Jammu & Kashmir High Court - Srinagar Bench
Ghulam Mohammad Dar & Others vs M/S Manoj Ji & Co. Pvt. Ltd. & Ors. on 5 February, 2019
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
On board
matter
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
A.A No.14/2018
C/W
A.A No.3/2019
Date of decision:05.02.2019
Tanveer Ahmad Parra & Ors. Vs. M/S Manoj Ji and Co. Pvt. Ltd. & ors.
Ghulam Mohammad Dar & Ors. Vs. M/S Manoj Ji and Co. Pvt. Ltd. & ors.
Coram:
Hon'ble Mr Justice Rashid Ali Dar, Judge
Appearance:
For the Petitioner/Appellant(s): Mr. Showkat Ali Khan, Adv (in A.A No.14/2018)
Mr. J. A. Kawoosa, Adv (in A.A No.3/2019)
For the Respondent(s): M/S: M. A. Makhdoomi, Adv. & Mr. Zubair, Adv-
for R1.
None for R2.
Mr. Harshwardan Gupta, Adv-for R3 & R4.
Mr. T. M. Shamsi, ASGI-for R5.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1) The respondent No.1, had filed a petition under Section 9 of the J&K
Arbitration and Conciliation Act (for short the Act) before the ld. Court of Principal District Judge, Srinagar, for interim measures, which came to be assigned to the Court of ld. Additional District Judge, Srinagar, for disposal under law. In the petition, the respondent No.1 (petitioner therein) had pleaded:
(I) That the petitioner company is operating rail way out agency at Srinagar for the transportation of fertilizers for Kashmir Valley. The out agency/notional rank point of Srinagar is served (linked) through Udhampur railway station;A.A. No.14/2018
c/w A.A. No.3/2019 Page 1 of 17 (II) The out agency of Udhampur was allotted through tender system. Being successful tenderer, the out agency was allotted to the petitioner. The contract of the out agency was allotted for an initial period of three years w.e.f. 02.11.2015 with an extension clause;
(III) The goods shed at Udhampur railway station is having low level platform and no proper covered space is available. The area of goods shed is located in the terrain of mountain and due to sudden rain, it has the access for rain water and even when the high winds with rain is blowing the fertilizer bags are pruned to absorb moisture from the atmosphere. Despite various representations no action was taken to improve the infrastructure at Udhampur railway station. The petitioner, in order to overcome from this problem had to produce a number of tarpaulins to ensure that the fertilizers bags are properly covered to avoid any damage to the commodity;
(IV) During May, 2017, Senior Divisional Commercial Manager, Firozpur, during a meeting advised the petitioner to procure sufficient number of tarpaulins which should be sufficient to keep the fertilizer bags of 5 to 6 rakes as it may take considerable period for the Railway to provide any proper infrastructure facilities at the railway station. On the basis of formal and written extension of the contract, the petitioner further made huge investments in developing the infrastructure at the request of the respondents therein. The petitioner not only procured more than 1000 tarpaulins but also procured about 50 trucks of 20 tonnes capacity to reduce dependency of the outsiders;
(V) Now a decision has been taken by the railways not to have the system of out agency which should be dispensed with. The said decision has been taken under the pressure of some vested interests though the farmers of Kashmir valley were benefited by operation of the out agency coupled with the fact that A.A. No.14/2018 c/w A.A. No.3/2019 Page 2 of 17 out agency provided employment to almost 200 locals besides at the time of unloading rake at Udhampur and Srinagar, almost 400 labourers are engaged;
(VI) The respondents at the behest of business rivals of the petitioner, intend to take a U turn illegally and for extraneous considerations are in the process to give up with the operation of the out-agency at Srinagar which is against the settled principles of law and if allowed serious prejudice will be caused to the petitioner therein, besides that great financial loss will be caused;
(VII) Finally, the respondents issued the communication dated 18.09.2018 whereby the contract allotted to the respondent No.1 (petitioner therein) was cancelled. Endorsement vide communication dated 24.09.2018 was also issued regarding termination of the contract of the respondent No.1(petitioner therein). The dispute as to whether the official respondents after having formally extended the contract and after directing the petitioner therein to make huge investments could take U turn and order cancellation of the contract requires to be resolved by the nominated arbitrator. But till reference is made to the arbitrator the rights and interests of the petitioner therein are to be protected for the time being till the matter is adjudicated upon by the arbitrator;
2) In the petition supra, prayer has been made that the operation of the communications dated 18.09.2018 and 24.09.2018 be stayed till final disposal of the dispute and till then, petitioner be permitted to continue with the present arrangement and the respondents therein be directed to release all payments in favour of the petitioner.
3) On appearance before the trial court, respondent No.3 and 4 filed objections resisting the petition by stating that:
A.A. No.14/2018c/w A.A. No.3/2019 Page 3 of 17 (1) The petition is not maintainable because the court lacks jurisdiction to entertain the petition under Section 9 of the Act and cannot override the basic law enshrined under Specific Relief Act which bars the court to grant injunction to interfere with the public duties of any Government Department and since there is bar created by Section 56(d) of Specific Relief Act, so the application is not maintainable;
(2) The petition has not been filed by any competent person and in case the petitioner U/S 9 was to be filed, then same should have been filed by any authorized person who should have been authorized by the Board of Directors to file the petition;
(3) The out agency contract was given to the petitioner for three years w.e.f.
02.11.2015 to 01.11.2018 and as per the Clause 11.2 of the agreement, the contract could be terminated or renewed by the respondents only and no discretion lies with the petitioner for seeking any extension of the contract. Due to defaults, shortcomings, acts of omission and commission committed by the petitioner in the execution of the out agency, the Ministry of Agriculture, Fertilizers received complaints from so many agencies and stake holders, as such, contract could not be extended any further;
(4) The respondents never intended to renew or extend the contract. The petitioner has no right to act as out agency on behalf of respondents. The respondents have suffered huge loss on account of failure of petitioner in making timely complete supply of fertilizers. The petitioner has failed to make the requisite supplies which has been even highlighted by the body of All India Kissan Sabha, J&K who have expressed deep concern on behalf of the farmers;
A.A. No.14/2018c/w A.A. No.3/2019 Page 4 of 17 (5) In order to rectify the mistakes and omissions committed by the petitioner, a number of meetings were held between the fertilizer companies, the petitioner and the Railway officials and last meeting was held on 12.09.2018 to reconcile the fertilizer stock and on the basis of record, it was evaluated that a huge quantity of fertilizer stock still remained pending delivered to the extent of 1024 MT of IFFCO, 27 MT of CFCL, 77.625 MT of IPL. When the petitioner failed to reconcile the fertilizer stocks and obtain NOC from different companies and failed to submit the same to the respondents, the respondents were left with no option but to direct the petitioner to raise the security and submit additional security of Rs.30/ lacs;
(6) The respondents have acted legally and have not violated the terms and conditions of the contract.
4) Respondent No.2 and 5 also filed objections before the trial court and resisted the petition filed by respondent No.1 herein on the ground that the contract of railway out agency has been provided to the petitioner by the respondents for smooth and uninterrupted transportation of fertilizers from take point Udhampur to Srinagar with the sole intention that farmers should not suffer and economy of the State should not also suffer. The petitioner has not executed the works in accordance with the provisions of the contract with the result the fertilizers have either remained undelivered or there has been delay in the delivery of the same causing loss to the farmers. The farmers who are the ultimate beneficiaries have lodged complaints with the concerned Ministry and concerned departments who have impressed upon the Railways that farmers should not suffer. The question as to whether the contract may be extended or terminated, is between the Railways and the petitioner company.
A.A. No.14/2018c/w A.A. No.3/2019 Page 5 of 17
5) Appellants, who were not party in the petition filed by respondent No.1 herein before the trial court, filed an application before the trial court under Order 1 Rule 10 CPC seeking their impleadment, which was allowed vide order dated 30.10.2018.
6) The learned Additional District Judge, Srinagar while making certain observations in the order dated 14.11.2018 held that as the application seeking appointment of the arbitrator has been already filed by the petitioner therein so it remains for the respondents therein to take the decision within 30 days for appointment of the arbitrator and making reference to arbitrator of the disputes emerging between the parties but till arbitrator is appointed and reference is made and till award is passed by the Arbitral Tribunal the respondents/parties are directed to continue with the present arrangement and permit the petitioner therein to transport fertilizers from the rake point Udhampur to and from Srinagar uninterruptedly. It was accordingly directed by the learned court that:-
".. Thus in accordance with the terms and conditions stipulated by clause 16 of the agreement and till the Arbitral Tribunal is constituted and till it enters upon the reference and passed final award the operation of the impugned communications dated 18.09.2018 and 24.09.2018 is kept in abeyance and the parties especially respondents are directed to continue with the arrangement which exists between the parties as provided by the agreement executed by the parties. The petitioner company shall be allowed to transport the fertilizers from rake point Udhampur to and from Srinagar and the respondents shall be bound to release all the amounts and dues required for the hassle-free movement of the fertilizers from rake point Udhampur to and from Srinagar.A.A. No.14/2018
c/w A.A. No.3/2019 Page 6 of 17 The instant petition is accordingly disposed of and shall be consigned to records after compilation."
7) Aggrieved by the above referred order dated 14.11.2018, the appellants herein have filed the instant appeal.
8) The appellants have, precisely, challenged the impugned order on the following grounds:
(I) The impugned order has been passed in total violation and derogation of the law and true purport, construction and spirit of Section 9 of the Act;
(II) The court below while deciding the application has left no scope for any other suit or application under Section 11 of the J&K Arbitration and Conciliation Act;
(III) The trial court did not appreciate that the contact has not been cancelled midway but has come to an end by efflux of time after period of contract ended and no dispute is to be referred to arbitration and application under Section 9 of the Act is not maintainable;
(IV) The application filed under Section 9 of the Act by the respondent No.1 does not show that any dispute has arisen between the parties in light of the contents of the agreement/contract between the respondent No.1 and respondents 2 to 5;
(V) The trial court while deciding the application has said that there has been any breach or otherwise of any condition of the agreement which governs the relation between the respondent No.1 and respondent Railway Department. On the contrary, Court has mentioned about A.A. No.14/2018 c/w A.A. No.3/2019 Page 7 of 17 communication dated 12th June, 2018, wherein the Railway Department has certified that the contract will be renewed in terms of clause 11.2 of the contract;
(VI) The contract period has come to an end and the fresh tenders are to be issued and notified and every interested and eligible person has a right to contest the same but the impugned order has put a clog on the open competition by extending the period of contract making the impugned order bad;
(VII) The impugned order appears to be an unguided order as the trial court while passing the order has directed the respondent Railway Department to continue the arrangement in terms of expired contract till the arbitration under Section 11 is not concluded which means that the respondents 2 to 5 have been forced to continue the contract for years to come as yet the respondent No.1 has to file an application under Section 11 of the Act;
(VIII) The trial court has widened the scope of Section 9 and appears to have stepped in the shoes of the respondent railway department by directing the agreement has to be continued till the dispute is referred to an arbitrator and an award is passed;
(IX) The trial court while deciding the application under Section 9 has relied and considered the material which is either irrelevant or is no bodies case like the observation made by the trial court that the respondent No.1 has already filed application seeking appointment of arbitrator as there is nothing on record to suggest the same;
(X) The impugned order is against the facts and law; A.A. No.14/2018 c/w A.A. No.3/2019 Page 8 of 17
(XI) The impugned order depicts gross non-violation of judicial mind by learned Additional District Judge;
(XII) The learned Additional District Judge, under the cover of "interim measure" has granted the final relief;
(XIII) The very factual and legal edifice of the impugned order is misplaced, erroneous and bad in law.
9) Heard learned counsel for the parties and also perused the material before med.
10) Mr. Makhdoomi, learned counsel appearing on behalf of respondent No.1, has taken objection to the maintainability of the appeal on the count that it was for the appellants to show, in terms of provisions of the Code of Civil Procedure, that they had a right to file an appeal against the order passed by the trial court. The order passed by the trial court, in terms of which the appellants of AA No.14/2018 were impleaded as party before the trial court, does not itself give a right to them to challenge the impugned order. In this regard he took reliance on number of judgments which include:
(a) Deutsche Post Bank Home Finance Limited Vs. Taduri Sridhar and another, (2011) 11 SCC 375;
(b) S. N. Prasad, Hitek Industries (Bihar) Limited Vs. Monnet Finance Limited and others, (2011) 1 SCC 320;
(c) Nazir Ahmad Dar Vs. Mst. Nabza and others, 2010 (I) S. L. J 177;
(d) Banarsi and others Vs. Ram Phal, AIR 2003 SC 1989
11) It is, thus, emphatically contended that unless the appellants satisfy the Court
that in terms of Section 96 of CPC, such a right is vested with them, the appeal cannot be heard on merits. It is also his contention that the appeal, if any, can lie against the A.A. No.14/2018 c/w A.A. No.3/2019 Page 9 of 17 judgment and decree and not against the interim assistance which has been granted by the trial court subject to further orders to be passed by the Arbitral Tribunal.
12) The learned counsel appearing for the appellants in A.A.No.14/2018, however, contended that the contention raised on behalf of respondent No.1 is misplaced in view of the fact the appellants have already been permitted to join the proceedings and so they have every right to project their grievance in terms of instant appeal(s) as the trial court has failed to return any finding on the points raised in terms of the application and at bar by the appellants herein. It is also his contention that the trial court has proceeded beyond its jurisdiction by issuance of a direction which, in essence, revives a contract which has come to an end. The basic ingredient for filing of application was missing as, according to him, there was no dispute between the parties on which the finding is required to be returned by the learned Arbitrator.
13) It is also plea of Mr. Khan, that the respondent No.1 could be properly compensated in case interim assistance had not been granted and the learned trial court has failed to take note of the same. He has also referred to the definition of the "party" in the Act along with right to appeal in pursuance of Section 37 of the Act.
14) In rebuttal, Mr. Makhdoomi, learned counsel for respondent No.1, submitted that the grievance, if any, against the order, could be projected by respondent No.3 and 4. The said respondents, according to him, having not opted to oppose the relief, the appellants herein had no locus to put forth a grievance, as is suggested in terms of the memo of appeal. Further point raised by Mr. Makhdoomi is that the respondent No.1, in terms of the petition filed under Section 9 of the Act, had made the Court conversant not only about the action contemplated to be taken regarding repudiation of the contract but also about the non-performance of other contractual obligations which was not being responded by the other side.A.A. No.14/2018
c/w A.A. No.3/2019 Page 10 of 17
15) Mr. Kawoosa, learned counsel for the appellants in A.A. No.3/2019, however, contended that the argument raised on behalf of respondent No.1 carries no force as the appellants have sought leave of the Court to prefer appeal, which on its consideration has been granted and so their rights being at peril, have locus to prosecute the instant appeal.
16) Mr. Gupta, submitted that the respondent No.3 and 4 could not be directed by the trial court to proceed in the matter in light of the stand taken before the said Court by the respondents. The contract had been entered into between the parties on 02.11.2015, which, due to efflux of time, would outlive on 1 st of November, 2018. The respondent No.1 was only in fair play informed about such position. No alteration of agreed terms had been made which could give rise to the cause of action in favour of respondent No.1. At no point of time the contract was extended and later such contract determined necessitating inference by the Court in terms of Section 9 of the Act, is also his argument.
17) Mr. Shamsi, learned ASGI, submitted that he has instructions on behalf of Ministry of Chemicals and Fertilizers, Department of Fertilizers, Government of India, to inform the Court that the arrangement which was existing for transportation of fertilizers etc. to Kashmir and in terms of which respondent No.1 had a role to play, does not subsist as the Ministry, in its wisdom, has thought it proper to exclude the role of the Railways and its out agency to avoid any kind of disruption of supply of fertilizers. He has placed a copy of communication dated 11 December, 2018, on file, which sounds that that the Department of Fertilizers has decided to supply all fertilizers to Kashmir Valley through fertilizer companies directly so as to avoid any kind of disruption of supplies in the larger interests of farming community.
18) Considered the rival arguments. A.A. No.14/2018 c/w A.A. No.3/2019 Page 11 of 17 19) At the threshold, the preliminary objection raised as to maintainability of the
appeal is to be addressed. Learned counsel for the appellants, in order to substantiate their argument, had taken reliance on the judgment of Bombay High Court wherein judgment of a Coordinate Bench of this Court had been taken note of and it has been ruled that even a person other than the party to a contract can be heard or can prefer appeal in the proceedings under the Act. In this regard, provisions of Section 37 of the Act have been interpreted to be suggesting so. In the opinion of his Lordship, it would be quite absurd to hold that a third party cannot challenge an order passed either under Section 9 or otherwise under any other provision of the Act if the rights of such party are affected by an order or direction passed by the Court.
20) The argument raised, in the backdrop of the definition of "party" under Section 2(1)(h) and Sections 3, 4, 7, 8, 9, 11, 17 and 34, which is also raised herein, has been turned down. The counter argument raised in this regard that if the third party would not be allowed to have a right to challenge an order passed under the Act, it would be contrary to legislative intent or the purpose of the Act. The Act has to be interpreted in such a way that it would prevent abuse of process of law and prompt justice. When the literal construction of the Statute leads to absurdity or mischief, such an interpretation has to be avoided and the interpretation which makes Statute rational and sensible has to be eschewed, has been noted, in the judgment supra, in this regard.
21) The view taken by a Coordinate Bench of this Court in "Mohammad Ishaq Bhat vs. Tariq Ahmad Sofi & anr" (2010) 3 Arb. LR 109, has been reproduced in the judgment (supra) of Bombay High Court, which lays down that if a person is materially and substantially interested in subject matter of the arbitration agreement and is likely to be materially affected by the order, Section 9 cannot be interpreted to forbid impleadment of a person, not a party to arbitration agreement, to the A.A. No.14/2018 c/w A.A. No.3/2019 Page 12 of 17 proceedings under Section 9. A person having vital interest in the subject matter of arbitration agreement cannot be asked to watch proceedings from the fence and leave the arena for the parties to the arbitration agreement to cut swords, when the victim of the outcome of the dispute is non else but the person pushed to the fence. It has also been held that the Court is required to arrive at just conclusion and to do justice between the parties. In order to enable the Court to discharge its mandate, it is necessary to a person who is interested in the subject matter of arbitration agreement and is in a position to render assistance to the court is allowed to become a party to the proceedings. It was also held that though a stranger to an arbitration agreement cannot be allowed to seek interim measures under Section 9 of the Arbitration and Conciliation Act, 1997, a stranger may be impleaded as a party where the Court is convinced that the applicant is a proper and necessary party to the proceedings and his presence is bound to enable the Court to arrive at a just and proper conclusion.
22) It is clear thus beyond doubt that interim measures can be taken by the Court if it is approached by a "party" as meant by Section 2(g) of the Act i.e. a "party" to an arbitration agreement. Regarding right of appeal for challenging an order passed under Section 9 of the Act, it would be apt to quote Section 37 of the Act:
"37. Appealable orders--(1) An appeal shall lie from the following orders (and from no others) to the Court authorised by law to hear appeals from original decrees of the Court passing the order namely:-
(a) granting or refusing to grant any measure under section 9;
(b) setting aside or refusing to set aside an arbitral award under section 34.A.A. No.14/2018
c/w A.A. No.3/2019 Page 13 of 17 (2) An appeal shall also lie from an order granting or refusing to grant an interim measure under section 17 to a Court.
(3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court."
23) For what is noted above, I am of the opinion that the contention raised on behalf of the respondent No.1 that an appeal filed against an order passed under Section 9 of the Act has always to be subservient to the provisions of CPC, has to be turned down. The concomitant limb of the argument that the appeal would lie only after a judgment and decree or a final order having characteristics of a judgment and decree and not against an interim assistance, is also treated to be without force.
24) Joining the proceedings initiated under Section 9 of the Act by a party or seeking leave to appeal against an order passed under Section 9 may have to be differentiated from the right to maintain an appeal. The Court may, under inherent powers or on extended application of Order 1 Rule 8A CPC, allow any person in the ends of justice to address it or assist it in proper determination of the controversy needed to be set at rest and in finding answer to a question of law of public interest. Proper it would be to have a glance of Order 1 Rule 8-A of the CPC:
"8-A. Power of Court to permit a person or body of persons to present opinion or to take part in the proceedings.--while trying a suit, the Court may, if satisfied that a person or body of persons is interested in any question of law which is directly and substantially in issue in the suit and that it is necessary in the public interest to allow that person or body of persons to present his or its opinion on that question of law, permit that A.A. No.14/2018 c/w A.A. No.3/2019 Page 14 of 17 person or body of persons to present such opinion and to take such part in the proceedings of the suit as the Court may specify."
25) It may be proper herein to submit that the appellants in A.A No.14/2018 have already been permitted to join as respondents by learned Additional District Judge while opining that they have material and substantial interest in the matter.
26) Be it so, while examining scope for grant of leave to appeal, on allowing a person or body of persons to be added as party, detailed examination of merits of the case, on elaborate documentation, may not be required to be made. On a summary view of the facts and circumstances, the tentative opinion is to be formulated, as rightly made by the learned Additional District Judge and so the appellants herein having been added as parties.
27) As already noted, the order passed by learned Additional District Judgement, impugned herein, has not been called in question by respondent No.3 and 4, against whom relief had been sought by the respondent No.1 before the learned Additional District Judge. The appellants do not claim any right or obligation arising out of the contract referred herein supra between respondent No.1 and respondent No.3 and 4. Performance of the contractual obligations in terms of the arrangement entered into between respondent No.1 and respondent No.3 and 4 may have an indirect bearing on the interests of the appellants but the said contract, which the respondent No.3 and 4 claim to have come to an end by efflux of time, does not vest or deprive the appellants directly of any right or interest. It may have to be born in mind that the manner in which dissatisfaction has been shown about the passing of the order by appellants does not indicate appellants being concerned about the violation of any independent or personal rights of theirs. Rather the appellants depict an interest as A.A. No.14/2018 c/w A.A. No.3/2019 Page 15 of 17 if they were doing so as the representatives or assignees of respondent No.3 and 4 who, as stated above, have not challenged the impugned order.
28) The settled position of law is that there is an inherent right in every person to bring a suit of civil nature and unless the suit is barred by statute, one may bring such a suit at one's choice and at one's own peril. A suit for its maintainability does not require authority of law and it has to be assumed that, unless specifically shown, no statute bars the suit but the position in regard to the appellants is quite opposite. The right of appeal inheres in no one and appeal for its maintainability must have the clear authority of law. The provisions of Civil Procedure Code make it clear that right of appeal can be enforced only in the circumstances indicated therein and if the statute clearly provides for the same. The position of law is also clear that an appeal can be filed by a person who is party to the proceedings in which the judgment has followed in the inferior court and which is sought to be challenged before the superior court by the said parties or in case of its death, by its representative/s. An exception carved out to this principle is that an appeal may be filed by a person who may not be a party to the proceedings before an inferior court but his interests should be substantially affected by the judgment and decree provided further if he does not take steps for its challenge, same would operate as res judicata against him in future. While interpreting Section 37 of the Act, right of appeal has to be understood to be clothed with a third party only if the order so passed affects such a party directly and if left unchallenged, would act as res judicata against such a party while bringing an independent action in future for enforcement of a personal and determinate right.
29) In the case in hand, as noted above, the appellants have not pointed out any of their rights having been directly violated by issuance of interim relief challenged herein. The ground put forth against the correctness of the impugned order portray as if the appellants are acting like mouthpiece of respondent No.3 and 4. In my A.A. No.14/2018 c/w A.A. No.3/2019 Page 16 of 17 opinion it would be against public policy to allow a person to fight a war on behalf of some other person who has no interest to fight so. The decision likely to follow from Arbitral Tribunal on pressing in service Section 11 of the Act, would only bind the parties to arbitration agreement and not the third parties like appellants and same would not operate as res judicata in any subsequent proceedings initiated for enforcement of any personal or independent right, if any they may have, either under private or public law.
30) For what has been discussed above, no merit is found for interference by invoking appellate jurisdiction in terms of Section 37 of the Act and as a necessary corollary, the appeals are dismissed. Since limited question regarding right of appeal had been under consideration in the instant proceedings, the dismissal of the appeals shall not be construed as a bar in prosecuting any other remedy, if available, for ensuring supply of fertilizers to consumers or for enforcing the right if any the appellants may be possessing to associate themselves with any tendering process intended to be initiated by official respondents in this regard.
(Rashid Ali Dar) Judge Srinagar 05.02.2019 "Bhat Altaf, PS"
A.A. No.14/2018c/w A.A. No.3/2019 Page 17 of 17