Bitanga Case Facts

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  FACTS: Pyramid filed with the RTC a Complaint for specific performance and damages with application for the issuance of a writ of preliminary attachment against the petitioner and wife Marilyn. Respondent alleged in its Complaint that, it entered into an agreement with Macrogen Realty , of which Bitanga is the President , to construct for the latter the Shoppers Gold Building  located in Parañaque City. Respondent commenced civil, structural, and architectural works on the construction project. However, Macrogen failed to settle respondent’s progress billings . Petitioner , through his representatives and agents, assured respondent that the outstanding account of Macrogen would be paid and relying on the assurances made by petitioner, respondent continued the construction project. Later , respondent suspended work on the construction project since the conditions that it imposed for the continuation thereof, including payment of unsettled accounts, had not been complied with by Macrogen . Respondent instituted with the Construction Industry Arbitration Commission (CIAC) a case for arbitration against Macrogen Realty seeking payment by the latter of its unpaid billings and project costs.   Before the arbitration case could be set for trial, Pyramid and Macrogen entered into a Compromise Agreement, with petitioner acting as signatory for and in behalf of Macrogen Realty. Under the Compromise Agreement, Macrogen Realty agreed to pay respondent the total amount of P6,000,000.00 by installments . Petitioner guaranteed the obligations of Macrogen  Realty under the Compromise Agreement by executing a Contract of Guaranty in favor of respondent, by virtue of which he irrevocably and unconditionally guaranteed the full and complete payment of the principal amount of liability of Macrogen.  Upon joint motion of respondent and Macrogen Realty, the CIAC approved the Compromise Agreement. Macrogen Realty failed and refused to pay all the monthly installments agreed upon in the Compromise Agreement. Hence respondent moved for the issuance of a writ of execution against Macrogen, which CIAC granted. The sheriff filed a return stating that he was unable to locate any property of Macrogen Realty, except its bank deposit of P20,242.33,  with the Planters Bank, Buendia Branch. Respondent then made, a written demand on petitioner, as guarantor of Macrogen to pay the liability or to point out available properties of the Macrogen within the Philippines sufficient to cover the obligation guaranteed.  It also made verbal demands on petitioner. Yet, respondent’s demands were left unheeded. Petitioner filed with the RTC his Answer to respondent’s Complaint. As a special and affirmative defense, petitioner argued that the benefit of excussion was still available  to him as a guarantor since he had set it up prior to any judgment against him. According to petitioner, respondent failed to exhaust all legal remedies to collect from Macrogen  the amount due under the Compromise Agreement, considering that Macrogen Realty still haduncollected credits which were more than enough to pay for the same. Given these premise, petitioner could not be held liable as guarantor. ISSUE: WON petitioner cam avail of the benefit of excussion   HELD: petition denied for lack of merit; CA affirmed; Bitanga (alone; not including his wife who is not a party to the compromise agreement) is liable as per Compromise Agreement or the contract of guaranty.
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