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Republic of the Philippines

REGIONAL TRIAL COURT
11th Judicial Region
Branch 11, Davao City

DANILO HERNANDEZ and

ERNESTO COMISO,
Plaintiffs, CIVIL CASE NO. 28,742-2001

- versus - FOR: QUIETING OF TITLE

KARASIA, INC., ET AL.,

Defendants.
x--------------------------x

ANSWER WITH COUNTERCLAIM

DEFENDANT, KARASIA, INC., through counsel, in answer to the complaint,

unto this Honorable court, respectfully states that:

A N S W E R

1. It has no knowledge or information sufficient to form a belief as to

the truth of the averments in par. 1, and, therefore, specifically denies the same;

2. It admits pars. 2, 3, 4 and 8;

3. It denies specifically par. 5, as follows:

(a) Danilo Hernandez allegedly purchased the property in dispute

from Marcelo Guevara on the 25th day of March 1997
covered by TCT No. T-233323 of the Registry of Deeds for
Davao City (Annex “A” of complaint), but as of December 6,
1996, the land was already covered by a new and different
TCT No. T-257586 (Annex “D” of complaint), and the
Affidavit of Adverse claim was registered only on March 28,
2000 for both Danilo Hernandez and Ernesto Comiso; while
the Writ of Attachment in Civil Case No. 27436 and the
Notice of Levy were inscribed in the Memorandum of
Encumbrances of TCT No. T-257586 on January 4, 2000;
hence, both plaintiffs could not be considered purchasers in
good faith;

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(b) Ernesto Comiso allegedly purchased the property in dispute on

April 23, 1999 which recites that it was yet covered by TCT
No. 233323 but the fact was that as of December 6, 1996, as
aforestated, the land was already covered by a new and
different title No. TCT T-257586. Furthermore, the Deed of
Sale in favor of his vendor, Angelita Bana-ag, lacks the
residence certificate number, date and place of issue including
the deed of sale in his favor from said Angelita Bana-ag; both
do not have any technical description; the acknowledgment is
not sufficient in form and substance and there are no TINs of
the parties so that both deeds are not registerable;

4. Defendant Kar Asia, Inc. admits the entries of encumbrances as

enumerated and copied in paragraph 6 including the certified xerox copy of TCT

No. T-257586 of the Registry of Deeds for the City of Davao, Annex “D” of the

complaint, but it reiterates its allegation in the immediately preceding paragraph

that based on the date of entries of the encumbrances, the plaintiffs are not

purchasers in good faith, or that they will acquire the lot subject to the

encumbrance in favor of defendant Kar Asia, Inc. and the deeds of sale of the

plaintiffs are not registerable at any rate;

5. Answering defendants admits the allegation in par. 7 that the cases

covered by the Notice of Levy and writ of attachment refer to Marcelo Guevara,

Jr., but asserts that on the day that the registration of the encumbrances were

made, Marcelo Guevara, Sr. was already dead, and, therefore, Marcelo Guevara, Jr.

automatically succeeded to the rights of his deceased father;

6. Answering defendant specifically denies paragraphs 9, 10 and 11, for

the reasons stated in paragraphs 3 (a) and (b), 4 and 5 above, and that plaintiffs

have not made sufficient allegations in their complaint to justify the issuance of a

preliminary writ of injunction or restraining order, much less entitle them to the

issuance of said writ since they have neither alleged nor proved in the annexes to

the complaint that they have a clear and unmistakable right to protect as further

elaborated in the Affirmative and Special Defenses hereinafter stated in this

pleading;

7. Answering defendant specifically and vehemently denies paragraph

12, for this Honorable Court cannot in this proceedings declare its claims on the

title involved in this case invalid, as the remedy elected by plaintiffs is

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procedurally improper, despite their claim that “plaintiffs had been in actual

occupation of the areas they claim up to the present time.”

AFFIRMATIVE AND SPECIAL DEFENSES

Defendant Kar Asia, Inc., respectfully alleges as affirmative and special

defenses, the following:

1. The pleading asserting the claims of plaintiffs states no cause of

action because in paragraph 6 thereof, it is clearly alleged that the Writ of

Attachment and the Notice of Levy in Civil Case No. 27436-99 entitled: Kar Asia,

Inc. and Karpentrade, Inc. vs. Marcelo Guevara, Jr. were inscribed in the

Memorandum of Encumbrances as of January 4, 2000 at 2:25 pm while the

Affidavit of Adverse Claim of plaintiffs was inscribed subsequently only on March

28, 2000 at 10:55 a.m., so that this allegation itself is self-defeating of the cause

of action of plaintiffs;

2. Plaintiffs do not have a clear and unmistakable right to be protected

which will entitle them to the issuance of a writ of preliminary injunction or

restraining order;

3. The complaint fails to include indispensable parties like the heirs of

Marcelo Guevara, Sr., especially because TCT No. T-257586 is still registered in

the name of Marcelo Guevara and his wife Precenciosa Baluyos, and Karpentrade,

Inc., one of the plaintiffs in the aforementioned Civil Case No. 27436-99.

C O U N T E R C L A I M

As compulsory counterclaim, answering defendant respectfully reiterates

and incorporates by way of reference the allegations contained in pars. 1 to 7 of

the foregoing answer and the allegations in the affirmative and special defenses,

and further avers that:

1. The complaint is unjustified and filed by the plaintiffs with evident

malice and bad faith;

2. The filing of the unjustified and baseless complaint compelled the

herein answering defendant to litigate thereby compelling it to incur expenses for

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attorney’s fee in the sum of FIFTY THOUSAND PESOS (P50,000.00), Philippine

Currency, and expenses of litigation in the sum of P15,000.00;

3. To deter others from filing unjustified and baseless complaint,

corrective and exemplary damages should be adjudged against the plaintiffs in the

sum of P25,000.00 for each of them.

R E L I E F

WHEREFORE, it is respectfully prayed that the prayer for issuance of writ

of preliminary injunction and restraining order be DENIED, and after trial,

judgment be rendered DISMISSING the complaint, and on the COUNTERCLAIM,

1. ordering the plaintiffs jointly and severally to pay to plaintiff the

sum of P50,000.00 in concept of attorney’s fee and the further sum of P15,000.00

as expenses of litigation as well as ordering the plaintiffs jointly and severally to

pay to defendant the sum of P25,000.00 for each of them in concept of corrective

or exemplary damages plus cost of suit.

Defendant prays for such further legal and equitable relief as may be just

and proper in the premises.

Davao City, Philippines, November 5, 2001.

CARIAGA LAW OFFICES

2nd Floor, Cariaga Building
Mt. Apo Street, Davao City

By:

BIENVENIDO D. CARIAGA
Counsel for Defendant Kar Asia, Inc.
IBP 522272-Davao City-12/29/00

V E R I F I C A T I O N

CELESTINO S. BARRETTO, of legal age, after being duly sworn, hereby

deposes and says that:

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He is the President and CEO of defendant Kar Asia, Inc., and duly
authorized to verify this answer with Counterclaim;

He caused the preparation of the foregoing pleading;

He has read the same and alleges that the contents thereof are true and
correct of his own personal knowledge and based on authentic records.

CELESTINO S. BARRETTO

SUBSCRIBED AND SWORN to before me this ___ day of November,

2001, at Davao City, Philippines, affiant exhibiting to me his Comm. Tax Cert. No.
18937427 issued on January 9, 2001 at Davao City.

Doc. No. ____;

Page No. ____;
Book No. ____;
Series of 2001.

Copy furnished by personal service:

ATTY. REYNALDO P. REYES Received by: ___________

Counsel for Plaintiffs Date: November ____, 2001
No. 4, Maya St., Ecoland,
Matina, Davao City