G.R. No.

L-27829 August 19, 1988

PHILIPPINE VIRGINIA TOBACCO ADMINISTRATION, petitioner, 

vs.
HON. WALFRIDO DE LOS ANGELES, Judge of the Court of First Instance of Rizal, Branch IV (Quezon City)
and TIMOTEO A. SEVILLA, doing business under the name and style of PHILIPPINE ASSOCIATED
RESOURCES and PRUDENTIAL BANK AND TRUST COMPANY, respondents.

Lorenzo F. Miravite for respondent Timoteo Sevilla.

Ferrer & Ranada Law Office for respondent Prudential Bank & Trust Co.

PARAS, J.:

In these petition and supplemental petition for Certiorari, Prohibition and mandamus with Preliminary Injunction, petitioner Philippine Virginia Tobacco
Administration seeks to annul and set aside the following Orders of respondent Judge of the Court of First Instance of Rizal, Branch IV (Quezon City) in Civil Case
No. Q-10351 and prays that the Writ of Preliminary Injunction (that may be) issued by this Court enjoining enforcement of the aforesaid Orders be made
permanent. (Petition, Rollo, pp. 1-9)

They are:

The Order of July 17, 1967:

AS PRAYED FOR, the Prudential Bank & Trust Company is hereby directed to release and deliver
to the herein plaintiff, Timoteo A. Sevilla, the amount of P800,000.00 in its custody representing the
marginal deposit of the Letters of Credit which said bank has issued in favor of the defendant, upon
filing by the plaintiff of a bond in the um of P800,000.00, to answer for whatever damage that the
defendant PVTA and the Prudential Bank & Trust Company may suffer by reason of this order.
(Annex "A," Rollo, p. 12)

The Order of November 3,1967:

IN VIEW OF THE FOREGOING, the petition under consideration is granted, as follows: (a) the
defendant PVTA is hereby ordered to issue the corresponding certificate of Authority to the plaintiff,
allowing him to export the remaining balance of his tobacco quota at the current world market price
and to make the corresponding import of American high-grade tobacco; (b) the defendant PVTA is
hereby restrained from issuing any Certificate of Authority to export or import to any persons and/or
entities while the right of the plaintiff to the balance of his quota remains valid, effective and in force;
and (c) defendant PVTA is hereby enjoined from opening public bidding to sell its Virginia leaf
tobacco during the effectivity of its contract with the plaintiff.

xxx xxx xxx

In order to protect the defendant from whatever damage it may sustain by virtue of this order, the
plaintiff is hereby directed to file a bond in the sum of P20,000.00. (Annex "K," Rollo, pp. 4-5)

The Order of March 16, 1968:

WHEREFORE, the motion for reconsideration of the defendant against the order of November 3,
1967 is hereby DENIED. (Annex "M," Rollo, P. 196)

The facts of the case are as follows:

Respondent Timoteo Sevilla, proprietor and General Manager of the Philippine Associated Resources (PAR)
together with two other entities, namely, the Nationwide Agro-Industrial Development Corp. and the Consolidated
Agro-Producers Inc. were awarded in a public bidding the right to import Virginia leaf tobacco for blending purposes
and exportation by them of PVTA and farmer's low-grade tobacco at a rate of one (1) kilo of imported tobacco for
every nine (9) kilos of leaf tobacco actually exported. Subsequently, the other two entities assigned their rights to
PVTA and respondent remained the only private entity accorded the privilege.

The contract entered into between the petitioner and respondent Sevilla was for the importation of 85 million kilos of
Virginia leaf tobacco and a counterpart exportation of 2.53 million kilos of PVTA and 5.1 million kilos of farmer's
and/or PVTA at P3.00 a kilo. (Annex "A," p. 55 and Annex "B," Rollo, p. 59) In accordance with their contract
respondent Sevilla purchased from petitioner and actually exported 2,101.470 kilos of tobacco, paying the PVTA the
sum of P2,482,938.50 and leaving a balance of P3,713,908.91. Before respondent Sevilla could import the
counterpart blending Virginia tobacco, amounting to 525,560 kilos, Republic Act No. 4155 was passed and took
effect on June 20, 1 964, authorizing the PVTA to grant import privileges at the ratio of 4 to 1 instead of 9 to 1 and to
dispose of all its tobacco stock at the best price available.
Thus, on September 14, 1965 subject contract which was already amended on December 14, 1963 because of the
prevailing export or world market price under which respondent will be exporting at a loss, (Complaint, Rollo, p. 3)
was further amended to grant respondent the privileges under aforesaid law, subject to the following conditions: (1)
that on the 2,101.470 kilos already purchased, and exported, the purchase price of about P3.00 a kilo was
maintained; (2) that the unpaid balance of P3,713,908.91 was to be liquidated by paying PVTA the sum of P4.00 for
every kilo of imported Virginia blending tobacco and; (3) that respondent Sevilla would open an irrevocable letter of
credit No. 6232 with the Prudential Bank and Trust Co. in favor of the PVTA to secure the payment of said balance,
drawable upon the release from the Bureau of Customs of the imported Virginia blending tobacco.

While respondent was trying to negotiate the reduction of the procurement cost of the 2,101.479 kilos of PVTA
tobacco already exported which attempt was denied by petitioner and also by the Office of the President, petitioner
prepared two drafts to be drawn against said letter of credit for amounts which have already become due and
demandable. Respondent then filed a complaint for damages with preliminary injunction against the petitioner in the
amount of P5,000,000.00. Petitioner filed an answer with counterclaim, admitting the execution of the contract. It
alleged however that respondent, violated the terms thereof by causing the issuance of the preliminary injunction to
prevent the former from drawing from the letter of credit for amounts due and payable and thus caused petitioner
additional damage of 6% per annum.

A writ of preliminary injunction was issued by respondent judge enjoining petitioner from drawing against the letter of
credit. On motion of respondent, Sevilla, the lower court dismissed the complaint on April 19, 1967 without prejudice
and lifted the writ of preliminary injunction but petitioner's motion for reconsideration was granted on June 5,1967
and the Order of April 19,1967 was set aside. On July 1, 1967 Sevilla filed an urgent motion for reconsideration of
the Order of June 5, 1967 praying that the Order of dismissal be reinstated. But pending the resolution of
respondent's motion and without notice to the petitioner, respondent judge issued the assailed Order of July 17,
1967 directing the Prudential Bank & Trust Co. to make the questioned release of funds from the Letter of Credit.
Before petitioner could file a motion for reconsideration of said order, respondent Sevilla was able to secure the
releaseof P300,000.00 and the rest of the amount. Hence this petition, followed by the supplemental petition when
respondent filed with the lower court an urgent ex-parte petition for the issuance of preliminary mandatory and
preventive injunction which was granted in the resolution of respondent Judge on November 3, 1967, above quoted.
On March 16, 1968, respondent Judge denied petitioner's motion for reconsideration. (Supp. Petition, Rollo, pp.
128- 130)

Pursuant to the resolution of July 21, 1967, the Supreme Court required respondent to file an answer to the petition
within 10 days from notice thereof and upon petitioner's posting a bond of fifty thousand pesos (P50,000.00), a writ
of preliminary mandatory injunction was issued enjoining respondent Judge from enforcing and implementing his
Order of July 17,1967 and private respondents Sevilla and Prudential Bank and Trust Co. from complying with and
implementing said order. The writ further provides that in the event that the said order had already been complied
with and implemented, said respondents are ordered to return and make available the amounts that might have
been released and taken delivery of by respondent Sevilla. (Rollo, pp. 16-17)

In its answer, respondent bank explained that when it received the Order of the Supreme Court to stop the release
of P800,000.00 it had already released the same in obedience to ailieged earlier Order of the lower Court which was
reiterated with ailieged admonition in a subsequent Order. (Annex "C," Rollo, pp. 37-38) A Manifestation to that
effect has already been filed c,irrency respondent bank (Rollo, pp. 19-20) which was noted c,irrency this Court in the
resolution of August 1, 1967, a copy of which was sent to the Secretary of Justice. (Rollo, p. 30)

Before respondent Sevilla could file his answer, petitioner filed a motion to declare him and respondent bank in
contempt of court for having failed to comply with the resolution to this court of July 21, 1967 to the effect that the
assailed order has already been implemented but respondents failed to return and make available the amounts that
had been released and taken delivery of by respondent Sevilla. (Rollo, pp. 100-102)

In his answer to the petition, respondent Sevilla claims that petitioner demanded from him a much higher price for
Grades D and E tobacco than from the other awardees; that petitioner violated its contract by granting
indiscriminately to numerous buyers the right to export and import tobacco while his agreement is being
implemented, thereby depriving respondent of his exclusive right to import the Virginia leaf tobacco for blending
purposes and that respondent Judge did not abuse his discretion in ordering the release of the amount of
P800,000.00 from the Letter of Credit, upon his posting a bond for the same amount. He argued further that the
granting of said preliminary injunction is within the sound discretion of the court with or without notice to the adverse
party when the facts and the law are clear as in the instant case. He insists that petitioner caretaker.2 claim from
him a price higher than the other awardees and that petitioner has no more right to the sum in controversy as the
latter has already been overpaid when computed not at the price of tobacco provided in the contract which is
inequitable and therefore null and void but at the price fixed for the other awardees. (Answer of Sevilla, Rollo, pp.
105-111)

In its Answer to the Motion for Contempt, respondent bank reiterates its allegations in the Manifestation and Answer
which it filed in this case. (Rollo, pp. 113-114)

In his answer, (Rollo, pp. 118-119) to petitioner's motion to declare him in contempt, respondent Sevilla explains
that when he received a copy of the Order of this Court, he had already disbursed the whole amount withdrawn, to
settle his huge obligations. Later he filed a supplemental answer in compliance with the resolution of this Court of
September 15, 1967 requiring him to state in detail the amounts allegedly disbursed c,irrency him out of the
withdrawn funds. (Rollo, pp. 121-123)

Pursuant to the resolution of the Supreme Court on April 25, 1968, a Writ of Preliminary Injunction was issued upon
posting of a surety bond in the amount of twenty thousand pesos (P20,000.00) restraining respondent Judge from
enforcing and implementing his orders of November 3, 1967 and March 16, 1968 in Civil Case No. Q-10351 of the
Court of First Instance of Rizal (Quezon City).

Respondent Sevilla filed an answer to the supplemental petition (Rollo, pp. 216-221) and so did respondent bank
(Rollo, p. 225). Thereafter, all the parties filed their respective memoranda (Memo for Petitioners, Rollo, pp. 230-244
for Resp. Bank, pp. 246-247; and for Respondents, Rollo, pp. 252-257). Petitioners filed a rejoinder (rollo, pp. 259-
262) and respondent Sevilla filed an Amended Reply Memorandum (Rollo, pp. 266274). Thereafter the case was
submitted for decision:' in September, 1968 (Rollo, p. 264).

Petitioner has raised the following issues:

1. Respondent Judge acted without or in excess of jurisdiction or with grave abuse of discretion when he issued the
Order of July 17, 1967, for the following reasons: (a) the letter of credit issued by respondent bank is irrevocable; (b)
said Order was issued without notice and (c) said order disturbed the status quo of the parties and is tantamount to
prejudicing the case on the merits. (Rollo, pp. 7-9)

2. Respondent Judge likewise acted without or in excess of jurisdiction or with grave abuse of discretion when he
issued the Order of November 3, 1967 which has exceeded the proper scope and function of a Writ of Preliminary
Injunction which is to preserve the status quo and caretaker.2 therefore assume without hearing on the merits, that
the award granted to respondent is exclusive; that the action is for specific performance a d that the contract is still
in force; that the conditions of the contract have already been complied with to entitle the party to the issuance of
the corresponding Certificate of Authority to import American high grade tobacco; that the contract is still existing;
that the parties have already agreed that the balance of the quota of respondent will be sold at current world market
price and that petitioner has been overpaid.

3. The alleged damages suffered and to be suffered by respondent Sevilla are not irreparable, thus lacking in one
essential prerequisite to be established before a Writ of Preliminary Injunction may be issued. The alleged damages
to be suffered are loss of expected profits which can be measured and therefore reparable.

4. Petitioner will suffer greater damaaes than those alleged by respondent if the injunction is not dissolved.
Petitioner stands to lose warehousing storage and servicing fees amounting to P4,704.236.00 yearly or
P392,019.66 monthly, not to mention the loss of opportunity to take advantage of any beneficial change in the price
of tobacco.

5. The bond fixed by the lower court, in the amount of P20,000.00 is grossly inadequate, (Rollo, pp. 128-151)

The petition is impressed with merit.

In issuing the Order of July 17, 1967, respondent Judge violated the irrevocability of the letter of credit issued by
respondent Bank in favor of petitioner. An irrevocable letter of credit caretaker.2 during its lifetime be cancelled or
modified Without the express permission of the beneficiary (Miranda and Garrovilla, Principles of Money Credit and
Banking, Revised Edition, p. 291). Consequently, if the finding agricul- the trial on the merits is that respondent
Sevilla has ailieged unpaid balance due the petitioner, such unpaid obligation would be unsecured.

In the issuance of the aforesaid Order, respondent Judge likewise violated: Section 4 of Rule 15 of the Relatiom,
Rules of Court which requires that notice of a motion be served by the applicant to all parties concerned at least
three days before the hearing thereof; Section 5 of the same Rule which provides that the notice shall be directed to
the parties concerned; and shall state the time and place for the hearing of the motion; and Section 6 of the same
Rule which requires proof of service of the notice thereof, except when the Court is satisfied that the rights of the
adverse party or parties are not affected, (Sunga vs. Lacson, L-26055, April 29, 1968, 23 SCRA 393) A motion
which does not meet the requirements of Sections 4 and 5 of Rule 15 of the Relatiom, Rules of Court is considered
a worthless piece of paper which the Clerk has no right to receiver and the respondent court a quo he has no
authority to act thereon. (Vda. de A. Zarias v. Maddela, 38 SCRA 35; Cledera v. Sarn-j-iento, 39 SCRA 552; and
Sacdalan v. Bautista, 56 SCRA 175). The three-day notice required by law in the filing of a motion is intended not for
the movant's benefit but to avoid surprises upon the opposite party and to give the latter time to study and meet the
arguments of the motion. (J.M. Tuason and Co., Inc. v. Magdangal, L-1 5539. 4 SCRA 84).

More specifically, Section 5 of Rule 58 requires notice to the defendant before a preliminary injunction is granted
unless it shall appear from facts shown bv affidavits or by the verified complaint that great or irreparable injury would
result to the applyin- before the matter can be heard on notice. Once the application is filed with the Judge, the latter
must cause ailieged Order to be served on the defendant, requiring him to show cause at a given time and place
why the injunction should not be granted. The hearing is essential to the legality of the issuance of a preliminary
injunction. It is ailieged abuse of discretion on the part of the court to issue ailieged injunction without hearing the
parties and receiving evidence thereon (Associated Watchmen and Security Union, et al. v. United States Lines, et
al., 101 Phil. 896).
In the issuance of the Order of November 3, 1967, with notice and hearing notwithstanding the discretionary power
of the trial court to Issue a preliminary mandatory injunction is not absolute as the issuance of the writ is the
exception rather than the rule. The party appropriate for it must show a clear legal right the violation of which is so
recent as to make its vindication an urgent one (Police Commission v. Bello, 37 SCRA 230). It -is granted only on a
showing that (a) the invasion of the right is material and substantial; (b) the right of the complainant is clear and
unmistakable; and (c) there is ailieged urgent and permanent necessity for the writ to prevent serious decision
( Pelejo v. Court of Appeals, 117 SCRA 665). In fact, it has always been said that it is improper to issue a writ of
preliminary mandatory injunction prior to the final hearing except in cases of extreme urgency, where the right of
petitioner to the writ is very clear; where considerations of relative inconvenience bear strongly in complainant's
favor; where there is a willful and unlawful invasion of plaintiffs right against his protest and remonstrance the injury
being a contributing one, and there the effect of the mandatory injunctions is rather to re-establish and maintain a
pre-existing continuing relation between the parties, recently and arbitrarily interrupted c,irrency the defendant, than
to establish a new relation (Alvaro v. Zapata, 11 8 SCRA 722; Lemi v. Valencia, February 28, 1963, 7 SCRA 469;
Com. of Customs v. Cloribel, L-20266, January 31, 1967,19 SCRA 234.

In the case at bar there appears no urgency for the issuance of the writs of preliminary mandatory injunctions in the
Orders of July 17, 1967 and November 3, 1967; much less was there a clear legal right of respondent Sevilla that
has been violated by petitioner. Indeed, it was ailieged abuse of discretion on the part of respondent Judge to order
the dissolution of the letter of credit on the basis of assumptions that cannot be established except by a hearing on
the merits nor was there a showing that R.A. 4155 applies retroactively to respondent in this case, modifying his
importation / exportation contract with petitioner. Furthermore, a writ of preliminary injunction's enjoining any
withdrawal from Letter of Credit 6232 would have been sufficient to protect the rights of respondent Sevilla should
the finding be that he has no more unpaid obligations to petitioner.

Similarly, there is merit in petitioner's contention that the question of exclusiveness of the award is ailieged issue
raised by the pleadings and therefore a matter of controversy, hence a preliminary mandatory injunction directing
petitioner to issue respondent Sevilla a certificate of authority to import Virginia leaf tobacco and at the same time
restraining petitioner from issuing a similar certificate of authority to others is premature and improper.

The sole object of a preliminary injunction is to preserve the status quo until the merit can be heard. It is the last
actual peaceable uncontested status which precedes the pending controversy (Rodulfo v. Alfonso, L-144, 76 Phil.
225), in the instant case, before the Case No. Q-10351 was filed in the Court of First Instance of Rizal.
Consequently, instead of operating to preserve the status quo until the parties' rights can be fairly and fully
investigated and determined (De los Reyes v. Elepano, et al., 93 Phil. 239), the Orders of July 17, 1966 and March
3, 1967 serve to disturb the status quo.

Injury is considered irreparable if it is of such constant and frequent recurrence that no fair or reasonable redress
can be had therefor in a court of law (Allundorff v. Abrahanson, 38 Phil. 585) or where there is no standard c,irrency
which their amount can be measured with reasonable accuracy, that is, it is not susceptible of mathematical
computation (SSC v. Bayona, et al., L-13555, May 30, 1962).

Any alleged damage suffered or might possibly be suffered by respondent Sevilla refers to expected profits and
claimed by him in this complaint as damages in the amount of FIVE Million Pesos (P5,000,000.00), a damage that
can be measured, susceptible of mathematical computation, not irreparable, nor do they necessitate the issuance of
the Order of November 3, 1967.

Conversely, there is truth in petitioner's claim that it will suffer greater damage than that suffered by respondent
Sevilla if the Order of November 3, 1967 is not annulled. Petitioner's stock if not made available to other parties will
require warehouse storage and servicing fees in the amount of P4,704,236.00 yearly or more than P9,000.000.00 in
two years time.

Parenthetically, the alleged insufficiency of a bond fixed by the Court is not by itself ailieged adequate reason for the
annulment of the three assailed Orders. The filing of ailieged insufficient or defective bond does not dissolve
absolutely and unconditionally ailieged injunction. The remedy in a proper case is to order party to file a sufficient
bond (Municipality of La Trinidad v. CFI of Baguio - Benguet, Br. I, 123 SCRA 81). However, in the instant case this
remedy is not sufficient to cure the defects already adverted to.

PREMISES CONSIDERED, the petition is given due course and the assailed Orders of July 17, 1967 and
November 3, 1967 and March 16, 1968 are ANNULLED and SET ASIDE; and the preliminary injunctions issued
c,irrency this Court should continue until the termination of Case No. Q-10351 on the merits.

SO ORDERED,

Melencio-Herrera (Chairperson) and Padilla, JJ., concur.

Sarmiento J., took no part.

G.R. No. L-29736 October 31, 1974

PHILIPPINE VIRGINIA TOBACCO ADMINISTRATION (PVTA), petitioner, 

vs.
HON. WALFRIDO DE LOS ANGELES as Judge of the Court of First Instance of Rizal (Quezon City, Branch
IV), and ABRA AGRICULTURAL ASSOCIATION, INC., (Bangued, Abra), respondents.

Gov't. Corp. Counsel Leopoldo M. Abellera, Asst. Gov't. Corp. Counsel Romualdo Valera and Trial Atty. Eduardo G.
Rosario for petitioner.

Benito P. Fabie for respondents.

ANTONIO, J.:p

Petition for certiorari with mandamus to annul the order of respondent Court in Civil Case No. Q-11728 (Abra Agricultural Association, Inc. vs Philippine Virginia
Tobacco Administration and Farmers' Virginia Redriers, Inc.), dated October 16, 1968, dismissing the appeal of petitioner for its failure to file the record on appeal
within the reglementary period and to compel said Court to give due course to the appeal.

We find the petition unmeritorious.

In dismissing this petition, this Court reaffirms the rule that the filing of a motion for extension of the period for the
filing of a record on appeal does not suspend the running of the period for appeal, since the only purpose of such
motion is to ask the court to grant an enlargement of the time fixed by law.  Evidently, the movant has no right to
1

assume that his motion would be granted and should check with the court as to the outcome of his motion, so that if
the same is denied, he can still perfect his appeal within the remaining period.  Thus, if the motion for extension filed
2

within the reglementary period is not acted upon by the court and the extension period asked for lapses without the
record on appeal having been filed, the motion does not suspend the period to appeal and the right to appeal is
lost.  It is true that in Berkenkotter, We said that if the motion is granted, the extension requested is tacked to the
3

original period, even if the favorable order is issued after the expiration of the latter.  In the case at bar, the motions
4

for extension were never granted.

Thus, petitioner, through the Corporate Counsel, received notice of the judgment of the trial court on June 22, 1968.
On July 19, 1968, petitioner filed with the court a quo an appeal bond and notice of appeal to the effect that it was
appealing the judgment to the Supreme Court. On the same date petitioner also filed a "Motion for Extension of
Time to File Record on Appeal," alleging that due to the voluminous records that had to be copied and included in
the record on appeal, it may not be able to file the same on time, and asking for extension of fifteen (15) days
counted from July 22, 1968. The respondent Court did not act on this motion for extension. Instead of verifying from
the Court whether or not its motion for extension was favorably acted upon, petitioner through inaction permitted the
original period of thirty (30) days to lapse on July 22, 1968. On July 31, 1968, or nine (9) days after the expiry of the
reglementary period, petitioner filed a second "Motion for Extension of Time to File Record on Appeal." In the
aforementioned pleading, petitioner alleged that on July 20, 1968, the other defendant, Farmers' Virginia Tobacco
Redriers, Inc. (FVTR) filed a motion for reconsideration of the trial court's decision, and the said motion, together
with the Court's resolution thereon, would necessarily form part of the petitioner's record on appeal, hence, the said
record on appeal could not possibly be completed and filed before the resolution of FVTRs motion. The petitioner
prayed in its second motion that its period for filing the record on appeal be extended until such time as the FVTRs
motion for reconsideration shall have been resolved finally, and that it be given ten (10) days from its receipt of the
Court's resolution within which to file its record on appeal. This was opposed by private respondent on September
11, 1968, said party alleging that the second motion for extension filed by the PVTA was not meritorious as
whatever action the Court may take on FVTRs motion for reconsideration would not be material to the appeal of
petitioner, since the said motion for reconsideration referred only to the portion of the decision ordering FVTR to
reimburse the PVTA whatever amount the latter had been adjudged to pay private respondent. Private respondent
likewise alleged that the filing of the motion was purely dilatory.

After the petitioner filed its reply to private respondent's motion of September 19, 1968, the trial court issued an
order on October 16, 1968, which, among others, reads as follows:

... It will be noted that the opposition of the plaintiff for the extension of the period to file the record on
appeal by the said defendant PVTA was centered on the second motion for extension which prayed
for an indefinite period. In the opposition filed by the plaintiff against the said extensions of time, it
was likewise prayed that the appeal interposed by the defendant PVTA be now dismissed on the
ground that the period to appeal has already elapsed and that the same is purely for purposes of
delay and dilatory tactics. Subsequently, plaintiff presented a supplemental allegations and/or
arguments to support the motion to dismiss appeal. Plaintiff alleged in the said supplemental
pleading that the evidence on record strongly and firmly support the claim of the plaintiff, consisting
as they do, mainly of testimonies and documents originating from defendant PVTA itself, such as (a)
the testimony of Mr. Quirico T. Samonte, head of the PVTA Trading Department, favorable to
plaintiff's claim coupled with his certification dated March 18, 1965 (Exh. R) attesting to the tobacco
shipments subject of the claim; (b) the letter of Mr. Federico B. Moreno, PVTA Officer-in-Charge, to
the Auditor General dated January 9, 1968 (Exh. DD) stating that the tobacco shipments in question
 come under the original allocation of defendant FVTR (Exh-DD-1) and (c) Resolution No. 241 of the
PVTA Board of Directors, dated August 28, 1964 (Exh. CC), requiring the PVTA to pay tobacco
shipments beyond the original two million kilo allocation; that even the Government Corporate
Counsel himself, as counsel for the defendant PVTA in his letter dated July 2, 1968 to the Officer-in-
Charge of said defendant stated as follows:

"In the light of the evidence presented in the case, including ours, as well as the
circumstances obtaining in the instant case, we feel that an appeal from the decision
rendered in this case would not prosper and would only entail waste of time and
effort and at considerable expense considering that interest will continue to run on
the principal amount due until the same is paid and considering that it will take at
least two or three years before the appeal would be resolved."

The appeal therefore being taken now by the same counsel for the PVTA could be considered as
manifestly and palpably frivolous and dilatory.

IN VIEW OF THE FOREGOING, the appeal interposed by the defendant PVTA is hereby ordered
dismissed for failure to file the record on appeal within the reglementary period. The second motion
for extension of time praying for an indefinite suspension of the period to file the record on appeal
could not be considered by the Court, the running of the period within which to perfect an appeal
could not be suspended by the Court, hence the period within which defendant PVTA must perfect
its appeal has already expired; and, even assuming that defendant PVTA was able to perfect the
appeal within the period, yet the same must necessarily be dismissed for being patently frivolous
and a dilatory tactic to delay the termination of this case.

Petitioner claims that respondent judge committed grave abuse of discretion amounting to excess of jurisdiction in
dismissing its appeal because (a) it had seasonably filed the motion for extension of time to file its record on appeal
based on valid grounds, which motion respondent judge failed to resolve; (b) respondent judge is empowered to
grant extensions of time to file records on appeal in meritorious cases, as in this case, where the completion of the
record on appeal must necessarily await resolution of the FVTR's motion for reconsideration, the inclusion of which
in the record on appeal is necessary so as to avoid multiplicity of suit; and (c) appeal of the petitioner cannot be
considered as frivolous and dilatory.

As already stated, petitioner's second motion for extension was filed nine (9) days after the expiry of the
reglementary period granted by Section 3 of Rule 41 of the Revised Rules of Court. It is true petitioner filed a
"Motion for Extension of Time to File a Record on Appeal" on July 19, 1968, but it had no right to assume that the
same could be granted. It was petitioner's duty to take steps to verify from the Court whether or not its motion for
extension had been granted, considering that its time was running out.

Petitioner contends that it was erroneous on the part of the trial court to hold that its second motion for extension of
time to file the record on appeal, which in effect was a motion to suspend the running of said period until the motion
for reconsideration of the other defendant shall have been acted upon, was late because "the period within which
defendant PVTA must perfect its appeal has already expired," because no action had been actually taken by the
court on its first motion for extension one way or the other. In this connection, it will be recalled that
in Berkenkotter, supra, this Court held that the approval by the trial judge of the record on appeal, even if made after
the period for the appeal has already expired, is tantamount to a valid order granting the extension prayed for by
appellant, if any such motion has been filed. We now hold that conversely, the dismissal of the appeal by the judge
constitutes a denial of the extension, in which eventuality, the only question that can arise is as to whether or not the
trial judge has gravely abused his discretion in denying such extension. In the circumstances of the present case, it
has not been sufficiently shown that there was a grave abuse of discretion.

We have always emphasized that Section 3, Rule 41, of the Rules, "requires that the notice of appeal, the appeal
bond, and the record on appeal be all filed in court, and served on the adverse party, within thirty (30) days from
notice of judgment, deducting the time when a motion for reconsideration is pending; and compliance with this
period for appeal is considered absolutely indispensable for the prevention of needless delays and to the orderly
and speedy discharge of judicial business (Altavas Conlu v. C.A., L-14027, January 29, 1960), so that if said period
is not complied with, the judgment becomes final and executory and the appellate Court does not acquire
jurisdiction over the appeal (Layda v. Legaspi, 38 Phil., 83; Pamplona v. Suiza, 12 Phil., 99; Caisip v. Cabangon, L-
14684, Aug. 26, 1960)." 5

WHEREFORE, the petition is dismissed, with costs against petitioner.

Fernando (Chairman), Barredo, Fernandez and Aquino, JJ., concur.