CIC: The respondent banks to provide the names of its wilful defaulters as submitted to the credit information companies along with the number of NPA accounts wherein the total outstanding amount is Rs.100 crores and above
28 Nov, 2018O R D E R
1. The appellant filed the above mentioned 18 identical appeals against the CPIOs of 18 nationalized Banks mentioned above with respect to his 18 identical RTI applications. All these appeals are being clubbed together for hearing and disposal to avoid multiplicity of proceedings.
2. The appellant filed 18 identical applications under the Right to Information Act, 2005 (RTI Act) before the Central Public Information Officers (CPIOs), Canara Bank, P&SB, Allahabad Bank, OBC, Andhra Bank, Bank of Maharashtra, Dena Bank, PNB, UCO Bank, IOB, Bank of India, Syndicate Bank, Indian Bank, United Bank, Vijaya Bank, Central Bank, Union Bank, Bank of Baroda seeking information on six points, pertaining to NPA accounts, including, inter-alia (i) total number of NPA accounts of the bank as on 30th June, 2015, 30th September, 2015, 31st December, 2015, 31st March, 2016 and 30th June, 2016, (ii) names/titles of the NPA accounts of the bank wherein the total amount is Rs.100 crores and above totaling all types of advances such as CD, CC Bill Purchase, Clean Loan, Personal Loan, Secured Loan, Export Loan, Letter of Credit, Transport Loan, Housing Loan and any type of loan as on 30th June, 2016, and (iii) names of the owners/M.Ds/Groups of the above mentioned accounts.
3. The appellant filed a second appeal before the Commission on the grounds that the information sought on point nos. 2 to 6 of his RTI application has been wrongly denied by the CPIO under Sections 8(1)(d), (e) and (j) of the RTI Act. Moreover, the FAA has mechanically upheld the decision of the CPIO. The appellant stated that nowhere has the Apex Court, in its judgment in CBSE vs Aditya Bandopadhyay, held that a relationship between a Banker and its customer is fiduciary in nature. Further, every citizen has the right to know the names of the NPA accounts when, the details of such accounts is itself made public by the Banks at the time of recovery of loans. The appellant requested the Commission to direct the CPIO to provide the information sought by him and to impose appropriate penalty on the erring CPIO for not providing the information.
Hearing:
4. The appellant, Shri Amitava Choudhury and his representative Shri Sandipan Khan were present in person. The respondents, Shri Somesh Nagabhushan, Sr. Manager (Law), Dena Bank, Dena Corporate Centre, Mumbai, Shri Shashi Kumar, AGM, Bank of India, HO Bandra Kurla Complex, Mumbai, Shri Kunal Grover, Officer, Bank of Baroda, Baroda Corporate Centre, Mumbai, Shri K.C. Choudhary, AGM, Union Bank, Nariman Point, Mumbai, Shri R.S. Raman, AGM, Central Bank of India, Central Office, Mumbai, Shri Deepak Senthil, Sr. Manager (Law), Indian Bank, Corporate Office, Royapettah, Chennai, Shri Muthugoanasekar, Chief Manager, Indian Overseas Bank, Central Office, Anna Salai, Chennai, Shri Omeill Shroff, Chief Manager, UCO Bank, HO BTM Sarani, Kolkata, Shri Jagan Kovil Mani, AGM (Law), United Bank, HO Kolkata, Shri Ashu Kumar, Chief Manager, Allahabad Bank, HO Kolkata, Ms. Ankita Kumari, Asstt. Manager (Legal), Andhra Bank, HO Hyderabad, Shri Hari P.V., Divisional Manager, Canara Bank, HO, J C Road, Bengaluru, Shri P. Maheshwara Rao, DGM, Syndicate Bank, Corporate Office, Bengaluru and Shri Sivananda Nanderkar, Chief Manager (Law), Vijaya Bank, HO Bengaluru attended the hearing through video-conferencing. The respondents, Shri S.K. Sharma and Shri Y.P.S. Rajput, AGM, Punjab National Bank, Corporate Office, Dwarka, New Delhi, Shri Ashok Kr. Mishra, DGM, Oriental Bank of Commerce, HO Gurgaon, Haryana and Shri Arun Uikey, Chief Manager, Punjab & Sind Bank, HO New Delhi were present in person. The CPIO, Bank of Maharashtra, HO Pune was not present despite notice.
5. The appellant submitted that the respondent banks have wrongly denied the information sought by him on points 2 to 6 of his RTI application pertaining to the names/titles of the NPA accounts of the bank wherein the total amount is Rs.100 crores and above, names of the owners/MD/Group of the above said accounts, copies of documents relating to the action taken by the Banks for recovery of the amount outstanding, under Sections 8(1)(d), (e) and (j) of the RTI Act. The appellant, however, admitted that the information sought on point no. 1 has been provided to him by the Banks on total no. of NPA accounts. Further, some of the bank had also provided the total amount outstanding for the period of 2015-16. Moreover, with respect to point no. 2 of the RTI application, only Dena Bank, Union Bank and PNB have provided part information regarding the total number of NPA accounts where the amount outstanding is Rs. 100 crores and above and the total amount outstanding in respect of such accounts. The appellant contended that there is no question of commercial confidence involved in the NPA accounts as the banks are performing a public function and where public money is involved, the Banks should be more proactive in disclosing the details of defaulters. Moreover, the fiduciary relationship ceases to exist once the trust/faith is broken by the borrower/customer. The appellant cited Section 8(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. of the RTI Act which is an overriding provision that clearly states that “
(2) Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.”
Hence, the exemptions claimed by the respondent banks are not absolute but relative. Further, the Hon’ble Supreme Court in its judgment dated 09.08.2011 in Central Board of Secondary Education vs. Aditya Bandopadhyay [CIVIL APPEAL NO. 6454 OF 2011], in Para 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. of the said judgment nowhere mentioned that the relationship between the bank and its customer is fiduciary in nature. The appellant further submitted that the Proviso to Section 8(1)(j) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. of the RTI Act which states that “…. the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person” is squarely applicable to the present case. Hence, the stand taken by the Banks that they cannot share the NPA account details of third parties as it also qualifies as personal information of the latter does not hold water when once the details are in public domain or a suit is filed by the Bank in respect of the NPA accounts against the defaulters. The appellant also cited the Supreme Court judgment dated 16.12.2015 in Reserve Bank of India Vs. Jayantilal N. Mistry [Transferred case (Civil) No. 91 of 2015], P.P. Kappor vs Reserve Bank of India (Appeal No. CIC/SM/A/2011/0001376/SG, dated 15.11.2011) in support of his submissions wherein it was observed that there is larger public interest involved when there is default in repayment of loans by the borrowers and the Bank is bound to disclose the details in this regard. The appellant submitted that the NPA amount provided by Indian Bank and Bank of India on point no. 1 of the RTI application does not match with the figures available in public domain.
6. The respondents from Dena Bank, with respect to point no. 1 of the RTI application, submitted that the CPIO has provided the Gross NPA amount as declared and published in the quarterly financial results of the Bank. The respondent from Indian Bank informed that the FAA had specifically stated in his order dated 03.02.2017 that the figures given in PIO’s reply is Gross NPA level, whereas, the figures in the quarterly result of financials statement are ‘Gross NPA net of some provided accounts’. The respondents submitted that the account maintained by the Bank’s customers includes personal, financial and commercial details of such customers. Hence, the disclosure of such information would harm the competitive position of the third party. Moreover, not all NPAs can be categorized as willful default or involving fraud and there may be cases where non-repayment of loan is because of certain factors beyond the control of the borrower such as, business failure. Therefore, disclosure of the information concerning defaulters could result in making public even those cases, where the Bank is yet to conclude that the defaulter is a willful defaulter, or a suit is filed in DRT or action is taken under the SARFAESI Act. The respondent further submitted that disclosing the details of NPA accounts of its borrowers may also harm the business interests of the bank in cases where action for recovery of outstanding dues is yet to be initiated by the Bank. Further, such information, which is provided by the customer in trust, is held by the Bank in a fiduciary capacity and confidence that the same shall not be disclosed to a third party. The respondent explained that merely because the account has become NPA, it does not end the fiduciary relationship of the Bank with its customer. Moreover, it also relates to the personal information of third parties, the disclosure of which has no relationship to any public interest and would cause an unwarranted invasion of the privacy of the third parties. Hence, the disclosure of the information sought is exempted under Section 8(1)(d), (e) and (j) of the RTI Act. The appellant has also not established involvement of larger public interest in the matter that warrants disclosure of the information sought by him on point nos. 2 to 6 of the RTI application. The respondent, however, admitted that as per the RBI’s circular dated 02.07.2012 (RBI/2012-13/43 DBOD No. CID.BC. 10/20.16.003/2012-13) on Wilful Defaulters, the Banks submit the list of suit-filed accounts of wilful defaulters to credit information companies, (i) Experian Credit Information Company of India Private Limited, (ii) Equifax Credit Information Services Private Limited, (iii) High Mark Credit Information Services Private Limited, and (iv) TransUnion CIBIL Limited [formerly, Credit Information Bureau (India) Limited], as at end-March, June, September and December every year. The companies have been issued a Certificate of Registration by RBI in terms of Section 5 of the Credit Information Companies (Regulation) Act, 2005. Hence, the data regarding wilful defaulters is already available in public domain. With respect to sharing of information/details concerning defaulters/NPA accounts with the Parliament, the respondent stated that the Banks do not disclose the names of the individual defaulters to the Parliament but, they only provide the account numbers and NPA amount. Moreover, there is no record available of having shared the names of the defaulters with the Parliament in the past. The respondent also cited the order of the Hon. Supreme Court in Writ Petition (Civil) No. 573 of 2003 (Centre for Public Interest vs. Housing and Urban Development) dated 16.02.2016, wherein the Apex Court has directed the RBI to file the information regarding defaulters of payments of amounts more than Rs. 500 crores in a sealed cover. Hence, the names of the defaulters and details of action taken against them cannot be disclosed as the matter is still under consideration before the Apex Court.
Decision:
7. The Commission, after hearing the submissions of both the parties and perusing the records, observes that the appellant is satisfied with the information provided to him by the respondent banks on point no. 1 of his RTI application. The Commission, however, notes that the appellant stated that there is a mismatch of NPA figures provided to him by the CPIO, Indian Bank, Corporate Office, Royapettah, Chennai in his reply dated 31.10.2016 and those stated in the Bank’s financial statement on its website. The Commission, therefore, directs the respondent to file an affidavit with the Commission deposing that the NPA amount provided to the appellant on point no. 1 of the RTI application is correct. A copy of the affidavit shall also be provided to the appellant. The above directions of the Commission shall be complied with, within a period of four weeks from the date of receipt of a copy of this order.
8. The Commission, however, agrees with the respondent that the information sought pertains to the accounts of third parties, which is held by the bank in a fiduciary capacity. Further, no larger public interest would be served by the disclosure of information. Hence, its disclosure is exempted under Section 8(1)(d), (e) and (j) of the RTI Act. The Commission further observes that the Hon’ble Supreme Court in Para 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. of its judgment in Aditya Bandopadhyay (supra) while elaborating on words ‘information available to a person in his fiduciary relationship’ only illustrated a few relationships where parties involved act in a fiduciary capacity. The same cannot be read as exhaustive. Moreover, in its judgment dated 02.09.2009 in CPIO, Supreme Court of India, New Delhi vs. Subhash Chandra Agarwal & Anr. [W.P. No. 288/200], the High Court of Delhi made the following observations:-
“57. The Advanced Law Lexicon, 3rd Edition, 2005, defines fiduciary relationship as "a relationship in which one person is under a duty to act for the benefit of the other on the matters within the scope of the relationship....
58. ……it may be seen that a fiduciary relationship is one whereby a person places complete confidence in another in regard to a particular transaction or his general affairs or business. The relationship need not be "formally" or "legally" ordained, or established, like in the case of a written trust; but can be one of moral or personal responsibility, due to the better or superior knowledge or training, or superior status of the fiduciary as compared to the one whose affairs he handles….”
9. The Commission further observes that the Hon’ble Delhi High Court in the case of Rekha Chopra Vs. State Bank of Bikaner & Jaipur [W.P.(C) 5478/2014, judgment dated 27.08.2014] specifically discussed the issue whether a bank is obliged to disclose information pertaining to its customers in response to an application made under the RTI Act. The High Court observed:
“8. The Bank, while dealing with its customers, acts in various capacities. Undisputedly, the relationship between a customer and a banker requires trust, good faith, honesty and confidence. Black’s law dictionary defines fiduciary relationship as “one founded on trust or confidence reposed by one person in the integrity and fidelity of another.” Fiduciary relationship in law is ordinarily a confidential relationship; one which is founded on the trust and confidence. In this view, a banker would undoubtedly, stand in a fiduciary capacity in respect of transactions and information provided by its customers.”
10. Therefore, what emerges from the aforesaid is that the information pertaining to the account of a customer/borrower is held by the Bank in trust and confidence on behalf of the former and the Bank is bound to maintain secrecy/confidentiality in case personal information of the account holder is sought by a third party. Hence, the information sought being held in a fiduciary capacity by the Bank is exempt form disclosure under Section 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; of the RTI Act.
11. The appellant had raised the issue that ‘information which cannot be denied to the Parliament cannot be denied to him’ with reference to the proviso of Section 8(1)(j) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. of the RTI Act, 2005. This issue had been elaborately clarified by the Hon’ble Delhi High Court in its decision dated 30.11.2009 in the matter of Union of India Thr. Director Vs. Central Information Commission & Ors. [Writ Petition (Civil) No. 8396 of 2009 held:
“43. A proviso can be enacted by the legislature to serve several purposes. In Sundaram Pillai Vs. Patte Birman (1985) 1 SSC 591 the scope and purpose of a proviso and an explanation has been examined in detail. Normally, a proviso is meant to be an exception to something in the main enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. A proviso cannot be torn apart from the main enactment nor can it be used to qualify and set at naught, the object of the main enactment. Sarthi on “Interpretation of Statutes”, referred to in the said judgment, states that a proviso is subordinate to the main section and one of the principles which can be applied in a given case is that a proviso would not enlarge an enactment except for compelling reasons. It is unusual to import legislation from a proviso into the body of the statute. But in exceptional cases a proviso in itself may amount to a substantive provision. The proviso in the present case is a guiding factor and not a substantive provision which overrides Section 8(1) (j) of the RTI Act. It does not undo or rewrite Section 8(1)(j) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. of the RTI Act and does not itself create any new right. The purpose is only to clarify that while deciding the question of larger public interest i.e. the question of balance between ‘public interest in form of right to privacy’ and ‘public interest in access to information’ is to be balanced.”
12. With respect to disclosure of NPA details of individual borrowers/defaulters, the Commission in another matter in Shankar Gupta Vs. CPIO, Bank of Baroda, Allahabad (File No. SH/A/2016/000271) dated 10.03.2017 (where the information of similar nature was sought) the Commission has held as under:
“2. We have considered the records placed before us and note that the bank holds the information concerning the accounts of its borrowers in a fiduciary capacity and it is exempted from disclosure under Section 8 (1) (e) of the RTI Act. To the extent that this information contains the personal information of the borrowers, it is also exempted from disclosure under Section 8 (1) (j). Further, the elaborate information sought by the Appellant in respect of the borrower cannot be provided simply because the account has become NPA. The Appellant has not established any larger public interest for disclosure of the information to him.”
13. The Commission further observes that the Hon. Supreme Court in Writ Petition (Civil) No. 573 of 2003 (Centre for Public Interest vs. Housing and Urban Development) dated 16.02.2016, held that:-
“…….. we direct that whatever information regarding bad debts is available with the RBI in regard to the debtors who are in default of payment of amounts more than Rs. 500/- crores shall be filed along with the affidavit in a sealed cover. …….”
14. Further, a two-member Bench of the Commission, in a similar matter CIC/VS/A/2013/001488 and CIC/VS/A/2013/001805 decided on 11.05.2017, had observed that since a similar issue regarding the disclosure of list of defaulters is pending adjudication before the Hon'ble Supreme Court in the above-said matter of Centre for Public Interest Litigation (supra), it would be judicious to await the final outcome from the Hon'ble Supreme Court.
15. In the above context, the Commission takes note of RBI Circular DBOD No. BC/CIS/47/20.16.002/94 dated 23.04.1994 on dissemination of information concerning borrowal accounts of banks and Financial institutions in cases of wilful defaults and suit filed accounts. The above said circular identifies the types of accounts about which information is to be collected in the category of defaulters and does not cover any and every loan account in which repayment may have become overdue. In view of this, the Commission directs the respondent banks to provide the list/names of its wilful defaulters as submitted to the credit information companies along with the number of NPA accounts wherein the total outstanding amount is Rs.100 crores and above and the total consolidated outstanding amount of such accounts, as on 30.06.2016, to the appellant within a period of four weeks from the date of receipt of a copy of this order under intimation to this Commission.
16. The Commission further takes a serious view of the absence of the CPIO, Bank of Maharashtra, despite notice. The Commission directs Shri Vivek Ghate, CPIO, Bank of Maharashtra, HO Pune to submit a written statement before the Commission, explaining his absence, along with the comments of the First Appellate Authority, before 16.08.2018 both by post and through e-mail at do.icsb-cic@gov.in.
17. With the above observations, all the 18 appeals are disposed of
Copy of the decision be provided free of cost to the parties.
Sudhir Bhargava
Information Commissioner
Citation: Amitava Choudhury v. Canara Bank and other banks in Second Appeal Nos. CIC/CANBK/A/2018/136439 CIC/IOVBK/A/2018/136449 CIC/PASBK/A/2018/136441 CIC/BKOIN/A/2018/136450 CIC/ALDBK/A/2018/136442 CIC/SYNDB/A/2018/136451 CIC/OBKOC/A/2018/136443 CIC/IBANK/A/2018/136452 CIC/ANDBK/A/2018/136444 CIC/UBKOI/A/2018/136453 CIC/BOMAH/A/2018/136445 CIC/VIJBK/A/2018/136454 CIC/DENAB/A/2018/136446 CIC/CBIND/A/2018/136455 CIC/PNBNK/A/2018/136447 CIC/UBIND/A/2018/136456 CIC/UCOBK/A/2018/136448 CIC/BKOBD/A/2017/116962, Date of decision: 31.07.2018