Delhi District Court
M/S. E-Com Feeder vs Central Warehousing Corporation on 16 August, 2023
IN THE COURT OF SH. PREM KUMAR BARTHWAL,
DISTRICT JUDGE (COMMERCIAL COURTS)-01, SOUTH
DISTRICT SAKET COURTS, NEW DELHI
IN THE MATTER OF:
OMP (COMM) No. 424/21
CNR No. DLST01-010019-2021
M/s. E-COM FEEDER
THROUGH ITS SOLE PROPRIETOR
MR. ASHWANI GOEL
R/O H. NO. 144, VIVEKANAND PURI
DELHI-110007 ....... PETITIONER
Versus
CENTRAL WAREHOUSING CORPORATION
4/1, SIRI INSTITUTIONAL AREA
AUGUST KRANTI MARG, HAUZ KHAS,
NEW DELHI-110016 ........ RESPONDENT
Date of Institution : 20.12.2021
Date of arguments : 05.08.2023
Date of Judgment : 16.08.2023
JUDGMENT
1. The present petition has been filed under section 34 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as "
A&C Act") for setting aside impugned arbitral award dated 07.10.2019 passed by Ld. Sole Arbitrator in case titled as Central Warehousing Corporation Vs. M/s. E-Com Feeder.
2. Brief facts, according to the petitioner, are that it had entered into an agreement/Lease Agreement with respondent/Central Warehousing Corporation in the month of OMP (COMM) 424/21 E Com Feeder Vs. Central Warehousing Corporation Page 1 of 16 March 2018 for storage space of 334 sq. mtrs. @ Rs. 425/- per sq. mtrs. at Central Warehouse, Rana Pratap Bagh, Delhi for the period of five years but the copy of the said agreement was not supplied to the petitioner despite several requests and thereafter the respondent forced the petitioner to enter into a new contract in the month of June 2018 i.e. on 07.06.2018 for the premises but again no copy was supplied. It is submitted that the copy of the Lease Agreement was received only with the claim statement on 26.08.2023. It is submitted that since inception of the agreement there were defaults and deficiencies on the part of the respondent and the petitioner had raised various issues i.e. water leakage, removable of garbage, asbestos dust and malba, water logging due to pits etc. which caused serious inconvenience to the petitioner in performing its day to day business operations and the petitioner was suffering huge business loss and due to said problems the petitioner stopped paying rent and informed the Warehouse Manager that the premises will be vacated on or before 30.09.2018. According to the petitioner, Clause 6.1 of the lease agreement provided that "In case payment is not made for a maximum period of 2 months by the second party it shall be treated as breach and agreement stands terminated" and due to deficient services provided by the respondent, the petitioner had stopped paying rent of the leased premises from July 2018. It is submitted that the petitioner after adjusting the security deposit against the storage charges for July, August and September, the petitioner had handed over the Warehouse on 29.09.2018 to CWC Warehouse Manager and the said warehouse was not in the possession of the petitioner from 01.10.2018. It is further submitted that the Warehouse Manager contacted and requested OMP (COMM) 424/21 E Com Feeder Vs. Central Warehousing Corporation Page 2 of 16 the petitioner again and assured him of rectifying the necessary issues for smooth running of the business and on such assurances the petitioner took the premises on lease again w.e.f. 08.10.2018. It is submitted that the said assurances/promises by CWC Warehouse Manager, Mr. Radheyshyam were also not fulfilled. It is further submitted that no new lease agreement w.e.f. 08.10.2018 was signed nor any addendum was made for continuation of previous lease agreement dated 07.06.2018. It is further submitted that the petitioner had handed over the leased premises on 04.01.2019 as per the confirmation received from the accounts department of the respondent through Whatsapp communication dated 8th and 11th March 2019 and all dues had also been paid by 14.03.2019 after several meetings held in the CWC Regional office with officials of the respondent namely Mr. Rajiv Kumar Bansal (Regional Manager), Smt. Manisha Sabharwal Wadhwa (Manager) and Binney Chirania (Manager Accounts). It is submitted that the respondent prepared false and fake documents and raised false claim against the petitioner. It is submitted that respondent had appointed Mr. Ram Singh as a Sole Arbitrator and submitted their claim without any notice or consent from the petitioner and that an illegal, biased and arbitrary award of Rs. 3,28,875/- alongwith interest was passed on 07.10.2019 by the Ld. Sole Arbitrator against the petitioner.
3. Grounds on which present appeal has been filed are that the impugned award dated 07.10.2019 is illegal, arbitrary and against the public policy of India. It is submitted that the Arbitrator was totally biased and passed the impugned arbitral award in favour of the respondent without verifying the substance of their claim and that no bills were ever raised by the OMP (COMM) 424/21 E Com Feeder Vs. Central Warehousing Corporation Page 3 of 16 respondent indicating unpaid rent for months of January and February 2019. It is submitted that impugned award is based on the forged documents fabricated by the respondent. It is further submitted that the arbitrator had made false statement in his letter dated 02.05.2019 that he had no relationship with the respondent whereas he was having good business relations with the respondent and he had been paid several times by respondent/CWC. It is further submitted that the arbitrator was appointed by Mr. Mirtunjay Kumar, the then General Manager of CWC-CD/IX-R.P.Bagh (E-com Feeder)/Arbn./2019- 20/1949/418A dated 22.04.2019 in an illegal manner. It is submitted that the petitioner had also written a letter dated 21.08.2019 to the then Managing Director of respondent/CWC namely Mr. Arun Kumar Srivastava but the said letter was also marked to Mr. Ram Singh and Ms. Manisha Sabharwal but no response was received by the petitioner from the respondent/Company. It is further submitted that the respondent's claim statement was prepared on 03.05.2019 whereas the arbitration process had started in the first meeting held on 14.05.2019. It is submitted that the arbitrator did not give sufficient time and opportunity to the petitioner. It is further submitted that the Ld. arbitrator also frequently changed the meeting venues to favour the respondent and to cause undue harassment to the petitioner. It is submitted that the copy of the Ledger Account of the petitioner relied in the arbitration proceedings at page 22 of their claim statement was manipulated and forged. It is submitted that on the basis of settlement arrived between the parties the petitioner had paid Rs. 10,77,349/- in four installments on 11th, 12th, 13th, and 14th March respectively OMP (COMM) 424/21 E Com Feeder Vs. Central Warehousing Corporation Page 4 of 16 towards full and final settlement and the Ld. Arbitrator has ignored the same and passed the impugned arbitral award in an illegal manner rendering the same liable to be set aside.
4. Notice of this petition U/s 34 of Arbitration and Conciliation Act, 1996 were issued to the respondent. The petitioner has also filed an application U/s 14 of Limitation Act alongwith the petition. The application U/s 14 of Limitation Act was allowed vide order dated 12.07.2022 and the time spent by the petitioner in pursuing his petition bearing No. OMP (COMM) 48 of 2019 in the Court of Sh. Vinod Kumar, Ld. District Judge (Commercial Court) North-West District, Rohini, Delhi was condoned/waived vide order dated 12.07.2022. The respondent has contested the petition U/s 34 of Arbitration and Conciliation Act by filing reply contending that the respondent/Central Warehousing Corporation was established for the purpose of warehousing of agricultural produce and other commodities and to create infrastructure and to arrange facilities for storage, handling and transport of agricultural produce, seeds, manures fertilizers agricultural implements notified commodities, cargo, air cargo, containerized cargo and liquid cargo. It is contended that the award under challenge is a well-reasoned award providing equal opportunity to both the parties after applying judicious mind to the arguments addressed and that the objections filed by the petitioner are devoid of merits and liable to be rejected. It is further submitted that the Court does not sit in appeal over the arbtiral award and may interfere on merits on the limited ground provided U/s 34(2)(b)(ii) i.e. if the award is against the public policy of India. It is further contended that a violation of Indian public policy includes a violation of the OMP (COMM) 424/21 E Com Feeder Vs. Central Warehousing Corporation Page 5 of 16 fundamental policy of Indian law, a violation of the interest of India, conflict with justice or morality, and the existence of patent illegality in the arbitral award. It is contended that the concept of the "fundamental policy of Indian law" would cover compliance with statutes and judicial precedents, adopting a judicial approach, compliance with the principles of natural justice and Wednesbury reasonableness and that "patent illegality" itself has been held to mean contravention of the substantive law of India, contravention of the 1996 Act and contravention of the terms of the contract. It is further contended that if one of the above conditions is met that the Court may interfere with an arbitral award in terms of Section 34(2)(b)(ii) but such interference does not entail a review of the merits of the dispute and is limited to situations where the findings of the arbitrator are arbitrary, capricious or perverse, or when the conscience of the Court is shocked or when the illegality is not trivial but goes to the root of the matter.
5. It is contended that patent illegality should be illegality which goes to the root of the matter and that every error of law committed by the Arbitral Tribunal would not fall within the expression "patent illegality". It further contended that permissible grounds for interference with a domestic award U/s 34(2-A) on the ground of patent illegality is when the arbitrator takes a view which is not even a possible one or interprets a clause in the contract in such a manner which no fair-minded or reasonable person would or if the arbitrator commits an error of justification by wandering outside the contract and dealing with matters not allotted to them and that an arbitral award stating no reasons for its findings would make itself susceptible to OMP (COMM) 424/21 E Com Feeder Vs. Central Warehousing Corporation Page 6 of 16 challenge on this account. It is further contended that the conclusions of the arbitrator which are based on no evidence or have been arrived at by ignoring vital evidence are perverse and can be set aside on the ground of patent illegality. It is contended that the present petition deserves outright dismissal for simple reason that petition/objection U/s 34 of Arbitration and Conciliation Act can only be filed if the award passed is in contravention with the public policy of Indian law or is in conflict with most basic notions of morality or justice. It is further contended that the petition has been filed challenging the finding of facts which is legally impermissible and the petition has not been filed on the grounds mentioned U/s 34 of Arbitration and Conciliation Act. It is contended that it is well laid down law that if the arbitrator had remained inside the parameters of the contract and has construed the provisions of the contract, the award cannot be interfered with and that the Ld. Arbitrator in the present case has decided the disputes submitted to arbitration in accordance with the substantive law in force in India and there was no defect in the procedure for the conduct of the proceedings adopted by the Ld. Arbitrator and that the Ld. Arbitrator committed no breach and neglect of duty and/or responsibility and/or acted contrary to the principle of equity and goods conscience which are the requirements for attracting Section 28 of the Arbitration and Conciliation Act 1996. It is further contended that the Ld. Arbitrator did not act without jurisdiction and/or exceeded it and/or acted beyond the reference and/or ignored material documents etc which acts alone can constitute legal misconduct and that the present application deserve to be dismissed on merits itself since the OMP (COMM) 424/21 E Com Feeder Vs. Central Warehousing Corporation Page 7 of 16 petitioner/applicant has not been able to make out any ground for setting aside the arbitral award as laid down U/s 34 of the Arbitration and Conciliation Act 1996.
6. I have heard the submissions adduced by the Ld. Counsels, Mr. Lokesh Nath Jha on behalf of the petitioner and Mr. K.K. Tyagi, Ld. Counsel for the respondent. The case law cited by the Ld. Counsels have also been considered and documents perused. The original arbitral proceedings were also requisitioned and perused.
7. An arbitral award can be set aside on the grounds set out in Section 34 (1) and (2) of The Arbitration and Conciliation Act, 1996 which read as under:
34. Application for setting aside arbitral award. --
(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).
(2) An arbitral award may be set aside by the Court only if
(a) the party making the application furnishes proof that--
(i) a party was under some incapacity, or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:OMP (COMM) 424/21 E Com Feeder Vs. Central Warehousing Corporation Page 8 of 16
Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or
(v) the composition of the Sole Arbitrator or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or
(b) the Court finds that--
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or
(ii) the arbitral award is in conflict with the public policy of India.
Explanation. --Without prejudice to the generality of sub-clause (ii) it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81.
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the Sole Arbitrator: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.
(4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the Sole Arbitrator an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of Sole Arbitrator will eliminate the grounds for setting aside the arbitral award.
OMP (COMM) 424/21 E Com Feeder Vs. Central Warehousing Corporation Page 9 of 168. Normally, the general principles are that Arbitrator is a Judge of the choice of the parties and his decision, unless there is an error apparent on the face of the award which makes it unsustainable, is not to be set aside even by the Court as a Court of law could come to a different conclusion on the same facts. The Court cannot reappraise the evidence and it is not open to the Court to sit in appeal over the conclusion of the Arbitrator. It is not open to the Court to set aside a finding of fact arrived at by the Arbitrator and only grounds on which the award can be canceled are those mentioned in the Arbitration Act. Where the Arbitrator assigns cogent grounds and sufficient reasons and no error of law or misconduct is cited, the award will not call for interference by the Court in exercise of the power vested in it. Where the Arbitrator is a qualified technical person and expert, who is competent to make assessment by taking into consideration the technical aspects of the matter, the Court would generally not interfere with the award passed by the Arbitrator.
9. Hon'ble Supreme Court in case of 'Ssangyong Engineering & Construction Co. Ltd. Vs. National Highways Authority of India', 2019 SCC OnLine SC 677 has held that under Section 34 (2A) of the Act, a decision which is perverse while no longer being a ground for challenge under "public policy of India", would certainly amount to a patent illegality appearing on the face of the award. A finding based on the documents taken behind the back of the parties by the arbitrator would also qualify as a decision based on no evidence inasmuch as such decision is not based on evidence led by the parties and therefore would also have to be characterized as perverse. It is held that a finding based on no evidence at all or an award which OMP (COMM) 424/21 E Com Feeder Vs. Central Warehousing Corporation Page 10 of 16 ignores vital evidence in arriving at its decision would be perverse and liable to be set aside on the ground of patent illegality.
10. Hon'ble Supreme Court in case of Associate Builders vs. Delhi Development Authority, (2015) 3 SCC 49 has also held that the interference with an arbitral award is permissible only when the findings of the arbitrator are arbitrary, capricious or perverse or when conscience of the Court is shocked or when illegality is not trivial but goes to the root of the matter. It is held that once it is found that the arbitrator's approach is neither arbitrary nor capricious, no interference is called for on facts. The arbitrator is ultimately a master of the quantity and quality of evidence while drawing the arbitral award.
11. Hon'ble Supreme Court in the case of Parsa Kente Collieries Limited Vs. Rajasthan Rajya Vidyut Utpadan Nigam Limited, (2019) 7 SCC 236 has held that an Arbitral Tribunal must decide in accordance with the terms of the contract. If an arbitrator construes a term of the contract in a reasonable manner and if such interpretation is possible or plausible interpretation, award cannot be set aside. The construction of the terms of a contract is primarily for an arbitrator. The Court does not act as a court of appeal when a court is applying the "public policy" test to an arbitration award. It is held that if the arbitral award is contrary to the evidence on record, it can be set aside by the Court under Section 34 of the Act.
12. Hon'ble Delhi High Court in a case titled SMS Ltd vs Konkan Railway Corporation Ltd. in O.M.P. (COMM) 279/2017 decided on 11.05.2020 has inter alia held in para 96 that it is a settled law that the finding of Ld. Arbitral Tribunal can be OMP (COMM) 424/21 E Com Feeder Vs. Central Warehousing Corporation Page 11 of 16 interfered with under Section 34 of the Act if such findings are arbitrary or perverse and the Learned Arbitral Tribunal has not adopted a judicial approach. It was further held that a finding based on no evidence at all or an award which ignores vital evidence is against public policy as the same has been passed in contravention of the in arriving at its decision would be perverse and liable to be set aside on the ground of patent illegality.
13. Hon'ble Supreme Court of India in its recent pronouncement in case titled PSA SICAL Terminals Pvt. Ltd. Vs. Board of Trustees of V.O. Chidambranar Port Trust, 2021 SCC Online SC 508 has held that a decision which is perverse, though would not be aground for challenge under "public policy of India", would certainly amount to a patent illegality appearing on the face of the award. It was further held that a finding based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside on the ground of patent illegality.
14. Now coming to the facts of the present matter, it has been vehemently argued by the Ld. Counsel for the petitioner that the impugned award dated 07.10.2019 is bad in law, suffers from patent illegality appearing on the face of it and is perverse besides being against the public policy. It is submitted that the Ld. Arbitrator has acted against the fundamental notions of the justice rendering the impugned award liable to be set aside. It is submitted that the arbitrator was appointed by the respondent unilaterally in blatant violation of the law laid down by the Hon'ble Supreme Court.
15. Perusal of the Original arbitral record reveals that Ld. Sole Arbitrator had written a letter dated 02.05.2019 to the Managing OMP (COMM) 424/21 E Com Feeder Vs. Central Warehousing Corporation Page 12 of 16 Director of M/s. Central Warehousing Corporation informing that he has been appointed vide Order No. CWC-CD/IX-R.P. Bagh (E-Com Feeder)/Arbn./2019-20/dated 22.04.2019. The said original appointment order issued by Mr. Arun Kumar Srivastava, Managing Director of respondent/CWC is also on record of the arbitral proceedings. This Court finds considerable merits in the contentions of the Ld. Counsel for petitioner that the unilateral appointment of the arbitrator by the respondent is against the settled law. Hon'ble Supreme Court in case of TRF Ltd. vs Energo Engg. Projects Ltd., (2017) 8SCC 377 has held that by virtue of section 12(5) of the Act, if any person, who falls under any of the category specified in the Seventh Schedule shall be ineligible to be appointed as an Arbitrator. It is held that the amended law under Section 11(6-A) of the Act requires the Court to confine examination of the existence of an arbitration agreement notwithstanding the judgment of the Supreme Court or the High Court while considering an application under section 11(6) of the Act. The designated arbitrator whose ineligibility to act as an arbitrator by virtue of amendment to Section 12 of the Act by the Arbitration and Conciliation (Amendment) Act, 2015, does not have power even to nominate any other person as arbitrator. The Supreme Court and High Court in certain circumstances have exercised jurisdiction to nullify the appointments made by the authority in such situation. Hon'ble Supreme Court in case of Bharat Broadband Network Ltd vs United Telecoms Ltd (2019) 5 SCC 755 after construing Section 12(5) of the Act read with Fifth, Sixth and Seventh Schedule held that the Managing Director of the party, who was a named arbitrator, could not act as arbitrator nor could be allowed to OMP (COMM) 424/21 E Com Feeder Vs. Central Warehousing Corporation Page 13 of 16 appoint another arbitrator. The disclosure of a prospective arbitrator has to be made in the form specified in the Sixth Schedule and the ground stated in the Fifth Schedule are to serve as a guide in determining whether circumstances exist which give rise to justifiable doubts as to the independence or impartiality of an arbitrator. Any prior agreement to the contrary is wiped out by the non-obstinate clause in Section 12(5) of the Act the moment any person whose relationship with the parties or the counsel or the subject matter of the dispute falls under the Seventh Schedule. The sub-section then declares that such person shall be ineligible to be appointed as arbitrator. Such ineligibility can be removed only by an express agreement in writing. It was held that learned arbitrator had become de jure ineligible to perform his function as an arbitrator.
16. Hon'ble Supreme Court in the case of Perkins Eastman Architects DPC & Anr. vs. HSCC (India) Ltd. 2019 SCC Online SC 1517 has held that in a case where only one party has a right to appoint a sole arbitrator, its choice will always have an element of exclusivity in determining or charting the course for dispute resolution. The person who has an interest in the outcome or decision of the dispute must not have the power to appoint a sole arbitrator. That has to be taken as the essence of the amendments brought in by the Arbitration and Conciliation (Amendment) Act, 2015. Hon'ble Supreme Court had set aside the appointment of an arbitrator appointed by one of the parties having exclusive right to appoint and appointed an independent arbitrator in the application filed under Section 11(6) of the Act.
17. In the case of Proddatur Cable TV Digi Services vs Siti Cable Network Limited 2020 SCC Online Del 350 : (2020) 267 OMP (COMM) 424/21 E Com Feeder Vs. Central Warehousing Corporation Page 14 of 16 DLT 51, it was inter alia held that following ratio of the judgment in the case of Perkins (supra), it is clear that a unilateral appointment by an authority which is interested in the outcome or decision of the dispute is impermissible in law. When the Arbitration Clause empowers the Company to appoint Sole Arbitrator, it can hardly be disputed that the Company acting through its Board of Directors will have an interest in the outcome of the dispute. The appellant had filed the petition under Section 14 and 15 of the Act seeking declaration that the mandate of the arbitrator appointed by the respondent be terminated and an arbitrator be appointed by High Court in the provisions of the Act. Following ratio of the judgments in Perkins (supra) and Bharat Broadband Network Limited (supra), the mandate of the Arbitrator was found terminated de jure and since the present arbitrator had become unable to perform her functions as an arbitrator, her mandate was terminated and another independent Sole Arbitrator was appointed to substitute the previous arbitrator.
18. Thus, the respondent company had no right to appoint any arbitrator unilaterally in terms of the law laid in the cases of (i) TRF Ltd. vs Energo Engg. Projects Ltd.; (ii) Bharat Broadband Network Limited (supra); (iii) Perkins Eastman Architects DPC (supra) and (iv) Proddatur Cable TV Digi Services (supra). The unilateral appointment of Ld. Sole Arbitrator was against the principles of impartiality as envisaged under Section 12 of the Act. Accordingly, the impugned arbitral award is liable to be set aside, in terms of Section 34 of the Arbitration and Conciliation Act.
19. For the foregoing reasons, the petition U/s 34 of OMP (COMM) 424/21 E Com Feeder Vs. Central Warehousing Corporation Page 15 of 16 Arbitration and Conciliation Act is hereby allowed and the award dated 07.10.2019 passed by Ld. Sole Arbitrator in case titled as Central Warehousing Corporation Vs. M/s. E-Com Feeder is hereby set aside. The petition U/s 34 of Arbitration and Conciliation Act stands allowed and disposed off accordingly.
20. File be consigned to record room after necessary compliance.
Announced in the open Court on on 16th Day of August 2023.
(Prem Kumar Barthwal) District Judge (Commercial Courts)-01, (South) Saket Courts New Delhi OMP (COMM) 424/21 E Com Feeder Vs. Central Warehousing Corporation Page 16 of 16 OMP (COMM)424/21 E COM FEEDER THROUGH ITS SOLE PROPRIETOR ASHWANI GOEL Vs. CENTRAL WAREHOUSING CORPORATION 16.08.2023 Present : None for the petitioner.
Sh. Rahul Kumar Jain (appeared physically) and Sh. K.K. Tyagi (through VC), ld. Counsel for the respondent.
Vide separate judgment dictated, typed and announced in the open court today, the petition U/s 34 of Arbitration and Conciliation Act stands allowed and the award dated 07.10.2019 passed by Ld. Sole Arbitrator in case titled as 'Central Warehousing Corporation Vs. M/s. E-Com Feeder is hereby set aside. The petition U/s 34 of Arbitration and Conciliation Act stands allowed and disposed off accordingly. File be consigned to record room after necessary compliance.
(Prem Kumar Barthwal) District Judge (Commercial Court)-01 (South)/Saket Courts, New Delhi/16.08.2023 OMP (COMM) 424/21 E Com Feeder Vs. Central Warehousing Corporation Page 17 of 16