This petition for review on certiorari seeks to reverse and set aside the decision, dated September 26, 1996, of the Court of Appeals^[1] in CA-G.R. CV NO. 48612 which affirmed in toto the decision of the Regional Trial Court of Pasig, Branch 152 in Civil Case No. 61266.

The antecedents of the case as found by the trial court and adopted by the appellate court in its decision, are as follows:

This is an action for Sum of Money and Damages filed by Pilipinas Hino, Inc., thereinafter referred to as the plaintiff against Fernando V. Reyes, Ponciano V. Reyes, and Teresita R. Tan, hereinafter referred to as the defendants.

The plaintiff is a corporation duly organized and existing under the laws of the Philippines, with office address at PMI Building, EDSA, Mandaluyong, Metro Manila: whereas, the defendants Fernando V. D. Reyes and Ponciano V. D. Reyes are both of legal age, with residential or business address at 57 Xavierville Avenue, Loyola Heights, Quezon City, Metro Manila, while defendant Teresita R. Tan is likewise of legal age, with postal address at 39 Zalameda St., Corinthian Garden, Quezon City.

The material allegations in plaintiff's Complaint are as follows:

ON THE FIRST CAUSE OF ACTION

That on or about 15 August 1989, a contract of lease was entered into between herein parties, under which the defendants, as lessors, leased real property located at Bigaa, Balagtas, Bulacan, to herein plaintiff for a term of two (2) years, from 16 August 1989 to 15 August 1991.

Pursuant to the contract of lease, plaintiff-lessee deposited with the defendants-lessors the amount of Four Hundred Thousand (P400,000.00) Pesos to answer for repairs and damages that may be caused by the lessee on the leased premises during the period of the lease.

After the expiration of the lease contract, the plaintiff and defendants made a joint inspection of the premises to determine the extent of the damages thereon, both agreed that the cost of repairs would amount to P60,000.00 and that the amount of P340,000.00 shall then be returned by the defendants to plaintiff. However, defendants returned to plaintiff only the amount of P200,000.00, still having a balance of P140,000.00.

Notwithstanding repeated demands, defendants unjustifiably refused to return the balance of P140,000.00 holding that the true and actual damage on the lease premises amounted to P298,738.90.

ON THE SECOND CAUSE OF ACTION

On August 10, 1990, plaintiff and defendants entered into a contract to sell denominated as a Memorandum of Agreement to sell whereby the latter agreed to sell to the former the leased property subject of this suit in the amount of P45,611,000.00.

The aforesaid Memorandum of Agreement to sell granted the owner (defendants) the option to rescind the same upon failure of the buyer (plaintiff) to pay any of the first six (6) installments with the corresponding obligation to return to the buyer any amount paid by the buyer in excess of the downpayment as stated in paragraphs 7 and 9 of the Memorandum of Agreement.

Pursuant to said Memorandum of Agreement, plaintiff remitted on August 10, 1990 to the defendants the amount of P1,811,000.00 as downpayment. Subsequently, plaintiff paid the first and second installments in the amount of P1,800,000.00 and P5,250,000.00, respectively, thereby making the total amount paid by the plaintiff to the defendants, on top of the downpayment, P7,050,000.00.

Unfortunately, plaintiff failed to pay the 3rd installment and subsequent installments: and thereupon, defendants decided to, and in fact did, in a letter dated 20 November 1990, rescinded and terminated the contract and promised to return to the plaintiff all the amounts paid in excess of the downpayment after deducting the interest due from 3rd to 6th installments, inclusive.

Thus, from the amount of P7,050,000.00 due to be returned to the plaintiff, defendants deducted P924,000.00 as interest and P220,000.00 as rent for the period from 15 February to 15 March 1991, thereby returning to the plaintiff the amount of P5,906,000.00 only, as acknowledged by plaintiff in the letter dated 4 April 1991.

x x x

In their Answer, defendants interposed the following defenses, to wit:

ON THE FIRST CAUSE OF ACTION

There is absolutely no evidence of any agreement allegedly arrived at between plaintiff and defendants upon which plaintiff can anchor its first cause of action.

Plaintiff avers that an estimate of P60,000.00 cost of repairs was agreed upon by the parties after a joint inspection of the premises, to which defendant categorically asserted that there was no such agreement arrived at, nor even an estimated amount was agreed upon by the parties. No less than plaintiff's witness Atty. Yumang testified that there was no such agreement.

It was Atty. Yumang who, by himself and without the approval of the Board came up with an amount of P60,000.00, which was turned down by the defendants as they were incompetent to determine the actual cost of the repairs.

Granting that there was an agreement entered into by Atty. Yumang with the defendants during the first inspection and thereafter as to the amount of damages, this agreement, at that time, would not have been binding on the plaintiff-corporation as Atty. Yumang was never authorized by the plaintiff-corporation at that time to enter into any settlement with the defendants.

Aside from Atty. Yumang, Mr. Rene C. Sangalang was also presented by the plaintiff. He testified that sometime in March 1991, Plaintiff (Pilhino) was moving out and he was requested to inspect the premises. In the same vein, there is nothing in the testimony to show that, at the time of the inspection or anytime thereafter, he was empowered or authorized by the plaintiff-corporation to settle any transaction with defendants. He merely prepared the cost of estimate on the repairs to be done and he forwarded it to Mr. Arsenio Paez, the General Manager of the plaintiff, who in turn allegedly sent it to the defendants. Unfortunately, however, said estimate never reached the hands of the defendants.

Plaintiff's other witness, Mr. Arsenio Paez, testified that there were two (2) inspections made on the premises and he categorically testified that he was present only in the second inspection. He also affirmed that the 'estimated' amount of P60,000.00 was allegedly arrived at by the parties and that plaintiff agreed that such amount should be allegedly retained by the defendants. However, nobody among the defendants agreed to the amount of P60,000.00. Indeed, this non-acceptance was corroborated by Mrs. Teresita Tan when she testified that she rejected the offer because it was not enough. Thus, there was no such agreement to speak of.

x x x

ON THE SECOND CAUSE OF ACTION

The defendants are entitled to the retention of the amount of P924,000.00 as payment of interest stipulated in the contract.

The second cause of action pertains to the Memorandum of Agreement to sell entered into by the parties. It is stated in paragraph 6 that an interest equivalent to three (3%) percent per thirty days period shall be imposed on any installment due but not paid for the duration of the delay. Paragraph 7 of the same documents also deserves a second look.

Since plaintiff failed to pay the third and subsequent installments, defendants' right to the 3% interest, therefore, readily accrued and became demandable at the time of the non-payment. The grace period granted to the plaintiff likewise lapsed. Consequently, the defendants decided to, and in fact did in a letter dated 20 November 1990, terminate the contract to sell. The defendants as agreed upon returned to the plaintiff the amount of P5,906,000.00 representing the amount due to the plaintiff as reimbursement of the installments for the 1st and 2nd installments. Considering that the plaintiff has failed to pay the installments due on time, the interest in the amount of P924,000.00 was charged against the plaintiff (which interest, in turn, represents the unproductive use of the money which should have been made by the defendants had the payment been made on time). The amount of P220,000.00 was likewise deducted by the defendants representing rentals for the period. Thus, only the amount of P5,906,000.00 was rightfully returned by the defendants.

Plaintiff's request to return the amount of P924,000.00 to which defendants however refused for reasons that the said amount represents interest due and demandable from the plaintiff when it incurred the delay which by virtue of legal compensation, was set-off by operation of law and the said amount was rightfully deducted from the amount of P7,050,000.00.^[2]

On 24 August 1994, the trial court rendered a decision ruling in favor of respondents Reyes, et al. As to the first cause of action, the trial court found that petitioner was unable to prove its claim that based on the joint ocular inspection of the leased premises, the parties jointly agreed that petitioner would only be held liable in the amount of P60,000.00 representing damages to the leased property. As to the second cause of action, the trial court ruled that based on the contract to sell, petitioner is liable for interest arising from its failure to pay the third and subsequent installments, hence respondents were correct in withholding the amount representing these interest. The dispositive portion of the trial court's decision reads:

WHEREFORE, judgment is hereby rendered:

1. Under the first cause of action, the plaintiff has no cause of action to demand the return of the balance of the deposits in the amount of P140,000.00 pesos:
2. Under the second cause of action, the defendants have the legal right to demand accrued interest on the unpaid installments in the amount of P924,000.00 pesos.

Defendants counterclaim has not been substantiated.

SO ORDERED. ^[3]

Not satisfied with the trial court's decision, petitioner Pilipinas Hino elevated the case to the Court of Appeals. The appellate court, however, sustained the findings of the trial court:

WHEREFORE, the appealed decision of the lower court in Civil Case No. 61266 is hereby AFFIRMED by this Court, with costs against plaintiff-appellant.^[4]

Petitioner thus seeks recourse to this Court and raises the following assignment of errors:

I

THE LOWER COURT ERRED IN NO[T] FINDING THAT THERE IS NO EVIDENCE ON RECORD SUFFICIENT TO SHOW ANY RIGHT FROM DEFENDANT-APPELLANT TO REFUSE THE RETURN OF THE BALANCE OF THE DEPOSITS AMOUNTING TO P140,000.00.

II

THE LOWER COURT ERRED IN NOT FINDING THAT THE ALLEGED DAMAGES ON THE PREMISES WERE CAUSED BY WEAR AND TEAR AND NOT DUE TO THE FAULT OF THE PLAINTIFF-APPELLANT.

III

THE LOWER COURT IN NOT FINDING THAT THE ESTIMATE OF REPAIRS MADE ON THE PREMISES WERE SPECULATIVE.

IV

THE LOWER COURT ERRED IN NOT FINDING THAT THE MEMORANDUM OF AGREEMENT (EXH. "C") CLEARLY [U]NEQUIVOCABLY PROVIDES THAT PLAINTIFF-APPELLANT IS ENTITLED TO THE RETURN OF THE AMOUNT PAID IN EXCESS OF THE DOWNPAYMENT AFTER THE DEFENDANT-APPELLEE EXERCISE[D] THE RIGHT TO FORFEIT THE SAID DOWNPAYMENT.

V

THE LOWER COURT ERRED IN NOT FINDING THAT THE PROVISION FOUND IN PARAGRAPH 6 OF THE MEMORANDUM OF AGREEMENT GRANTING THE DEFENDANT-APPELLEE THE RIGHT TO IMPOSE INTEREST IN CASE OF DELAY APPLIES ONLY IN CASE PAYMENTS AS STIPULATED IN THE AGREEMENT ARE CONTINUED BUT NOT WHEN THE AGREEMENT ITSELF IS RESCINDED.

VI

THE LOWER COURT ERRED IN NOT FINDING THAT INTEREST CANNOT BE RECOVERABLE WHEN THE PRINCIPAL AMOUNT IS IN ITSELF NOT RECOVERABLE.

VII

THE LOWER COURT ERRED IN NOT AWARDING THE SUM CLAIMED UNDER THE COMPLAINT INCLUDING EXEMPLARY DAMAGES AND ATTORNEY'S FEES.

The petition is partly meritorious.

The issues raised in this petition may be summed as follows:

(1) Should the petitioner be held liable for alleged damages to the leased property in an amount of more than P60,000.00?

(2) Does private respondent have the right to retain the P924,000.00 representing the interest due for the unpaid installments, despite the fact that the respondent has exercised his option to rescind the memorandum of agreement?

The first issue is undoubtedly a question of fact. Time and again, this Court has pronounced that we do not review findings of fact by the Court of Appeals unless findings of the appellate court are mistaken, absurd, speculative, conjectural, conflicting, tainted with grave abuse of discretion, or contrary to the findings culled by the trial court of origin.^[5] In the case bar, no such reason exist to warrant a review of the appellate court's factual findings.

In support of his allegation, petitioner quotes the following portion of the decision of the trial court:

A cursory perusal of the expediente as well as the documentary evidence presented by the parties, it appears therefrom that there was no exact figures agreed upon by the parties. Plaintiffs claimed that the amount of P60,000.00 was agreed by them which defendants vehemently denied as there was no such agreement.

The estimate and appraisals made by the contractors hired by the defendants entailed major repairs and renovation which was not fair, just and equitable on the part of the plaintiff. Some of the damages pointed to by the defendants were caused by wear and tear and thus not chargeable against the plaintiff (par. 7 of the lease contract).

Defendants should have secured first the consent/approval of the plaintiff whether they are amenable or not to the amount charged, before engaging the services of Eduardo Pascual (contractor). Otherwise, such actuations will cast doubt on the part of the payor.

The reception of defendants evidence together with the testimonies of their witnesses has indubitably proved that the amounts offered by the plaintiff was not enough to cover the expenses of the repairs. In fact, after deducting the amount claimed by the plaintiff from the total expenses incurred, the plaintiff is still obliged to pay the defendants the amount of P184,732.50. However, since the defendants were also in bad faith in dealing with the plaintiff, the difference of P184,732.50 may be dispensed with, and considering the short span of the leased period, it is impossible that all the damages found on the premises are attributable solely on the part of the plaintiff."^[6]

Based on the underlined portions above quoted, petitioner asserts that the trial court found the following facts: (1) that the appraisals made entailed major repairs and renovations which are not fair to be charged to petitioner; (2) there was bad faith on the part of private respondents in presenting appraisal for repairs; and (3) the alleged damage to the premises are not attributable to the petitioner.

Petitioner merely highlights certain portions of the trial court's decision, which should not however be read in isolation with the rest of the decision. As mentioned earlier, the crux of petitioner's first cause of action is whether or not the damage to the leased property amounted to more than P60,000.00. We find that the trial court correctly ruled that petitioner failed to prove his first cause of action:

Upon consideration of all the allegations, issues and documentary [evidence] adduced by the parties, the court, finds and so holds, that plaintiff has failed to establish by preponderance of evidence that there is an agreement reached between the parties as to the exact amount of the repairs to be done, so that it is barred to demand the return of the balance of the deposits.^[7]

We agree with the findings of the appellate court that such matter is factual in nature, and that the findings of the trial court as to petitioner's first cause of action are ably supported by the records on hand:

The issue on plaintiff-appellant's first cause of action is evidentiary as to whether or not defendants-appellees' refusal to return the amount of P140,000.00 is valid and in accordance with the lease agreement. It is the contention of the plaintiff-appellant that after the joint inspection was conducted on the subject premises it had been agreed upon by the parties that the amount of damages for the repairs of the premises shall be P60,000.00. Thus, plaintiff-appellant claims that the amount of P340,000.00 in excess of the cost of the repairs should have been returned by the defendants-appellees to plaintiff-appellant. Upon the other hand, defendants-appellees vehemently denied that there was such an agreement of P60,000.00 as having been agreed upon by them.

We find defendants-appellees' contention to be in accordance with the evidence in this case. Plaintiff-appellant's witness, Atty. Mauro Yumang when asked by the lower court on the matter, testified that plaintiff and defendants did not come to an agreement as to the exact cost of the repairs of the subject premises (pp. 8-9 tsn, April 22, 1993). Neither was it shown in the testimony of plaintiff-appellant's other witness, Arsenio Paez that there was an agreement between the parties on the said P60,000.00. Thus, plaintiff-appellant, failed to prove its claim of P60,000.00 as costs of repair with solid and convincing proof. It is, of course, a basic rule in evidence that a party must prove his own affirmative allegations. In civil cases, the burden of proof is on the plaintiff to establish his case by a preponderance of evidence. In affirmative averment the onus probandi falls on pleader's shoulder.^[8]

In contrast, respondents were able to prove by clear and convincing evidence their counterclaim that the damage to the leased property amounted to P384,732.50. This petitioner failed to dispute:

Upon the other hand, defendants-appellees were able to prove that the amount of P60,000.00 offered by the plaintiff-appellant was not sufficient to answer the damages of the subject premises. It is highly improbable to believe that the alleged amount of P60,000.00 can cover the entire expenses of the repairs considering the actual area of the premises to be repaired was quite big with the building having broken door knobs, windows, jalousies, toilet bowls, walls, flooring, among the other things, not to mention the labor. As matter of fact, defendants-appellees' witness Mr. Eduardo Pascual, an experienced contractor, categorically testified that defendants-appellees' expenses for the repairs of the subject premises amounted to not only in P60,000.00 bit P384,732.50. Thus, plaintiff-appellees even owed defendants-appellees the amount of P184,732.50.^[9]

We take note of petitioner's assertion that the trial court found the respondent to be in bad faith in having the damage estimated without securing the consent of the petitioner and that not all the damages are attributable to the petitioner. However, these findings do not negate the correctness of the award by the trial court. Recognizing these facts, the trial court did not hold the petitioner liable for the whole amount of P384,732.50, but only for the amount of P200,000.00:

The defendants are likewise barred from demanding for the excess of the repairs as it was due (sic) without the knowledge of the plaintiff.^[10]

Anent the petitioner's second cause of action, we find the same to be meritorious. In order to verify the soundness of petitioner's claim, an examination of the pertinent paragraphs of the memorandum of agreement between the parties is in order:

6. Where the buyer fails to deliver the check(s) due under paragraph 2 thereof, an interest equivalent to three percent (3%) per thirty (30) days period shall be imposed on the amount due for the duration of the delay.

7. The owners shall have the right to terminate or rescind this agreement, and to forfeit the downpayment where the buyer fails to pay any of the first six (6) installments. The buyer shall have a grace period of sixty (60) days within which to pay the installments and the interest due for the reason of the delay.

The owners may thereafter forfeit the downpayment and sell the property to other parties without need of notice to the buyer, the owner shall not have other obligations to the buyer relating to the property subject of the right of first refusal by the buyer, as contained in the lease contract between the owner and the buyers.

x x x

9. When the owners exercise their option to forfeit the downpayment, they shall return to the buyer any amount paid by the buyer in excess of the downpayment with no obligation to pay interest thereon. This shall be done within a period not later than one hundred twenty days (120) days from notice by the owner to the buyer of the forfeiture of the downpayment.^[11]

In holding the petitioner liable for the amount of P924,000.00 representing interest earned for the unpaid installments, the trial court rationalized:

For failure of the plaintiff to pay the installments on September 14, 1990, September 28, 1990, October 15, 1990 and October 30, 1990, the defendants were consequently deprived of the productive use of the supposed money they should have received as per contract. The 'Agreement' of both parties leaves no room for further explanation. It categorically states that in case of default, the defendant will charge interest for the delay.

It is worthy of note to believe that when the defendants terminated their contract to sell on November 20, 1990, the plaintiff was already in default from the September 14, 1990 to October 30, 1990. Thus, defendants have a valid reason to retain the amount of P924,000.00 representing interest due of the unpaid installments.

As expressly provided for in Article 1159 of the Civil Code:

Obligation arising from contracts have the force of law between the contracting parties and should be complied with in good faith.^[12]

The appellate court in upholding the above findings of the trial court pronounced, thus:

Clearly plaintiff-appellant should be held liable to pay for the corresponding three (3%) percent interest on the unpaid installments in accordance with the above provisions of paragraph 6 of the Memorandum of Agreement. Noteworthy to stress in this case that plaintiff-appellant admits its failure to pay the installments. x x x^[13]

We disagree.

In justifying the withholding of the amount of P924,000.00 representing interest due of the unpaid installments, both the trial and the appellate court relied on paragraph 6 of the memorandum of agreement entered into by the parties. Surprisingly, both courts failed to consider paragraph 9 contained in the same memorandum of agreement. Said paragraph provides in very clear terms that "when the owners exercise their option to forfeit the downpayment, they shall return to the buyer any amount paid by the buyer in excess of the downpayment with no obligation to pay interest thereon." This should include all amounts paid, including interest. Had it been the intention of the parties to exclude interest from the amount to be returned to the buyer in the event that the owner exercises its option to terminate or rescind the agreement, then such should have been stated in categorical terms. We find no basis in the conclusion reached by the lower courts that "interest paid" should not be returned to the buyer. It may be conceded, as the trial court endeavored to rationalize, that for failure of the buyer to pay the installments, private respondents "were consequently deprived of the productive use of the supposed money they should have received as per contract." However, the private respondents' withholding of the amount corresponding to the interest violated the specific and clear stipulation in paragraph 9 of the memorandum of agreement that except for the downpayment, all amounts paid shall be returned to the buyer "with no obligation to pay interest thereon." The parties are bound by their agreement. Thus, Article 1159 of the Civil Code expressly provides:

Obligation arising from contracts have the force of law between the contracting parties and should be complied with in good faith.

Paragraph 9 of the memorandum of agreement between the parties, not being contrary to law, morals, good customs, public policy, or public order has therefore the force of law between the parties. Aside from equity considerations, the lower courts failed to provide a basis for the retention by the respondent of the interest. Equity is applied only in the absence of, and never against, statutory law or judicial rules of procedure.^[14] The memorandum of agreement, being the law between the parties, must therefore, govern.

Both the private respondents and trial court quote our ruling in Luzon Brokerage Company v. Maritime Building Inc.^[15] in order to justify retention of said interest:

The distinction between contracts of sale and contracts to sell with reserved title has been recognized by this Court in repeated decisions upholding the power of promisors under contracts to sell in case of failure of the other party to complete payment, to extrajudicially terminate the operation of the contract, refuse conveyance and retain the sums or installments already received, where such rights are expressly provided for, as in the case at bar.

Sadly for private respondents, our ruling in the above case defeats rather than sustains their claim. While this Court recognizes that in contracts to sell even if the contract is terminated the seller can retain the sums already received or paid, such can be done only if it is expressly provided for in the contract. Such proviso is not contained in the memorandum of agreement, as what is merely provided for in paragraphs 7 and 9 is the retention of the downpayment.

As regards the claim of exemplary damages and attorney's fees, petitioner fails to present an iota of evidence why they are entitled to these awards. The petition before this Court merely raises such assignment of error but does not even discuss the basis of such claim.

WHEREFORE, the petition is hereby GIVEN DUE COURSE and the decision of the Court of Appeals is MODIFIED in that private respondent is ordered to return to petitioner the amount of P924,000.00 representing the accrued interest for the unpaid installments. The decision appealed from is AFFIRMED in all other respects. However, the pronouncement as to cost is hereby deleted.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Pardo, and Ynares-Santiago, JJ., concur.

---

^[1] Eight Division, Tayao-Jaguros, J. , Ponente, Lantin and Adefuin-de la Cruz, JJ., Concurring.

^[2] Rollo, pp. 27-32.

^[3] RTC Decision, Original Records, p. 424.

^[4] Rollo, p. 37.

^[5] Ramirez v. Court of Appeals, 258 SCRA 512, 520 (1998).

^[6] Rollo, pp. 15-16. Underscoring supplied.

^[7] RTC Decision, Original Records, p. 423.

^[8] Rollo, pp. 33-34.

^[9] Id., at 33-34.

^[10] CA Original Records, pp. 423-424.

^[11] Id., at 19-20.

^[12] Id., at 421-422.

^[13] Rollo, p. 36.

^[14] Mendiola vs. Court of Appeals, 258 SCRA 492, 502 (1996).

^[15] 43 SCRA 93, 104-105 (1972).