Information regarding Lease Deed between Jaypee Infratech Ltd and IDBI Bank wherein JIL transferred 50.26 acres land through Debt Asset Swap to liquidate their outstanding liability of Rs. 253.32 Cr. - CIC: Provide information relating to Point No. 8

O R D E R

1. The Appellant filed an RTI application dated 22.09.2023 seeking information on the following points:

1. Ø “Lease Deed dated March 30, 2016, executed between Jaypee Infratech Limited PM and Industrial Development Bank of India Limited (IDBI BANK) wherein JIL transferred to IDBI Bank a land measuring 50.26 acres through Debt Asset Swap (DAS) in order to liquidate their out-standing loan along with interests or liabilities amounting to Rs.253.32 Cr. in toto. Leaving NIL outstanding as on March 31, 2016. In this regard, kindly provide following information:

2. Principal Amount of Term Loan outstanding against JIL as on March 29, 2016...? (before execution of Lease Deed)

3. Total Interest on Principal, outstanding as on March 29, 2016...?

4. Outstanding Principal and Interest as on March 29, 2016...? (1+2)

5. Date on which, if at all, total out- standing amounts against JIL stood Liquidated or NIL ...? (Ref. item 3 above)

6. As per records of IDBI, all residual amount(s) outstanding against JIL for which NPA was filed in NCLT Allahabad as Case No. 77/ALD/2016, dated June 28,2016?

7. Regarding land referred in Lease Deed dt. Mar 30, 2016 has any transaction, in part(s) or full, by sale or transfer, taken place between March 30, 2016 and August 31, 2023...?

8. Regarding land referred in Lease Deed dt. Mar 30, 2016 has any transaction, in part(s) or full, by sale or transfer, taken place between March 30, 2016 and August 31, 2023...?

9. Post execution of Registered Lease dated March 30, 2016 till date, list of Ownership Right(s) held over land in reference...?

2. The CPIO replied vide letter dated 06.10.2023 and the same is reproduced as under:-

“Point no. 1 to 6 & 8: - The information sought is in the nature of commercial confidence and also such information is held by the Bank in its fiduciary relationship, and hence, the same is exempted from disclosure under section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; and 8(1)(e) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; of RTI Act, 2005. Further, there is no larger public interest that warrants disclosure of such information under the RTI Act.

Point no. 7: - Not Applicable.”

3. Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 16.10.2023 stating as under:

“A. Fiduciary Relationship:

1) My wife and I are senior citizens and joint allottees of JP Wish Town, Klassic Unit Ref: KCD030303, confirmed vide JP's Provisional Allotment Letter Ref: 34447/382747/0030303 dated May 05, 2013. After making up-to-date substantial payments for the said unit as per agreed payment plans, we acquired "Financial Creditors Right" in JIL's under construction project - Klassic.

In this regard attention is drawn to:

‘Supreme Court has held that homebuyers cannot be treated differently from other "financial creditors under the Insolvency and Bankruptcy Code (IBC) 2016 just because they have secured orders from the authority under the Real Estate (Regulation and Development) Act 2016. A bench comprising Justices S Ravindera Bhat and Arvind Kumar...’

d) Our payments have been used to facilitate construction of our projects, also with same objective JIL along with their parent company JAL, obtained term loans from other Financial Creditors including IDBI. Thus, along with all affected HBs, who invested their finances with JIL /JAL also acquire Fiduciary Relationship status with JIL/JAL at-par with IDBI.

B. Larger Public Interest:

i) Filing of NPA proceedings by IDBI Bank against JIL at NCLT, Allahabad, adversely effected about 26,294 HBs as on Aug 09, 2017, (implying, 26,294 HBs comprising of an average of 4-member each family, amounts to almost 1,05,176 members). Upon initiation of NPA proceedings by IDBI, HBs were threatened adversely thus filed Writ Petition Chitra Sharma Vs Union of India, WP# 744/2017 dt. August 08, 2017 at

Hon'ble Supreme Court of India. Here too Hon'ble SCI held Home Buyer's status as of "Financial Creditors";

Initiation of NPA by IDBI Bank followed by HBs Writ Petition in Hon'ble SCI are thus directly inter-linked and integral. The cases remain unresolved till date; even after protracted litigation extending over five years;

ii) In view of Para B(i) above, for IDBI to say that, "There is no larger public interest that warrants disclosure of such information under the RTI Act." is grossly illogical and a very poor stance for a National Institution of repute, like IDBI Bank;

iii) As on Aug 09, 2017 HBs stand tall at about 26,294 and collectively as an average of member per family, they stand taller at almost 1,05,176 members;

Initiation of NPA pleadings by IDBI compelled HBs to approach Hon'ble Supreme Court of India, resulting into about 26,294 JIL HBs suffering directly, of severe and adverse impact on their day-to-day financial, social and domestic wellbeing; thus "PUBLIC AT LARGE has been directly affected by NPA proceedings of IDBI; of which I am one of the affected party.

In the instant case, it is grossly illogical and a very poor stance for a National Financial Institution of repute, like IDBI Bank to deny facts on record;

e) It is placed on record that, ab-initio preliminary disclosure(s) made in the NPA Petition, &/or even during the progress of the case till date, by IDBI Bank vide Case No. ALD/77/2017 dated June 28, 2017 at NCLT, Allahabad (U.P.) against M/s Jaypee Infratech Ltd., (JIL), Sector 128, NOIDA (UP), stand grossly incomplete &/or lacking in transparency in disclosure of material fact(s);

Thus it may be seen that, since initiation of NPA proceedings & till date, IDBI may not have come out clean and in a transparent manner, in justifying the NPA petition by not disclosing full and true facts to justify NPA in the referred insolvency case;

In order to clear their stand and come out clean, it is mandatory and obligatory for IDBI to disclose following information to its fullest:

i.                    Up-to-date trail of Ownership(s) of the land admeasuring about 50.26 acres acquired by IDBI Bank as Debt Asset Swap (DAS) from JIL, from March 30, 2016;

ii.                  ii. Amount of dues outstanding and interest there-on, against JIL as on March 29, 2016, day before DAS was legally effective;”

4. The FAA vide order dated 08.11.2023 upheld the reply given by the CPIO.

5. Aggrieved with the FAA’s order, the Appellant approached the Commission with the instant Second Appeal dated 06.12.2023 stating inter alia as under:

“i) As a matter of record, through a Debt Asset Swap (DAS)vide Registered SubLease Deed dated March 30, 2016, IDBI Bank acquired a property admeasuring 50.26 acres from their Banking Customer M/s Jaypee Infratech Limited (JIL);

ii) That, on or after March 30, 2016 and upon DAS, all Ownership and Tangible Rights to the said landed property, remains and remained with IDBI Bank in its fullness, unless and until transferred thereafter, or otherwise;

iii) Thus, on or after March 30, 2016 there remains No Fiduciary Relationship, Larger Public interest inter-alia IDBI Bank and JIL, Emphasis Laid!

iv) Regarding Larger Public interest: After the DAS IDBI Bank acquired ownership rights over the land in reference, this adversely effected

v) more than 22,000 Home Buyers (HB) of JIL, thus it is also wrong on part of for IDBI Bank to invoke Larger Public interest; In view of the above explained, to invoke FIDUCIARY RELATIONSHIP &/or LARGER PUBIIC INTEREST between IDBI BANK & JIL on or after March 30. 2016, IDBl Bank has not COME OUT CLEAN and transparent on the information sought only through substantiation of inter-alia TANGIBLE RIGHT OF JIL in the said property, allegedly which has been wrongly invoked!”

6. The Appellant was present during the hearing in person and on behalf of the Respondent, Venkatesh, DGM & CPIO attended the hearing through video conference.

7. The Appellant submitted that at this stage he is not pressing for the information related to the various amounts sought for in the RTI Application but is harping on relief to be provided on points 6 & 8 therein. He explained the larger public interest involved in the disclosure of the information by placing reliance on the contentions raised in the First & Second Appeal, as mentioned above. His primary contention was that post 30.03.2016, i.e after the execution of the lease deed of the averred land in favour of IDBI Bank, it cannot be said that disclosure of the information related to the ownership of land will impact the commercial confidence of or fiduciary relationship of the bank with any third party.

8. The Respondent did not object to the said contention of the Appellant and upon being asked to confirm by the bench if any right accrues to the averred third party with respect to the information sought for at point no.8 of the RTI Application, the response of the CPIO was in negative and he agreed to provide the available information.

9. The Commission after adverting to the facts and circumstances of the case, hearing both parties and perusal of records, observes that irrespective of the tenacity of the larger public interest argument put forth in the matter, it has transpired during the hearing that the exemptions of Section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; and 8(1)(e) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; of the RTI Act do not apply to point no.8 of the RTI Application as there is no stake of JIL in such disclosure w.e.f 30.03.2016 as admitted by the CPIO, and as a matter of fact, there was no justification tendered by the CPIO as required under Section 19(5) In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request. of the RTI Act for exempting the said information. As regards, point no.6, the Commission observes that the Appellant has sought for an answer to a speculative question in Yes or No terms and the same is not construed as “information” as per Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the RTI Act. The same observation extends to point no.7 of the RTI Application as the Appellant has sought for documents subject to the CPIO’s answer to the preceding question. For better understanding of the mandate of the RTI Act, the Appellant shall note that outstretching the interpretation of Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act.

In this regard, the Appellant’s attention is drawn towards a judgment of the Hon’ble Supreme Court on the scope and ambit of Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors. [CIVIL APPEAL NO.6454 of 2011] wherein it was held as under:

“35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing………A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide `advice' or `opinion' to an applicant, nor required to obtain and furnish any `opinion' or `advice' to an applicant. The reference to `opinion' or `advice' in the definition of `information' in section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act.”

10. Having observed as above, the Commission directs the CPIO to revisit point no.8 of the RTI Application and provide the available information to the Appellant within 15 days of the receipt of this order. A compliance report to this effect shall be duly sent to the Commission by the CPIO immediately thereafter.

11. The Appeal is disposed of accordingly.

Copy of the decision be provided free of cost to the parties.

Sd/-

ANANDI RAMALINGAM

Information Commissioner

Citation: Sqn. Ldr. S. D. Mitroo v. IDBI Bank Limited, CIC/IDBIL/A/2023/147236; Date of Decision: 23.02.2024