of Alex Lim Tan and Robert Tabada
Tan. Effectively, Ruben Tobias and Gilda Lucena
corroborated the claim of Ng Wee that the investments in
Power Merge that were recorded under those names are
actually respondent Ng WeeÊs.
From the foregoing evidence on record, it can no longer
be gainsaid that Ng Wee is the real party-in-interest in the
present case. The allegation in his Complaint that he is the
actual owner of the P213,290,410.36 infused in Power
Merge under the names of Robert Tabada Tan, Elizabeth
Ng Wee, Alex Lim Tan and Angel Archangel has been
established by preponderant evidence, and, more
significantly, has already become the law of the case. The
procedural issue raised by petitioners therefore lacks merit.
II.
Liability of the Corporations to Ng Wee
With the procedural issue disposed, the Court will now

proceed to ascertain the liability of the parties to Ng Wee,
begin-
_______________
88 Id., September 7, 2005, pp. 7-32, as cited in the September 30,

2014 Court of Appeals Decision in C.A.-G.R. CV No. 97817, pp. 36-37; id.,
at pp. 102-103.
89 Id., July 13, 2005 and January 18, 2006, as cited in the September
30, 2014 Court of Appeals Decision in C.A.-G.R. CV No. 97817, p. 37; id.,
at p. 103.
326

Virata vs. Ng Wee
ning with the major players in this controversy. On this

point, worthy of note is that none of the petitioners
disputed the fact that Ng Wee is entitled to recover the
amount that he has invested. What they only required,
which they also invoked as the ground for their motions to
dismiss, is that Ng Wee prove that the amounts invested
actually belonged to him. Thus, having established that Ng
Wee is the real party-in-interest and that he is the
beneficial owner of the investments under the names of
Robert Tabada Tan, Elizabeth Ng Wee, Alex Lim Tan and
Angel Archangel, his entitlement to recover the
P213,290,410.36 becomes indubitable. The only question
that remains now is: from whom can Ng Wee recover the
P213,290,410.36 investment? To this, petitioners would
pose clashing claims, which prompts this Court to elucidate

on their respective exposures to civil liability.
Only Wincorp is liable to

Ng Wee for fraud; Power
Merge is liable based on
contract
a. That Wincorp de-
frauded Ng Wee is a
finding of fact that
is conclusive on this
Court
Axiomatic in this jurisdiction is that, as a general rule,

only questions of law may be raised in a Petition for Review
on Certiorari under Rule 45 of the Rules of Court.90 The
appellate courtÊs findings of fact being conclusive, the
jurisdiction of this Court in appealed cases is limited to
reviewing and revising the errors of law.91 As We have
emphatically declared in a
_______________
90 RULES OF COURT, Rule 45, Sec. 1.

91 Far Eastern Surety and Insurance Co., Inc. v. People, G.R. No.
170618, November 20, 2013, 710 SCRA 358.
327
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Virata vs. Ng Wee
long line of cases, „it is not the function of the Supreme

Court to analyze or weigh such evidence all over again, its
jurisdiction being limited to reviewing errors of law that
might have been committed by the lower court.‰92
Enumerated in Medina v. Mayor Asistio, Jr.93 are the
recognized exceptions to the general rule.94 But insofar as
Wincorp is concerned, it failed to establish that any of these
exceptions obtain in the present case. Thus, the Court
sustains the finding of the trial court, as affirmed by the
CA, that Wincorp is liable to Ng Wee for perpetrating an
elaborate scheme to defraud its investors. As held by the
CA:
[Ng Wee] would not have placed funds or invested [in] the „sans
recourse‰ transactions under the Power Merge borrower account
had he not been deceived into believing that Power Merge is
financially capable of paying the returns of his investments/money
placements. Wincorp accredited Power Merge as a borrower, given it
a credit line in the maximum amount of P2,500,000,000.00,
Philippine Currency, allowed it to make drawdowns up to
_______________
92 Dihiansan v. Court of Appeals, No. L-49539, September 14, 1987,

153 SCRA 712, 716.
93 G.R. No. 75450, November 8, 1990, 191 SCRA 218.
94 Id., at pp. 223-224: (1) When the conclusion is a finding grounded
entirely on speculation, surmises or conjectures; (2) When the inference
made is manifestly mistaken, absurd or impossible; (3) Where there is a
grave abuse of discretion; (4) When the judgment is based on a
misapprehension of facts; (5) When the findings of fact are conflicting; (6)
When the Court of Appeals, in making its findings, went beyond the
issues of the case and the same is contrary to the admissions of both
appellant and appellee; (7) The findings of the Court of Appeals are
contrary to those of the trial court; (8) When the findings of fact are
conclusions without citation of specific evidence on which they are based;
(9) When the facts set forth in the petition as well as in the petitionerÊs
main and reply briefs are not disputed by the respondents; and (10) The
finding of fact of the Court of Appeals is premised on the supposed
absence of evidence and is contradicted by the evidence on record.
328

Virata vs. Ng Wee
P2,183,755,253.11, Philippine Currency, matched it with [Ng WeeÊs]

investments/money placements to the extent of P213,290,410.36,
Philippine Currency, notwithstanding telling signs which
immediately cast doubt on its ability to perform its obligations
under the Credit Line Agreements, Promissory Notes and
[Confirmation Advices], to wit: (1) Power Merge had only been in
existence as a corporation for barely two (2) years when it was
accredited as borrower by Wincorp; (2) Power Merge is a thinly
capitalized corporation with only P37,500,000.00 subscribed capital
stock; (3) Power Merge is not an ongoing concern because (a)
Despite the fact that Power MergeÊs principal place of business is at
151 Paseo de Roxas St., Makati City, it has neither registered nor
conducted any business at Makati City as evident from the
Certification dated January 3, 2006 issued by the Business Permits
Office of Makati City; (b) it is not engaged in any lucrative business
to finance its operation; Despite the fact that its primary purpose is
to „invest in, purchase, or otherwise acquire and own, hold, use,
sell, assign, transfer, mortgage, pledge, exchange, or otherwise
dispose of real or personal property of every kind and
description. . . ,‰ no proof was adduced to show that it was carrying
out or has carried out this mandate in accordance with the law; (c)
From the time of its incorporation until the revocation of its
Certificate of Incorporation on March 15, 2004, Power Merge has
failed to file annual reports required by the SEC such as General
Information Sheets and Financial Statements; (4) No security
whatsoever was demanded by Wincorp or furnished by Power
Merge in relation to its credit line and drawdowns. Indeed, no
person in his proper frame of mind would venture to lend hundreds

of millions of pesos to a business entity having such a financial
setup. x x x
xxxx
The intent to defraud and deceive [Ng Wee] of his
investments/money placements was manifest from the very start.
Wincorp and Power Merge entered into a Credit Line Agreement on
February 15, 1999 and an Amendment to Credit Line Agreement on
March 15,
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Virata vs. Ng Wee
1999. It is interesting to note that they simultaneously executed

two Side Agreements which are peculiar because: (1) The dates of
execution of the two Side Agreements coincide with the dates of
execution of the credit agreements; (2) [The] two Side Agreements
were executed by the same exact parties: Antonio Ong and Anthony
Reyes for and on behalf of Wincorp and [Virata] and Augusto Geluz
for and on behalf of Power Merge; (3) The Credit Line Agreement
dated February 15, 1999 and the First Side Agreement dated
February 15, 1999 were both acknowledged before notary public,
Atty. Fina De La Cuesta-Tantuico while the Amendment to Credit
Line Agreement dated March 15, 1999 and the Second Side
Agreement dated March 15, 1999 were both acknowledged before
notary public, Atty. Eric R.G. Espiritu; (4) The two Side Agreements
have the same exact provisions as the two credit agreements insofar
as it purports to extend a credit line and increase the credit line of
Power Merge but the two Side Agreements relieve Power Merge
from any liability arising from the execution of the agreements and
promissory notes.95
Jurisprudence defines „fraud‰ as the voluntary

execution of a wrongful act, or a willful omission, knowing
and intending the effects which naturally and necessarily
arise from such act or omission. In its general sense, fraud
is deemed to comprise anything calculated to deceive,
including all acts and omissions and concealment involving
a breach of legal or equitable duty, trust, or confidence
justly reposed, resulting in damage to another, or by which
an undue and unconscientious advantage is taken of
another. Fraud is also described as embracing all
multifarious means which human ingenuity can device,
and which are resorted to by one individual to secure an
advantage over another by false suggestions or by
suppression of truth and includes all surprise, trick,
cunning,
_______________
95 Rollo (G.R. No. 220926), pp. 110-113.
330

Virata vs. Ng Wee
dissembling, and any unfair way by which another is

cheated.96
Under Article 1170 of the New Civil Code, those who in
the performance of their obligations are guilty of fraud are
liable for damages. The fraud referred to in this Article is
the deliberate and intentional evasion of the normal
fulfillment of obligation.97 Clearly, this provision is
applicable in the case at bar. It is beyond quibble that
Wincorp foisted insidious machinations upon Ng Wee in
order to inveigle the latter into investing a significant
amount of his wealth into a mere empty shell of a
corporation. And instead of guarding the investments of its
clients, Wincorp executed Side Agreements that virtually
exonerated Power Merge of liability to them; Side
Agreements that the investors could not have been aware
of, let alone authorize.
The summation of WincorpÊs actuations establishes the
presence of actionable fraud, for which the company can be
held liable. In Joson v. People, the Court upheld the ruling
that where one states that the future profits or income of
an enterprise shall be a certain sum, but he actually knows
that there will be none, or that they will be substantially
less than he represents, the statements constitute an
actionable fraud where the hearer believes him and relies
on the statement to his injury.98
Just as in Joson, it is abundantly clear in the present
case that the profits which Wincorp promised to the
investors would not be realized by virtue of the Side
Agreements. The investors were kept in the dark as
regards the existence of these documents, and were instead
presented with Confirmation Advices from Wincorp to give
the transactions a sem-
_______________
96 Republic v. Estate of Alfonso Lim, Sr., G.R. No. 164800, July 22,
2009, 593 SCRA 404, 417-418.
97 Legaspi Oil Co., Inc. v. Court of Appeals, G.R. No. 96505, July 1,
1993, 224 SCRA 213.
98 G.R. No. 178836, July 23, 2008, 559 SCRA 649, 657-658.
331
VOL. 830, JULY 5, 2017 331

Virata vs. Ng Wee
ance of legitimacy, and to convince, if not deceive, the

investors to roll over their investments or to part with their
money some more.
b. Power Merge is not

guilty of fraud, but
is liable under con-
tract nonetheless
The story, however, is different for Power Merge. The

circumstances of this case points to the conclusion that
Power Merge and Virata were not active parties in
defrauding Ng Wee. Instead, the company was used as a
mere conduit in order for Wincorp to be able to conceal its
act of directly borrowing funds for its own account. This is
made evident by one highly peculiar detail · the date of
the Power MergeÊs drawdowns.
It must be remembered that the special meeting of
WincorpÊs board of directors was conducted on February 9
and March 11 of 1999, while the Credit Line Agreement
and its Amendment were entered into on February 15 and
March 15 of 1999, respectively. But as indicated in Power
MergeÊs schedule of drawdowns,99 Wincorp already released
to Power Merge the sum of P1,133,399,958.45 as of
February 12, 1999, before the Credit Line Agreement was
executed. And as of March 12, 1999, prior to the
Amendment, P1,805,018,228.05 had already been released
to Power Merge.
The fact that the proceeds were released to Power Merge
before the signing of the Credit Line Agreement and the
Amendment thereto lends credence to VirataÊs claim that
Wincorp did not intend for Power Merge to be strictly
bound by the terms of the credit facility; and that there had
already been an understanding between the parties on
what their respective obligations will be, although this
agreement had not yet been reduced into writing. The
underlying transaction would later on be revealed in black
and white through the
_______________
99 Rollo (G.R. No. 220926), pp. 411-412.
332

Virata vs. Ng Wee
Side Agreements, the tenor of which amounted to WincorpÊs

intentional cancellation of Power Merge and VirataÊs
obligation under their Promissory Notes.100 In exchange,
Virata and Power Merge assumed the obligation to transfer
equity shares in UPDI and the tollway project in favor of
Wincorp. An armÊs length transaction has indeed taken
place, substituting Virata and Power MergeÊs obligations
under the Promissory Notes, in pursuance of the
Memorandum of Agreement and Waiver and Quitclaim
executed by Virata and Wincorp. Thus, as far as Wincorp,
Power Merge, and Virata are concerned, the Promissory
Notes had already been discharged.
It was the understanding of the two companies that the
Promissory Notes would not be passed on to the hands of
third persons and that, in any event, Wincorp guaranteed
Virata that he and Power Merge would not be held liable
thereon. Driven by the desire to completely settle his
obligation as a surety under the Hottick account, Virata
took the deal and relied in good faith that WincorpÊs
officials would honor their gentlemanÊs agreement. But as
events unfolded, it turned out that Wincorp was in evident
bad faith when it subsequently assigned credits pertaining
to portions of the loan and the corresponding interests in
the Promissory Notes to the investors in the form of
Confirmation Advices when it knew fully well of Power
MergeÊs discharge from liability.
Between Wincorp and Power Merge, it is Wincorp, as the
assignor of the portions of credit, that is under obligation to
disclose to the investors the existence and execution of the
Side Agreements. Failure to do so, to Our mind, only goes
to show that the target of WincorpÊs fraud is not any
particular individual, but the public at large. On the other
hand, it was not Power MergeÊs positive legal duty to
forewarn the investors of its discharge since the company
did not deal with them directly. Power Merge and Virata
were agnostic as to the source of funds since they relied on
their underlying agree-
_______________
100 See NEGOTIABLE INSTRUMENTS LAW, Section 119(c).
333
VOL. 830, JULY 5, 2017 333

Virata vs. Ng Wee
ment with Wincorp that they would not be liable for the
Promissory Notes issued.
As far as it was concerned, Power Merge was merely
laying the groundwork prescribed by Wincorp towards
fulfilling its obligations under the Waiver and Quitclaim.
Virata was not impelled by any Machiavellian mentality

when he signed the Side Agreements in Power MergeÊs
behalf. Therefore, only Wincorp can be held liable for fraud.
Nevertheless, as will later on be discussed, Power Merge
and Virata can still be held liable under their contracts, but
not for fraud.
The „sans recourse‰ transac-

tions cannot exempt Wincorp
from liability for having been
offered in violation of com-
mercial laws
Wincorp attempts to evade liability by hiding behind the

„sans recourse‰ nature of the transactions with Ng Wee. It
argues that as a mere agent or broker that matches an
investor with a borrower, it cannot be held liable for the
invested amount in case of an unsuccessful or failed match.
As evidenced by the Confirmation Advices and SPAs signed
by the investors, Wincorp is merely tasked to deliver the
amount to be loaned to the borrower, and does not
guarantee its borrowersÊ financial capacity.
The argument deserves scant consideration.
a. The „sans recourse‰ tran-

sactions are deemed „with
recourse‰
An investment house is an enterprise that engages in

the underwriting of securities of other corporations.101
Securities underwriting, in turn, refers to the process by
which under-
_______________
101 Presidential Decree No. 129, Section 2.
334

Virata vs. Ng Wee
writers raise capital investments on behalf of the

corporation issuing the securities. Thus, aside from
performing the regular powers of a corporation under the
Corporation Code, a duly licensed investment house is
granted additional powers under Sec. 7102 of Presidential
Decree (PD) No. 129.
_______________
102 Section 7. Powers.·In addition to the powers granted to
corporations in general, an Investment House is authorized to do the

following:
1. Arrange to distribute on a guaranteed basis securities of
other corporations and of the Government or its instrumentalities;
2. Participate in a syndicate undertaking to purchase and sell,
distribute or arrange to distribute on a guaranteed basis securities
of other corporations and of the Government or its
instrumentalities;
3. Arrange to distribute or participate in a syndicate
undertaking to purchase and sell on a best-efforts basis securities
of other corporations and of the Government or its
instrumentalities;
4. Participate as soliciting dealer or selling group member in
tender offers, block sales, or exchange offering or securities; deal
in options, rights or warrants relating to securities and such other
powers which a dealer may exercise under the Securities Act;
5. Promote, sponsor, or otherwise assist and implement
ventures, projects and programs that contribute to the economyÊs
development;
6. Act as financial consultant, investment adviser, or broker;
7. Act as portfolio manager, and/or financial agent, but not as
trustee of a trust fund or trust property;
8. Encourage companies to go public, and initiate and/or
promote, whenever warranted, the formation, merger,
consolidation, reorganization, or recapitalization of productive
enterprises, by providing assistance or participation in the form of
debt or equity financing or through the extension of financial or
technical advice or service;
9. Undertake or contract for researches, studies and surveys on
such matters as business and economic conditions of
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Virata vs. Ng Wee
Conspicuously absent in the enumerated additional

powers of an investment house, however, is the authority to
perform quasi-banking functions. Even as a financial
intermediary, investment houses are not allowed to engage
in quasi-banking functions, unless authorized by the
Monetary Board through the issuance of a Certificate of
Authority.103
The Omnibus Rules and Regulations for Investment
Houses and Universal Banks Registered as Underwriters
defines „quasi-banking function‰ as the function of
„borrowing funds for the borrowerÊs own account
from 20 or more persons or corporate lenders at any
one time, through the issuance, endorsement or
acceptance of debt instruments of any kind other than
deposits which may include but need not be limited to
acceptances, promissory notes, participations, certificates of
assignment or similar instruments with recourse, trust

certificates or of repurchase agreements for purposes of
relending or purchasing of receivables and other
obligations.‰104
Given the definition, it would appear on paper that
offering the „sans recourse‰ transactions does not qualify as
the performance of a quasi-banking function specifically
because it is „sans recourse‰ against Wincorp. As provided
under
_______________
various countries, the structure of financial markets, the

institutional arrangements for mobilizing investments;
10. Acquire, own, hold, lease or obtain an interest in real and/or
personal property as may be necessary or appropriate to carry on
its objectives and purposes;
11. Design pension, profit sharing and other employee benefits
plans; and
12. Such other activities or business ventures as are directly or
indirectly related to the dealing in securities and other commercial
papers, unless otherwise governed or prohibited by special laws, in
which case the special law shall apply.
103 PD No. 129, Sec. 12.
104 Id., Sec. 2(K).
336

Virata vs. Ng Wee
S4101Q.3 of the Manual of Regulations for Non-bank

Financial Institutions:
S4101Q.3. Transactions not considered quasi-banking. The

following shall not constitute quasi-banking:
xxxx
a. The mere buying and selling without recourse of
instruments mentioned in Sec. 4101Q: Provided, that:
(1) The institution selling without recourse shall indicate or stamp
in conspicuous print on the instrument/s, as well as on the
confirmation of sale (COS), the phrase without recourse or sans
recourse and the following statement:
(name of financial intermediary)
assumes no liability for the payment
directly or indirectly, of the instrument
(2) In the absence of the phrase without recourse or sans recourse
and without the above required accompanying statement, the
instrument so issued, endorsed or accepted shall automatically
be considered as falling within the purview of the rules on quasi-
banking. (emphasis added)
However, the Court affirms the appellate courtÊs finding

that the true nature of the „sans recourse‰ transactions
contradicts WincorpÊs averment. A perusal of the records
would show that Wincorp engaged in practices that
rendered the transactions to be „with recourse‰ and,
consequently, within the ambit of quasi-banking rules.
First, Wincorp did not act as a mere financial
intermediary between Ng Wee and Power Merge, but
effectively obtained the funds for its own account. To
borrow funds for oneÊs own account should not only be
taken in its literal meaning to the effect that Wincorp and
its beneficial owners literally bor-
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Virata vs. Ng Wee
rowed the funds invested by Ng Wee. Rather, it should be

interpreted in this case while bearing in mind WincorpÊs
end goal · to assign its rights to the uncollected, if not
worthless, Hottick obligations and hold more valuable
Power Merge papers in their stead. Without enticing the
investors to put up capital for Power Merge, Wincorp would
not have been able to facilitate the exchange. Thus, with
Power Merge as a conduit, WincorpÊs borrowings from its
investors redounded to its benefit. This is bolstered by
WincorpÊs act of executing the Side Agreements releasing
Power Merge from its obligation to pay under its
Promissory Notes, exposing itself to liability to pay the
same.
Second, in PED Case No. 20-2378, the Prosecution and
Enforcement Department of the SEC found that as of
December 31, 1999, Wincorp has sourced funds from 2,200
individuals with an average of P7,000,000,000.00 worth of
commercial papers per month. This figure unquestionably
exceeds the „20 or more persons or corporate lenders‰
threshold.
Third, the Confirmation Advices that are marked „sans
recourse‰ are actually „with recourse.‰ On this point, a
reproduction of the succeeding paragraphs of S4101Q.3 of
the Manual of Regulations for Non-bank Financial
Institutions is in order:
xxxx
Provided, further, that any of the following practices or
practices similar and/or tantamount thereto in connection
with a without recourse transaction rendered such
transaction as with recourse and within the purview of the
rules on quasi-banking.
xxxx
(iii) Payment with the funds of the financial intermediary
which assigned, sold or transferred the debt instrument

without recourse, unless the financial intermediary can show
that the issuer has with the said financial intermediary funds
corresponding to the amount of the obligation. (emphasis added)
338

Virata vs. Ng Wee
From the above provision, WincorpÊs act of advancing

the payment of interests when the corporate borrower is
unable to pay despite the borrowing being branded as
without recourse, rendered it to be with recourse. Coupled
with the above circumstances, offering the „sans recourse‰
transactions should then be categorized as an exercise of a
quasi-banking function. The transactions were merely
being denominated as „sans recourse‰ by Wincorp to
circumvent the license requirement under the law. The
alleged „sans recourse‰ nature of the transactions cannot
then be used by Wincorp as a shield against liability to Ng
Wee.
b. Wincorp engaged in
the sale of unregis-
tered securities
There is more to the „sans recourse‰ transactions than

meets the eye, so much so that the operations of Wincorp
cannot be oversimplified as mere brokering of loans. As
discovered by the SEC in PED Case No. 20-2378, and as
ruled by the CA, Wincorp was, in reality, selling to the
public securities, i.e., shares in the Power Merge credit in
the form of investment contracts.
Securities are shares, participation or interests in a
corporation or in a commercial enterprise or profit-making
venture and evidenced by a certificate, contract,
instruments, whether written or electronic in character.105
As a general rule, securities are not to be sold or offered for
sale or distribution without due registration, and provided
that information on the securities shall be made available
to prospective purchasers.106
Included in the list of securities that require registration
prior to offer, sale, or distribution are investment
contracts.107
_______________
105 Republic Act No. 8799, Section 3; see also Batas Pambansa Blg.
178, Section 2(a).
106 Id., Sec. 8; id., Sec. 4.
107 Id., Sec. 3.1(b); id., Sec. 2.
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Virata vs. Ng Wee
An investment contract refers to a contract, transaction or

scheme whereby a person invests his money in a common
enterprise and is led to expect profits primarily from the
efforts of others.108 It is presumed to exist whenever a
person seeks to use the money or property of others on the
promise of profits.109
In this jurisdiction, the Court employs the Howey test,
named after the landmark case of Securities and Exchange
Commission v. W.J. Howey Co.,110 to determine whether or
not the security being offered takes the form of an
investment contract. The case served as the foundation for
the domestic definition of the said security.
Under the Howey test, the following must concur for an
investment contract to exist: (1) a contract, transaction, or
scheme; (2) an investment of money; (3) investment is
made in a common enterprise; (4) expectation of profits;
and (5) profits arising primarily from the efforts of others.
Indubitably, all of the elements are present in the extant
case.
First, Wincorp offered what it purported to be „sans
recourse‰ transactions wherein the investment house would
allegedly match investors with prescreened corporate
borrowers in need of financial assistance.
Second, Ng Wee invested the aggregate amount of
P213,290,410.36 in the „sans recourse‰ transactions
through his trustees, as embodied in the Confirmation
Advices.
Third, prior to being matched with a corporate
borrower, all the monies infused by the investors are pooled
in an ac-
_______________
108 Power Homes Unlimited Corporation v. Securities and Exchange

Commission, G.R. No. 164182, February 26, 2008, 546 SCRA 567, 575-
576.
109 Securities and Exchange Commission v. Santos, G.R. No. 195542,
March 19, 2014, 719 SCRA 514.
110 328 US 293 (1946).
340
Virata vs. Ng Wee
count maintained by Wincorp.111 This ensures that there

are enough funds to meet large drawdowns by single
borrowers.
Fourth, the investors were induced to invest by Wincorp
with promises of high yield. In Ng WeeÊs case, his
Confirmation Advices reveal that his funds were supposed
to earn 13.5% at their respective maturity dates.
Fifth, the profitability of the enterprise depended
largely on whether or not Wincorp, on best effort basis,
would be able to match the investors with their approved
corporate borrowers.
Apparent then is that the factual milieu of the case at
bar sufficiently satisfies the Howey test. The „sans
recourse‰ transactions are, in actuality, investment
contracts wherein investors pool their resources to meet
the financial needs of a borrowing company. This does not
stray far from the illustration given by former Associate
Justice Roberto A. Abad in Securities and Exchange
Commission v. Prosperity.com, Inc., to wit:
An example that comes to mind would be the long-term commercial

papers that large companies, like San Miguel Corporation (SMC),
offer to the public for raising funds that it needs for expansion.
When an investor buys these papers or securities, he invests his
money, together with others, in SMC with an expectation of profits
arising from the efforts of those who manage and operate that
company. SMC has to register these commercial papers with the
SEC before offering them to investors.112
Likewise, in SEC Admin Case No. 09-07-88, entitled In

Re: D 1st Cell Pawnshop, Inc.,113 the SEC ruled that by
soliciting investments from P50,000.00 up to P300,000.00
and promising a return of four percent (4%) per month, D
1st Cell Pawnshop offered investment contracts to the
public.
_______________
111 Rollo (G.R. No. 220296), p. 1040.

112 G.R. No. 164197, January 25, 2012, 664 SCRA 28, 32.
113 Dated July 8, 2010.
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No error can then be attributed to the CA when it

designated the „sans recourse‰ transactions as investment
contracts. No fault can also be ascribed to the appellate

court in finding that Wincorp virtually purchased and
resold securities, and not just brokered a loan. The most
telling circumstance that negate WincorpÊs claim of mere
brokerage, as mentioned earlier, is the fact that it paid for
the interest payments due from the corporate borrowers
that defaulted. This effectively estopped Wincorp from
denying liability from its investors in this case.
Wincorp cannot hide behind its license to operate as an
investment house when it offered the „sans recourse‰
transactions to the public. For though investment houses
are authorized to do the following:114
xxxx
6. Act as financial consultant, investment adviser, or broker;
7. Act as portfolio manager, and/or financial agent x x x;
8. Encourage companies to go public, and initiate and/or promote,
whenever warranted, the formation, merger, consolidation,
reorganization, or recapitalization of productive enterprises, by
providing assistance or participation in the form of debt or equity
financing or through the extension of financial or technical advice
or service.
xxx
their license to perform investment house functions does

not excuse them from complying with the security
registration requirements under the law. For clarity, the
license requirement to operate as an investment houses is
separate and distinct from the registration requirement for
the securities they are offering, if any.
_______________
114 Presidential Decree No. 129, Sec. 7.
342

Virata vs. Ng Wee
In dealing in securities, Wincorp was under legal

obligation to comply with the statutory registration and
disclosure requirements. Under BP 178, otherwise known
as the Revised Securities Act, which was still in force at the
time material in this case, investment contracts are
securities, and their sale, transactions that are not exempt
from these requirements.115 As such, adherence to Sections
4 and 8 of BP 178 must be strictly observed, to wit:
Section 4. Requirement of registration of securities.·(a) No

securities, except of a class exempt under any of the provisions of
Section five hereof or unless sold in any transaction exempt under
any of the provisions of Section six hereof, shall be sold or offered
for sale or distribution to the public within the Philippines unless

such securities shall have been registered and permitted to be sold
as hereinafter provided.
xxxx
Section 8. Procedure for registration.·(a) All securities
required to be registered under subsection (a) of Section four of this
Act shall be registered through the filing by the issuer or by any
dealer or underwriter interested in the sale thereof, in the
office of the Commission, of a sworn registration statement with
respect to such securities, containing or having attached thereto,
the following:
xxxx
(8) A statement of the capitalization of the issuer and of all
companies controlling, controlled by or commonly controlled with
the issuer, including the authorized and outstanding amounts of its
capital stock and the proportion thereof paid up; the number and
classes of shares in which such capital stock is divided; par value
thereof, or if it has no par value, the stated or assigned value
thereof; a description of the respective voting rights,
_______________
115 Batas Pambansa Blg. 178, Secs. 5 and 6.
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Virata vs. Ng Wee
preferences, conversion and exchange rights, rights to dividends,

profits, or capital of each class, with respect to each other class,
including the retirement and liquidation rights or values thereof.
xxxx
(14) The specific purposes in detail and the approximate amounts
to be devoted to such purposes, so far as determinable, for which the
security to be offered is to supply funds, and if the funds are to be
raised in part from other sources, the amounts and the sources
thereof.
xxxx
(27) A balance sheet as of a date not more than ninety days prior
to the date of the filing of the registration statement showing all of
the assets of the issuer, the nature and cost thereof, whenever
determinable with intangible items segregated, including any loan
to or from any officer, director, stockholder or person directly or
indirectly controlling or controlled by the issuer, or person under
direct or indirect common control with the issuer. x x x All the
liabilities of the issuer, including surplus of the issuer, showing how
and from what sources such surplus was created, all as of a date not
more than ninety days prior to the filing of the registration
statement. x x x
(28) A profit and loss statement of the issuer showing earnings
and income, the nature and source thereof, and the expenses and
fixed charges in such detail and such form as the Commission shall
prescribe for the latest fiscal year. x x x Such statement shall show
what the practice of the issuer has been during the three years or
lesser period as to the character of the charges, dividends or other
distributions made against its various surplus accounts, and as to
depreciation, depletion, and maintenance charges, and if stock
dividends or avails from the sale of rights have been credited to
income, they shall be shown separately with statement of the basis
upon which credit is computed. Such statement shall also
differentiate between recurring and nonrecurring income and
between any investment and operating income. Such state-
344

Virata vs. Ng Wee
ment shall be certified by an independent certified public

accountant.
xxxx
(30) A copy of any agreement or agreements or, if identical
agreements are used, the forms thereof made with any underwriter,
including all contracts and agreements referred to in subparagraph
(19) hereof. (emphasis added)
In the guise of merely brokering loans between an

investor and a corporate borrower, that it is not in the
business of selling securities, Wincorp conveniently failed
to disclose to the investors the necessary information under
Section 8 of BP 178. To the mind of the Court, offering the
„sans recourse‰ transactions without compliance therewith
constitutes fraudulent transactions within the
116
contemplation of Section 29 of the law.
Nondisclosure of the capitalization details and the
financial statements of the issuer Power Merge under Secs.
8(8), (27), and (28) resulted in the failure of the investors to
pay heed to the red flags that the enterprise was doomed to
fail: (1) the fact that it only had an outstanding capital
stock of P37,500,000.00, of which the total actually paid is
only P9,375,000.00; (2) that it has not been complying with
the reportorial requirements, including the submission of
financial statements to the SEC; (3) and that Power Merge
is not
_______________
116 Section 29. Fraudulent transactions.·(a) It shall be unlawful

for any person, directly or indirectly, in connection with the purchase or
sale of any securities ·
(1) To employ any device, scheme, or artifice to defraud, or
(2) To obtain money or property by means of any untrue statement of
a material fact or any omission to state a material fact necessary in order

to make the statements made, in the light of the circumstances under
which they were made, not misleading, or
(3) To engage in any act, transaction, practice, or course of business
which operates or would operate as a fraud or deceit upon any person.
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Virata vs. Ng Wee
an ongoing concern since it does not engage in any

legitimate business. In addition, noncompliance with
Section 8(14) and (30) prevented the investors from
discovering the true intent behind the approval of the
Power Merge credit line application and the underlying
transactions behind its issuance of Promissory Notes.
Clearly then, because Wincorp had been successful in its
scheme of passing off the „sans recourse‰ transactions as
mere brokering of loans, it managed to circumvent the
registration and disclosure requirements under BP 178,
and managed to commit fraud in a massive scale against
its investors to the latterÊs damage and prejudice, for which
Wincorp ought to be held liable.
c. Wincorp is liable as
a vendor in bad faith
and for breach of
warranty
Aside from its liability arising from its fraudulent

transactions, Wincorp is also liable to Ng Wee for breach of
warranty. It cannot be emphasized enough that Wincorp is
not the mere agent that it claims to be; its operations ought
not be reduced to the mere matching of investors with
corporate borrowers. Instead, it must be borne in mind that
it not only performed the functions of a financial
intermediary duly registered and licensed to perform the
powers of an investment house, it is also engaged in the
selling of securities, albeit in violation of various
commercial laws. And just as in any other contracts of sale,
the vendor of securities is likewise bound by certain
warranties, including those contained in Article 1628 of the
New Civil Code on assignment of credits, to wit:
Article 1628. The vendor in good faith shall be responsible for

the existence and legality of the credit at the time of the sale,
unless it should have been sold as doubtful; but not for the solvency
of the debtor, unless it
346

Virata vs. Ng Wee
has been so expressly stipulated or unless the insolvency was prior

to the sale and of common knowledge.
xxxx
The vendor in bad faith shall always be answerable for the
payment of all expenses, and for damages. (emphasis added)
That the securities sold to Ng Wee turned out to be „with

recourse,‰ not „sans recourse‰ as advertised, does not
remove it from the coverage of the above article. In fact,
such circumstance would even classify Wincorp as a vendor
in bad faith, within the contemplation of the last paragraph
of the provision. But other than the fraudulent designation
of the transaction as „sans recourse,‰ WincorpÊs bad faith
was also brought to the fore by the execution of the Side
Agreements, which cast serious suspicion over, if it did not
effectively annul, the existence and legality of the credits
assigned to Ng Wee under the numerous Confirmation
Advices in the name of his trustees.
Anent the claim that Wincorp allegedly did not warrant
the capacity of Power Merge to pay its obligations, the CA
had this much to say:
[Petitioners] argue that the financial capacity of Power Merge

has always been a matter of public record. We are not persuaded.
The material misrepresentations have been made by Wincorp to [Ng
Wee], to the effect that Power Merge was structurally sound and
financially able to undertake a series of loan transactions. Even if
Power MergeÊs financial integrity is veritable from the articles of
incorporation or other public records, it does not follow that the
elaborate scheme of fraud and deceit would be beyond commission
when precisely there are bending representations that Power Merge
would be able to meet its obligations. Moreover, [petitionersÊ]
argument assumes that there is a legal obligation on the part of [Ng
Wee] to undertake investigation of Power Merge before
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Virata vs. Ng Wee
agreeing to the matching of his investments with the accredited

borrower. There is no such obligation. It is unfair to expect a person
to procure every available public record concerning an applicant for
funds to satisfy himself of the latterÊs financial standing. A least
that is not the way an average person takes care of his concerns. In
addition, no amount of investigation could have revealed

that the Power Merge papers are rendered worthless and
noncollectable (sic) [be]cause of the Side Agreements
entered into by Wincorp and Power Merge.
WincorpÊs attempt to shift the blame on [Ng Wee] deserves no
credence. Since the transaction involve[s] a considerable sum of
money, Wincorp presupposes that [Ng Wee] would have taken great
pains to scrutinize and understand all the documents affecting his
investment/ money placement. It also presumes that [Ng Wee] was
fully aware of the contents and meaning of the [Confirmation
Advices] and [Special Power of Attorneys] he signed. He took a
calculated risk. As such, he should be estopped from claiming that
he suffered damage and prejudice.
The argument is specious. As ruled in People of the Philippines v.
Priscilla Balasa:
-x x x-
The fact that the buyer makes an independent
investigation or inspection has been held not to
preclude him from relying on the representation made
by the seller where the seller has superior knowledge
and the falsity of such representation would not be
apparent from such examination or inspection, and, a
fortiori, where the efforts of a buyer to learn the true
profits or income of a business or property are
thwarted by some device of the seller, such efforts have
been held not to preclude a recovery. It has often been
held that the buyer of a business or property is entitled to
rely on the sellerÊs statements concerning its profits, in-
348

Virata vs. Ng Wee
come or rents. The rule · that where a speaker has

knowingly and deliberately made a statement
concerning a fact the falsity of which is not apparent
to the hearer, and has thus accomplished a fraudulent
result, he cannot defend against the fraud by proving
that the victim was negligent in failing to discover the
falsity of the statement · is said to be peculiarly
applicable where the owner of the property or a business
intentionally makes a false statement concerning its rents,
profits or income.
Applying the foregoing to this case, assuming that [Ng Wee]
made an investigation, that should not preclude him from relying
on the representations of Wincorp because: (1) It is an investment
house which is presumed to conduct an investigation of its
borrowers before it matches the same to its investors. As
testified to by its employees, Wincorp has an Investigation Credit
Committee and Executive Committee which screen, investigate and
accredit borrowers before they are submitted for approval of the
board of directors; (2) It did not only materially misrepresent

the financial incapacity of Power Merge to pay, it also failed
to disclose that the instruments executed by Power Merge in
connection with the investments/money placements of [Ng
Wee] are worthless in view of the Side Agreements executed
by the parties.117 (emphasis added)
Verily, the same acts of misrepresentations that

constituted fraud in WincorpÊs transactions with Ng Wee
are the very same acts that amounted to bad faith on its
part as vendor of securities. Inescapably, liability attaches
because of WincorpÊs dishonest dealings.
_______________
117 Rollo (G.R. No. 220926), pp. 111-112; citations omitted.
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Virata vs. Ng Wee
d. Even as an agent,
Wincorp can still
be held liable
The argument that Wincorp is a mere agent that could

not be held liable for Power MergeÊs unpaid loan is equally
unavailing. For even if the Court were to accede to the
argument and undercut the significance of WincorpÊs
participation from vendor of securities to purely attorney-
in-fact, the investment house would still not be immune.
Agency, in WincorpÊs case, is not a veritable defense.
Through the contract of agency, a person binds himself
to render some service or to do something in representation
or on behalf of another, with the consent or authority of the
latter.118 As the basis of agency is representation, there
must be, on the part of the principal, an actual intention to
appoint, an intention naturally inferable from the
principalÊs words or actions. In the same manner, there
must be an intention on the part of the agent to accept the
appointment and act upon it. Absent such mutual intent,
there is generally no agency.119
There is no dearth of statutory provisions in the New
Civil Code that aim to preserve the fiduciary character of
the relationship between principal and agent. Of the
established rules under the code, one cannot be more basic
than the obligation of the agent to carry out the purpose of
the agency within the bounds of his authority.120 Though he
may perform acts in a manner more advantageous to the
principal than that speci-
_______________
118 NEW CIVIL CODE, Article 1868.

119 Tuazon v. Heirs of Bartolome Ramos, G.R. No. 156262, July 14,
2005, 463 SCRA 408, 414-415.
120 NEW CIVIL CODE, Article 1881: The agent must act within the
scope of his authority. He may do such acts as may be conducive to the
accomplishment of the purpose of the agency.
350

Virata vs. Ng Wee
fied by him,121 in no case shall the agent carry out the

agency if its execution would manifestly result or damage
to the principal.122
In the instant case, the SPAs executed by Ng Wee
constituted Wincorp as agent relative to the borrowings of
Power Merge, allegedly without risk of liability on the part
of Wincorp. However, the SPAs, as couched, do not
specifically include a provision empowering Wincorp to
excuse Power Merge from repaying the amounts it had
drawn from its credit line via the Side Agreements. They
merely authorize Wincorp „to agree, deliver, sign, execute
loan documents‰ relative to the borrowing of a corporate
borrower. Otherwise stated, Wincorp had no authority to
absolve Power Merge from the latterÊs indebtedness to its
lenders. Doing so therefore violated the express terms of
the SPAs that limited WincorpÊs authority to contracting
the loan.
In no way can the execution of the Side Agreements be
considered as part and parcel of WincorpÊs authority since
it was not mentioned with specificity in the SPAs. As far as
the investors are concerned, the Side Agreements
amounted to a gratuitous waiver of Power MergeÊs
obligation, which authority is required under the law to be
contained in an SPA for its accomplishment.123
Finally, the benefit from the Side Agreements, if any,
redounded instead to the agent itself, Wincorp, which was
able to hold Power Merge papers that are more valuable
than the
_______________
121 Id., Article 1882: The limits of the agentÊs authority shall not be

considered exceeded should it have been performed in a manner more
advantageous to the principal than that specified by him.
122 Id., Article 1888: An agent shall not carry out an agency if its
execution would manifestly result in loss or damage to the principal.
123 Id., Article 1878: Special powers of attorney are necessary in
the following cases:
xxxx
(4) To waive any obligation gratuitously.
xxxx
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Virata vs. Ng Wee
outstanding Hottick obligations that it exchanged. In

discharging its duties as an alleged agent, Wincorp then
elected to put primacy over its own interest than that of its
principal, in clear contravention of the law.124 And when
Wincorp thereafter concealed from the investors the
existence of the Side Agreements, the company became
liable for fraud even as an agent.125
Power Merge is liable

to Ng Wee under its
Promissory Notes
a. Virata is liable for
the Promissory Notes
even as an accom-
modation party
A promissory note is a specie of negotiable instruments.

Under Section 60 of the Negotiable Instruments Law, the
maker of a promissory note engages that he will pay it
according to its tenor. In this case, the Promissory Notes
executed by Virata in behalf of Power Merge are couched in
the following wise:
PROMISSORY NOTE
For value received, I/We _________________, hereby promise to

pay WESTMONT INVESTMENT CORPORATION (WINCORP),
either for itself or as agent for and on behalf of certain
INVESTORS who have placed/invested funds with WINCORP the
principal sum
_______________
124 Id., Article 1889: The agent shall be liable for damages if, there
being a conflict between his interests and those of the principal, he
should prefer his own.
125 Id., Article 1909: The agent is responsible not only for fraud,
but also for negligence, which shall be judged with more or less rigor by
the courts, according to whether the agency was or was not for a
compensation.
352

Virata vs. Ng Wee
of _________________ (________), Philippine Currency, on

_________________ with interest rate of ______________ percent
(____%) per annum, or equivalently the Maturity Amount of
_______________________ PESOS (_______________) Philippine
Currency. (emphasis added)
It is crystal clear that Power Merge, through Virata,

obligated itself to pay Wincorp and those who invested
through it the values stated in the Promissory Notes. The
validity and due execution of the Promissory Notes were
not even contested. Instead, Virata postulates that he
merely executed the Promissory Notes on behalf of Power
Merge as an accommodation for Wincorp, and that neither
he nor Power Merge received any pecuniary benefit from
the credit facility. He thus claims that he and Power Merge
cannot be held liable for the Promissory Notes that were
executed.
The argument is specious.
On its face, the documentary evidence on record reveals
that Power Merge actually received the proceeds from the
Credit Line Agreement. But even if We assume for the sake
of argument that Power Merge, through Virata, is as a
mere accommodation party under the Promissory Notes,
liability would still attach to them in favor of the holder of
the instrument for value.
In Gonzales v. Philippine Commercial and International
Bank,126 the Court held that an accommodation party lends
his name to enable the accommodated party to obtain
credit or to raise money; he receives no part of the
consideration for the instrument but assumes liability to
the other party or parties thereto. Prescinding from the
foregoing, an accommodation party is one who meets all the
following three requisites, viz.: (1) he must be a party to the
instrument, signing as maker, drawer, acceptor, or
indorser; (2) he must not receive
_______________
126 G.R. No. 180257, February 23, 2011, 644 SCRA 180, 192.
353
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Virata vs. Ng Wee
value therefor; and (3) he must sign for the purpose of

lending his name or credit to some other person.127
The first element, that Power Merge, through Virata,
executed the Promissory Notes as maker cannot be
disputed. Meanwhile, petitioners would have the Court
hypothetically admit that they did not receive the proceeds
from the drawdowns, in satisfaction of the second requisite.
And lastly, this was allegedly done for the purpose of
lending its name to conceal WincorpÊs direct borrowing
from its clients.
In gratia argumenti that the above elements are
established facts herein, liability will still attach to the
accommodation parties pursuant to Sec. 29 of the
Negotiable Instruments Law. The provision states:
Sec. 29.
Liability of accommodation party.·An
accommodation party is one who has signed the instrument as
maker, drawer, acceptor, or indorser, without receiving value
therefor, and for the purpose of lending his name to some other
person. Such a person is liable on the instrument to a holder
for value, notwithstanding such holder, at the time of taking
the instrument, knew him to be only an accommodation
party. (emphasis added)
The basis for the liability under Section 29 is the

underlying relation between the accommodated party and
the accommodation party, which is one of principal and
surety.128 In a contract of surety, a person binds himself
solidarily liable with the principal debtor of an
obligation.129 But though a suretyship agreement is, in
essence, accessory or collateral to a valid principal
obligation, the suretyÊs liability to the credi-
_______________
127 Bautista v. Auto Plus Traders, Incorporated, G.R. No. 166405,

August 6, 2008, 561 SCRA 223, 230.
128 Aglibot v. Santia, G.R. No. 185945, December 5, 2012, 687 SCRA
283, 297-298.
354

Virata vs. Ng Wee
tor is immediate, primary, and absolute. He is directly and

equally bound with the principal.130
In a similar fashion, the accommodation party cum
surety in a negotiable instrument is deemed an original
promisor and debtor from the beginning; he is considered in
law as the same party as the debtor in relation to whatever

is adjudged touching the obligation of the latter since their
liabilities are so interwoven as to be inseparable.131 It is
beyond cavil then that Power Merge and Virata can be held
liable for the amounts stated in the Promissory Notes.
Consequently, they are also liable for the assignment to Ng
Wee of portions thereof as embodied in the Confirmation
Advices.
b. The Side Agreements

do not bind third
parties thereto
Virata and Power Merge cannot invoke the Side

Agreements as bases for its alleged exemption from
liability to Ng Wee, simply because the latter was not privy
to the covenants. Ng Wee cannot be charged with knowing
the existence of the Side Agreements, let alone ratify the
same.
The basic principle of relativity of contracts is that, as a
general rule, contracts take effect only between the parties,
their assigns and heirs.132 The sound reason for the
exclusion of nonparties to an agreement is the absence of a
vinculum or juridical tie which is the efficient cause for the
establishment of an obligation.133
_______________
130 Ang v. Associated Bank, G.R. No. 146511, September 5, 2007, 532
SCRA 244.
131 Id., at pp. 273-274.
133 Doña Adela Export International, Inc. v. Trade and Investment
Development Corporation (TIDCORP), G.R. No. 201931, February 11,
2015, 750 SCRA 429, 447-448.
355
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Virata vs. Ng Wee
Needless to state, Ng Wee does not fall under any of the

classes that are deemed privy as far as the Side
Agreements are concerned. At most, he only authorized
Wincorp, through the SPAs, to „agree, deliver, sign, [and]
execute loan documents‰ relative to the borrowing of Power
Merge. This authority does not extend to excusing Power
Merge from paying its obligations under the Promissory
Notes that it issued for the benefit of the investors. Thus,
even if we were to assume that the execution of the Side
Agreements was with the imprimatur of the Wincorp board
of directors, Power Merge would still have been able to
determine, based on a cursory reading of the SPAs, that

WincorpÊs acquiescence to the Side Agreements is an ultra
vires act insofar as its principals, Ng Wee included, are
concerned.
c. Power Merge cannot

escape liability to Ng
Wee under the Credit
Line Agreement
That Power Merge did not directly transact with Ng Wee

and the other investors does not exonerate it from civil
liability, for its liability also finds basis on the language of
the Credit Line Agreement.
To recall, Power Merge obtained a P2,500,000,000.00
credit facility from Wincorp, as one of the latterÊs corporate
borrowers. Under the terms of the credit facility, Power
Merge obligated itself to issue Promissory Notes in favor of
Wincorp, for itself „or on behalf of certain investors‰ for
each of its drawdowns. The Credit Line Agreement
pertinently provides:
CREDIT LINE AGREEMENT
xxxx
WHEREAS, the BORROWER has applied for financial
accommodation/credit line from WINCORP.
356

Virata vs. Ng Wee
WHEREAS, WINCORP by itself or on behalf of certain

investors, have agreed to extend the financial
accommodation/credit line sought by the BORROWER under
the terms and conditions hereunder provided.
NOW, WHEREFORE, for and in consideration of the foregoing
premises, the parties hereto agreed as follows:
1. GRANT OF CREDIT FACILITY. WINCORP, either by itself or
on behalf of certain investors, shall extend to the
BORROWER a credit facility, on best efforts basis, in the amount
of up to but not exceeding the equivalent sum of ONE BILLION
TWO HUNDRED MILLION PESOS (P1,200,000,000.00),
Philippine Currency, upon terms and conditions embodied in this
Agreement.
xxxx
3. PROMISSORY NOTE. Subject to the availability of funds, the
BORROWER may avail all or any portion of this credit facility
under the terms and conditions hereunder agreed upon, and the
BORROWER shall execute in favor of WINCORP and/or
the investors who have agreed to extend the credit
facility to the BORROWER a Promissory Note

corresponding to each drawdown to evidence its
indebtedness.
4. INTEREST RATE. The BORROWER agrees to pay
WINCORP, either by itself or on behalf of its investors,
interest on the principal amount of each availment at the rate
prevailing on the date of such availment as agreed upon in the
corresponding Promissory Note/s.134 (underscoring supplied,
emphasis added)
_______________
134 Rollo (G.R. No. 220926), pp. 385-386.
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Virata vs. Ng Wee
Virata and Power Merge cannot then deny knowledge

that the amounts that were drawn against the credit
facility may not necessarily be from WincorpÊs own coffers,
but may potentially be from the monies pooled by its
clients, even though their identities were at that time
anonymous to Power Merge. As can be gleaned, Power
Merge was informed through the plain text of the Credit
Line Agreement that Wincorp may indorse portions of the
investment, and the corresponding interest in the
Promissory Notes, to its willing clients and act on the
latterÊs behalf. It then matters not that Power Merge and
Virata never personally dealt with Ng Wee for given the
setup; Ng Wee became privy to the Credit Line Agreement
when he was assigned his shares in the investment, and
when he expressed his conformity therewith through the
Confirmation Advices.
Furthermore, it cannot escape the attention of the Court
that this is not the first time for Virata to transact with
Wincorp. To refresh, Virata executed a Surety Agreement to
answer HottickÊs drawdowns from its own credit facility
with Wincorp. He is then familiar with the nature of
WincorpÊs primary functions, whether as a mere financial
intermediary or dealer in securities as in this case, rather
than its true creditor. Power Merge and Virata cannot then
feign ignorance that the money they have been receiving
are from the clients that Wincorp attracted to invest.
III.
Piercing the Corporate Veil
Indubitably, Wincorp and Power Merge are liable to Ng

Wee for fraud and under contract, respectively. The thrust
of majority of the petitioners, however, is that they cannot
be held liable for the business judgments of the

corporations they are part of given the latterÊs separate
juridical personalities.
358

Virata vs. Ng Wee
G.R. No. 220926: The

liabilities of Luis
Juan L. Virata and
UEM-MARA
a. Virata is liable for

the obligations of
Power Merge
Petitioner Virata reiterates his claim that piercing the

corporate veil of Power Merge for the sole reason that he
owns majority of its shares is improper. He adds that the
Credit Line Agreements and Side Agreements were valid
armÊs length transactions, and that their executions were
in the performance of his official capacity, which he cannot
be made personally liable for in the absence of fraud, bad
faith, or gross negligence on his part.
The Court rejects these arguments.
Concept Builders, Inc. v. NLRC instructs that as a
fundamental principle of corporation law, a corporation is
an entity separate and distinct from its stockholders and
from other corporations to which it may be connected. But,
this separate and distinct personality of a corporation is
merely a fiction created by law for convenience and to
promote justice. Thus, authorities discuss that when the
notion of separate juridical personality is used (1) to defeat
public convenience, justify wrong, protect fraud or defend
crime; (2) as a device to defeat the labor laws; or (3) when
the corporation is merely an adjunct, a business conduit or
an alter ego of another corporation, this separate
personality of the corporation may be disregarded or the
veil of corporate fiction pierced.135
The circumstances of Power Merge clearly present an
alter ego case that warrants the piercing of the corporate
veil.
_______________
135 G.R. No. 108734, May 29, 1996, 257 SCRA 149, 157-158.
359
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Virata vs. Ng Wee
To elucidate, case law lays down a three-pronged test to

determine the application of the alter ego theory, namely:
(1) Control, not mere majority or complete stock control, but

complete domination, not only of finances but of policy and business
practice in respect to the transaction attacked so that the corporate
entity as to this transaction had at the time no separate mind, will
or existence of its own;
(2) Such control must have been used by the defendant to commit
fraud or wrong, to perpetuate the violation of a statutory or other
positive legal duty, or dishonest and unjust act in contravention of
plaintiffs legal right; and
(3) The aforesaid control and breach of duty must have
proximately caused the injury or unjust loss complained of.136
In the present case, Virata not only owned majority of

the Power Merge shares; he exercised complete control
thereof. He is not only the company president, he also owns
374,996 out of 375,000 of its subscribed capital stock.
Meanwhile, the remainder was left for the nominal
incorporators of the business. The reported address of
petitioner Virata and the principal office of Power Merge
are even one and the same.137 The clearest indication of all:
Power Merge never operated to perform its business
functions, but for the benefit of Virata. Specifically, it was
merely created to fulfill his obligations under the Waiver
and Quitclaim, the same obligations for his release from
liability arising from HottickÊs default and nonpayment.
Virata would later on use his control over the Power
Merge corporation in order to fulfill his obligation under
the Waiver and Quitclaim. Impelled by the desire to settle
the outstanding obligations of Hottick under the terms of
the settlement agreement, Virata effectively allowed Power
Merge to be
_______________
136 Id., at p. 159.

137 Rollo (G.R. No. 220926), pp. 4, 647.
360

Virata vs. Ng Wee
used as WincorpÊs pawn in avoiding its legal duty to pay

the investors under the failed investment scheme.
Pursuant to the alter ego doctrine, petitioner Virata should
then be made liable for his and Power MergeÊs obligations.
b. UEM-MARA cannot
be held liable
There is, however, merit in the argument that UEM-

MARA cannot be held liable to respondent Ng Wee. The
RTC and the CA held that the corporation ought to be held
solidarily liable with the other petitioners „in order that
justice can reach the illegal proceeds from the defrauded
investments of [Ng Wee] under the Power Merge account.‰138
According to the trial court, Virata laundered the proceeds
of the Power Merge borrowings and stashed them in UEM-
MARA to prevent detection and discovery and hence, UEM-
MARA should likewise be held solidarily liable.
We disagree.
UEM-MARA is an entity distinct and separate from
Power Merge, and it was not established that it was guilty
in perpetrating fraud against the investors. It was a
nonparty to the „sans recourse‰ transactions, the Credit
Line Agreement, the Side Agreements, the Promissory
Notes, the Confirmation Advices, and to the other
transactions that involved Wincorp, Power Merge, and Ng
Wee. There is then no reason to involve UEM-MARA in the
fray. Otherwise stated, respondent Ng Wee has no cause of
action against UEM-MARA. UEM-MARA should not have
been impleaded in this case.
A cause of action is the act or omission by which a party
violates a right of another.139 The essential elements of a
cause of action are (1) a right in favor of the plaintiff by
whatever means and under whatever law it arises or is
created;
_______________
138 Id., at p. 189.

139 RULES OF COURT, Rule 2, Sec. 2.
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Virata vs. Ng Wee
(2) an obligation on the part of the named defendant to

respect or not to violate such right; and (3) an act or
omission on the part of such defendant in violation of the
right of the plaintiff or constituting a breach of the
obligation of the defendant to the plaintiff for which the
latter may maintain an action for recovery of damages or
other appropriate relief.140
The third requisite is severely lacking in this case.
Respondent Ng Wee cannot point to a specific wrong
committed by UEM-MARA against him in relation to his

investments in Wincorp, other than being the object of
WincorpÊs desires. He merely alleged that the proceeds of
the Power Merge loan was used by Virata in order to
acquire interests in UEM-MARA, but this does not,
however, constitute a valid cause of action against the
company even if we were to assume the allegation to be
true. It would indeed be a giant leap in logic to say that
being WincorpÊs objective automatically makes UEM-
MARA a party to the fraud. UEM-MaraÊs involvement in
this case is merely incidental, not direct.
G.R. No. 221218: The

liability of Anthony
Reyes
To restate, basic is the rule that a corporation is invested

by law with a personality separate and distinct from that of
the persons composing it as well as from that of any other
legal entity to which it may be related. Following this,
obligations incurred by the corporation, acting through its
directors, officers and employees, are its sole liabilities, and
said personalities are generally not held personally liable
thereon.141
_______________
140 Soloil, Inc. v. Philippine Coconut Authority, G.R. No. 174806,

August 11, 2010, 628 SCRA 185, 190.
141 Heirs of Fe Tan Uy v. International Exchange Bank, G.R. No.
166282, February 13, 2013, 690 SCRA 519.
362

Virata vs. Ng Wee
By way of exception, a corporate director, a trustee or an

officer, may be held solidarily liable with the corporation
under Sec. 31 of the Corporation Code which reads:
Section 31. Liability of directors, trustees or officers.·Directors

or trustees who willfully and knowingly vote for or assent to
patently unlawful acts of the corporation or who are guilty of gross
negligence or bad faith in directing the affairs of the corporation or
acquire any personal or pecuniary interest in conflict with their
duty as such directors or trustees shall be liable jointly and
severally for all damages resulting therefrom suffered by the
corporation, its stockholders or members and other persons.
When a director, trustee or officer attempts to acquire or
acquire, in violation of his duty, any interest adverse to the
corporation in respect of any matter which has been reposed in him
in confidence, as to which equity imposes a disability upon him to

deal in his own behalf, he shall be liable as a trustee for the
corporation and must account for the profits which otherwise would
have accrued to the corporation. (emphasis added)
Petitioner Reyes relies on the black letter law in his bid

for absolution. He claims that he is not a director of
Wincorp, but its Vice President for Operations. Thus, he
can only be held liable under the second paragraph of the
provision. As can be read, officers are only precluded from
acquiring or attempting to acquire any interest in conflict
with that of the company he is serving. There being no
allegation of him being guilty of conflict of interest, Reyes
argues that he cannot be held liable under the provision.
The argument is bereft of merit.
Ascribing liability to a corporate director, trustee, or
officer by invoking Sec. 31 of the Corporation Code is
distinct from the remedial concept of piercing the corporate
veil. While Sec. 31 expressly lays down specific instances
wherein the men-
363
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Virata vs. Ng Wee
tioned personalities can be held liable in their personal

capacities, the doctrine of piercing the corporate veil, on the
other hand, is an equitable remedy resorted to only when
the corporate fiction is used, among others, to defeat public
convenience, justify wrong, protect fraud or defend a
crime.142
Applying the doctrine, petitioner cannot escape liability
by claiming that he was merely performing his function as
Vice President for Operations and was duly authorized to
sign the Side Agreements in WincorpÊs behalf. The Credit
Line Agreement is patently contradictory if not
irreconcilable with the Side Agreements, which he executed
on the same day as the representative for Wincorp. The
execution of the Side Agreements was the precursor to the
fraud. Taken with WincorpÊs subsequent offer to its clients
of the „sans recourse‰ transactions allegedly secured by the
Promissory Notes, it is a clear indicia of fraud for which
Reyes must be held accountable.
G.R. No. 221135: The

liabilities of Cua and
the Cualopings
On the other hand, the liabilities of Cua and the

Cualopings are more straightforward. They admit of
approving the Credit Line Agreement and its subsequent
Amendment during the special meetings of the Wincorp

board of directors, but interpose the defense that they did
so because the screening committee found the application
to be above board. They deny knowledge of the Side
Agreements and of Power MergeÊs inability to pay.
We are not persuaded.
Cua and the Cualopings cannot effectively distance
themselves from liability by raising the defenses they did.
As ratiocinated by the CA:
_______________
142 Sanchez v. Republic, G.R. No. 172885, October 9, 2009, 603 SCRA
229.
364

Virata vs. Ng Wee
Such submission creates a loophole, especially in this age of

compartmentalization, that would create a nearly foolproof scheme
whereby well-organized enterprises can evade liability for financial
fraud. Behind the veil of compartmentalized departments, such
enterprise could induce the investing public to invest in a
corporation which is financially unable to pay with promises of
definite returns on investment. If we follow the reasoning of
defendants-appellants, we allow the masterminds and profiteers
from the scheme to take the money and run without fear of liability
from law simply because the defrauded investor would be hard-
pressed to identify or pinpoint from among the various departments
of a corporation which directly enticed him to part with his
money.143
Petitioners Cua and the Cualopings bewail that the

above quoted statement is overarching, sweeping, and
bereft of legal or factual basis. But as per the records, the
totality of circumstances in this case proves that they are
either complicit to the fraud, or at the very least guilty of
gross negligence, as regards the „sans recourse‰
transactions from the Power Merge account.
The board of directors is expected to be more than mere
rubber stamps of the corporation and its subordinate
departments. It wields all corporate powers bestowed by
the Corporation Code, including the control over its
properties and the conduct of its business.144 Being
stewards of the company, the
_______________
143 Rollo, p. 120.
144 Batas Pambansa Blg. 68, Section 23: The board of directors or

trustees.·Unless otherwise provided in this Code, the corporate powers
of all corporations formed under this Code shall be exercised, all business
conducted and all property of such corporations controlled and held by
the board of directors or trustees to be elected from among the holders of
stocks, or where there is no stock, from among the members of the
corporation, who shall hold office for one (1) year until their successors
are elected and qualified.
365
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Virata vs. Ng Wee
board is primarily charged with protecting the assets of the

corporation in behalf of its stakeholders.
Cua and the Cualopings failed to observe this fiduciary
duty when they assented to extending a credit line facility
to Power Merge. In PED Case No. 20-2378, the SEC
discovered that Power Merge is actually WincorpÊs largest
borrower at about 30% of the total borrowings.145 It was
then incumbent
_______________
145 Rollo (G.R No. 220926), p. 1046:
366

Virata vs. Ng Wee
upon the board of directors to have been more circumspect

in approving its credit line facility, and should have made
an independent evaluation of Power MergeÊs application
before agreeing to expose it to a P2,500,000,000.00 risk.
Had it fulfilled its fiduciary duty, the obvious warning
signs would have cautioned it from approving the loan in
haste. To recapitulate: (1) Power Merge has only been in
existence for two years when it was granted a credit
facility;
(2) Power Merge was thinly capitalized with only
P37,500,000.00 subscribed capital; (3) Power Merge was
not an ongoing concern since it never secured the necessary
permits and licenses to conduct business, it never engaged
in any lucrative business, and it did not file the necessary
reports with the SEC; and (4) no security other than its
Promissory Notes was demanded by Wincorp or was
furnished by Power Merge in relation to the latterÊs
drawdowns.
It cannot also be ignored that prior to Power MergeÊs
application for a credit facility, its controller Virata had
already transacted with Wincorp. A perusal of his records
with the company would have revealed that he was a
surety for the Hottick obligations that were still unpaid at
that time. This means that at the time the Credit Line
Agreement was executed on February 15, 1999, Virata still
had direct obligations to Wincorp under the Hottick
account. But instead of impleading him in the collection
suit against Hottick, WincorpÊs board of directors effectively
released Virata from liability, and, ironically, granted him a
credit facility in the amount of P1,300,000,000.00 on the
very same day.
This only goes to show that even if Cua and the
Cualopings are not guilty of fraud, they would nevertheless
still be liable for gross negligence146 in managing the
affairs of the company,
_______________
146 Gross negligence is characterized by want of even slight care,

acting or omitting to act in a situation where there is a duty to act, not
inadvertently but willfully and intentionally with a conscious
indifference to consequences insofar as other persons may be
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Virata vs. Ng Wee
to the prejudice of its clients and stakeholders. Under such

circumstances, it becomes immaterial whether or not they
approved of the Side Agreements or authorized Reyes to
sign the same since this could have all been avoided if they
were vigilant enough to disapprove the Power Merge credit
application. Neither can the business judgment rule147
apply herein for it is elementary in corporation law that the
doctrine admits of exceptions: bad faith being one of them,
gross negligence, another.148 The CA then correctly held
petitioners Cua and the Cualopings liable to respondent Ng
Wee in their personal capacity.
G.R. No. 221109: The

liability of Manuel
Estrella
To refresh, Estrella echoes the defense of Tankiansee,

who was exempted from liability by the trial court. He
claims that just like Tankiansee, he was not present during
WincorpÊs special board meetings where Power MergeÊs
credit line was approved and subsequently amended. Both
also claimed that they protested and opposed the boardÊs
actions. But despite the parallels in their defenses, the trial
court was unconvinced that Estrella should be released
from liability. Estrella appealed to the CA, but the adverse
ruling was sustained.
We agree with the findings of the courts a quo.
The minutes of the February 9, 1999 and March 11,
1999 Wincorp Special Board Meetings were considered as
damning evidence against Estrella, just as they were for
Cua and the
_______________
affected. See LBC Express-Metro Manila, Inc. v. Mateo, G.R. No. 168215,
June 9, 2009, 589 SCRA 33.
147 Under the „business judgment rule,‰ the courts are barred from
intruding into the business judgments of the corporation, when the same
are made in good faith.
148 Republic Telecommunications Holdings, Inc. v. Court of Appeals,
G.R. No. 135074, January 29, 1999, 302 SCRA 403.
368

Virata vs. Ng Wee
Cualopings. Although they were said to be unreliable
insofar as Tankiansee is concerned, the trial court rightly

distinguished between the circumstances of Estrella and
Tankiansee to justify holding Estrella liable.
For perspective, Tankiansee was exempted from liability
upon establishing that it was physically impossible for him
to have participated in the said meetings since his
immigration records clearly show that he was outside the
country during those specific dates. In contrast, no similar
evidence of impossibility was ever offered by Estrella to
support his position that he and Tankiansee are similarly
situated.
Estrella submitted his departure records proving that he
had left the country in July 1999 and returned only in
February of 2000. Be that as it may, this is undoubtedly
insufficient to establish his defense that he was not present
during the February 9, 1999 and March 11, 1999 board
meetings. Instead, the minutes clearly state that Estrella
was present during the meetings when the body approved
the grant of a credit line facility to Power Merge. Estrella
would even admit being present during the February 9,
1999 meeting, but attempted to evade responsibility by
claiming that he left the meeting before the „other
matters,‰ including Power MergeÊs application, could have
been discussed.
Unfortunately, no concrete evidence was ever offered to
confirm EstrellaÊs alibi. In both special meetings scheduled,
Estrella averred that he accompanied his wife to a hospital
for her cancer screening and for dialogues on possible
treatments. However, this claim was never corroborated by
any evidence coming from the hospital or from his wifeÊs
physicians. Aside from his mere say-so, no other credible
evidence was presented to substantiate his claim. Thus, the
Court is not inclined to lend credence to EstrellaÊs self-
serving denials.
Neither can petitioner Estrella be permitted to raise the
defense that he is a mere nominee of John Anthony
Espiritu, the then chairman of the Wincorp board of
directors. It is of no moment that he only had one nominal
share in the corpo-
369
VOL. 830, JULY 5, 2017 369

Virata vs. Ng Wee
ration, which he did not even pay for, just as it is

inconsequential whether or not Estrella had been receiving
compensation or honoraria for attending the meetings of
the board.
The practice of installing undiscerning directors cannot
be tolerated, let alone allowed to perpetuate. This must be
curbed by holding accountable those who fraudulently and
negligently perform their duties as corporate directors,

regardless of the accident by which they acquired their
respective positions.
In this case, the fact remains that petitioner Estrella
accepted the directorship in the Wincorp board, along with
the obligations attached to the position, without question or
qualification. The fiduciary duty of a company director
cannot conveniently be separated from the position he
occupies on the trifling argument that no monetary benefit
was being derived therefrom. The gratuitous performance
of his duties and functions is not sufficient justification to
do a poor job at steering the company away from
foreseeable pitfalls and perils. The careless management of
corporate affairs, in itself, amounts to a betrayal of the
trust reposed by the corporate investors, clients, and
stakeholders, regardless of whether or not the board or its
individual members are being paid. The RTC and the CA,
therefore, correctly disregarded the defense of Estrella that
he is a mere nominee.
IV.
Effect of the Side Agreements
Effect of the Side

Agreements on the
solidary liability of
the petitioners
The courts a quo dismissed all counterclaims and cross-

claims lodged by petitioners against Ng Wee and each
other. However, the Court finds reason to grant the cross-
claim of
370

Virata vs. Ng Wee
Virata that he be reimbursed by his coparties of the

amount that he and UEM-MARA may be adjudged to be
liable for.149
The reinstatement and grant of the cross-claim is
anchored on the stipulation under the Side Agreements.
Worthy of note is that neither the RTC nor the CA nullified
the contract, despite their acerbic language towards the
same. They merely held that the agreements cannot be
used as protection against liability for repayment to the
investors, without more. The Side Agreements even served
as basis for the courts a quo to declare that the
confirmation advices being issued to the investors were
worthless and uncollectible credit instruments, and to label
the „sans recourse‰ transactions as without any
economically valuable object.

As such, the Side Agreements remain to be binding and
enforceable on the parties thereto: Wincorp, Virata, and
Power Merge. We give credence to the argument of Virata
that, as per the language of the Side Agreements
themselves, what transpired was an armÊs length
transaction, wherein in exchange for Wincorp assuming
liability for Power MergeÊs drawdowns and promissory
notes, Power Merge obligated itself „to return and deliver to
Wincorp all the rights, title and interests conveyed by
Wincorp hereby to [Power Merge] over the Hottick
obligations.‰ It appears then that there is ample
consideration for the release.
Indeed, the Court must not only look at the „sans
recourse‰ transactions in isolation, but also consider the
underlying transactions and ascertain the true intention of
the contracting parties. On this score, a narration on the
relationship between Hottick, Wincorp, and Power Merge
bears reiteration.
On February 21, 1997, Hottick, through a credit facility,
borrowed money from Wincorp in the amount of
P1,500,908,026.00, as evidenced by a Promissory Note
issued by Hottick in favor of the investment house, and
guaranteed
_______________
149 Rollo (G.R. No. 220926), p. 536.
371
VOL. 830, JULY 5, 2017 371

Virata vs. Ng Wee
by Halim Saad and petitioner Virata. When the Asian

financial crisis struck, Hottick experienced financial
distress and was unable to pay its obligations. This
prompted Wincorp to file a collection case against Hottick
and Halim Saad.
Virata was not impleaded in the collection suit, and he
would turn out to be instrumental in brokering a
settlement agreement between Wincorp and Hottick. But in
exchange for his exclusion in the proceedings, he executed
a Memorandum of Agreement under which he assumes the
obligation to transfer forty percent (40%) of UDPIÊs
outstanding shares and forty percent (40%) of UDPIÊs
interest in the tollway project to Wincorp, among others. It
would be clarified in the December 1, 1999 Waiver and
Quitclaim, however, that the equity transfers would be
VirataÊs only obligation under the Memorandum of
Agreement. Said Waiver and Quitclaim provides:
This is to confirm that notwithstanding the terms of the

Memorandum of Agreement dated July 27, 1999 between our
company and yourself, our company hereby irrevocably and
unconditionally releases, waives and agrees to forever hold you,
your heirs and assigns free and harmless from and against any
claim, obligation or liability arising out of or in connection with the
Memorandum of Agreement; provided, however, that your
undertaking to cause the assignment, transfer and delivery to our
company of at least forty percent (40%) of the equity of UEM
Development Philippines, Inc. („UDPI‰) and at least forty percent
(40%) of the interest/share of UDPI in the Manila Cavite Express
Tollway Project (the „Project‰) shall have been fully complied with.
We hereby reiterate that, except for your aforesaid
obligation to assign, transfer and deliver to our company at
least forty (40%) of UDPIÊs outstanding shares and at least
forty percent (40%) of UDPIÊs interest/share in the Project,
the Memorandum of Agreement is a mere accommodation
on your part and does not give rise to any legal rights or
conse-
372

Virata vs. Ng Wee
quences in our companyÊs favour as against yourself, your

heirs or assigns.150 (emphasis added)
As can be gleaned, the significant portions of the Waiver

and Quitclaim mirror the content of the Side Agreements.
But based on the peculiar transactions between the players
herein, the similarity does not end with the content, but
extends to the intent. Reproducing the salient provisions of
the Side Agreements:
WHEREAS, Powermerge has entered into the Credit Line

Agreement with Wincorp as an accommodation in order to allow
Wincorp to hold Powermerge paper instead of the obligations of
Hottick which are right now held by Wincorp.
xxxx
1. Powermerge hereby agrees to execute promissory notes in the
aggregate principal sum of P1,200,000,000.00
in favor of Wincorp and in exchange therefore, Wincorp hereby
assigns, transfers, and conveys to Powermerge all of its rights,
titles and interest by way of a subparticipation over the
promissory notes and other obligations executed by Hottick in
favor of Wincorp; Provided, however, that the only obligation
of Powermerge to Wincorp shall be to return and deliver
to Wincorp all the rights, title and interests conveyed by
Wincorp hereby to Powermerge over the Hottick
obligations. Powermerge shall have no obligation to pay
under its promissory notes executed in favor of Wincorp

but shall be obligated merely to return whatever may have
received from Wincorp pursuant to this agreement.
xxxx
_______________
150 Id., at p. 481.
373
VOL. 830, JULY 5, 2017 373

Virata vs. Ng Wee
3. Wincorp confirms and agrees that this accommodation being

entered into by the parties is not intended to create a
payment obligation on the part of Powermerge.151
(emphasis added)
The above documents, besides the nonsuit against

Virata, readily convey that the parties did not intend to
create a payment obligation on the part of Power Merge;
the latter was merely used as a conduit by Wincorp for the
acquisition of equity shares. They also confirm that Power
Merge was just a mere accommodation party to the
issuance of the Promissory Notes that Wincorp sold to its
clients, consistent with the findings of the courts a quo that
Wincorp borrowed the funds for its own account. Though
these circumstances do not exculpate Power Merge and
Virata from paying a holder for value under the negotiable
instruments they issued, they nevertheless entitle Power
Merge and Virata, as surety, to indemnification by way of
reimbursement from Wincorp and its liable directors and
officers, the main debtors, for any amount stated in the
note that petitioners Virata and Power Merge would be
compelled to defray, pursuant to Art. 2066 of the New Civil
Code.152
V.
Award of Damages
Beyond doubt, Ng Wee is entitled to recover the
investments he infused in Wincorp. This was never the
central issue
_______________
151 Id., at p. 392.

152 Article 2066. The guarantor who pays for a debtor must be
indemnified by the latter. The indemnity comprises:
(1) The total amount of the debt;
(2) The legal interests thereon from the time the payment was made
known to the debtor, even though it did not earn interest for the creditor;
(3) The expenses incurred by the guarantor after having notified the
debtor that payment had been demanded of him;
(4) Damages, if they are due.
374

Virata vs. Ng Wee
in this case. Other than raising Ng WeeÊs alleged failure to

state a cause of action in his complaint, none of the
petitioners questioned his right to be compensated for the
losses he suffered in the fraudulent investment scheme.
Having ascertained the extent of the liabilities of the
petitioners, the Court will now determine the amount to be
awarded to Ng Wee.
The trial and appellate court correctly held that Ng Wee
should first be recompensed for the maturity amount of the
investments he made in Power Merge through Wincorp,
which totalled P213,290,410.36. Pursuant to our ruling in
the seminal case of Nacar v. Gallery Frames,153 the amount
shall earn interest at twelve percent (12%) per annum from
the date of filing of the Complaint on October 19, 2000 until
June 30, 2013, and six percent (6%) from July 1, 2013 until
full satisfaction.
Moreover, the Credit Line Agreement provides for a
stipulation of three percent (3%) additional monthly
interest as penalty, twenty percent (20%) interest of the
entire amount due as liquidated damages, and twenty-five
percent (25%) of the entire amount due as attorneyÊs fees.
These additional rates of interest are likewise reflected in
the promissory notes issued by Power Merge for which the
liable petitioners can be held responsible. However, unlike
the trial court and the CA, the Court finds that these
contractual stipulations cannot fully be imposed.
The freedom to contract is not absolute. And one of the
more general restrictions thereon is enshrined in Article
1306 of the Civil Code which precludes the contracting
parties from establishing stipulations, clauses, terms, and
conditions that are contrary to law, morals, good customs,
public order, and public policy. In this jurisdiction, the
Court has never shied away from striking down iniquitous
and unconscionable in-
_______________
153 G.R. No. 189871, August 13, 2013, 703 SCRA 439.
375
VOL. 830, JULY 5, 2017 375

Virata vs. Ng Wee
terest rates for failing to meet this standard.154 We see no

reason to depart from the practice in this case.
That said, the Court herein refuses to impose the three
percent (3%) additional monthly penalty interest, and
instead affirms the trial and appellate courtÊs nullification
of the same. Such exorbitant interest rate is void for being
contrary to morals, if not against the law.155 Being a void
stipulation, the monthly penalty interest is deemed
inexistent from the beginning.156 In its stead, the
imposition of legal interest pursuant to Nacar is deemed
sufficient.
Anent the twenty percent (20%) liquidated damages, the
Court sees the need to reduce the amount. Liquidated
damages are those agreed upon by the parties to a contract,
to be paid in case of breach thereof.157 Although it can
conclusively be deduced from the contracts that the parties
intended to impose such additional charges, the Court
nevertheless, by express provision in Article 2227 of the
New Civil Code, has the right to temper them if they are
unconscionable.158 Considering that the base amount of the
indebtedness in this case is by itself already staggering,
imposing an additional twenty percent (20%) interest
against the persons liable would prove to be too
cumbersome. The Court therefore sees the need to reduce
the amount to only ten percent (10%) of the total maturity
value of Ng WeeÊs investment in Power Merge.
The same downward modification is in order as regards
the award of attorneyÊs fees. Although Ng Wee finds
justification
_______________
154 Silos v. Philippine National Bank, G.R. No. 181045, July 2, 2014,
728 SCRA 617.
155 Chua v. Timan, G.R. No. 170452, August 13, 2008, 562 SCRA 146.
156 Castro v. Tan, G.R. No. 168940, November 24, 2009, 605 SCRA
231.
157 Article 2226, New Civil Code.
158 Article 2227. Liquidated damages, whether intended as an
indemnity or a penalty, shall be equitably reduced if they are iniquitous
or unconscionable.
376

Virata vs. Ng Wee
for the entitlement to the award under Article 2208 of the

New Civil Code,159 the same provision mandates that „in
all cases, the attorneyÊs fees and expenses of litigation must
be reasonable.‰ Just as We have reduced the rate for
liquidated damages, the Court likewise tempers the
stipulated rate of attorneyÊs fees to five percent (5%) of the
total amount due on Ng WeeÊs investment.
Finally, the Court sees no cogent reason to disturb the
RTCÊs award of moral damages in favor of Ng Wee in the
amount of P100,000.00, as affirmed by the appellate court.
Discussed in the following wise in Philippine Savings Bank
v. Sps. Mañalac, Jr. is the concept of moral damages:
Moral damages are meant to compensate the claimant for any

physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social
humiliation and similar injuries unjustly caused. Although
incapable of pecuniary estimation, the amount must somehow be
proportional to and in approximation of the suffering inflicted.
Moral damages are not punitive in nature and were never
intended to enrich the claimant at the expense of the
defendant. There is no hard-and-fast rule in determin-
_______________
159 Article 2208. In the absence of stipulation, attorneyÊs fees and

expenses of litigation, other than judicial costs, cannot be recovered,
except:
xxxx
(2) When the defendantÊs act or omission has compelled the plaintiff
to litigate with third persons or to incur expenses to protect his interest;
xxxx
(5) Where the defendant acted in gross and evident bad faith in
refusing to satisfy the plaintififf Ês plainly valid, just and demandable
claim;
xxxx
(11) In any other case where the court deems it just and equitable
that attorneyÊs fees and expenses of litigation should be recovered.
377
VOL. 830, JULY 5, 2017 377

Virata vs. Ng Wee
ing what would be a fair and reasonable amount of moral damages,

since each case must be governed by its own peculiar facts. Trial
courts are given discretion in determining the amount, with
the limitation that it should not be palpably and
scandalously excessive. Indeed, it must be commensurate to the
loss or injury suffered.160 (emphasis added)
Ng WeeÊs claim for moral damages in the amount of

P5,000,000.00 is indeed too excessive, even with the
principal amount in mind. To reiterate, moral damages
were never meant to enrich the claimant. The court
therefore upholds the RTC and the CAÊs grant of the
reduced amount of P100,000.00.
Finally, the judgment of liability shall earn additional
six percent (6%) interest reckoned from finality, also
pursuant to the Nacar ruling.
WHEREFORE, premises considered, the Court
resolves:
1. To PARTIALLY GRANT the Petition for Review on
Certiorari of Luis Juan L. Virata and UEM-MARA,
docketed as G.R. No. 220926;
2. To DENY the Petition for Review on Certiorari of
Westmont Investment Corporation, docketed as G.R.
No. 221058;
3. To DENY the Petition for Review of Manuel Estrella,
docketed as G.R. No. 221109;
Simeon Cua, Henry Cualoping, and Vicente
Cualoping, docketed as G.R No. 221135; and
Anthony Reyes, docketed as G.R. No. 221218.
The September 30, 2014 Decision and October 14, 2015
Resolution of the Court of Appeals in C.A.-G.R. CV. No.
97817
_______________
160 G.R. No. 145441, April 26, 2005, 457 SCRA 203, 221.
378

Virata vs. Ng Wee
affirming the July 8, 2011 Decision of the Regional Trial

Court, Branch 39 of Manila is hereby AFFIRMED with
MODIFICATION. As modified, the dispositive portion of
the trial court Decision in Civil Case No. 00-99006 shall
read:
WHEREFORE, premises considered, judgment is hereby

rendered in favor of plaintiff, ordering the defendants Luis L.
Virata, Westmont Investment Corporation (Wincorp), Antonio T.
Ong, Anthony T. Reyes, Simeon Cua, Vicente and Henry Cualoping,
Mariza Santos-Tan, and Manuel Estrella to jointly and severally
pay plaintiff as follows:
1. The sum of Two Hundred Thirteen Million Two Hundred Ninety
Thousand Four Hundred Ten and 36/100 Pesos
(P213,290,410.36), which is the maturity amount of plaintiff Ês

investment with legal interest at the rate of twelve percent (12%)
per annum from the date of filing of the complaint on October 19,
2000 until June 30, 2013 and six percent (6%) from July 1, 2013
until fully paid;
2. Liquidated damages equivalent to ten percent (10%) of five
percent (5%) of the total amount due plus legal interest at the
rate of twelve percent (12%) per annum from the date of filing of
the complaint until June 30, 2013 and six percent (6%) from July
1, 2013 until fully paid;
3. P100,000.00 as moral damages;
4. Additional interest of six percent (6%) per annum of the total
monetary awards, computed from finality of judgment until full
satisfaction;
5. The complaint against defendants Manuel Tankiansee and
UEM-MARA Philippines Corporation is dismissed for lack of
merit.
The cross-claim of Luis Juan L. Virata is hereby GRANTED.
Westmont Investment Corporation (Wincorp), Antonio T. Ong,
Anthony T. Reyes, Simeon Cua, Vicente and Henry Cualoping,
Mariza Santos-Tan, and
379
VOL. 830, JULY 5, 2017 379

Virata vs. Ng Wee
Manuel Estrella are hereby ordered jointly and severally liable to

pay and reimburse Luis Juan L. Virata for any payment or
contribution he (Luis Juan L. Virata) may make or be compelled to
make to satisfy the amount due to plaintiff Alejandro Ng Wee. All
other counterclaims against Alejandro Ng Wee and cross-claims by
the defendants as against each other are dismissed for lack of merit.
Cost against the defendants, except defendants Manuel
Tankiansee and UEM-MARA Philippines Corporation.
SO ORDERED.
Bersamin, Reyes, Jardeleza and Tijam, JJ., concur.
Petition in G.R. No. 220926 partially granted, while

petitions in G.R. No. 221058, G.R. No. 221109, G.R. No.
221135, and G.R. No. 221218 denied. Judgment and
resolution in C.A.-G.R. CV No. 97817 affirmed with
modification.
Notes.·The elementary test for failure to state a cause

of action is whether the complaint alleges facts which if
true would justify the relief demanded. (Universal
Aquarius, Inc. vs. Q.C. Human Resources Management
Corporation, 533 SCRA 38 [2007])

Securities and Exchange Commission is without
authority to substitute judgment for the corporationÊs board
of directors on business matters so long as the board of
directors act in good faith but has the power to cases where
there is involved an act which if pursued may cause grave
or irreparable injury or prejudice to the investing public.
(Philippine Association of Stock Transfer and Registry
Agencies, Inc. vs. Court of Appeals, 536 SCRA 61 [2007])
··o0o··
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SUPREME COURT REPORTS ANNOTATED 830 10/10/20, 01:55

G.R. No. 220926. July 5, 2017.*

LUIS JUAN L. VIRATA and UEM-​MARA PHILIPPINES

G.R. No. 221058. July 5, 2017.*

WESTMONT INVESTMENT CORPORATION, petitioner,

G.R. No. 221109. July 5, 2017.*

MANUEL ESTRELLA, petitioner, vs. ALEJANDRO NG

272 SUPREME COURT REPORTS ANNOTATED

G.R. No. 221135. July 5, 2017.*

SIMEON CUA, VICENTE CUALOPING, and HENRY

G.R. No. 221218. July 5, 2017.*

ANTHONY T. REYES, petitioner, vs. ALEJANDRO NG

Remedial Law; Civil Procedure; Real Party-in-Interest; Section

VOL. 830, JULY 5, 2017 273

stated a cause of action requires hypothetically admitting and

VOL. 830, JULY 5, 2017 273

its general sense, fraud is deemed to comprise anything

Agreements that virtually exonerated Power Merge of liability to

VOL. 830, JULY 5, 2017 275

however, is the authority to perform quasi-banking functions.

mentioned in Sec. 4101Q: Provided, that: (1) The institution selling

276 SUPREME COURT REPORTS ANNOTATED

Same; Securities; As a general rule, securities are not to be sold

following must concur for an investment contract to exist: (1) a

VOL. 830, JULY 5, 2017 277

that negate WincorpÊs claim of mere brokerage, as mentioned

for breach of warranty. It cannot be emphasized enough that

278 SUPREME COURT REPORTS ANNOTATED

1628. The vendor in good faith shall be responsible for the

the bounds of his authority. Though he may perform acts in a

VOL. 830, JULY 5, 2017 279

Section 60 of the Negotiable Instruments Law, the maker of a

280 SUPREME COURT REPORTS ANNOTATED

liable with the principal debtor of an obligation.·In gratia

liability will still attach to the accommodation parties pursuant to

VOL. 830, JULY 5, 2017 281

poration may be disregarded or the veil of corporate fiction

282 SUPREME COURT REPORTS ANNOTATED

reads: Section 31. Liability of directors, trustees or officers.

VOL. 830, JULY 5, 2017 283

ties and the conduct of its business in behalf of its stakeholders.

284 SUPREME COURT REPORTS ANNOTATED

from the position he occupies on the trifling argument that no

gratuitous performance of his duties and functions is not sufficient

VOL. 830, JULY 5, 2017 285

in order as regards the award of attorneyÊs fees. Although Ng

attorneyÊs fees to five percent (5%) of the total amount due on Ng

PETITIONS for review on certiorari of the decision and

Nature of the Case

For resolution is the consolidated petitions assailing the

1 Rollo (G.R. No. 220926), pp. 67-142. Penned by Associate Justice

286 SUPREME COURT REPORTS ANNOTATED

of the Court of Appeals (CA) in C.A.-G.R. CV No. 97817.3

Ng Wee was a valued client of Westmont Bank.

transactions with the following mechanics as summarized

x x x A corporate borrower who needs financial assistance or

3 Entitled „Alejandro Ng Wee (plaintiff-appellee) v. Luis Juan Virata,

VOL. 830, JULY 5, 2017 287

Lured by representations that the „sans recourse‰

LUIS JUAN L. VIRATA and UEM-MARA PHILIPPINES