377 Phil. 1019
PANGANIBAN, J.:
"WHEREFORE, premises considered, this Petition is hereby GRANTED. The President or the Chairman of the PNCC is hereby ordered to call a special stockholder's meeting within thirty (30) days from receipt of this order for the purpose of electing the members of the Board to hold office up to March, 1997 or until the next stockholders' meeting will be held. Accordingly, the Corporate Secretary of PNCC is hereby directed to issue required notices to the stockholders."[5]In a subsequent Resolution dated April 11, 1997,[6] SEC denied reconsideration, clarification and annulment of said Order.
The Facts
The Court of Appeals adequately narrates the facts in this wise:
"On September 16, 1994, private respondents Ernesto Pabion and Louella Ramiro, claiming to be stockholders of the PNCC, filed with the SEC a verified petition, therein alleging that since 1982 or for a period of twelve (12) years, there has been no stockholders' meeting of the PNCC to elect the corporation's board of directors, thus enabling the incumbent directors to hold on to their position beyond their 1-year term, in violation of PNCC's By-Laws and the Corporation Code. Pabion and Ramiro, therefore, prayed the SEC to issue an order `ordering the officers of PNCC or, in the alternative, authorizing petitioners, to call and hold a meeting of the stockholders x x x for the purpose of electing new directors x x x'. Docketed as SEC Case No. 09-94-4876, the verified petition was assigned to SEC Hearing Officer Manuel Perea.
"In due time, PNCC filed its answer. Therein, PNCC claimed that it is a government-owned corporation whose `organizational and functional management, administration, and supervision' are governed by Administrative Order (AO) No. 59, issued by then President Corazon Aquino on February 16, 1988. PNCC asserts that its board of directors does not hold office by virtue of a stockholder's election but by appointment of the President of the Philippines, relying on Article IV, Section 16 [1], of AO No. 59, which reads:`(1) Governing Boards. - GOCC (government-owned and/or controlled corporation) shall be governed by a Board of Directors or equivalent body composed of an appropriate number of members to be appointed by the President of the Philippines upon the recommendation of the Secretary of whose Department the GOCC is attached. The Chairman of the board shall likewise be appointed by the President upon the recommendation of the Secretary'In the same answer, PNCC expressed the fear that if granted, the prayer in the verified petition would amount to a contravention of AO No. 59 and an interference with the President's power of control and appointment over government-owned and/or controlled corporations (GOCCs). PNCC added that under Executive Order No. 399, series of 1951, a GOCC is not required to hold a general meeting of stockholders but, instead, the general manager thereof is merely required to submit an annual report to the President of the Philippines.
In the ensuing pre-trial conference conducted by Hearing Officer Perea, the parties defined the issues, as follows:`(a) Whether or not PNCC is a GOCC subject to and governed by LOI 1295 (1983), AO No. 59 (1988) and Executive Order No. 399 (1951), or by its articles-of-incorporation and by-laws only.on the basis of which the parties agreed to submit the case for resolution after they shall have filed their respective memoranda, which they did.
(b) Whether or not PNCC is required to call a regular annual stockholder's meetings'
"It appears, however, that in a motion dated September 4, 1995, Pabion and Ramiro prayed for the re-opening of the pre-trial conference on the ground that the `common assumption' on the 75% ownership by several government financial institutions (GFIs) in the PNCC was proved false by their discovery that the GFI[s] are merely a minority among the owners of PNCC. They, therefore, moved that a trial be conducted to determine the extent of ownership by the government in the PNCC.
"Acting on the aforementioned motion, SEC Hearing Officer Perea issued, on January 30, 1996, the following order:`In view of the necessity of a prior determination of whether or not respondent Philippine National Construction Corporation (PNCC) is a government owned or controlled corporation before resolving the instant incident, either or both of the parties are hereby directed to secure a ruling/opinion from competent authority as to whether or not the PNCC is a government corporation or not, as the matter does not fall within the competence of the Commission to determine."Their motion for reconsideration of the aforequoted order having been denied by the same Hearing Officer in his subsequent order of April 10, 1996, Pabion and Ramiro then went to the Commission en banc via a petition for certiorari. Thus came about SEC-EB No. 495 wherein therein petitioners Pabion and Ramiro sought the nullification of Hearing Officer Perea's twin orders of January 30, 1996 and April 10, 1996 for having been allegedly issued with grave abuse of discretion amounting to lack or in excess of jurisdiction. In the same recourse, the two likewise asked the SEC en banc to direct Perea to proceed with the trial on the merits of SEC Case No. 09-94-4876.
Unless said ruling/opinion is obtained by either or both parties, further proceedings should be held in abeyance.
SO ORDERED'
"In its first assailed order of October 2, 1996, the SEC en banc declared Hearing Officer Perea to have acted with grave abuse of discretion in issuing his two (2) questioned orders. The Commission ruled that Perea should have conducted a trial on the merits to resolve the factual issue of whether PNCC is majority or only minority-owned by the government. Explains the Commission en banc in its challenged order:
`Sec. 5 [b] of P.D. # 902-A confers on SEC original and exclusive jurisdiction to hear and decide intra-corporate controversies. The main issue in the petition is clearly an intra-corporate dispute as it is a controversy between the petitioners as stockholders of PNCC and respondent corporation PNCC regarding the holding of regular stockholder's meeting. This matter, therefore, falls within the scope of the jurisdiction of the SEC. In resolving the main issue of whether PNCC should hold regular stockholder's meetings, the hearing officer has jurisdiction to resolve the incidental issue of whether PNCC is a GOCC or not. Having validly acquired original and exclusive jurisdiction over the instant petition, the public respondent is mandated to hear and decide all the issues involved in the dispute.'
"In the same order, the Commission en banc, instead of remanding the case to the Hearing Officer to resolve the question of whether PNCC is government-owned or controlled, itself resolved the issue by holding that PNCC, `being incorporated under the Corporation Code, is, therefore, subject to Section 50 of the Corporation Code which requires the holding of regular stockholders' meeting for the purpose of selecting PNCC's Board of Directors', citing, as basis therefor the ruling in PNOC-EDC vs. NLRC, 20 SCRA 487, to the effect that the determination as to what law governs a corporation is the manner of its creation, adding that PNCC is an `acquired asset corporation' which, by express provision of Section 2 of AO No. 59, `is not considered as a GOCC'. And taking judicial notice of PNCC's by-laws thereunder the corporation's directors `shall be elected at the annual meeting of the stockholders', the Commission en banc concluded that PNCC `is, therefore, required to conduct a regular stockholder's meeting for the purpose of electing its Board of Directors, considering that the Corporation Code and its own By-Laws require the holding of such meeting'.xxx xxx xxx
"A timely motion for reconsideration was filed by the PNCC but the same was denied by the Commission en banc in its assailed Resolution of April 11, 1997."[7] (citations omitted but bold types and italics found in originial)
"The petition lacks merit.
"Although the case reached the SEC en banc through a petition for certiorari, the said body is not helpless to resolve the controversy on its substantive merits. There are indications that PNCC is not a GOCC which the SEC en banc cannot ignore. A trial for the purpose of determining the status of PNCC is unnecessary since the issue can be resolved on the basis of records. A remand will only delay the resolution of the case and frustrate the ends of justice.
"It may be so, as pointed out by petitioner PNCC, that the rule which allows the SEC en banc to correct instances of grave abuse of discretion is patterned after Rule 65 of the 1997 Rules of Civil Procedure, and therefore, it is only proper that the SEC en banc adhere to the pronouncements of the Supreme Court on the proper treatment of petitions for review on certiorari under Rule 65. It is equally true, however, that the rule enunciated in several cases to the effect that the inquiry in a petition for certiorari is limited only to searching for traces of grave abuse [of] discretion is not cast in stone. For sure, the Supreme Court no less has resolved factual issues in certiorari cases on the basis of the records before it. If the Supreme Court can relax the restriction on the disposition of certiorari cases, We see no reason why a mere quasi-administrative body unsaddled by the stringent rules of procedure, like the SEC en banc, cannot follow the High Court's example, more so when, as rationalized by the same Court in Gokongwei, Jr. vs. Securities and Exchange Commission, et. al., 89 SCRA 336, 360, the underlying justification for the relaxation of the rule applies to the instant case as well. Says the High Court in that case:`It is an accepted rule of procedure that the Supreme court should always strive to settle the entire controversy in a single proceeding, leaving no root or branch to bear the seeds of future litigation. Thus, in Francisco v. City of Davao (12 SCRA 682), this Court resolved to decide the case on the merits instead of remanding it to the trial court for further proceedings since the ends of justice would not be subserved by the remand of the case. In Republic v. Security Credit and Acceptance Corporation, et. al. (19 SCRA 58), this Court, finding that the main issue is one of law, resolved to decide the case on the merits `because public interest demands an early disposition of the case', and in Republic v. Central Surety and Insurance Company, (25 SCRA 641), this Court denied remand of the third-party complaint to the trial court for further proceedings, citing precedents where this Court, in similar situations, resolved to decide the cases on the merits, instead of remanding them to the trial court where (a) the ends of justice would not be subserved by the remand of the case; or (b) where public interest demand an early disposition of the case; or (c) where the trial court ha[s] already received all the evidence presented by both parties and the Supreme Court is now in a position, based upon said evidence, to decide the case on the merits. xxx'"Moreover, it cannot be denied that the parties herein are embroiled in an intra-corporate controversy and the question on the identity of PNCC is only an incident of that controversy. Pabion and Ramiro are among the stockholders of PNCC, a circumstance which classifies the dispute as an intra-corporate controversy. The authority of the Commission to determine whether or not PNCC can be compelled to hold a stockholders' meeting is unquestioned as even PNCC itself concedes that the `issues of the propriety of calling a stockholders' meeting is within the competence of the SEC'. The source of authority of the SEC over the present case can be found in Section 5(b) of Presidential Decree (PD) No. 902-A, as amended, which empowers the SEC to hear and resolve cases involving `controversies arising out of intra-corporate or partnership relations, between and among stockholders, members, or associates; between any or all of them and the corporation, partnership or association of which they are stockholders, members or associates, respectively; and between such corporation, partnership or association and the State insofar as it concerns their individual franchise or right to exist as such entity.'
"The finding of the SEC en banc that PNCC is not a GOCC was made in the exercise of its jurisdiction over an intra-corporate controversy. To disallow the Commission to determine the nature of petitioner PNCC is to deprive it of the power to resolve the intra-corporate controversy between the parties. The jurisdiction of the SEC over intra-corporate controversies emanates from law and PNCC cannot divest the Commission of that jurisdiction. As the body charged with exclusive authority over intra-corporate controversies, aside from being possessed under Section 3 of PD No. 902-A, as amended, with absolute jurisdiction over all corporations which are grantees of primary franchise from the government, the SEC en banc can be trusted with the competence to distinguish a private corporation from a GOCC.
"The second assigned error must likewise fall.
"Administrative Order No. 59 does not consider the so-called acquired asset corporations, although majority owned by the government, as GOCCs. The salient provisions of AO No. 59 read, as follows:`SEC. 2. Definition of Terms. - As used in this Administrative Order, the following terms shall mean:"In order to be considered as an acquired asset corporation, the aforequoted provision requires, among other things, that the corporation's conveyance of its outstanding shares to the government must be aimed at the satisfaction of its debts. While, on one breath, petitioner admits that the GFIs gained majority ownership of PNCC by converting their loans into equity, on another breath, petitioner denies that the debt-to-equity conversion resulted in the satisfaction of the outstanding debts of PNCC because it did not pay the loans. If the loans remained unpaid as maintained by PNCC, what then was the effect on its debt when the GFIs converted their loans into equity? It would be the height of irresponsibility for PNCC to surrender majority ownership of its voting or outstanding shares without getting something in return. When PNCC ceded the majority ownership to the GFIs, there could be no other motivation behind the action than PNCC's desire to satisfy its obligation to the creditors. PNCC's effort to ward off the exclusionary proviso of AO No. 59 only produces incongruity in its position.(a) Government-owned and/or controlled corporation, hereinafter referred to as GOCC or government corporation, is a corporation which is created by special law or organized under the Corporation Code in which the government, directly or indirectly, has ownership of the majority of the capital or has voting control; Provided, That an acquired asset corporation as defined in the next paragraph shall not be considered as GOCC or government corporation.
(b) Acquired asset corporation is a corporation (1) which is under private ownership, the voting or outstanding shares of which (i) were conveyed to the government agency, instrumentality or corporation in satisfaction of debts whether by foreclosure or otherwise, or (ii) were duly acquired by the government through final judgment in a sequestration proceeding; or (2) which is a subsidiary of a government corporation organized exclusively to own and manage, or lease, or operate specific physical assets acquired by a government financial institution in satisfaction of debts incurred therewith, and which in any case by law or by enunciated policy is required to be disposed of to private ownership within a specified period of time.'
"The case of Quimpo vs. Tanodbayan, 146 SCRA 137, cannot assist the petitioner's cause. There, the Supreme Court's inquiry centered on whether or not Petrophil Corporation is a GOCC because an affirmative answer will affirm the Tanodbayan's jurisdiction over the Petrophil employees pursuant to the provisions of the Anti-Graft and Corrupt Practices Act. In declaring that Petrophil is a GOCC, the Supreme Court deemed it crucial to its conclusion that Petrophil was purchased by the government through the Philippine National Oil Corporation, itself a GOCC. The situation of Petrophil bears no parallelism with that of PNCC because the latter was not purchased by the GFIs. The GFIs became majority owners of PNCC because they converted their loans into equity. The manner of partial acquisition of PNCC by the GFIs fits the condition set forth in Section 2, paragraph (b), subparagraph, (1) (i) of AO no. 59, supra.
"PNCC's position that it cannot be considered as an acquired asset corporation in the absence of law or "enunciated policy" mandating its privatization within a definite period can only be a product of strained interpretation of AO No. 59. The Administrative Order shows that there are only two (2) classes of acquired asset corporations. Although the description of each class is compressed in a single paragraph, the disjunctive word "or" separates the first class from the second class which connotes a variance in their characteristics. The word "or" is a disjunctive term signifying disassociation and independence of one thing from each of the other things enumerated. It should, as a rule, be construed in the sense in which it ordinarily implies, as a disjunctive word. Each class has its own set of conditions. The conversion by the GFIs of their loans into equity in PNOC is sufficient to transform it as an acquired asset corporation. The requirement for a pretender for the status of an acquired asset corporation to be subject to a law or policy that commands its privatization applies to another class of acquired asset corporations which does not include PNCC."[8] (citations omitted, emphasis in the original)
"1. WHETHER OR NOT PNCC IS A GOCC;We shall take up the above issues in the following sequence: 1) whether SEC can determine the corporate status of PNCC, 2) whether SEC has jurisdiction over GOCCs, and 3) whether PNCC is an acquired asset corporation.
2. WHETHER OR NOT THE SEC HAS JURISDICTION TO ORDER PNCC TO HOLD A STOCKHOLDERS' MEETING FOR THE PURPOSE OF ELECTING THE MEMBERS OF ITS BOARD OF DIRECTORS;
3. WHETHER OR NOT PNCC IS REQUIRED UNDER THE LAW TO HOLD A STOCKHOLDERS' MEETING FOR THIS PURPOSE; AND
4. WHETHER OR NOT THE SEC, IN CERTIORARI PROCEEDINGS, CAN RULE ON THE MERITS OF A CASE EVEN BEFORE THE HEARING OFFICER HAS RECEIVED EVIDENCE."[10]
"Sec. 2. General Terms Defined. --- Unless the specific words of the text, or the context as a whole, or a particular statute, shall require a different meaning:Thus, we agree with the CA that "the SEC en banc can be trusted with the competence to distinguish a private corporation from a GOCC."[13] Whether such determination is correct would be an altogether different matter.xxx xxx xxx
(13) Government-owned or controlled corporation -- refers to any agency organized as a stock or non-stock corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the Government directly or through its instrumentalities either wholly, or, where applicable as in the case of stock corporations, to the extent of at least fifty-one (51) per cent of its capital stock: Provided, That government owned or controlled corporations may be further categorized by the Department of Budget, the Civil Service Commission, and the Commission on Audit for purposes of the exercise and discharge of their respective powers, functions and responsibilities with respect to such corporations." (emphasis ours)
"A litigation is not a game of technicalities in which one, more deeply schooled and skilled in the subtle art of movement and position, entraps and destroys the other. It is, rather, a contest in which each contending party fully and fairly lays before the court the facts in issue and then, brushing aside as wholly trivial and indecisive all imperfections of form and technicalities of procedure, asks that justice be done upon the merits. Lawsuits, unlike duels, are not to be won by a rapier's thrust. Technicality, when it deserts its proper office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant consideration from courts. There should be no vested rights in technicalities."[21]Indeed, justice unnecessarily delayed is justice necessarily denied.
"Sec. 50. Regular and special meetings of stockholders or members. -- x x x Whenever, for any cause, there is no person authorized to call a meeting, the Securities and Exchange Commission, upon petition of a stockholder or member, and on the showing of good cause therefor, may issue an order to the petitioning stockholder or member directing him to call a meeting of the corporation by giving proper notice required by this Code or by the by-laws. The petitioning stockholder or member shall preside thereat until at least a majority of the stockholders or members present have chosen one of their member[s] as presiding officer." (emphasis ours)As respondents point out, the SEC's action is also justified by its regulatory and administrative powers[37] to implement the Corporation Code, specifically to compel the PNCC to hold a stockholders' meeting for election purposes. Apropos here is the SEC's ruling as follows:
"The Commission takes judicial notice of the PNCC by-laws as follows:`Art. V, Sec. 5"Respondent PNCC is therefore required to conduct a regular stockholders' meeting for the purpose of electing its Board of Directors, considering that the Corporation Code and its own By-Laws require the holding of such meeting. The failure of PNCC to call and hold annual stockholders' meetings since 1983 or for thirteen (13) years constitutes a gross, continuing violation of its by-laws and the Corporation Code. For the refusal of PNCC's Board of Directors to call said meeting, petitioners, as stockholders of PNCC, can rightfully petition the SEC to order the same."
'(1) The Board of Directors shall be composed of eleven (11) directors.
`(2) The directors shall be elected at the annual meeting of the stockholders, each director to hold office for a term on one (1) year and until his successor is duly elected and qualified.
`Art. IV Sec. 4
`(1) The annual meeting of the stockholders shall be held at 3:00 P.M. on the fourth (4th) Tuesday of March every year.'
Respondents counter that the above-quoted provision is inapplicable, since PNCC is not a GOCC. Instead, it is an acquired asset corporation, based on the definition given in Section 2 (a) of the same law, AO 59:"x x x x x x x x x
(1) Governing Boards. -- A GOCC shall be governed by a Board of Directors or equivalent body composed of an appropriate number of members to be appointed by the President of the Philippines upon the recommendation of the Secretary to whose Department the GOCC is attached. The Chairman of the Board shall likewise be appointed by the President upon the recommendation of the Secretary."
Thus, at this point these questions arise: (a) Is PNCC an acquired asset corporation? (b) Is Section 2 of AO 59 inconsistent with Section 2 (13) of EO 292? (c) Is Section 16 of AO 59 applicable to PNCC?"x x x x x x x x x (a) Government-owned and/or controlled corporation, hereinafter referred to as GOCC or government corporation, is a corporation which is created by special law or organized under the Corporation Code in which the Government, directly or indirectly, has ownership of the majority of the capital or has voting control; Provided that an acquired asset corporation as defined in the next paragraph shall not be considered as GOCC or government corporation.
(b) Acquired asset corporation is a corporation (1) which is under private ownership, the voting or outstanding shares of which (i) were conveyed to the government or to a government agency, instrumentality or corporation in satisfaction of debts whether by foreclosure or otherwise, or (ii) were duly acquired by the government through final judgment in a sequestration proceeding; or (2) which is a subsidiary of a government corporation organized exclusively to own and manage, or lease, or operate specific physical assets acquired by a government financial institution in satisfaction of debts incurred therewith, and which in any case by law or by enunciated policy is required to be disposed of to private ownership within a specified period of time." (emphasis supplied)
"SEC. 18. Dissolution of Acquired Asset Corporations. -- All executive agencies, offices and instrumentalities shall take steps to dissolve any acquired asset corporation which has not been disposed of to the private sector within five (5) years from the date of the decision to dissolve the corporation. xxx"[42] (emphasis supplied)Reading these sections together, it becomes evident that an acquired asset corporation is singled out for eventual disposition to the private sector or, failing in that, for dissolution.[43]
"SECTION 1. Statement of Policy. -- It shall be the policy of the State to promote privatization through an orderly, coordinated and efficient program for the prompt disposition of the large number of non-performing assets of the government financial institutions, and certain government-owned or controlled corporations which have been found unnecessary or inappropriate for the government sector to maintain."Pursuant to this policy, AO 64,[45] which was issued by then President Corazon Aquino, transferred to the national government certain assets held by the Philippine Export and Foreign Loan Guarantee (Philguarantee) and the National Development Company (NDC). Certain shares in PNCC were included. This fact was confirmed by President Fidel V. Ramos who issued AO 397[46] on May 13, 1998. The said administrative order states that "PNCC is one of the corporations slated to be privatized."[47]
"At the outset, we note from the attached papers that in its letter dated May 20, 1991 to the PNCC, the Office of the President already declared that PNCC is an `acquired asset corporation as defined in Administrative Order No. 59'." (emphasis supplied)DOJ Opinion No. 22, Series of 1998, had a similar tenor:
"The question whether PNCC is a government-owned or controlled corporation (GOCC) and, therefore, a government entity ha[s] been previously passed upon by the Office of the President. In a letter dated May 20, 1991, Deputy Executive Secretary Sonny Coloma informed the then PNCC President that PNCC is `an acquired asset corporation as defined under Section 2 of Administrative Order No. 59'. The conclusion, although not explicitly stated in said letter, is that PNCC is not a GOCC." (emphasis supplied)While not controlling, official opinions of the justice secretary are persuasive. We uphold such opinions in the present milieu.
"Sec. 2. Definition of Terms. --- As used in this Administrative Order, the following terms shall mean:AO 59 does not purport to have established a new kind of corporation that supersedes EO 292. Neither does the former seek to revise the definition of "GOCC" given in the latter. What AO 59 in fact does is to distinguish GOCCs in general from those that are sought to be privatized. In fact, the definition given in EO 292 itself states that the GOCCs may be further categorized.[50] This caveat suggests that the definition is broad enough to admit distinctions as to the kinds of GOCCs defined under AO 59.(a) Government-owned and/or controlled corporation, hereinafter referred to as GOCC or government corporation, is a corporation which is created by special law or organized under the Corporation Code in which the Government, directly or indirectly, has ownership of the majority of the capital or has voting control; Provided that an acquired asset corporation as defined in the next paragraph shall not be considered as GOCC or government corporation.(b) Acquired asset corporation is a corporation (1) which is under private ownership, the voting or outstanding shares of which (i) were conveyed to the government or to a government agency, instrumentality or corporation in satisfaction of debts whether by foreclosure or otherwise, or (ii) were duly acquired by the government through final judgment in a sequestration proceeding; or (2) which is a subsidiary of a government corporation organized exclusively to own and manage, or lease, or operate specific physical assets acquired by a government financial institution in satisfaction of debts incurred therewith, and which in any case by law or by enunciated policy is required to be disposed of to private ownership within a specified period of time." (boldface and italics supplied)
"Sec. 2. Definition of Terms. -- As used in this Proclamation and unless the context otherwise requires, the term:Under Section 5[54] of same Proclamation thereof, the Committee on Privatization is empowered to identify and transfer these assets for disposition to the private sector.
(1) Assets shall include xxx (iv) the government institutions themselves, whether as parent or subsidiary corporations.
(2) Government institutions shall refer to government-owned or controlled corporations, financial or otherwise, whether organized by special charter as in the case of a parent cooperation, or under general law as in the case of a subsidiary corporation." (emphasis ours)
"(2) Powers and Functions of the Board. --- Insofar as it is not inconsistent with the charter of a given GOCC, the Board of Directors or equivalent body shall have the following powers and functions:In sum, it is clear that PNCC is an acquired asset corporation under AO 59. Thus, Section 16 (1) of AO 59 is inapplicable. The alleged derogation of the President's power over GOCCs is without basis. We note, at this point, petitioner's admission that members of the PNCC board of directors are nominated by the GFIs in proportion to their equity ownership therein.[57] Petitioner's vacillation in seeking to apply Section 16 (1) of AO 59 while at same time asserting the invalidity of Section 2 (a and b) thereof betrays the stark weakness of its position.x x x x x x x x x" (emphasis supplied)
"WHEREAS, pursuant to Section 23 of Proclamation No. 30, the President of the Philippines, acting through the Committee on Privatization, shall in an appropriate instrument identify and describe the assets of government institutions to be transferred to the National Government and the loan or other transactions giving rise to the receivables, obligations and other property constituting assets to be transferred;