Central Information Commission, New Delhi Right to Information Act-2005-Under Section (19) Date of hearing Date of decision : : 17 th November 2016 23 rd November 2016 Name of the Appellant : SHRI ANIL BASU LATE SHRI GIRINDA NATH BASU, C/O. ANUP INDIA LTD., 3, WOOD STREET, KOLKATA, W. B. 700016 Name of the Public Authority/Respondent : CENTRAL PUBLIC INFORMATION OFFICER, CENTRAL BANK OF INDIA, REGIONAL OFFICE, 5 TH FLOOR, 33, N.S. ROAD, KOLKATA, W.B.- 700001 The Appellant was present at the NIC Studio, Kolkata. On behalf of the Respondents, Shri K. Shivananda, Regional Manager was present at the NIC Studio, Kolkata. Information Commissioner : Shri Sharat Sabharwal These files contain appeals concerning the RTI applications dated 18.5.2015, 11.5.2015, 14.5.2015 and 21.5.2015, filed by the Appellant seeking information in response to seven, seventeen, five and three points respectively concerning the loan account of M/s Tea Packs Speciality / Tea Pack Speciality Ltd. The CPIO denied the information in response to the RTI application dated 18.5.2015 vide his letter dated 15.6.2015. The FAA upheld the decision of the CPIO and also added Section 8 (1) (h) of the RTI Act on the ground that the matter was before DRT Kolkata. Further, as per the records sent by him in respect of his RTI applications dated 11.5.2015, 14.5.2015 and 21.5.2015, not having received a reply from the CPIO, he filed appeals in all the
three cases to the FAA. However, no response appears to have been sent by the FAA also. Aggrieved with the response of the Respondents, the Appellant has filed two appeals to the Commission. 2. The Appellant stated that he is the Director of M/s Anup India Ltd. M/s Anup India Ltd. stood guarantee for a loan taken by M/s Tea Packs Speciality, a partnership firm, which became M/s Tea Packs Speciality Ltd. sometime in the 1990s. He complained that no information whatsoever has been provided by the Respondents in response to his four RTI applications. 3. In response to our query, the Respondents stated that M/s Anup India Ltd. indeed stood guarantee for the credit facilities given to M/s Tea Packs Speciality / Tea Pack Speciality Ltd. They submitted that the guarantee, given in 1992, however, was not signed by the Appellant but by one Shri Anup Agarwal as Director of the company. They also stated that the Appellant claims to be the Director of M/s Anup India Ltd., but has provided no document to establish that he is seeking the information on behalf of his company. In response to our query, the Appellant stated that he would be willing to provide a board resolution of M/s Anup India Ltd., authorizing him to get the information. The Respondents reiterated the decision to deny the information under Section 8 (1) (h) of the RTI Act and stated that the matter is before DRT. In this context, they also cited Commission s decision No. CIC/MA/A/2005/00001 dated 14.3.2006 in which the Commission held that since the matter was sub-judice, the Appellant should move an application before the court for the documents that he needed to defend his case. The Respondents stated that all the relevant documents concerning the loan have been filed in DRT and the
Appellant can obtain such documents, as are required by him, from DRT. They submitted that many of the documents concerning sanctions etc. are their internal documents and cannot be disclosed. On being asked to justify denial of information under Section 8 (1) (h), the Respondents reiterated that the matter is before the DRT. They further submitted that a suit had been filed in 1997 for recovery of Rs. 8 crores and future interest. However, the borrower and the guarantor have filed a counter claim of Rs. 3457 crores. Disclosure of all the information sought by the Appellant would go against the interests of the bank in the suit before DRT. 4. The Appellant cited Commission s decision No. CIC/YA/A/2014/002464/SB dated 14.8.2015, wherein the Commission had directed disclosure in a matter that was before the DRT. He clarified that Shri Anup Agarwal, who had signed the guarantee on behalf of M/s Anup India Ltd. in 1992 had resigned as Director of the company and his place has taken over by him (the Appellant). The Appellant prayed for direction to the Respondents to provide the entire information sought by him. 5. We have considered the submissions of both the parties. In so far as the locusstandi of the Appellant to seek the information on behalf of the guarantor, M/s Anup India Ltd., is concerned, we note that he is willing to provide a board resolution, authorizing him to get the information. After the decision of 14.3.2006 cited by the Respondents, the Commission has taken a number of decisions to the effect that the mere fact of a matter being sub-judice cannot become the ground of denial of information. In fact, Section 8 (1) (b) of the RTI Act exempts from disclosure only such information as has been expressly forbidden to be published by any court of law
or tribunal or the disclosure of which may constitute contempt of court. No such express forbidding by any court of law / tribunal has been mentioned by the Respondents. Further, the Respondents argument that a part of the information sought concerns their internal documents cannot ipso facto become the ground of denial of information. Section 8 (1) (h) is not relevant to this case because there is no process of investigation or apprehension or prosecution of offenders that could be impeded by disclosure of the information. However, we cannot ignore the submission of the Respondents that they have been pursuing a claim of Rs. 8 crores plus interest since 1997 and there is a counter claim of Rs. 3457 crores filed by the borrower and guarantor. The Respondents further submitted that disclosure of the information would go against their interest in the suit before DRT. In the above context, we note that we are not dealing here with a public service rendered by the Respondents to a citizen, but a commercial matter of a claim and counter claim between the bank and the borrower / guarantor. Putting together the information sought in the four RTI applications, it is seen that the Appellant has sought nearly every bit and piece of information concerning the credit facilities of M/s Tea Packs Speciality / Tea Pack Speciality Ltd. from the inception of the account and inspection of all the records and files of the bank on the issue. The information sought includes correspondence exchanged between the Respondent Bank and the Export Credit Guarantee Corporation of India Ltd. and all internal notes with annexures prepared by the bank before filing OA in 1997 regarding its claim. In the above context, we note the following observations made by us in our order No. CIC/LS/A/2013/001809/SH dated 20.10.2014:-
11. With regard to points No. 4 and 5 of the RTI application, the Appellant has questioned the decision of the Respondents to deny the information under Section 8 (1) (d) of the RTI Act. During the hearing on 27.8.2014, the representative of the Appellant stated that the Appellant s request for information should be decided in keeping with the provisions of the RTI Act and in the light of the situation as it prevailed when the Appellant filed his RTI application. He further submitted that the subsequent developments by way of court cases and arbitration should not have a bearing on a decision in the matter. In the above context, we note that the matter before us concerns a contractual agreement concerning a retail outlet dealership in which the Respondents, who are being called upon to reveal their internal correspondence concerning the particular dealership, served a termination notice on 15.4.2013. In such cases, the possibility of litigation is always present. As far as the instant case is concerned, we note from the written submissions dated 25.8.2014 made by the Respondents that instead of replying to their show cause notice dated 15.4.2013, the Appellant filed a writ petition at the High Court of Karnataka, which was disposed of by the court vide its order dated 22.4.2013, whereby, inter alia, two weeks time was granted to the petitioner for filing objection to the show cause notice. The existence of litigation, therefore, preceded the RTI application dated 25.4.2013. In his second appeal the Appellant has stated that he should be provided the information, sought by him vide points No. 4 and 5, concerning the internal correspondence of the Respondents, to defend his rights. In the above context, we note that we are not dealing here with a public service rendered by the Respondents to a citizen, but a contractual matter. We, therefore, believe that the Respondents should also have the right to defend their interests. Such right cannot be denied to them simply because they are a public authority. If public authorities, involved in commercial dealings and faced with litigation concerning contractual issues, are made to reveal their internal correspondence concerning the contractual issues at dispute, it would
have the potential to harm their competitive position, attracting Section 8 (1) (d) of the RTI Act. Section 8 (1) (d) reads as follows:- 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; With reference to the expression third party in Section 8 (1) (d), we also note that Section 2 (n) of the RTI Act states: "third party means a person other than the citizen making a request for information and includes a public authority. In the light of the foregoing, we uphold the decision of the Respondents to deny the information in response to points No. 4 and 5 of the RTI application, under Section 8 (1) (d) of the RTI Act. The above observations of the Commission are germane to the matter before us. The Respondent Bank is a commercial entity competing with other banks in the market. The case before us is not of a citizen seeking information to enforce his rights and get his dues from a public authority, but concerns, as stated above, a claim of the bank made in 1997 and the counter claim of the borrower and the guarantor. Under these circumstances, disclosure of nearly every piece of information concerning the credit facilities, including bank s internal notes regarding filing of OA, would compromise the ability of the bank to pursue its claim before the DRT, which would in turn harm the competitive position of the bank as a commercial entity. Therefore, in our view, the information sought in this case is covered by the exemption granted under Section 8 (1) (d) of the RTI Act. The Appellant has not established any larger public interest
for disclosure of the information sought by him. The case between the two parties pending before DRT cannot be treated as the ground of larger public interest. 6. In view of the foregoing, we would refrain from directing the Respondents to disclose any information in response to the four RTI applications covered by this order. 7. With the above observations, the two appeals are disposed of. 8. Copies of this order be given free of cost to the parties. Sd/- (Sharat Sabharwal) Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission. (Vijay Bhalla) Deputy Registrar