Respondent: The loan taken by M/s Gardenia Aims Developers Pvt. Ltd. became NPA & a settlement proposal is under consideration - CIC: Around 1400 persons have been affected due to non-delivery of flats, Disclosure is in larger public interest
11 Sep, 2017Respondent: The loan taken by M/s Gardenia Aims Developers Pvt. Ltd. became NPA & a settlement proposal is under consideration - CIC: The submissions of the Appellant that around 1400 persons have been affected adversely because of non-delivery of flats by M/s Gardenia Aims Developers Private Limited has not been challenged by the other two parties, Disclosure of the information is a matter of larger public interest
Attendance during the hearing on 3.4.2017.
The Appellant was represented by Shri Saumen Biswas, who was present in person. On behalf of the Respondents, Shri Anil Kumar Gupta, Chief Manager was present in person.
Attendance during the hearing on 18.5.2017.
The Appellant was present in person. On behalf of the Respondents, Shri Swaroop Singh, Chief Manager & CPIO was present in person. Shri Ajay Nagpal, CA was present on behalf of M/s. Gardenia Aims Developers Private Limited.
Attendance during the hearing on 20.6.2017
The Appellant was not present. On behalf of the Respondents, Shri Swaroop Singh, Chief Manager and CPIO was present in person. No one was present on behalf of M/s Gardenia Aims Developers Private Limited.
Information Commissioner: Shri Sharat Sabharwal
Information sought
This matter concerns an RTI application filed by the Appellant, seeking information on eleven points regarding the flats constructed by M/s Gardenia Aims Developers Pvt. Ltd. in Noida and related issues concerning the loan given by the Respondent bank to them etc. The CPIO reply The CPIO gave a point wise reply but denied the information on points (a), (b), (e), (h) and (i) under section 8 (1) (d), (e) & (j) of the RTI Act. Regarding points (f) & (g), he stated that the queries contained therein did not qualify as “information” as defined under section 2 (f) of the RTI Act.
Grounds of the First Appeal
Not satisfied with the CPIO’s reply.
Order of the First Appellate Authority
The FAA provided some additional information on points (d) and (i) to the Appellant.
Grounds of the Second Appeal
Complete information not provided.
Relevant facts emerging during the Hearing, Discussion and Decision
Hearing on 3.4.2017
The representative of the Appellant stated that the Appellant booked a flat in a project promoted by M/s Gardenia Aims Developers Pvt. Ltd. in Sector 46 Noida around 2010-2011. He also obtained a loan for acquiring the above flat from the Respondent Bank. The flat is not ready till date and around 1400 other persons are also affected adversely in the same manner because of non-delivery of flats by M/s Gardenia Aims Developers Pvt. Ltd.
2. The Respondents stated that the loan taken by M/s Gardenia Aims Developers Pvt. Ltd. became NPA and a settlement proposal is under consideration. They further submitted that they are not a party to the arrangement between the Appellant and M/s Gardenia Aims Developers Pvt. Ltd. In so far as the loan taken by the Appellant is concerned, they are taking action for recovery of the same.
3. We have considered the submissions of both the parties and note that a bank is in a fiduciary relationship with its customers and holds the information concerning their accounts in a fiduciary capacity. Such information is, therefore, exempted from disclosure under Section 8 (1) (e) of the RTI Act in the absence of a finding of larger 4 public interest. However, based on the brief facts of the case, stated by the representative of the Appellant, and his submission that around 1400 persons have been affected adversely because of non-delivery of flats by M/s Gardenia Aims Developers Pvt. Ltd., this matter appears, prima-facie, to be one of larger public interest, which would warrant disclosure of most of the information sought by the Appellant. However, before taking a decision in the matter, we would like to give an opportunity to M/s Gardenia Aims Developers Pvt. Ltd. to make their submissions, if any. Accordingly, this matter is adjourned to be heard again on 18th May 2017 at 10.00 a.m. at Room No. 305, 2nd Floor, August Kranti Bhawan, Bhikaji Cama Place, New Delhi - 110066. The CPIO is directed to forward a copy of this interim order, immediately on its receipt, together with copies of the following documents, by registered post AD to M/s Gardenia Aims Developers Pvt. Ltd.:-
(i) RTI application dated 6.11.2015.
(ii) CPIO’s reply dated 7.12.2015.
(iii) Appeal dated 15.12.2015 to the First Appellate Authority.
(iv) Order dated 11.1.2016 of the First Appellate Authority.
(v) Appeal dated 20.1.2014 filed by the Appellant to the Commission (copy enclosed).
M/s Gardenia Aims Developers Pvt. Ltd. should be represented at the next hearing on 18.5.2017 in case they wish to make any submissions in this matter.
Hearing on 18.5.2017
4. The matter came up today. Speaking on behalf of M/s. Gadenia Aims Developers Pvt. Limited, Shri Ajay Nagpal stated that the documents concerning the matter have been received by them from the Respondents only on May 17, i.e. a day before the hearing. Therefore, he sought adjournment of the matter to give another opportunity to the third party, M/s. Gardenia Aims Developers Pvt. Ltd. to produce specific facts. He also filed the written submissions dated 17.5.2017 of M/s. Gardenia Aims Developers Pvt. Ltd., which have been taken on record. It is noted that instead of dealing with the specific issue of disclosure of the information sought by the Appellant in his RTI application, these written submissions seek to explain the delay in completion of the project.
5. In the light of the above submissions of M/s. Gardenia Aims Developers Pvt. Ltd. regarding the documents having been made available to them by the Respondents only a day before the hearing, we are constrained to adjourn this matter to be heard again on 20th June, 2017 at 10.00 a.m. in Room No. 305, 2nd floor, August Kranti Bhavan, Bhikaji Cama Place, New Delhi-110066. In case any party files any further written submissions to the Commission, it should make sure that a copy is made available to the remaining two parties well before the hearing on 20.6.2017.
6. In our interim order dated 3.4.2017, we had directed the CPIO to forward a copy of the said order, immediately on its receipt, together with copies of certain documents mentioned in paragraph 3, by registered post A.D. to M/s. Gardenia Aims Developers Pvt. Ltd. However, it appears that this was done only at the eleventh hour, resulting in M/s. Gardenia Aims Developers Pvt. Ltd. receiving the documents in question only on 17.5.2017, i.e. a day before today’s hearing. In response to our query, Shri Swaroop Singh, Chief Manager and CPIO stated that he was on leave when the matter came up last time on 3.4.2017. Therefore, Shri Anil Kumar Gupta, Chief Manager had represented the Respondents at the hearing. However, he (Shri Swaroop Singh) was back on duty and was CPIO when the Commission’s order dated 3.4.2017 was received in the office of the Respondents “around the middle of April, 2017”. Shri Swaroop Singh, Chief Manager and CPIO did not mention to us the exact date on which the above order was received by the Respondents. Even if we take into account its receipt around the middle of April, 2017, Shri Swaroop Singh, Chief Manager and CPIO took inordinately long to carry out the direction of the Commission in paragraph 3 above, even though the Commission had directed that this should be done immediately on receipt of the interim order by the CPIO. The delay on the part of the CPIO has resulted in adjournment of the matter and will result in delay in provision of the information, if any, that may eventually be directed to be provided to the Appellant. Shri Swaroop Singh, Chief Manager & CPIO offered no cogent explanation for the delay on his part in carrying out the directive of the Commission in paragraph 3 above. Therefore, during the hearing on 20.6.2017 Shri Swaroop Singh, Chief Manager & CPIO will be required to show cause as to why he should not be penalised u/s 20 (1) of the RTI Act for obstructing the furnishing of information, as stated above. He should also file a sworn affidavit to the Commission before the next hearing on 20.6.2017, mentioning the date on which the interim order dated 3.4.2017 of the Commission was received in the office of the Respondents. The affidavit should be accompanied by photocopies of the inward dak register/documents of the Respondents, showing the date of receipt of the interim order dated 3.4.2017 in the 7 Respondents’ office. Shri Swaroop Singh, CPIO should also mention the date of his return from leave.
Hearing on 20.6.2017
7. The matter came up again today. The Appellant was not present. M/s Gardenia Aims Developers Private Limited were also not represented.
8. As directed in paragraph 6 of our interim order dated 18.5.2017, Shri Swaroop Singh, CPIO has filed a sworn affidavit in which he has stated that the order dated 3.4.2017 of the Commission was received in the bank on 18.4.2017. He claims that upon receipt of this order, he tried to locate the file concerning this matter, maintained in the bank, to collect all the documents to be sent to M/s Gardenia Aims Developers Private Limited. As it was an old case, the file could not be traced out. Therefore, he collected the necessary documents from the file of the Commission on 16.5.2017 and provided the same to M/s Gardenia Aims Developers Private Limited the very next day. He has stated that the above delay was not intentional.
9. On being asked to comment on the information sought at points (h) and (i) of the RTI application, Shri Swaroop Singh, CPIO was unable to make any submission as he did not seem to be fully aware of the facts of the case. He had also not brought along any other official of the bank, who is fully conversant with the facts.
10. We have considered the records and the submissions made by all the parties. The only submission made by M/s Gardenia Aims Developers Private Limited is their written submission dated 17.5.2017 in which they have stated that the project got 8 delayed because of the ban on construction / completion imposed by the National Green Tribunal in September 2013, which lasted for around two years till August 2015. They have also stated that the company promoters have expressed commitment to complete the project and are in advanced stage of settlement with banks for release of property in favour of buyers. They are hopeful of arriving at settlement with banks shortly. As stated in paragraph 3 above, the information concerning its customers and their accounts is held by a bank in a fiduciary capacity and is exempted from disclosure under Section 8 (1) (e) of the RTI Act. However, while exempting from disclosure the information available to a person in his fiduciary relationship, Section 8 (1) (e) provides that disclosure can be made where the competent authority is satisfied that the larger public interest warrants the disclosure of such information. The submissions of the Appellant that around 1400 persons have been affected adversely because of non-delivery of flats by M/s Gardenia Aims Developers Private Limited has not been challenged by the other two parties. Therefore, in our view, disclosure of the information sought by the Appellant is a matter of larger public interest.
11. The queries of the RTI application dated 6.11.2015 have been examined in the light of the above. The CPIO is directed to provide the specific information sought by the Appellant at points (a), (b) and (e) of the RTI application dated 6.11.2015, based on the records of the bank. As regards point (d), we note that a part of the information stands provided by the FAA in stating that the bank had knowledge of payment of 10% of land premium to Noida Authority. However, the CPIO should answer the remaining query at this point regarding whether the bank was aware that 9 after the above payment of 10%, no further payment of land premium was made by M/s Gardenia Aims Developers Private Limited to Noida Authority and if so, what action was taken by the bank. The CPIO should respond to the above query based on the records of the Respondents. As regards point (c), the CPIO should provide the Appellant a gist of the steps taken by the Respondents to recover the loan from M/s Gardenia Aims Developers Private Limited. The information sought at points (f) and (g) is in the nature of seeking an explanation from / opinion of the CPIO or information regarding future developments such as what action would be taken by the bank. Such queries, we note, do not fall within the ambit of information as defined in Section 2 (f) of the RTI Act. The information in response to points (j) and (k) stands provided. As regards points (h) and (i), the CPIO should provide such information as is available on records in response to these points.
12. The CPIO should comply with our above directives, within twenty days of the receipt of this order, under intimation to the Commission. The information should be provided free of charge.
13. Shri Swaroop Singh, CPIO has failed to provide a satisfactory explanation regarding the delay in his carrying out the directive contained in paragraph 3 of the Commission’s interim order dated 3.4.2017. Since it is not established that the delay was the result of any malafide intent on his part, we would refrain from taking penal action against him. However, the hearings conducted by us on this matter have clearly established the casual attitude of Shri Swaroop Singh towards his responsibilities as CPIO under the RTI Act. He did not come prepared for the hearing, nor did he bring any other official of the bank, who could explain the stand of the 10 bank in response to our queries. Therefore, in our view, it would be in the interest of the bank to replace him with a more responsible officer to discharge the responsibilities of CPIO.
14. With the above directions and observations, the appeal is disposed of.
15. Copies of this order be given free of cost to the parties.
Sd/-
(Sharat Sabharwal)
Information Commissioner
Citation: Shri Bharat Gupta v. Oriental Bank Of Commerce in File No. CIC/SH/A/2016/000380Date of final order, Date of final order: 20th June 2017