Central Information Commission
Sudesh Chandra Gupta vs Housing And Urban Development ... on 18 September, 2024
केन्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई निल्ली, New Delhi - 110067
File No: CIC/HUDCO/A/2023/629841,
CIC/HUDCO/A/2023/629844 &
CIC/HUDCO/A/2023/629850
Sudesh Chandra Gupta .....अपीलकर्ाग /Appellant
VERSUS
बनाम
CPIO,
HUDCO Ltd, Core 7-A, HUDCO
Bhawan, India Habitat Centre,
Lodhi Road, New Delhi - 110003 ....प्रनर्वािीगण /Respondent
Date of Hearing : 02.09.2024
Date of Decision : 17.09.2024
INFORMATION COMMISSIONER : Vinod Kumar Tiwari
Relevant facts emerging from appeal:
RTI application filed on : 27.02.2023, 02.02.2023
CPIO replied on : 20.03.2023
First appeal filed on : 19.04.2023
First Appellate Authority's order : 04.05.2023
2nd Appeal/Complaint dated : 10.06.2023
Page 1 of 11
The above-mentioned second appeals are clubbed together as the parties are
common and the subject matter is identical in nature and hence are being
disposed of through a common order.
CIC/HUDCO/A/2023/629841
Information sought:
The Appellant filed an RTI application dated 27.02.2023 seeking the following information:
"Kindly provide a certified copy of the loan application form, indemnities, bank guarantee, all documents signed, stamped, executed & submitted by applicant, loan sanction letter, loan agreement, addendum to the agreement, loan statements, a reminder for payments, etc. along with all the annexures for HUDCO Loan Scheme No. 19863 & 19860 of M/s Ramnath Developers Limited.
Kindly provide a certified copy of the entire set of documents/information/papers/etc. maintained by HUDCO along with all the annexures for HUDCO Loan Scheme No. 19863 & 19860 of M/s Ramnath Developers Limited, as the same is required for filing a reply in the court of law.
The applicant seeking information in the present RTI Application is the applicant to the said loans, hence is seeking rightful information."
The CPIO furnished a point-wise reply to the Appellant on 20.03.2023 stating as under:
"Point No. 1 & 2: Information as received from the Nodal Department (Mumba Regional Office) In view of pending litigations/ CIRP which the applicant is aware of and also pending criminal investigation, the information sought is exempted from disclosure under clause 8(1)(h) of RTI Act. Further information sought has no relationship with any public activity and hence exempted under RTI ACT 2005."
Being dissatisfied, the appellant filed a First Appeal dated 19.04.2023. The FAA vide its order dated 04.05.2023, upheld the reply of CPIO.
Page 2 of 11CIC/HUDCO/A/2023/629844 Information sought:
The Appellant filed an RTI application dated 27.02.2023 seeking the following information:
"1. Kindly provide a certified copy of all details of the multiple cases initiated against HUDCO Loan Scheme No. 19863 & 19860 of M/s Ramnath Developers Limited and others in DRTS/Courts/Forums (NCLT/DRT), EOW, Nagpur Police, etc.
2. Kindly provide a certified copy of ALL RECORDS AND PROCEEDINGS OF THE CASES (includes complaints, applications, reminders, replies received, replies filed, rejoinders, affidavits, evidence, etc.) initiated prepared, filed in DRTs/Courts/Forums (NCLT/DRT), EOW, Nagpur Police, etc. by HUDCO against HUDCO Loan Scheme No. 19863 & 19860 of M/s Ramnath Developers Limited and others, for pending and disposed of cases.
Kindly provide copy of daily orders and judgments as may be available in the case.
The applicant seeking information in the present RTI Application is the applicant to the said loans, hence is seeking rightful information for period from 30-07-2009 up to today."
The CPIO furnished a reply to the Appellant on 20.03.2023 stating as under:
"Disclosure of these information is exempted under 8(1)(h) under RTI Act.
It is further submitted that under the extant laws dealing with procuring certified copies as applied for, the RTI applicant may avail certified copies of relevant documents/court proceedings order etc. The provision of RTI Act cannot be rightfully invoked in this regard for obtaining certified copies."
Being dissatisfied, the appellant filed a First Appeal dated 19.04.2023. The FAA vide its order dated 04.05.2023, upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Page 3 of 11CIC/HUDCO/A/2023/629850 Information sought:
The Appellant filed an RTI application dated 02.02.2023 seeking the following information:
"1. Kindly provide a certified copy of the office note sheet, office memo, Inter office memo prepared, maintained, duly stamped signed by the concerned officer of HUDCO in a professional capacity holding office of public sector enterprise: HUDCO, along with all the annexures between Head Office & Regional Office for HUDCO Loan Scheme No. 19863 & 19860 of M/s Ramnath Developers Limited & others for the period from 30-07-2009 up to date before legal proceedings were filed before the courts of law.
2. Kindly provide the date along with a copy of the application filed in the first legal: proceedings initiated against Ramnath Group in courts of law.
3. Kindly provide a certified copy of the office note sheet, office memo, inter office memo prepared, maintained, duly stamped signed by the concerned officer of HUDCO in a professional capacity holding the office of public sector enterprise: HUDCO, along with all the annexures between Head Office & Regional Office for HUDCO Loan Scheme No. 19863 & 19860 of M/s Ramnath Developers Limited & others for the period from 30-07-2009 up to today."
The CPIO furnished a reply to the Appellant on 20.03.2023 stating as under:
"Information as received from the Nodal Department (Mumbai Regional Office) An application dt 25/02/2022 No. HUDCO/RTI/CPIO/2022/ seeking similar information by the applicant which has since been disposed by CPIO HUDCO vide letter dt.25/02/2022. (copy of the said letter dt 25/02/2022 of CPIO received as an annexure to the purported first appeal dt 24/02/2022 is enclosed here with for kind reference.) Annexure-I Copy of application may be availed from the respective Court/authority as per the extant Laws.Page 4 of 11
An application dt 25/02/2022 No. HUDCO/RTI/CPIO/2022/ seeking similar information by the applicant which has since been disposed by CPIO HUDCO vide letter dt.25/02/2022. (copy of the said letter dt 25/02/2022 of CPIO received as an annexure to the purported first appeal dt 24/02/2022 is enclosed here with for kind reference.)"
Being dissatisfied, the appellant filed a First Appeal dated 19.04.2023. The FAA vide its order dated 04.05.2023, upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerged during Hearing:
The following were present:-
Appellant: Adv. Nitin Lalwani appeared through video conference. Respondent: Shri Deepak Bansal, the then CPIO, Shri M. R. Sharma, CPIO, Shri E P Toppo, AGM (A) and Shri Ramesh Bhagat Manager (IT), appeared in person.
The counsel appeared on behalf of the appellant inter alia submitted that the respondent has denied the information under section 8 (1) (h) of the RTI Act. However, he stated that the respondent had merely quoted section 8 (1) (h) of the RTI Act but they did not explain as how the said provision would be applicable in this case as there is no investigation or prosecution pending. The counsel stated that other matters which were instituted under section 156 (3) of Cr.P.C. is concerned the same was disposed of long back in the year 2021.
The appellant's counsel contended that the officials of HUDCO have been negligent in dealing with the loan account of the appellant's company and they are under fear of being exposed, as a result of which are making irrelevant submissions before the Commission. Therefore, he requested the Commission to direct the respondents to provide the information free of cost.
The respondents, while defending their cases inter alia submitted that they had already replied to the above RTI applications vide their three letters all Page 5 of 11 dated 20.03.2023. The respondent submitted that they had filed a detailed written submission dated 27.08.2024 stating complete facts of the case and requested the Commission to place it on record. The relevant paras of the written submission are reproduced as under:
"1. This Public Authority i.e., Housing and Urban Development Corporation Limited (HUDCO) is a Public Sector Undertaking and a Commercial Enterprise, majorly owned by the Govt. of India and on account of being an entity owned and controlled by the Central Government, is a Public Authority for the purpose of the RTI Act. HUDCO is in the business of lending to the various Sectors of the Economy. Since the lending by this Public Authority i.e. HUDCO is purely a commercial activity and not a Sovereign or Governmental function. The transaction of lending between HUDCO and the Company of the Appellant is purely a Commercial transaction between two parties who stand on equal footing as Lender and Commercial Corporate borrower engaged in business for Profit (availing loan for its business purposes).
HUDCO, as a Commercial Lender, has to protect its business interests particularly in view of the fact that money lent by HUDCO is Public money and HUDCO has to, therefore, take all possible legal recourse to recover the loan from the borrower including filing various recovery cases in relevant Legal Forums.
2. The Appellant Shri Sudesh Chandra Gupta is one of the Promoter/Directors of the Company named M/s Ramnath Developer Pvt. Ltd. (hereinafter referred to as "the Company"). The Company had availed project loan of Rs 31.35 Crores from HUDCO for its housing project situated at Nagpur, Maharashtra during the Year 2009-2010 under the Scheme No. 19863 & 19860. The Company defaulted in repayment, of its loan, diverted the revenue of this project in contravention to the Agreement entered into with HUDCO and, despite of all efforts of HUDCO to persuade the Company and its Promoters /Directors including the Appellant Shri Sudesh Chandra Gupta, the Company has not made the payment of the dues of HUDCO under two Loan Accounts under Scheme No. 19863 & 19860. HUDCO was forced to initiate both the Civil and Criminal proceedings against the Company and Page 6 of 11 its Promoters/Directors including the Appellant herein in various Forums including Debt Recovery Tribunal (DRT) and National Company Law Tribunal (NCLT). The Company has resorted to multifarious litigation against HUDCO in various legal Forums including Hon'ble Supreme Court of India, to frustrate the efforts of HUDCO to recover the outstanding dues in relation to the loan (s) availed by the Company from HUDCO. The Company and its promoters are resorting to all kinds of tactics to defeat the efforts of HUDCO to recover these dues which is essentially Public Money. Currently Insolvency proceedings qua the Company under the Insolvency and Bankruptcy Code, 2016 (IBC) is going on in National Law Tribunal (NCLT) and the recovery proceedings are under Moratorium.
3. In order to defeat the efforts of HUDCO to recover these Public Money availed by the Company from HUDCO as loan, the Company and its Promoters/ Directors including the Appellant herein have resorted to Forum Shopping including the present proceedings before this Hon'ble Commission. Details of the various ongoing litigation between the Company, its Promoters/ Directors including the Appellant herein on the One hand and HUDCO on the Other hand is Annexed hereto as Annexure- III. Thus, the Appellant and his Company are in legal battle with this Public Authority, HUDCO in their efforts to wriggle out of their legal obligation of paying back the loan to HUDCO which, essentially is a Public Money.
4. Since, the Company and its Promoters /Directors are in litigation with HUDCO, information / document relating to the loan transaction, apart from those which are already with them as a party to the loan transaction, are also already received by them, in the ordinary course of legal proceedings. It is submitted that any document which a party to a litigation is entitled to, can seek such documents through order of the concerned Court and the Court depending upon the relevancy of such document and merit of the request decides such request. Here, since the Appellant and his Company are in legal battle with HUDCO in the various Judicial Forum, by resorting to the provision of the RTI Act it is trying to tilt the legal Case in their favour.
.
.
Page 7 of 11.
(a) The Appellant and his Company M/s Ramnath Developers Pvt. Ltd are in commercial dispute with HUDCO and are engaged in plethora of litigation with HUDCO and the present proceedings before this Hon'ble Commission under the RTI Act is an abuse of process of Law by the Appellant and is an attempt to harm the competitive position of HUDCO in those litigations which are purely commercial dispute between two Business entities viz. M/s Ramnath Developers Pvt. Ltd and HUDCO and therefore it is not an issue between "the State or its Instrumentalities" and a "Citizen"
to warrant the invocation of the provisions of RTI Act, which essentially is meant for protecting the right of Individual Citizens against the might of the State. Therefore, the information is exempted from disclosure, inter alia, u/s 8(1)(d) of the RTI Act 2005.
(b) The Appellant Shri Sudesh Chandra Gupta and his Company M/s Ramnath Developers Pvt. Ltd. are in default in repaying the project loan of Rs 31.35 Crores along with interest and other dues to HUDCO, since very long and is involved in various litigations in various Legal Forums /Courts in connection with the recovery of the dues and diversion of funds. The disclosure of these information which are of commercial confidence for HUDCO, the Public Authority to the Appellant will adversely affect the Competitive Position of HUDCO, as a Commercial Entity in ongoing litigation qua the Appellant and his Company M/s Ramnath Developers Pvt. Ltd. and no larger Public Interest warrants disclosure of these information to the Appellant. Therefore, disclosure of the information sought is exempted from disclosure u/s 8(1) (h) of the RTI Act, 2005 of the RTI Act.
(c) The Judgement/decision of this Hon'ble Commission in the in the Case of N.L. Narasimha Rao versus Union Bank of India as quoted herein before in para no. (5) is squarely applicable in this case and accordingly the Information sought by the Appellant is exempted from disclosure u/s 8(1) (d), 8(1) (e), 8(1) (j) of the RTI Act.
Page 8 of 11(d) Since, the legal proceedings against the Appellant and his Company are pending in various legal Forums/Courts/Tribunals as detailed in Annexure-III, any document which the Appellant and /or his Company M/s Ramnath Developers Pvt. Ltd., as a part to such litigation is lawfully entitled to, can be obtained through the inspection of the record of the Case in the concerned Court. Some of the documents like Petition /Application filed in the Court/Tribunal must already be in possession of the Appellant as director of M/s Ramnath Developers Pvt. Ltd.
(e) Since, the Appellant and his Company M/s Ramnath Developer Pvt. Ltd. are engaged in legal battle in Judicial Forum, in order to afford level playing field to HUDCO, in the Legal battle vis-a-vis the Appellant and his Company the request of the Appellant for information/documents sought under the RTI is liable to be disallowed."
The respondent submitted that some of the documents sought by the appellant in his above RTI applications are already available with him as the same has been submitted by him to the respondent authority for getting credit facility. Hence, he is not entitled to seek copies of his own documents under the RTI Act. Moreover, the relied upon documents are already submitted in the courts and the appellant being party to the same can obtain from the court itself.
Decision:
The Commission after adverting to the facts and circumstances of the case, hearing both the parties and perusal of the records, noted that the respondents have replied the aforesaid RTI applications vide their three letters all dated 20.03.2023 wherein information sought was denied under section 8 (1) (h) of the RTI Act. The counsel of the appellant inter alia submitted that the respondent failed to explain as how the said provision would be applicable in the instant cases as there was no investigation or prosecution pending. The respondents have filed a detailed written submission dated 27.08.2024 explaining the complete facts of the case, a copy of which was served to the appellant.Page 9 of 11
The respondent during the hearing informed that the Appellant Shri Sudesh Chandra Gupta and his Company M/s Ramnath Developers Pvt. Ltd. are in default in repaying the project loan of Rs 31.35 Crores along with interest and other dues to HUDCO, since very long and is involved in various litigations in various Legal Forums /Courts in connection with the recovery of the dues and diversion of funds. Accordingly, the respondent claimed that information sought by the Appellant is exempted from disclosure u/s 8(1) (d), 8(1) (e), 8(1)
(j) of the RTI Act giving detailed explanations. The counsel of the appellant failed to establish any larger public interest warranting the disclosure of information. On the contrary, the respondent has claimed that the default case of the appellant involves public money, therefore, a public interest is involved in protecting the information.
It was also submitted by the respondent that the legal proceedings against the Appellant and his Company are pending in various legal Forums/Courts/Tribunals. Any document which the Appellant and /or his Company M/s Ramnath Developers Pvt. Ltd., as a party to such litigation, is lawfully entitled to, can obtain through the inspection of the record of the Case in the concerned Court. Thus, the alternate efficacious remedy has been available to the appellant right from the beginning and is available now also. The Commission finds no infirmity in the submissions given by the respondents and thus, intervention of the Commission is not warranted in these matters.
The appeals are disposed of accordingly.
Vinod Kumar Tiwari (विनोद कुमार वििारी) Information Commissioner (सूचना आयुक्त) Authenticated true copy (अनिप्रमानणर् सत्यानपर् प्रनर्) (S. Anantharaman) Dy. Registrar 011- 26181927 Date Page 10 of 11 Copy To:
The FAA, HUDCO Ltd, Core 7-A, HUDCO Bhawan, India Habitat Centre, Lodhi Road, New Delhi - 110003 Page 11 of 11 Recomendation(s) to PA under section 25(5) of the RTI Act, 2005:-
Nil Powered by TCPDF (www.tcpdf.org)