CARLOS DIMAYUGA, PETITIONER, VS. PHILIPPINE COMMERCIAL & INDUSTRIAL BANK AND COURT OF APPEALS, RESPONDENTS.

This is a petition for review on certiorari seeking to set
aside the resolutions of the respondent Court of Appeals dated:  (a) September
30, 1975, dismissing the appeal of petitioner in CA-G.R. No.
57556-R entitled “Philippine Commercial and Industrial Bank, Plaintiff-appellee vs. Pedro C. Tanjuatco,
et. al., Defendants-appellants”, (b) November 21, 1975 denying petitioner’s motion for
reconsideration, and (c) January 13, 1976 denying petitioner’s second motion
for reconsideration.

Petitioner Carlos Dimayuga is the
defendant-appellant in a case for collection of sum of money against whom the
decision was rendered by the trial court on May 28, 1974.

Plaintiff, who is now the respondent in the instant petition, is a banking institution duly organized and
existing under and by virtue of the
laws of the Philippines
and is the creditor of petitioner.

On February 6, 1962,
petitioner borrowed from the plaintiff the sum of ten thousand (P10,000.00) pesos as evidenced by a promissory note executed
and signed by Pedro Tanjuatco and Carlos Dimayuga.  The
indebtedness was to be paid on May 7,
1962 with interest at the rate of ten percent (10%) per annum in
case of non-payment at maturity as evidenced by and in accordance with the
terms and conditions of the promissory note executed jointly and severally by
defendants.

In the aforementioned promissory note, Carlos Dimayuga
bound himself to pay jointly and severally with Pedro Tanjuatco
interest at the rate of 10% per annum on the said amount of P10,000.00 until fully paid. 
Moreover, both undertook to “jointly and severally authorize the
respondent Philippine Com­mercial and Industrial Bank, at its option to apply
to the payment of this note any and all funds, securities or other real or
personal property of value which
hands (sic) on deposit or otherwise belonging to anyone or all of us.” (p. 56, RA; Rollo, p. 15).

Upon the default of the promissory to pay, a complaint was filed
on July 11, 1969 by the
Philippine Commercial and Industrial Bank for sum of money.

Defendant Carlos Dimayuga, now
petitioner, however, had remitted to the plaintiff (now respondent) the amount totalling P4,000.00 by way of
partial payments made from August 1,
1969 to May 7, 1970
as evidenced by corresponding receipts thereto. 
These payments were nevertheless applied to past interests, charges and
partly on the principal.

On May 28, 1974,
the trial court rendered a decision holding defendants jointly and severally
liable to pay the plaintiff the sum of P9,139.60 with
interest at 10% per annum until fully paid plus P913.96 as attorneys’ fees and
costs against defendants.

On July 11, 1974, petitioner filed a motion alleging that since
Pedro Tanjuatco died on December 23, 1973, the
money claim of the respondents should be dismissed and prosecuted against the
estate of the late Pedro Tanjuatco as provided in
Sec. 5, Rule 86, New Rules of Court. 
On June 22, 1974, the trial court denied the motion for lack of merit.

Not satisfied, the petitioner appealed to the respondent
court.  The appeal was opposed by the
respondent PCIB in a motion to dismiss the appeal, on the ground that the
record on appeal did not disclose data showing that the appeal was perfected on
time.  In opposition to the respondent’s
motion to dismiss, the petitioner Carlos Dimayuga
insisted that the appeal was perfected on time. 
On September 30, 1975, the Court of Appeals in a resolution dated
September 30, 1975 dismissed the appeal for failure of the Record on Appeal to
show on its face that the appeal was timely perfected.

Hence, this petition.

It is alleged by herein petitioner that the Court of Appeals
erred in dismissing the appeal on the ground that the printed records on appeal
failed to show that it was perfected on time.

On March 18, 1976, the respondent Philippine Commercial and
Industrial Bank filed its comment.  In
the resolution dated April 2, 1976,
the Supreme Court through its Second Division resolved to treat the petition
for review as a special civil action and required both parties to submit their
simultaneous memoranda.

On May 10, 1976, the petitioner submitted his memorandum while
private respondent submitted its corresponding memorandum on May 25, 1976.

The main issue in this case is whether or not the Court of
Appeals erred in dismissing the appeal for failure of the Record on Appeal to
show on its face that the appeal had been timely perfected.

Among others, respondent PCIB’s
objection to this appeal is predicated on the fact that petitioner failed to
state in his record on appeal
the date when he received the copy of the decision, the denial and/or granting
of the second motion filed although the same may be found in a motion for
reconsideration.  Respondent bank
insisted that petitioner’s belated act in reciting the data in a motion for
reconsideration of the resolution of the Court
of Appeals did not cure this defect.

This issue has long been laid to rest.  Although no record on appeal is now required
to take an appeal (section 39, BPB 129), this Court had long discarded the
rigid application of the material data rule (section 6, Rule 41) in appeals
from Courts of First Instance to the Appellate Court (Luzon Concrete Products,
Inc. v. Court of Appeals, 135
SCRA 463 [1985]; Abando v. C.A., 83 SCRA 511
[1978]).  Thus, the mere absence of a
formal order granting the motion for extension of time to file record on appeal
should not be fatal to the petitioner if the record on appeal filed within the
requested period was approved by the court a quo.  The approval thereof, as in the case
at bar, carries with it the approval of the motion for extension and the mere failure of the record on appeal to show such approval should not defeat
the right to appeal (Berkenkotter v. Court of
Appeals, 53 SCRA 22 [1973]).  The
appellate court may properly rely on the trial court’s order of approval and
could determine therefrom without sending for or examining
any other records that the appeal was perfected on time as expressly found by
the trial court (Saura Import & Export Co., Inc.
v. Court of Appeals, 83 SCRA 276 [1978]).

In fine, the appeal interposed by the petitioner from the
decision of the trial court should be given due course.  However, to remand the case to the Court of
Appeals would only delay the final disposition of this case.  On the other hand, this Court has consistently
ruled that remand of a case to a lower court for the reception of evidence is
not necessary where the Supreme Court could resolve the dispute already based
on the records before it (Quisumbing v. C.A., 122
SCRA 704 [1983]; Board of Liquidators vs. Zulueta,
115 SCRA 549 [1982]; Velasco v. C.A., 95 SCRA 617 [1980]).  A case involving an interlocutory order which
would have been referred to the Court of Appeals was decided by the Supreme
Court if only to make up for time lost (Sacdalan v.
Bautista, 56 SCRA 176 [1974]).  Finally,
in view of the long pendency of a case, this Court
finds “that the greater interest of justice demands that the case should be
disposed on the merits at this stage x x x” (Limpan Investment Corporation
v. Sundiam, 157 SCRA 209 [1988]).

From the evidence presented, there can be no dispute that Carlos Dimayuga bound himself jointly and severally with Pedro C. Tanjuatco, now deceased, to pay the obligation with PCIB in
the amount of P10,000.00 plus 10% interest per
annum.  In addition, as above stated, in
case of non-payment, they undertook among others to jointly and severally
authorize respondent bank, at its option to apply to the payment of this note,
any and all funds, securities, real or personal properties, etc. belonging to
anyone or all of them.  Otherwise stated,
the promissory note in question provides in unmistakable language that the
obligation of petitioner Dimayuga is joint and several with Pedro C. Tanjuatco.

It is the position
of the petitioner that Pedro Tanjuatco having died on
December 23, 1973, the money claim of PCIB should be dismissed and prosecuted
against the estate of the late Tanjuatco.

This contention is untenable.

It is well settled under the law and jurisprudence that when the
obligation is solidary, the creditor may bring his
action in toto against the debtors obligated in solidum.  As expressly allowed by Article 1216 of the
Civil Code, the creditor may proceed against any one of the solidary
debtors or some or all of them simultaneously. 
“Hence, there is nothing improper in the creditor’s filing of an action
against the surviving solidary debtors alone, instead
of instituting a proceeding for the settlement of the estate of the deceased
debtor wherein his claim could be filed.” (Imperial Insurance
Inc. v. David, 133 SCRA 317 [1984]). 
The choice is undoubtedly left to the solidary
creditor to determine against whom he will enforce collection (PNB v.
Independent Planters Association Inc., 122 SCRA 113 [1983]).

WHEREFORE, the resolutions of the Court of Appeals dated
September 30, 1975, November 21,
1975 and January 13, 1976 are Reversed and Set Aside.  The appeal
interposed by petitioner-appellant is Dismissed for lack of merit and the decision of the
Court of First Instance of Manila, Branch VI dated May 28, 1974, is Affirmed in
toto.

SO ORDERED.

Fernan, C.J., (Chairman), Gutierrez,
Jr., Feliciano, and Davide,
Jr., JJ., concur.