arnoldansaldocourtdemand
0 General Document comments
0 Sentence and Paragraph comments
0 Image and Video comments
Republic of the Philippines
REGIONAL TRIAL COURT
11th Judicial Region
Branch _____
Davao City
TONG ZONGQUAN alias BILL CHEN
Represented by
ATTY. PHILIP JOHN L. POJAS, FOR: Collection of Sum of
Plaintiff, Money, Interest,
Damages, and Attorney’s
-versus- Fees
ARNOLD ANSALDO
Doing business under the name and style of
RAPIDE` CUSTOM WEAR,
Defendant.
x
x
COMPLAINT
COMES NOW, plaintiff TONG ZONGQUAN alias BILL CHEN represented by ATTY. PHILIP JOHN L. POJAS and who is likewise plaintiff’s legal counsel in this case, and before this Honorable Court, most respectfully states THAT:
-
Plaintiff TONG ZONGQUAN alias BILL CHEN is of legal age, married, a citizen of China, and with residence at Shanghai, Republic of China and who may be served with orders, resolutions and other processes of the Honorable Court at the office of his counsel Atty. Philip John Pojas at VCPC Law Firm, Suites 204-206 Carlos Villa-Abrille Building, E. Jacinto corner C.M. Recto Sts., Davao City. Attached hereto is a true and faithful reproduction of the Passport of Tong Zongquan as Annex “A”;
-
Plaintiff, being a non-resident alien is represented in this case by Atty. Philip John L. Pojas by virtue of a Special Power of Attorney executed by plaintiff and attached hereto as Annex “B”;
-
Defendant on the other hand is ARNOLD ANSALDO, of legal age, Filipino, married and a resident of # 4 Coral St., Marfori Heights Subdivision, Davao City where he may be served with summons, orders, resolutions and other processes of the Honorable Court. Defendant Arnold Ansaldo is doing business here in Davao City under the name and style of RAPIDE` CUSTOM WEAR;
-
Both plaintiff and defendant have the capacity to sue and be sued;
-
Plaintiff is a businessman in the Republic in China under SHANGHAI RUIJI TRADING CO. LTD. (Rigi Sports) and engaged in the retail and wholesale of sporting wear and equipment. Plaintiff holds out his business to international clients through the internet or the worldwide web. Among the business sites in the internet, plaintiff uses ALIBABA.COM where plaintiff and defendant got acquainted;
-
From the postings made by plaintiff on alibaba.com, defendant sent him an e-mail inquiring the prices of the sporting wear and goods. Defendant likewise inquired whether or not he could use his own business name “Rapide Customwear” to be placed on the sporting wear themselves;
-
From then on, plaintiff and defendant had a good business relationship. Several transactions were made. Orders were placed by the defendant online, and plaintiff delivers the goods to defendant through private couriers EMS and FedEx. On the other hand, before a delivery was made, defendant would initially make a downpayment through money wire transfer via Alibaba or Paypal. Communication between plaintiff and defendant were all made online through Skype, Gtalk, Viber, and through exchange of e-mails;
-
The business was good between plaintiff and defendant that defendant even went to China on January 10, 2012 for 3 days to visit the plaintiff as well as his factory. Because of that, plaintiff slowly reposed trust and confidence upon the defendant. Eventually, plaintiff no longer required any downpayment before plaintiff delivers the orders placed by defendant;
-
However, things turned to sour between plaintiff and defendant. Defendant began to be delayed in his payments to plaintiff. At first, plaintiff tolerated the same as he had given his trust and confidence to defendant;
-
From the period covering January 6, 2012 up to May 8, 2012, defendant placed orders and plaintiff delivered sporting wear in the amount of FOURTEEN THOUSAND SEVEN HUNDRED THIRTY SEVEN AND 50/100 US DOLLARS (US$14,737.50). Attached hereto are the Proforma Invoices covering the orders during the said period as well as the summary statement of the orders and deliveries made by plaintiff as Annexes “C” to “C-18” and Annex “D” respectively;
-
From the said obligation, defendant was able to pay defendant the amount of SEVEN THOUSAND EIGHT HUNDRED TWO US DOLLARS (US$7,802.00) only leaving a balance of SIX THOUSAND NINE HUNDRED THIRTY FIVE AND 50/100 US DOLLARS ($6,935.50);
-
Demands were made by plaintiff to defendant through Skype and e-mails to pay the balance of SIX THOUSAND NINE HUNDRED THIRTY FIVE AND 50/100 US DOLLARS ($6,935.50). However, defendant has made himself inconveniently unavailable to plaintiff. Defendant deactivated his Skype account. Defendant also no longer answered the e-mails of plaintiff. Attached hereto are the series of Skype and e-mail conversations between plaintiff and defendant with the latter issuing promises of payment which he never complied as Annex “E” to “E-___”;
-
In an effort to collect the balance, plaintiff was constrained to seek the help of defendant’s wife, Cecille Duyongco. Even with the help of the wife of defendant, the latter still refused to pay plaintiff the balance of his orders in the amount of SIX THOUSAND NINE HUNDRED THIRTY FIVE AND 50/100 US DOLLARS ($6,935.50);
-
Left with no other recourse, plaintiff was forced to retain the services of undersigned counsel in order to send formal written demand to defendant. Several times, undersigned counsel attempted to personally serve demand letters to the defendant but he refused to receive the same. Undersigned counsel then sent written demand letters through registered mail which were duly received by defendant. Attached hereto are copies of the demand letters sent as well as the Registry Return Cards as Annexes’ “F” to “F-3”;
-
Despite the receipt of the formal demand letters, defendant still refused with his obligation to pay plaintiff the amount of SIX THOUSAND NINE HUNDRED THIRTY FIVE AND 50/200 US DOLLARS (US$6,935.00).
COMPLIANCE WITH CONDITIONS PRECEDENT
-
The plaintiff has already complied with the requirement of demand to constitute defendant in delay of payment as demand letters were sent to defendant through registered mail and duly received by him as evidenced by the Registry Return Card attached to this Complaint;
-
Plaintiff is also not required to resort to Katarungang Pambarangay Proceedings as well as the requirements under the Local Government Code of the Philippines as he is not a resident of the same City or Municipality with defendant, the former being a non-resident alien and is a resident of Shanghai, China;
FIRST CAUSE OF ACTION
-
There is clearly a contract of sale between plaintiff and defendant. On one hand, plaintiff has complied with his obligation to deliver the sportswear ordered by defendant. However, defendant is remiss in his obligation of paying for the sportswear delivered by plaintiff.
A contract of sale is defined in Article 1458 of the Civil Code, thus:
Art. 1458. By the contract of sale, one of the contracting parties obligates himself to transfer the ownership of and to deliver a determinate thing, and the other to pay therefor a price certain in money or its equivalent.
In the case at bar, after the deliveries made by plaintiff of the orders of defendant to the latter, the defendant has the co-relative obligation of paying the purchase price for the good already delivered.
Hence, defendant has the statutory obligation of paying the value of the unpaid deliveries in the amount of SIX THOUSAND NINE HUNDRED THIRTY FIVE AND 50/100 US DOLLARS ($6,935.50);
SECOND CAUSE OF ACTION
-
Because of the unjustified refusal of defendant to pay his dues to plaintiff, the latter lost potential income for the unpaid and unreceived money which entitles the plaintiff to legal interest of twelve percent (12%) per annum of the unpaid balance of SIX THOUSAND NINE HUNDRED THIRTY FIVE AND 50/100 US DOLLARS ($6,935.50) starting from date of formal written demand on December 9, 2013 for a total of FOUR HUNDRED EIGHTY FIVE AND 48/100 US DOLLARS (US$485.48);
THIRD CAUSE OF ACTION
-
Because of the unjustified refusal of defendant to pay the plaintiff the latter suffered MORAL DAMAGES as a consequence of the illegal and fraudulent act of defendant the plaintiff suffered serious anxiety and sleepless nights. By reason of the undue and evident bad faith of the Defendant, they should be held liable for the sum of TWO HUNDRED THOUSAND PESOS (P200,000.00);
FOURTH CAUSE OF ACTION
-
Given the fact that Defendant acted in a wanton, fraudulent and malevolent manner and in order to deter others who are similarly inclined to do the same acts, they ought to be held liable for the sum of TWO HUNDRED THOUSAND PESOS (P200,000.00) as EXEMPLARY DAMAGES;
FIFTH CAUSE OF ACTION
-
To add to the accountability of Defendant, he shall also be liable to pay the acceptance fees of THIRTY THOUSAND PESOS (P30,000.00) as well as contingent fees of 25% OF THE TOTAL AMOUNT CLAIMED as ATTORNEY’S FEES premised upon the fact that Defendant’s act or omission has compelled the Plaintiff to litigate/to incur expenses to protect his interest as well as the APPEARANCE FEES OF TWO THOUSAND PESOS (P2,000.00) per court hearing and the COSTS OF THIS SUIT.
P R A Y E R
WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court after notice and hearing, to render judgment:
After trial on the merits-
-
Ordering the Defendant to pay the Plaintiff the entire unpaid amount of SIX THOUSAND NINE HUNDRED THIRTY FIVE AND 50/100 US DOLLARS ($6,935.50), plus interest of one percent (1%) per month starting from December 9, 2013;
-
Ordering the Defendant to pay the Plaintiff the sum of TWO HUNDRED THOUSAND PESOS (P200,000.00) to serve as MORAL DAMAGES as a consequence of the illegal and fraudulent acts of Defendant;
-
Ordering the Defendant to pay the Plaintiff the sum of TWO HUNDRED THOUSAND PESOS (P200,000.00) as EXEMPLARY DAMAGES in order to set a good example and for the purpose of deterring other people from committing similar illegal and unwarranted acts;
-
Ordering the Defendant to pay the Plaintiff THIRTY THOUSAND PESOS (P30,000.00) as ACCEPTANCE FEES and CONTINGENT FEES equivalent to 25% of the total amount claimed as ATTORNEY’S FEES and TWO THOUSAND PESOS (P2,000.00) as APPEARANCE FEE per court hearing;
-
Ordering the Defendant to pay the costs of this suit.
Other just and equitable reliefs are likewise prayed for.
Respectfully submitted this ____ day of ____________ 2014, at Davao City, Philippines.
TONG ZONGQUAN
Plaintiff
Represented by:
ATTY. PHILIP JOHN L. POJAS
Assisted By:
THE LAW FIRM OF VILLARICA+,
CORONEL, POJAS & CAHARIAN
Counsel for Plaintiff
Suites 204-206, CVA Bldg., C.M. Recto
cor. Jacinto Sts., Davao City
By:
ATTY. PHILIP JOHN L. POJAS
Roll of Attorneys No. 54869
PTR NO. 3860247 – 01/02/14 – DAVAO CITY
Lifetime Member IBP NO. 011260 – 09/26/13 – MANILA
TIN 260-643-928
MCLE Compliance No. IV-0012560
January 18, 2013
Tel No. (082)2277323
Mobile No. (0908)9078957
REPUBLIC OF THE PHILIPPINES)
C I T Y O F D A V A O)ss
x
x
VERIFICATION/CERTIFICATION
I, ATTY. PHILIP JOHN L. POJAS, of legal age, Filipino, married, and a resident of #37, 2nd Street, Lougemmar Village, Old Airport Road, Sasa, Davao City, Philippines, after being duly sworn, depose and state I am the representative of TONG ZONGQUAN and I have caused the preparation and filing of the foregoing Complaint for and in his behalf; that I have read and understood the contents thereof, the allegations of which are true and correct of my own personal knowledge.
And, in compliance with Administrative Circular No. 04-94 of the Supreme Court, I certify that plaintiff has not commenced any other similar action involving the same issues between the same parties before any court or tribunal in the Philippines;
Further, to the best of my personal knowledge, there is no such similar proceeding or action which is pending in any court and should I learn that a similar action has been filed or pending before any other tribunal, I shall undertake to report such fact within a period of five (5) days therefrom to this Honorable Court.
Davao City, Philippines, _____________ 2014.
ATTY. PHILIP JOHN L. POJAS
Affiant
SUBSCRIBED AND SWORN to before me this _____ day of _______________ 2014 at Davao City, Philippines, affiant exhibiting to me his ________________, issued on _______________ at _______________________.
Doc. No. ______;
Page No. ______;
Book No. ______;
Series of 2014.
General Document Comments 0
icons on the left to see existing comments.
0 archived comments