Central Information Commission
Rahul Kumar Sachan vs Bank Of Baroda on 24 September, 2024
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग ,मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No. CIC/BKOBD/A/2023/635115 +
CIC/BKOBD/A/2023/639230
Rahul Kumar Sachan ... अपीलकता /Appellant
VERSUS
बनाम
CPIO: Bank Of Baroda,
Lucknow ... ितवादीगण/Respondent
Relevant dates emerging from the appeal(s):
Sl. No. Second Date of Date of Date of Date of Date of
Appeal RTI CPIO's First FAA's Second
No. Application Reply Appeal Order Appeal
1 635115 02.05.2023 30.05.2023 07.06.2023 23.06.2023 28.06.2023
2 639230 07.06.2023 05.07.2023 17.07.2023 31.07.2023 11.08.2023
The instant set of appeal(s) have been clubbed for decision as these relate to the same
subject matter.
Date of Hearing: 12.09.2024
Date of Interim Decision-II: 23.09.2024
CORAM:
Hon'ble Commissioner
_ANANDI RAMALINGAM
ORDER
1. The instant matter(s) are being pursued in furtherance of the following Interim decision issued on 21.08.2024:
"Second Appeal No. CIC/BKOBD/A/2023/635115 Page 1 of 11
1. The Appellant filed an RTI application dated 02.05.2023 seeking information on the following points:
"This RTI query is related to ZSARB BoB Prayagraj auction notice dated
02.07.2022
(i) When and how much loan was sanctioned to M/s Tulsiani Constructions & Developers Pvt Ltd for which aforementioned auction notice has been issued?
(ii) Please provide details of flats/ properties put on mortgage against this loan?
(iii) Whether any report regarding the status of properties kept on mortgage (like properties already sold/ unsold/ intended to be sold etc.) was checked by the bank. Please provide the report prepared in this regard.
(iv) Whether bank has issued NOC for some of the properties kept on mortgage. If yes, kindly provide the list of such properties and basis on which this NOC was provided.
(v) Please provide copies of reports prepared by the bank regarding the project."
1.1. The CPIO replied vide letter dated 30.05.2023 and the same is reproduced as under:-
"The information sought by you contains commercial confidence, which would harm the competitive position and also the said information pertains to information of third party. Hence disclosure of the information is exempted under section 8 (1)(d) of RTI Act, 2005."
1.2. Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 07.06.2023. The FAA vide order dated 23.06.2023 upheld the reply given by the CPIO.
1.3. Aggrieved with the FAA's order, the Appellant approached the Commission with the instant Second Appeal dated 28.06.2023.
Page 2 of 11Second Appeal No. CIC/BKOBD/A/2023/639230
2. The Appellant filed an RTI application dated 07.06.2023 seeking information on the following points:
1. "Kindly allow me for inspection of records related to ZSARB BoB Prayagraj auction notice dated 02.07.2022. (copy attached)
2. It is also requested to provide details of property mortgaged in the year 2013 against the company i.e., Tulsiyani Construction & Developers Ltd for the loan provided to them.
3. Kindly provide the copies of NOC provided against various flats of Tulsiyani Construction & Developers Ltd."
2.1. The CPIO replied vide letter dated 05.07.2023 and the same is reproduced as under:-
"The information sought by you contains commercial confidence, which would harm the competitive position of third party. Hence disclosure of the information is exempted under section 8(1)(d) of RTI Act, 2005."
2.2. Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 17.07.2023. The FAA vide order dated 31.07.2023 upheld the reply given by the CPIO.
2.3. Aggrieved with the FAA's order, the Appellant approached the Commission with the instant Second Appeal dated 11.08.2023 stating inter alia as under:
"a. Bank of Baroda (will be referred as Bank henceforth) sanctioned a loan to M/s Tulsiani Constructions & Developers Pvt Ltd (will be referred as the builder henceforth) in the year 2013 (year is to the best of my knowledge) b. While sanctioning this loan, Bank of Baroda has kept certain properties as mortgage, which were already sold by the builder.Page 3 of 11
c. When builder failed to repay the loan, Bank issued an e-auction notice dated 02.07.2022 in which already sold properties were also put on auction.
d. One of such property also belongs to undersigned and that's why my right has been affected and I have also become a party to the commercial transaction between the bank and the builder.
e. Information asked by me relate to this loan and with the auction notice in which my property has been also put on auction by the Bank.
8. Appeal grounds for prayer/ relief:
a. The information sought by me has been rejected by the PIO on the grounds of 8(1)(d).
b. In the present case the information sought by me could have been considered commercial information between two parties if there would have been no interest of other parties. However in present case I am also an interested party in the case as my flat has been put under auction by the bank. And hence I cannot be denied the information sought by me citing third party information.
c. Some other flats have been also put on auction by the bank which were sold by the builder to other parties and hence all such parties are interested parties in the loan sanctioned by the bank to the builder and hence larger public interest is also involved with disclosure of the information sought by me and hence bank cannot hide behind section 8(1)(d) as for as present case is concerned."
3. The Appellant was present through video conference and on behalf of the Respondent, Aloka Vikram Singh, Chief Manager & Rep. of CPIO attended the hearing through video conference.
4. The Appellant reiterated the factual background of the information sought for in the RTI Application as stated in the grounds of second appeal above and urged for relief to be ordered in larger public interest.
Page 4 of 115. The Respondent started out by alleging that the Appellant has already filed many complaints on the same issue in the past and it was suggested that the Appellant has recourse to an appropriate forum for grievance redressal. Upon Commission's intervention asking the Respondent to restrict the submissions to the mandate of the RTI Act, it was submitted that since the Appellant is the second mortgager but has not got any valid title deed, he cannot be provided with the information as being a third party in the strict sense. At this juncture, observing that the submissions of the Respondent were lacking clarity and did not rebut any of the allegations of the Appellant, both the parties were asked to submit detailed written submissions by the end of the day pleading their respective stance for determining relief, if any, in the matter.
6. The Commission received the written submissions of the Appellant dated 01.08.2024 wherein the following was stated:
"Brief history of the case
1. Bank of Baroda sanctioned a loan to M/s Tulsiani Constructions & Developers Pvt Limited in feb.-2013 by putting the land and building in which my flat is situated.
2. I booked the flat on 04.05.2012 (prior to date of sanction of loan by BOB to builder). I also got home loan from state bank of India by putting my flat under mortgage on 13.07.2012 (means my flat was under mortgage with state bank of india before sanction of loan by BOB to builder).
3. Bank of Baroda issued auction notice for sale of 9 flats including mine on 02.07.2022 without any intimation to me. It was challenged by builder at DRT Allahabad. DRT in the case made adverse remarks against the bank after which BOB withdrawn its auction notice.
4. I wrote several times to BOB to explain how they pick 9 flats for auction and when my flat was purchased before the sanction of loan to BOB how my flat can be under their mortgage but BOB never properly replied.
5. UPRERA has also adjudicated the matter in my favour to register the flat.
6. On 24.02.2024 BOB has published one notice in newspaper intimating that they are taking around 130 flats under their possession including mine.Page 5 of 11
7. Bank of Baroda never clarified how first they tried to auction 9 flats and when DRT objected it now they are trying to take possession of 130 flats.
8. Later I kept on paying instalments as per the demand of the seller ie M/s Tulsiani Constructions & Developers Pvt Limited. And the complete payment against the said flat was done by December-2015.
Requirement of information under RTI BOB has refused to provide the information under section 8(1)(d) stating information to be containing commercial confidence and pertains to third party.
Following points are respectfully put up for kind consideration:
1. Information cannot be said to be containing commercially confidence and third party if the matter affecting the rights of the information seeker/ other public. In the present case the loan given by BOB to builder is resulting in auction of more than 130 people who have purchased the flats from builder. Many of such people including me have purchased flats prior to sanction of BOB loan thus making BOB mortgage as infructuous and illegal.
Hence larger public interest is involved in disclosure of the information.
2. In the present case BOB first tried to auction 9 flats and when the same was not allowed by DRT now trying to auction more than 130 flats. This clearly shows that BOB itself is not clear that how many flats are actually falling under the said loan to the builder. Because of this ambiguity lot of flat buyers are unnecessarily being harassed and may suffer irreparable damages. This again strengthens the argument that larger public interest is involved in disclosure of the information.
3. CIC in case number CIC/SH/A/2015/000981 'M. Padamanabha Reddy Vs. Vijaya Bank, Bangalore' held that Section 8(2) of the RTI Act mandates that even where disclosure of information is protected by the exemptions under section 8(1) of the RTI Act, if public interest in disclosure outweighs the harm to such protected interest, the information must be disclosed under the RTI Act.
Prayer: In the present case not only larger public interest is involved but BOB acting in a completely opaque and erratic way indicating some foul play. Further it cannot be said a business transaction between two parties as my rights are getting affected Page 6 of 11 because of this transaction. Non-disclosure of the information asked by me can lead an irreparable damage."
While the Respondent bothered to send their written submissions only on 16.08.2024 stating as under:
"As per direction, we humbly submit our additional comment as under:-
1. It is pertinent to mention that the applicant has already used different forum and modes viz. RTI, Ombudsman, Complaints time and again and the Bank has always replied to the applicant of the said RTI in time. Further on his complaint we have requested him to produce before the Bank the title documents under which he is claiming the ownership over the flat which is under Bank's charge. But he failed to produce any title document (Sale deed), NOC Issued by Bank of Baroda.
2. That, Bank of Baroda's Charge was registered with MCA in Year 2013 over Land & Building situated at Sec- 1, Pocket-D, Sushant Golf City, Sultanpur Road, Lucknow standing in the name of company i.e Tulsiani Construction & Developers Ltd. Applicant's flat i.e Flat bearing no. 1118 is included at Golf View Apartments, Sushant Golf City, Sultanpur Road, Lucknow situated at Bank of Baroda charged secured assets i.e Land & Building situated at Sec1, Pocket-D, Sushant Golf City, Sultanpur Road, Lucknow.
3. The applicant has entered into an independent agreement with the developer i.e Tulsiani Construction & Developers Ltd without seeking any No Objection certificate from the Bank of Baroda either on his own or by the developer.
4. Apart from the above Banks has also filed a recovery suit before Debt Recovery Tribunal, Allahabad bearing Original Application No. OA/1296/2018.
5. We also inform you that due to default for payment of loan amount to secured creditor i.e Bank of Baroda always reserves its right to proceed for recovery of Bank's dues under the provisions of SARFAESI Act, 2002 or under any other law as applicable in the matter.
6. That if the Applicant is aggrieved with the builder or developer he may claim against him. Bank of Baroda is unable to understand that why Applicant is continuously making false, fabricated and baseless complaint against Bank of Baroda."Page 7 of 11
8. Having considered the submissions of the parties, the Commission finds the facts of the instant matter peculiar as the Respondent is asking for any title deed/NOC issued by Bank of Baroda while Appellant is urging that he purchased the flat earlier to the mortgage of the same by the builder to the Respondent Bank, no rebuttal has been made by the Respondent against this contention. Moreover, the Respondent in their submission(s) is alleging that the Appellant did not furnish any title deed while in the subsequent paragraph is themselves stating that 'Applicant's flat i.e Flat bearing no. 1118 is included at Golf View Apartments, Sushant Golf City, Sultanpur Road, Lucknow situated at Bank of Baroda charged secured assets i.e Land & Building situated at Sec1, Pocket-D, Sushant Golf City, Sultanpur Road, Lucknow' which suggests an additional anomaly and reconfirms the lack of clarity and specifics in the stance taken the Respondent from the beginning itself. Further, the Respondent has also not rebutted the allegation of the Appellant of having received favorable orders from DRT, subsequent to which auction notice of the Respondent bank was said to have been withdrawn etc. Since there is no rebuttal per se from the Respondent, rather their submissions only harp on the Appellant availing various avenues for grievance redressal, which is inconsequential to determining any relief in the matters as far as the mandate of the RTI Act, the Commission finds the submissions of the Respondent to be deficient and not justifying or supplementing the exemption invoked under Section 8(1)(d) of the RTI Act. While at the same time, the case advanced by the Appellant of meriting larger public interest in the disclosure of the information bears substance to a certain extent as far as the interest of similarly placed buyers may be considered.
9. Nonetheless, since the information sought for in the RTI Application(s) concerns the stake of third parties, i.e Tulsiyani Construction & Developers Ltd. and other buyers/owners, the Commission is affording one last opportunity to the Respondent to place proper written rebuttal on record and appear in person before the bench at New Delhi on 12.09.2024 at 03.00 pm for an "in-camera" hearing.
The Respondent shall produce the complete relevant and available record related to the information sought for in both the RTI Application(s) under reference, particularly, Page 8 of 11 entailing points 1, 2 & 5 of the RTI Application under Second Appeal No. CIC/BKOBD/A/2023/635115 and points 2 & 3 of the RTI Application under Second Appeal No. CIC/BKOBD/A/2023/639230.
Further, upon immediate receipt of this order, the CPIO is directed to send notices as prescribed under Section 10 of the RTI Act seeking for consent of the concerned third parties, whose interests are urged to be protected vide their reply of 05.07.2023. The said notices shall be sent to the concerned third parties by the CPIO under due intimation to the Commission and the responses received thereupon shall also be duly placed on record.
10. No relief shall be determined with respect to the remaining points of the RTI Application(s) as the same is not found to be in strict conformity to Section 2(f) of the RTI Act, since the queries either ask for confirmation of speculative facts and justification/clarification while also seeking for inspection of unspecified records.
11. Further, for supplementing the Appellant's case, the Appellant is also directed to send complete record of the reliance placed upon by him in the matter in terms of the copy of his title deed; the relevant DRT orders; documents supporting his claim that the information sought for affects other buyer/owners etc. The said supplementary submissions and records shall be sent to the Commission/uploaded online on https://dsscic.nic.in/online-link-paper-compliance/add atleast 48 hours prior to the above scheduled in-camera hearing.
12. The Appeal(s) are reserved for final order.
Copy of the decision be provided free of cost to the parties."
In-camera Hearing Proceedings & Decision
1. The Commission observed that the Appellant had filed the additional documents vide his written note dated 09.09.2024, however, the Respondent was neither present during the hearing nor any intimation was received in writing. Upon ascertaining the proof of delivery of the hearing intimation, it was found that the same was in transit on the morning of the scheduled hearing and not delivered to the Respondent.
Page 9 of 112. Therefore, the matter could not be taken up for further action and it was decided that a fresh date for reconvening the in-camera hearing will be issued to the Respondent.
3. Now, the Respondent is hereby directed to take notice of the observations and directions contained in the interim order of 21.08.2024 while emphasizing upon the following for ensuring strict compliance:
"Nonetheless, since the information sought for in the RTI Application(s) concerns the stake of third parties, i.e. Tulsiyani Construction & Developers Ltd. and other buyers/owners, the Commission is affording one last opportunity to the Respondent to place proper written rebuttal on record and appear in person before the bench at New Delhi......at ..... for an "in-camera" hearing.
The Respondent shall produce the complete relevant and available record related to the information sought for in both the RTI Application(s) under reference, particularly, entailing points 1, 2 & 5 of the RTI Application under Second Appeal No. CIC/BKOBD/A/2023/635115 and points 2 & 3 of the RTI Application under Second Appeal No. CIC/BKOBD/A/2023/639230.
Further, upon immediate receipt of this order, the CPIO is directed to send notices as prescribed under Section 10 of the RTI Act seeking for consent of the concerned third parties, whose interests are urged to be protected vide their reply of 05.07.2023. The said notices shall be sent to the concerned third parties by the CPIO under due intimation to the Commission and the responses received thereupon shall also be duly placed on record."
4. The Respondent shall place proper written rebuttal on record and appear in person before the bench at New Delhi on 24.10.2024 at 3.00 pm for the "in-camera" hearing.
5. The Appeal(s) are reserved for final order(s).
Copy of the decision be provided free of cost to the parties.
Sd/-
आनंदी राम लंगम)
(Anandi Ramalingam) (आनं म
सूचना आयु )
Information Commissioner (सू
दनांक/Date: 23.09.2024
Page 10 of 11
Authenticated true copy
Col S S Chhikara (Retd) (कन ल एस एस िछकारा ( रटायड )
Dy. Registrar (उप पंजीयक)
011-26180514
Addresses of the parties:
1. The CPIO
Bank Of Baroda,
CPIO, Zonal Office: Lucknow Region,
Baroda House, 2nd Floor, V-23, Vibhuti Khand,
Gomti Nagar, Lucknow, UP-226010
2. Rahul Kumar Sachan
Page 11 of 11
Recomendation(s) to PA under section 25(5) of the RTI Act, 2005:-
Nil Powered by TCPDF (www.tcpdf.org)