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G.R. No. 150197 July 28, 2005 Prudential Bank vs Don . lviar PR!D"N#$ % B N&, Petitioner, vs. D'N . %($ R and G"'RG$ B. %($ R, Respondents. Before us is a petition for review on certiorari under Rule 45 of the Rules of Court. Petitioner Prudential Bank seeks the reversal of the Decision1 of the Court of Appeals dated 27 epte!"er 2##1 in CA$%.R. C& 'o. 5(54) affir!in* the Decision of the Re*ional +rial Court ,R+C- of Pasi* Cit., Branch 1/#, in favor of respondents. Respondents, spouses 0on A. Alviar and %eor*ia B. Alviar, are the re*istered owners of a parcel of land in an 1uan, 2etro 2anila, covered ". +ransfer Certificate of +itle ,+C+- 'o. 4)3157 of the Re*ister of 0eeds of Ri4al. 5n 1# 1ul. 1(75, the. e6ecuted a deed of real estate !ort*a*e in favor of petitioner Prudential Bank to secure the pa.!ent of a loan worth P25#,###.##.2 +his !ort*a*e was annotated at the "ack of +C+ 'o. 4)3157. 5n 4 Au*ust 1(75, respondents e6ecuted the correspondin* pro!issor. note, P' B07758C$252, coverin* the said loan, which provides that the loan !atured on 4 Au*ust 1(7/ at an interest rate of 129 per annu! with a 29 service char*e, and that the note is secured ". a real estate !ort*a*e as afore!entioned.) i*nificantl., the real estate !ort*a*e contained the followin* clause: +hat for and in consideration of certain loans, overdraft and other credit acco!!odations o"tained fro! the 2ort*a*ee ". the 2ort*a*or and8or ;;;;;;;;;;;;;;;; hereinafter referred to, irrespective of nu!"er, as 0<B+5R, and to secure the pa.!ent of the sa!e and those that !a. hereafter "e o"tained, the principal or all of which is here". fi6ed at +wo =undred >ift. +housand ,P25#,###.##- Pesos, Philippine Currenc., as well as those that the 2ort*a*ee !a. e6tend to the 2ort*a*or and8or 0<B+5R, includin* interest and e6penses or an. other o"li*ation owin* to the 2ort*a*ee, whether direct or indirect, principal or secondar. as appears in the accounts, "ooks and records of the 2ort*a*ee, the 2ort*a*or does here". transfer and conve. ". wa. of !ort*a*e unto the 2ort*a*ee, its successors or assi*ns, the parcels of land which are descri"ed in the list inserted on the "ack of this docu!ent, and8or appended hereto, to*ether with all the "uildin*s and i!prove!ents now e6istin* or which !a. hereafter "e erected or constructed thereon, of which the 2ort*a*or declares that he8it is the a"solute owner free fro! all liens and incu!"rances. . . .4

5n 22 5cto"er 1(7/, 0on Alviar e6ecuted another pro!issor. note, P' B077/8C$ )45 for P2,/4#,###.##, secured ". 08A >0? 712(, si*nif.in* that the loan was secured ". a @hold$out@ on the !ort*a*orAs forei*n currenc. savin*s account with the "ank under Account 'o. 12(, and that the !ort*a*orAs pass"ook is to "e surrendered to the "ank until the a!ount secured ". the @hold$out@ is settled.5 5n 27 0ece!"er 1(7/, respondent spouses e6ecuted for 0onalco +radin*, Bnc., of which the hus"and and wife were President and Chair!an of the Board and &ice President,/ respectivel., P' B077/8C$4)# coverin* P545,###.###. As provided in the note, the loan is secured ". @Clean$Phase out +50 CA )(2),@ which !eans that the te!porar. overdraft incurred ". 0onalco +radin*, Bnc. with petitioner is to "e converted into an ordinar. loan in co!pliance with a Central Bank circular directin* the discontinuance of overdrafts.7 5n 1/ 2arch 1(77, petitioner wrote 0onalco +radin*, Bnc., infor!in* the latter of its approval of a strai*ht loan of P545,###.##, the proceeds of which shall "e used to liCuidate the outstandin* loan of P545,###.## +50. +he letter likewise !entioned that the securities for the loan were the deed of assi*n!ent on two pro!issor. notes e6ecuted ". Banco! Realt. Corporation with 0eed of %uarantee in favor of A.D. &alencia and Co. and the chattel !ort*a*e on various heav. and transportation eCuip!ent.3 5n #/ 2arch 1(7(, respondents paid petitioner P2,###,###.##, to "e applied to the o"li*ations of %.B. Alviar Realt. and 0evelop!ent, Bnc. and for the release of the real estate !ort*a*e for the P45#,###.## loan coverin* the two ,2- lots located at &a! Buren and 2adison treets, 'orth %reenhills, an 1uan, 2etro 2anila. +he pa.!ent was acknowled*ed ". petitioner who accordin*l. released the !ort*a*e over the two properties.( 5n 15 1anuar. 1(3#, petitioner !oved for the e6traEudicial foreclosure of the !ort*a*e on the propert. covered ". +C+ 'o. 4)3157. Per petitionerAs co!putation, respondents had the total o"li*ation of P1,/#3,25/./3, coverin* the three ,)- pro!issor. notes, to wit: P' B07758C$252 for P25#,###.##, P' B077/8C$)45 for P)32,/3#.3), and P' B077/8C$)4# for P545,###.##, plus assessed past due interests and penalt. char*es. +he pu"lic auction sale of the !ort*a*ed propert. was set on 15 1anuar. 1(3#.1# Respondents filed a co!plaint for da!a*es with a pra.er for the issuance of a writ of preli!inar. inEunction with the R+C of Pasi*,11 clai!in* that the. have paid their principal loan secured ". the !ort*a*ed propert., and thus the !ort*a*e should not

"e foreclosed. >or its part, petitioner averred that the pa.!ent of P2,###,###.## !ade on / 2arch 1(7( was not a pa.!ent !ade ". respondents, "ut ". %.B. Alviar Realt. and 0evelop!ent Bnc., which has a separate loan with the "ank secured ". a separate !ort*a*e.12 5n 15 2arch 1((4, the trial court dis!issed the co!plaint and ordered the heriff to proceed with the e6tra$Eudicial foreclosure.1) Respondents sou*ht reconsideration of the decision.14 5n 24 Au*ust 1((4, the trial court issued an Order settin* aside its earlier decision and awarded attorne.As fees to respondents.15 Bt found that onl. the P25#,###.## loan is secured ". the !ort*a*e on the land covered ". +C+ 'o. 4)3157. 5n the other hand, the P)32,/3#.3) loan is secured ". the forei*n currenc. deposit account of 0on A. Alviar, while the P545,###.## o"li*ation was an unsecured loan, "ein* a !ere conversion of the te!porar. overdraft of 0onalco +radin*, Bnc. in co!pliance with a Central Bank circular. Accordin* to the trial court, the @"lanket !ort*a*e clause@ relied upon ". petitioner applies onl. to future loans o"tained ". the !ort*a*ors, and not ". parties other than the said !ort*a*ors, such as 0onalco +radin*, Bnc., for which respondents !erel. si*ned as officers thereof. 5n appeal to the Court of Appeals, petitioner !ade the followin* assi*n!ent of errors: B. +he trial court erred in holdin* that the real estate !ort*a*e covers onl. the pro!issor. note B07758C$252 for the su! of P25#,###.##. BB. +he trial court erred in holdin* that the pro!issor. note B077/8C$)45 for P2,/4#,###.## ,P)32,/3#.3) outstandin* principal "alance- is not covered ". the real estate !ort*a*e ". e6pressed a*ree!ent. BBB. +he trial court erred in holdin* that Pro!issor. 'ote B077/8C$4)# for P545,###.## is not covered ". the real estate !ort*a*e. B&. +he trial court erred in holdin* that the real estate !ort*a*e is a contract of adhesion. &. +he trial court erred in holdin* defendant$appellant lia"le to pa. plaintiffs$ appellees attorne.As fees for P2#,###.##.1/ +he Court of Appeals affir!ed the Order of the trial court "ut deleted the award of attorne.As fees.17 Bt ruled that while a continuin* loan or credit acco!!odation

"ased on onl. one securit. or !ort*a*e is a co!!on practice in financial and co!!ercial institutions, such a*ree!ent !ust "e clear and uneCuivocal. Bn the instant case, the parties e6ecuted different pro!issor. notes a*reein* to a particular securit. for each loan. +hus, the appellate court ruled that the e6traEudicial foreclosure sale of the propert. for the three loans is i!proper.13 +he Court of Appeals, however, found that respondents have not .et paid the P25#,###.## covered ". P' B07758C$252 since the pa.!ent of P2,###,###.## adverted to ". respondents was issued for the o"li*ations of %.B. Alviar Realt. and 0evelop!ent, Bnc.1( A**rieved, petitioner filed the instant petition, reiteratin* the assi*n!ent of errors raised in the Court of Appeals as *rounds herein. Petitioner !aintains that the @"lanket !ort*a*e clause@ or the @dra*net clause@ in the real estate !ort*a*e e6pressl. covers not onl. the P25#,###.## under P' B07758C$252, "ut also the two other pro!issor. notes included in the application for e6traEudicial foreclosure of real estate !ort*a*e.2# +hus, it clai!s that it acted within the ter!s of the !ort*a*e contract when it filed its petition for e6traEudicial foreclosure of real estate !ort*a*e. Petitioner relies on the cases of Lim Julian v. Lutero,21 Tad-Y v. Philippine National Bank,22 Quimson v. Philippine National Bank,2) ! ommercial v. Philippine National Bank,24 "o#ica v. ourt o$ 25 %ppeals, and hina Bankin& orporation v. ourt o$ %ppeals,2/ all of which upheld the validit. of !ort*a*e contracts securin* future advance!ents. Anent the Court of AppealsA conclusion that the parties did not intend to include P' B077/8C$)45 in the real estate !ort*a*e "ecause the sa!e was specificall. secured ". a forei*n currenc. deposit account, petitioner states that there is no law or rule which prohi"its an o"li*ation fro! "ein* covered ". !ore than one securit.. 27 Besides, respondents even continued to withdraw fro! the sa!e forei*n currenc. account even while the pro!issor. note was still outstandin*, stren*thenin* the "elief that it was the real estate !ort*a*e that principall. secured all of respondentsA pro!issor. notes.23 As for P' B077/8C$)45, which the Court of Appeals found to "e e6clusivel. secured ". the Clean$Phase out +50 )(2), petitioner posits that such securit. is not e6clusive, as the @dra*net clause@ of the real estate !ort*a*e covers all the o"li*ations of the respondents.2( 2oreover, petitioner insists that respondents atte!pt to evade foreclosure ". the e6pedienc. of statin* that the pro!issor. notes were e6ecuted ". the! not in their personal capacit. "ut as corporate officers. Bt clai!s that P' B077/8C$4)# was in

fact for ho!e construction and personal consu!ption of respondents. +hus, it states that there is a need to pierce the veil of corporate fiction.)# >inall., petitioner alle*es that the !ort*a*e contract was e6ecuted ". respondents with knowled*e and understandin* of the @dra*net clause,@ "ein* hi*hl. educated individuals, seasoned "usinesspersons, and political personalities. )1 +here was no oppressive use of superior "ar*ainin* power in the e6ecution of the pro!issor. notes and the real estate !ort*a*e.)2 >or their part, respondents clai! that the @dra*net clause@ cannot "e applied to the su"seCuent loans e6tended to 0on Alviar and 0onalco +radin*, Bnc. since these loans are covered ". separate pro!issor. notes that e6pressl. provide for a different for! of securit..)) +he. reiterate the holdin* of the trial court that the @"lanket !ort*a*e clause@ would appl. onl. to loans o"tained Eointl. ". respondents, and not to loans o"tained ". other parties.)4 Respondents also place a pre!iu! on the findin* of the lower courts that the real estate !ort*a*e clause is a contract of adhesion and !ust "e strictl. construed a*ainst petitioner "ank.)5 +he instant case thus poses the followin* issues pertainin* to: ,i- the validit. of the @"lanket !ort*a*e clause@ or the @dra*net clause@F ,ii- the covera*e of the @"lanket !ort*a*e clause@F and conseCuentl., ,iii- the propriet. of seekin* foreclosure of the !ort*a*ed propert. for the non$pa.!ent of the three loans. At this point, it is i!portant to note that one of the loans sou*ht to "e included in the @"lanket !ort*a*e clause@ was o"tained ". respondents for 0onalco +radin*, Bnc. Bndeed, P' B077/8C$4)# was e6ecuted ". respondents on "ehalf of 0onalco +radin*, Bnc. and not in their personal capacit.. Petitioner asks the Court to pierce the veil of corporate fiction and hold respondents lia"le even for o"li*ations the. incurred for the corporation. +he !ort*a*e contract states that the !ort*a*e covers @as well as those that the 2ort*a*ee !a. e6tend to the 2ort*a*or and8or 0<B+5R, includin* interest and e6penses or an. other o"li*ation owin* to the 2ort*a*ee, whether direct or indirect, principal or secondar..@ Gell$settled is the rule that a corporation has a personalit. separate and distinct fro! that of its officers and stockholders. 5fficers of a corporation are not personall. lia"le for their acts as such officers unless it is shown that the. have e6ceeded their authorit.. )/ =owever, the le*al fiction that a corporation has a personalit. separate and distinct fro! stockholders and !e!"ers !a. "e disre*arded if it is used as a !eans to perpetuate fraud or an ille*al act or as a vehicle for the evasion of an e6istin* o"li*ation, the circu!vention of statutes, or to confuse le*iti!ate issues.)7 P' B077/8C$4)#, "ein* an o"li*ation of 0onalco +radin*, Bnc., and not of the respondents, is not within the conte!plation of the @"lanket !ort*a*e clause.@ 2oreover, petitioner is una"le to

show that respondents are hidin* "ehind the corporate structure to evade pa.!ent of their o"li*ations. ave for the notation in the pro!issor. note that the loan was for house construction and personal consu!ption, there is no proof showin* that the loan was indeed for respondentsA personal consu!ption. Besides, petitioner a*reed to the ter!s of the pro!issor. note. Bf respondents were indeed the real parties to the loan, petitioner, a "i*, well$esta"lished institution of lon* standin* that it is, should have insisted that the note "e !ade in the na!e of respondents the!selves, and not to 0onalco +radin* Bnc., and that the. si*n the note in their personal capacit. and not as officers of the corporation. 'ow on the !ain issues. A @"lanket !ort*a*e clause,@ also known as a @dra*net clause@ in A!erican Eurisprudence, is one which is specificall. phrased to su"su!e all de"ts of past or future ori*ins. uch clauses are @carefull. scrutini4ed and strictl. construed.@ )3 2ort*a*es of this character ena"le the parties to provide continuous dealin*s, the nature or e6tent of which !a. not "e known or anticipated at the ti!e, and the. avoid the e6pense and inconvenience of e6ecutin* a new securit. on each new transaction.)( A @dra*net clause@ operates as a convenience and acco!!odation to the "orrowers as it !akes availa"le additional funds without their havin* to e6ecute additional securit. docu!ents, there". savin* ti!e, travel, loan closin* costs, costs of e6tra le*al services, recordin* fees, et cetera.4# Bndeed, it has "een settled in a lon* line of decisions that !ort*a*es *iven to secure future advance!ents are valid and le*al contracts,41 and the a!ounts na!ed as consideration in said contracts do not li!it the a!ount for which the !ort*a*e !a. stand as securit. if fro! the four corners of the instru!ent the intent to secure future and other inde"tedness can "e *athered.42 +he @"lanket !ort*a*e clause@ in the instant case states: +hat for and in consideration of certain loans, overdraft and other credit acco!!odations o"tained fro! the 2ort*a*ee ". the 2ort*a*or and8or ;;;;;;;;;;;;;;;; hereinafter referred to, irrespective of nu!"er, as 0<B+5R, and to se)ure t*e +ay,ent of the sa!e and t*ose t*at ,ay *erea-ter .e o.tained, the principal or all of which is here". fi6ed at +wo =undred >ift. +housand ,P25#,###.##- Pesos, Philippine Currenc., as /ell as t*ose t*at t*e 0ort1a1ee ,ay e2tend to t*e 0ort1a1or and3or D"B#'R, in)ludin1 interest and e2+enses or any ot*er o.li1ation o/in1 to t*e 0ort1a1ee, /*et*er dire)t or indire)t, +rin)i+al or se)ondary as appears in the accounts, "ooks and records of the 2ort*a*ee, the 2ort*a*or does here". transfer and conve. ". wa. of !ort*a*e unto the 2ort*a*ee, its successors or assi*ns, the parcels of land which are

descri"ed in the list inserted on the "ack of this docu!ent, and8or appended hereto, to*ether with all the "uildin*s and i!prove!ents now e6istin* or which !a. hereafter "e erected or constructed thereon, of which the 2ort*a*or declares that he8it is the a"solute owner free fro! all liens and incu!"rances. . . . 4) ,<!phasis supplied.+hus, contrar. to the findin* of the Court of Appeals, petitioner and respondents intended the real estate !ort*a*e to secure not onl. the P25#,###.## loan fro! the petitioner, "ut also future credit facilities and advance!ents that !a. "e o"tained ". the respondents. +he ter!s of the a"ove provision "ein* clear and una!"i*uous, there is neither need nor e6cuse to construe it otherwise. +he cases cited ". petitioner, while affir!in* the validit. of @dra*net clauses@ or @"lanket !ort*a*e clauses,@ are of a different factual !ilieu fro! the instant case. +here, the su"seCuent loans were not covered ". an. securit. other than that for the !ort*a*e deeds which unifor!l. contained the @dra*net clause.@ Bn the case at "ar, the su"seCuent loans o"tained ". respondents were secured ". other securities, thus: P' B077/8C$)45, e6ecuted ". 0on Alviar was secured ". a @hold$out@ on his forei*n currenc. savin*s account, while P' B077/8C$4)#, e6ecuted ". respondents for 0onalco +radin*, Bnc., was secured ". @Clean$Phase out +50 CA )(2)@ and eventuall. ". a deed of assi*n!ent on two pro!issor. notes e6ecuted ". Banco! Realt. Corporation with 0eed of %uarantee in favor of A.D. &alencia and Co., and ". a chattel !ort*a*e on various heav. and transportation eCuip!ent. +he !atter of P' B077/8C$4)# has alread. "een discussed. +hus, the critical issue is whether the @"lanket !ort*a*e@ clause applies even to su"seCuent advance!ents for which other securities were intended, or particularl., to P' B077/8C$)45. Dnder A!erican Eurisprudence, two schools of thou*ht have e!er*ed on this Cuestion. 5ne school advocates that a @dra*net clause@ so worded as to "e "road enou*h to cover all other de"ts in addition to the one specificall. secured will "e construed to cover a different de"t, althou*h such other de"t is secured ". another !ort*a*e.44 +he contrar. thinkin* !aintains that a !ort*a*e with such a clause will not secure a note that e6presses on its face that it is otherwise secured as to its entiret., at least to an.thin* other than a deficienc. after e6haustin* the securit. specified therein,45 such deficienc. "ein* an inde"tedness within the !eanin* of the !ort*a*e, in the a"sence of a special contract e6cludin* it fro! the arran*e!ent.4/

+he latter school represents the "etter position. +he parties havin* confor!ed to the @"lanket !ort*a*e clause@ or @dra*net clause,@ it is reasona"le to conclude that the. also a*reed to an i!plied understandin* that su"seCuent loans need not "e secured ". other securities, as the su"seCuent loans will "e secured ". the first !ort*a*e. Bn other words, the sufficienc. of the first securit. is a corollar. co!ponent of the @dra*net clause.@ But of course, there is no prohi"ition, as in the !ort*a*e contract in issue, a*ainst contractuall. reCuirin* other securities for the su"seCuent loans. +hus, when the !ort*a*or takes another loan for which another securit. was *iven it could not "e inferred that such loan was !ade in reliance solel. on the ori*inal securit. with the @dra*net clause,@ "ut rather, on the new securit. *iven. +his is the @reliance on the securit. test.@ =ence, "ased on the @reliance on the securit. test,@ the California court in the cited case !ade an inCuir. whether the second loan was !ade in reliance on the ori*inal securit. containin* a @dra*net clause.@ Accordin*l., findin* a different securit. was taken for the second loan no intent that the parties relied on the securit. of the first loan could "e inferred, so it was held. +he rationale involved, the court said, was that the @dra*net clause@ in the first securit. instru!ent constituted a continuin* offer ". the "orrower to secure further loans under the securit. of the first securit. instru!ent, and that when the lender accepted a different securit. he did not accept the offer.47 Bn another case, it was held that a !ort*a*e with a @dra*net clause@ is an @offer@ ". the !ort*a*or to the "ank to provide the securit. of the !ort*a*e for advances of and when the. were !ade. +hus, it was concluded that the @offer@ was not accepted ". the "ank when a su"seCuent advance was !ade "ecause ,1- the second note was secured ". a chattel !ort*a*e on certain vehicles, and the clause therein stated that the note was secured ". such chattel !ort*a*eF ,2- there was no reference in the second note or chattel !ort*a*e indicatin* a connection "etween the real estate !ort*a*e and the advanceF ,)- the !ort*a*or si*ned the real estate !ort*a*e ". her na!e alone, whereas the second note and chattel !ort*a*e were si*ned ". the !ort*a*or doin* "usiness under an assu!ed na!eF and ,4- there was no alle*ation ". the "ank, and apparentl. no proof, that it relied on the securit. of the real estate !ort*a*e in !akin* the advance.43 Bndeed, in so!e instances, it has "een held that in the a"sence of clear, supportive evidence of a contrar. intention, a !ort*a*e containin* a @dra*net clause@ will not "e e6tended to cover future advances unless the docu!ent evidencin* the su"seCuent advance refers to the !ort*a*e as providin* securit. therefor.4(

Bt was therefore i!proper for petitioner in this case to seek foreclosure of the !ort*a*ed propert. "ecause of non$pa.!ent of all the three pro!issor. notes. Ghile the e6istence and validit. of the @dra*net clause@ cannot "e denied, there is a need to respect the e6istence of the other securit. *iven for P' B077/8C$)45. +he foreclosure of the !ort*a*ed propert. should onl. "e for the P25#,###.## loan covered ". P' B07758C$252, and for an. a!ount not covered ". the securit. for the second pro!issor. note. As held in one case, where deeds a"solute in for! were e6ecuted to secure an. and all kinds of inde"tedness that !i*ht su"seCuentl. "eco!e due, a "alance due on a note, after e6haustin* the special securit. *iven for the pa.!ent of such note, was in the a"sence of a special a*ree!ent to the contrar., within the protection of the !ort*a*e, notwithstandin* the *ivin* of the special securit..5# +his is reco*nition that while the @dra*net clause@ su"sists, the securit. specificall. e6ecuted for su"seCuent loans !ust first "e e6hausted "efore the !ort*a*ed propert. can "e resorted to. 5ne other crucial point. +he !ort*a*e contract, as well as the pro!issor. notes su"Eect of this case, is a contract of adhesion, to which respondentsA onl. participation was the affi6in* of their si*natures or @adhesion@ thereto. 51 A contract of adhesion is one in which a part. i!poses a read.$!ade for! of contract which the other part. !a. accept or reEect, "ut which the latter cannot !odif.. 52 +he real estate !ort*a*e in issue appears in a standard for!, drafted and prepared solel. ". petitioner, and which, accordin* to Eurisprudence !ust "e strictl. construed a*ainst the part. responsi"le for its preparation. 5) Bf the parties intended that the @"lanket !ort*a*e clause@ shall cover su"seCuent advance!ent secured ". separate securities, then the sa!e should have "een indicated in the !ort*a*e contract. ConseCuentl., an. a!"i*uit. is to "e taken contra pro$erentum, that is, construed a*ainst the part. who caused the a!"i*uit. which could have avoided it ". the e6ercise of a little !ore care.54 +o "e !ore e!phatic, an. a!"i*uit. in a contract whose ter!s are suscepti"le of different interpretations !ust "e read a*ainst the part. who drafted it,55 which is the petitioner in this case. <ven the pro!issor. notes in issue were !ade on standard for!s prepared ". petitioner, and as such are likewise contracts of adhesion. Bein* of such nature, the sa!e should "e interpreted strictl. a*ainst petitioner and with even !ore reason since havin* "een acco!plished ". respondents in the presence of petitionerAs personnel and approved ". its !ana*er, the. could not have "een unaware of the i!port and e6tent of such contracts. Petitioner, however, is not without recourse. Both the Court of Appeals and the trial court found that respondents have not .et paid the P25#,###.##, and *ave no

credence to their clai! that the. paid the said a!ount when the. paid petitioner P2,###,###.##. +hus, the !ort*a*ed propert. could still "e properl. su"Eected to foreclosure proceedin*s for the unpaid P25#,###.## loan, and as !entioned earlier, for an. deficienc. after 08A >0?712(, securit. for P' B077/8C$)45, has "een e6hausted, su"Eect of course to defenses which are availa"le to respondents. G=<R<>5R<, the petition is 0<'B<0. +he 0ecision of the Court of Appeals in CA$%.R. C& 'o. 5(54) is A>>BR2<0. Costs a*ainst petitioner.