Jainarain Singh And Another v. State Of Bihar — 1978 DIGILAW 220 (PAT)

Judgment 1. On a difference arising between two learned Judges of this Court, this appeal under Sec.39 of the Arbitration Act (hereinafter called the Act ) has been placed before me. 2. It appears that the appellants filed an application purporting to be under Sections 8, 14 and 20 of the Act, for the purpose of referring a dispute arising between them and the State of Bihar and its officers in respect of a construction work allotted to the appellants. The appellants had entered into a contract with the respondents for doing some earth work in connection with an Irrigation Scheme. The work could not be completed within time. According to the appellants this happened because they came across semi-hard rocks and there was famine-condition in the vicinity. Extension of time, prayed for, was, however, not allowed. By a letter dated the 15th of June, 1967, the appellants were asked to show cause why penalty as per terms of the contract should not be imposed on them. Ultimately, the contract was rescinded by a subsequent letter dated the 8th of March, 1968. Thus, the appellants served a notice under Section 80 C.P.C, and ultimately filed the present application for reference of the matter of arbitration in accordance with the terms of the agreement. 3. Amongst others, the grievance of the appellants was that the termination of the contract was illegal because of the absence of proper notice. It was said that the alleged notice dated the 15th of June, 1967 was not received by them. The answer given by the respondents to the aforesaid allegation was that the contract was not rescinded without notice even though there is no provision in the agreement for issuing notice to show cause against an order of rescission. It was said that the notice dated the 15th of June, 1967 was admittedly served and the Order of rescission was in consonance with the terms of the agreement. 4. During the pendency of the suit both the parties agreed to submit their differences and dispute to the Arbitrator named in the agreement. Accordingly the court made a reference to the Superintending Engineer by an order dated the 6th of November 1973. The Arbitrator rejected the claims of the appellants. He held on the questions of rescission of the contract and forfeiture of the security money that the Department had taken action as per cls. Accordingly the court made a reference to the Superintending Engineer by an order dated the 6th of November 1973. The Arbitrator rejected the claims of the appellants. He held on the questions of rescission of the contract and forfeiture of the security money that the Department had taken action as per cls. 2 and 3 of the conditions of contract. 5. Being aggrieved with this award the appellants filed an application under Sec.30 of the Act for setting aside the same. The learned Subordinate Judge held that there was no good reason for setting aside the award. Accordingly he rejected the application. Hence this appeal. 6. The appeal came up before B.P. Jha and N.P. Singh, JJ. who heard it and decided differently. Jha. J. held that "the main allegation of the plaintiffs was that a notice is required before passing the final order of the rescinding of the Contract"; that "it is also clear from the award that this point was raised"; and that "the point of law referred to the arbitrator was whether the rescinding order by the Executive Engineer can be passed without issuing any notice to the contractor". The learned Judge held on the basis of cl.3(a) of the conditions of the contract that a prior notice before rescinding the contract was necessary; that in view of the principles of natural justice, this was the only proper interpretation of the condition aforesaid; that the point had been referred to the arbitrator and raised before him but he had filed to decide it; and that the omission to decide the aforesaid question vitiated the award, this being an error apparent on the face of the record. On perusal of the letter dated the 15th of June, 1967, alleged to be the notice given to the appellants for showing cause against rescission, the learned Judge held that it seems that the letter merely asked them of show cause against penalty prescribed in the agreement and not specifically against the penalty of rescission of the contract and the notice was thus not sufficient, as required by cl.(3)(a) of the agreement. Accordingly he allowed the appeal. 7. Accordingly he allowed the appeal. 7. Nagendra Prasad Singh, J., on the other hand, held that no notice before issuing an order of rescission was necessary in terms of the agreement; that the principles of natural justice do not came into play in the case of a Contract; that the notice dated the 15th of June, 1967 was valid and sufficient and that the Arbitrator had not omitted to decide the point of proper notice but had given his finding that the rescission of the contract was legal in terms of clauses 2 and 5 of the agreement. 8. Before I express myself on the questions arising in the case. I would do well to mention certain circumstances which are relevant. In para 13 of the plaint it was said that notice ought to have been served under cl.23 of the agreement. The aforesaid clause relates to giving notice of any disputes arising between the parties as to the construction of any of the terms or conditions of the contract or in respect of any claim. rights or liabilities of the parties arising out of or relating to the contract and provides that such dispute shall be referred to the Superintending Engineer of the circle and his decision thereon shall be final, conclusive and binding on all the parties. In the present case it is not laid by either party that any such notice of the dispute arising between the parties was given by one or the other. In para 17 of the plaint, there is a reference to rescission of the contract without proper notice. It is as follow : "17. That while the extension of time and decision of rate of semi-hard rock was still under consideration of the deft. No. 2, the defendant No. 3 through letter No. 431 dated 5-3-1968 illegally rescinded the contract without proper notice merely on hypothetical presumption that the plaintiffs had nothing to say on the points mentioned in that letter, although the position was sufficiently explained and reply was given to the defendant No. 3 about the cause of the delay through various letters mentioned above". From the aforesaid it will appear that it is not stated specifically as to what was the basis for the claim of proper notice prior to rescission of the contract. From the aforesaid it will appear that it is not stated specifically as to what was the basis for the claim of proper notice prior to rescission of the contract. In any case, it is not specifically said that such a notice was required under any of the conditions of the contract. 9. Turning to the award it appears that before the Arbitrator, amongst others, the point raised was "that the agreement was illegally rescinded because just before the stipulated date of completion of work in the agreement he has submitted a petition for granting a rate of semi-hard rock at Rs. 130.00 per thousand cft. and the same was not granted". There does not appear to have been raised the point specifically that in view of Condition 3(a) of the agreement notice to show cause against an order of rescission was necessary. 10. Next, from the petition of objection under Sec.30 of the Act also it appears that the aforesaid point was not raised in a specific manner. What was said there was "That from the perusal of the plaint, it will be apparent that the claim of the plaintiff related to cost of excavation of canal in semi-hard rock cutting in proper profile and bed slope with proper dressing for 172809 Cft. at the rate of Rupees 130.00 per thousand Cft. and compensation for putting hindrance by the Executive Engineer. Waterways division. Daltonganj, without serving any notice for taking up part of the contract-work for doing it departmentally in course of the progress of the work and the details of works so involved were mentioned in the Schedule of the plaint." No other ground in the petition under Sec.30 of the Act speaks of notice. 11. Coming next to the order under appeal, there does not appear to have been raised before the court below even during the course of argument, that the rescission of the contract was illegal in the absence of a notice to show cause against such an order. Turning to the memorandum of appeal filed in this Court it appears that one of the grounds stated is that the Arbitrator had not "given any compensation for wrongful rescinding of the contract". There is no other ground stating the absence of any notice prior to the rescission of the contract or its necessity in view of clause 3(a) of the conditions of the agreement. 12. There is no other ground stating the absence of any notice prior to the rescission of the contract or its necessity in view of clause 3(a) of the conditions of the agreement. 12. However, it appears that before the learned Judges who heard this appeal the point which was raised was that the dispute between the parties was that the rescission of the contract was illegal in the absence of a proper notice to show cause against such an order and the non-consideration of this question by the Arbitrator. I cannot but observe on the basis of the facts which I have stated earlier, that it does not appear that at any stage of the proceeding the appellants had raised the question that there was any dispute with regard to the construction of clause 3(a) of the agreement and that its correct interpretation was that a notice prior to the issuance of the order of rescission of contract was necessary in terms thereof. True, in para 17 of the plaint the appellants had referred to the absence of proper notice, but they had not referred to their right to get such a notice in view of cl.3(a) of the agreement. The distinction between the two is fine but appreciable. One may say that he had no notice of the order to be passed and he was not given an opportunity to show cause against that. That is one thing. It is, however, quite different that a person should assert his right to get notice on the basis of a condition in the contract. In the latter case it will be the construction to be put upon the terms of the contract which will determine the right of the party concerned whereas in the former case it may not be necessary to interpret the contract at all and the question may be decided apart from it. It is clear thus that no dispute was raised with regard to the construction of the terms of the agreement. The first opportunity for the appellants to state the actual dispute was not availed of. In view of clause 23 of the agreement they had the option to serve the notice on the other side stating what the dispute was and what dispute they wanted to be referred to arbitration. That does not appear to have been done. The first opportunity for the appellants to state the actual dispute was not availed of. In view of clause 23 of the agreement they had the option to serve the notice on the other side stating what the dispute was and what dispute they wanted to be referred to arbitration. That does not appear to have been done. The second opportunity available to them was when they filed the plaint. Therein they could state the dispute clearly. That was not done The point was not raised even in the petition under Sec.30 of the Act. Thus it is obvious that the point had not been raised specifically at any stage prior to the arguments in this court. Therefore, it would not be correct to say that this was a point raised before the Arbitrator specifically which he refused to decide. 13. The next question is whether the point regarding cl.3(a) of the agreement had been referred to the Arbitrator. The order of reference does not specifically refer any dispute regarding the construction of the conditions of the contract relating to the question of notice prior to the rescission of the contract. The order of reference shows that in a general way the disputes between the parties were referred to the Arbitrator. It may be that the question of notice may arise as one of the points to be considered. But the fact remains that the point was not specifically referred to the Arbitrator, obviously, therefore, it cannot be said that his failure to decide this question of law referred to him vitiates the award. 14. The construction of a contract may be a question of law which may be specifically referred to an Arbitrator. In such case if there is a refusal to answer such a question, it can legitimately be said that the award suffers from an infirmity. Where, however, the dispute is generally referred to an Arbitrators decision, it is not necessary for the Arbitrator to give his specific findings separately on all questions whether of facts or of law arising in the case. It would be enough if he decides substantially the dispute between the parties. It is well settled that an Arbitrator may decide a dispute without recording separate findings in respect of each question raised before him. It would be enough if he decides substantially the dispute between the parties. It is well settled that an Arbitrator may decide a dispute without recording separate findings in respect of each question raised before him. In the case of Nanjappa V/s. Nanja Rao, 1912 16 IndCas 478 it was held by a Division Bench of the Madras High Court that Arbitrators are not bound to give a reasoned judicial decision; they are merely bound to give an intelligible decision which determines the rights of the parties in relation to the subject matters referred; they are not bound to give reason at all. In the case of Narpat Rai V/s. Devi Das, 1912 14 IndCas 371 (Lah) it was held that where the whole case has been submitted to the arbitration of a person, his duty is to decide the whole dispute substantially; he is not bound to write a judgement and give his finding on each issue although he sets forth in the award all the issued seriatim. In Raminder Singh V/s. Mohinder Singh, AIR 1940 Lah 186 a Division Bench of the Lahore High Court held that an Arbitrator need not record separate findings on various points on which the parties are at issue, or write a judicial reasoned order; all that he is required to do is to give an intelligible decision which determines the rights of the parties in relation to the subject matter referred. Their Lordships relied on the previous two cases which I have stated, (1912) 16 Ind Cas 478 (Mad) and (1912) 14 Ind Cas 371 (Lah) (supra). The same principle was laid down by a Division Bench of the Orissa High Court in the case of State of Orissa V/s. P.C. Chands, AIR 1962 Ori 91 . In this case their Lordships held that the essence of the dispute between the parties-a contractor and the State of Orissa- related to net amount payable to the contractor and "matters such as interpretation of the conditions of contract and the rival contentions of the parties as regards other items in the claim of the contractor, were not independent dispute which required separate adjudication by the Arbitrator but they were all ancillary to the main dispute about the sum payable. Once that sum had been ascertained, the other matters merely become reasons for arriving at the sum". Narasimham. Once that sum had been ascertained, the other matters merely become reasons for arriving at the sum". Narasimham. C. J. relied on the case of Whitworth V/s. Hulse reported in (1866) 1 Ex 251 where it was held that "unless the arbitration agreement requires that a separate decision must be given in respect of such matter separately referred to, it is not necessary for the arbitrator to deal with each matter of difference separately." Reliance was also placed on the decision in the case of Pannalal V/s. Sm. Padmabati, AIR 1960 Cal 693 where also it was held that the "arbitrator was not bound to make a separate and distinct finding on each issue in controversy between the parties". I would also draw attention to a decision of a Division Bench of this very Court in the case of the Union of India V/s. Prem Chand Satram Das, AIR 1951 Pat 201 . A similar decision would be found in the case of Mt. Ishwar Dei V/s. Chhedu, AIR 1952 All 802 . 15. It is thus clear that where a dispute is generally and as a while referred to an Arbitrator the latter is to decide such dispute substantially. There may be various issues arising for the determination of that question. The decision of such issues would be reasonings for the purpose of deciding the main dispute. It is not obligatory on an Arbitrator to decide each such issue and give a separate finding, thereon. 16. So far as the present case is concerned, I have already pointed out that the issue was not even specifically raised at any stage. In fact, even before the Arbitrator, as stated earlier, it was said that the contract was rescinded without proper notice. when his claim for payment for cutting the hard rocks at the rate of Rs. 130.00 per 1000 Cft. was pending. It cannot, therefore, be said that the question of law aforesaid was specifically raised or referred to the arbitrator or that his failure to decide it vitiated the award. I must also point out that if such a question of law had been specifically referred for arbitration there would have been such a specific statement somewhere that the dispute centered round this question of interpretation of the contract. There is no such statement anywhere. For the reasons mentioned above. I must also point out that if such a question of law had been specifically referred for arbitration there would have been such a specific statement somewhere that the dispute centered round this question of interpretation of the contract. There is no such statement anywhere. For the reasons mentioned above. with utmost respect, I am unable to concur in the view taken by Jha, J. in this respect. 17. It may be that during the course of the argument in this Court before the Division Bench the counsel for the appellants placed reliance on Cl.3(a) of the agreement, as he has done before me, for the purpose of inviting this Court to come to the conclusion that one of the questions arising in the dispute is the correct interpretation of the contract which would result in a right to the appellants to get a notice prior to the rescission of the contract. That is, however, different from arguing that the party aggrieved had a right to get notice under Cl.3(a) of the agreement and the failure to do so resulted in the rescission being illegal. It is well known that it is open to parties to refer either questions of fact or questions of law to an Arbitrator. In the latter case even though the questions of law may have been wrongly decided, there is no error apparent on the face of the record which would justify a court to set aside the award on that ground. It is only when a dispute has been referred to for arbitration in a general manner and an Arbitrator wrongly decides a question of law arising therein that the court may interfere and set aside the award based on such erroneous legal-decisions. in this connection I would like to refer to the decision in the case of Attorney-General for Manitoba V/s. Kelly, 1922 1 AC 268. Speaking for the Judicial Committee of the Privy Council Lord Parmoor observed : "And in the Court of Common Pleas, forty years ago, in a case in which the arbitrator had a question of law submitted to him according to the ordinary forms of pleading. Speaking for the Judicial Committee of the Privy Council Lord Parmoor observed : "And in the Court of Common Pleas, forty years ago, in a case in which the arbitrator had a question of law submitted to him according to the ordinary forms of pleading. the court having come to the conclusion that the decision of the arbitrator was, in the sense in which they understood the words, erroneous, in deciding upon a question of law on demurrer, nevertheless held that the parties, having submitted that question to the arbitrator, as it was for the arbitrator to determine it; in their own language, the parties had agreed to accept the arbitrators decision upon the question of law, as well as his decision upon the facts." His Lordship referred to the case of In re King and Duveen reported in (1913) 2 KB 32, 36 and the observation of Channell, J. to the effect : "It is equally clear that if a specific question of law is submitted to an arbitrator for his decision. and he does decide it, the farther the decision is erroneous does not make the award bad on its face so as to permit of its being set aside. Otherwise it would be futile ever to submit a question of law to an arbitrator." The learned Judge however, went on to say : "Where a question of law has not specifically been referred to an umpire, but is material in the decision of matters which have been referred to him, and he makes mistake apparent on the face of the award, an award can be set aside on the ground that it contains an error of law apparent on the face of the award." 18. That brings me to the question whether there is any error apparent on the face of the order in respect of the question whether the contract was rescinded legally. The question arises as to what is an error apparent on the face of the record. In the case of Firm Madanlal Roshanla) Mahajan V/s. Hukumchand Mills Ltd., AIR 1967 SC 1030 one of the arguments was that there was an error of law apparent on the face of the record. Their Lordships relied on the observations of the Privy Council in the case of Champsey Bhara and Co. V/s. Jivraj Halloo Spinning and Weaving Co. In the case of Firm Madanlal Roshanla) Mahajan V/s. Hukumchand Mills Ltd., AIR 1967 SC 1030 one of the arguments was that there was an error of law apparent on the face of the record. Their Lordships relied on the observations of the Privy Council in the case of Champsey Bhara and Co. V/s. Jivraj Halloo Spinning and Weaving Co. Ltd., AIR 1923 PC 66 to the following effect : "An error in law on the face of the award means, in their Lordships view, that you can find in the award or a document actually incorporated thereto, as for instance, a note appended by the Arbitrator, stating the reasons for his judgement, some legal proposition which is the basis of the award and which you can then say is erroneous." The learned Judges of the Supreme Court further said with respect to the case before them : "In the present case the Arbitrator gave no reason for the award. We do not find in the award any legal proposition which is the basis of the award, far less legal proposition which is erroneous. It is not possible to say from the award that the Arbitrator was under a misconception of law. The contention that there are errors of law on the face of the award is rejected." It is thus clear that if the award gives reasons for the decision and the reason is a point of law and has been erroneously decided, then, of course; it can be said that there is an error apparent on the face of the record. If, however, a court has to refer to other documents and refer into facts or reasonings not stated by the Arbitrator in order to come to the decision that the question has been erroneously decided, it is not an error apparent on the face of the award. In the case of the Union of India V/s. Kalinga Construction Co. (P.) Ltd., AIR 1971 SC 1646 it was held that it is not open to the court to sit in appeal over the conclusions of the Arbitrator in proceedings for setting aside the award 19. That brings me to the next question as to whether the Arbitrator has omitted to decide the question in respect of the alleged illegal rescission of the contract. With utmost respect. That brings me to the next question as to whether the Arbitrator has omitted to decide the question in respect of the alleged illegal rescission of the contract. With utmost respect. again, I find myself unable to concur in the view taken by Jha, J. in this respect. While dealing with the question, the Arbitrator has in so many words held that the rescission of the contract was done in accordance with Cls. 2 and 3 of the conditions of the contract. Obviously, therefore. he held that it was legally done and for that reason again he refused the petitioners claim. In such circumstances, it is not possible to say that he omitted to decide this question, whether raised or referred to or not. 20. In this background the question has to be answered whether there is any error apparent on the face of the award on a question of law. So far as the question of alleged illegal rescission of the contract is concerned, the Arbitrator depended upon Cls. 2 and 3 aforesaid for the purpose of holding the rescission to be legal. Obviously, therefore, he had to interpret the aforesaid clauses. In the case of Jivraj Balloo Spinning and Weaving Co. Ltd. (supra), there was similarly a question of construction put upon one of the rules of the Bombay Cotton Trade Association and their Lordships of the Privy Council held an incorrect construction of the aforesaid rule to be a patent error and applying the principle laid down in the case of Landauer V/s. Asser reported in (1905) 2 KB i84 held that the award could be set aside on account of the patent error of law. Clauses 2 and 3 of the agreement are as follows : "Cl. 2 :- The time allowed for carrying out the work as entered in the tender shall be strictly observed by the contractor and shall be reckoned from the date on which the written order to commence work is given to the contractor. Clauses 2 and 3 of the agreement are as follows : "Cl. 2 :- The time allowed for carrying out the work as entered in the tender shall be strictly observed by the contractor and shall be reckoned from the date on which the written order to commence work is given to the contractor. The work shall throughout the stipulated period of the contract be carried on with all due diligence (time being deemed to be the essence of the contract on the part of the contractor) and the contractor shall pay as compensation an amount equal to 1/2 per cent on the amount of the estimated cost of the whole work as shown by the tender for every day that the work remain uncommenced, or unfinished after the proper dates. The work should not be considered finished until such date as the Executive Engineer shall certify as the date on which the work is finished after necessary rectification of defects as pointed by the Executive Engineer or his authorised agent are fully complied with by the contractor to the Executive Engineers satisfaction. And further, to ensure good progress during the execution of the work the contractor shall be bound, in all cases in which the time allowed for any work exceeds one month to complete one-fourth of the whole of the work before one-fourth of the whole time allowed under the contract has elapsed, one-half of the work, before one-half of such time elapsed, and three fourths of the work, before three-fourth of such time has elapsed. In the event of the contractor failing to comply with the condition he shall be liable to pay as compensation an amount equal to 1/2 percent on the said estimated cost of the whole work for every day that the due quantity of work remains incomplete provided always that the entire amount of compensation to be paid under the provisions of the clause shall not exceed 10 per cent, on the estimated cost of the work as shown in the tender." "Cl.3. Action when whole security deposit is forfeited. Action when whole security deposit is forfeited. In any case in which under any clause or clauses of this contract the contractor shall have rendered himself liable to pay compensation amounting to the whole of his security deposit in the hands of Government (whether paid in one sum or deducted by instalments) the Executive Engineer on behalf of the Governor of Bihar, shall have power to adopt any of following measures, as he may deem best suited to the interests of Government (a) To rescind the contract (of which rescission notice in writing to the contractor under hand of the Executive Engineer shall be conclusive evidence) and in which case the security deposit of the contractor shall stand forfeited and be absolutely at the disposal of Government. (b) To employ labour paid by the Public Works Department and to supply materials to carry out the work, or any part of the work debiting the contractor with the cost of the labour and the price of the materials (of the amount of which cost and price certificate of the Executive Engineer shall be final and conclusive against the contractor) and crediting him with the value of the work done. in all respects in the same manner and at the same rates as if it had been carried out by the contractor under the terms of his contract; the certificate of the Executive Engineer as to the value of the work done shall be final and conclusive against the contractor. (c) To measure up the work of the contractor, and to take such part of the work of the contract as shall be unexecuted out of his hands, and to give it to another contractor to complete, in which case any expenses which may be incurred in excess of the sum which would have been paid to the original contractor if the whole work had been executed by him (of the amount of which excess the certificate in writing of the Executive Engineer shall be final and conclusive) shall be borne and paid by the original contractor and may be deducted from any money due to him by under the contract or otherwise. or from his security deposit or the proceeds of sale thereof, or a sufficient part thereof. or from his security deposit or the proceeds of sale thereof, or a sufficient part thereof. In the event of any of the above courses being adopted by the Executive Engineer, the contractor shall have no claim to compensation for any loss sustained by him by reason of his having purchased or procured any materials, or entered into any engagement, or made any advances on account of or with a view to, the execution of the work or the performance of the contract. And in a case the contract shall be rescinded under the provision aforesaid the contractor shall not be entitled to recover or be paid any sum for any work therefor actually performed under this contract, unless and until the Executive Engineer shall have certified in writing the performance of such work and the value payable in respect thereof and he shall only be entitled to be paid the value so certified." It would be obvious from the clauses quoted above that the time allowed for carrying out the contract work is to be strictly observed and in the event of failure to do so, the contractor is liable to pay compensation. It also appears from Cl.3 that where he becomes so liable it is open to the Executive Engineer to adopt any of the courses mentioned therein, one of them being to rescind the contract. It appears, and I say so with great respect. that the words put within brackets "(of which rescission notice in writing to the contractor under hand of the Executive Engineer shall be conclusive evidence)" have been construed by Jha, J. to mean that a notice before rescission of the contract is necessary. Further, he brought in aid to the aforesaid interpretation the principle of natural justice. I am afraid I cannot persuade myself to take that view. Firstly, it is well settled that where the terms of a contract or for the matter of that any statute, is to be construed, a literal interpretation must be given. I do not think that it is open to me to consider while interpreting the aforesaid clauses of the contract as to whether it would be in consonance with the principles of natural justice. The principles of natural justice are not applicable to all cases and in all circumstances. It is open to two parties to contract out of the principles of natural justice. The principles of natural justice are not applicable to all cases and in all circumstances. It is open to two parties to contract out of the principles of natural justice. It cannot therefore, be made applicable in such a case. In the case of M/s. Radhakrishna Agarwal V/s. State of Bihar, AIR 1977 SC 1496 their Lordships observed in para 25) : "The limitations imposed by rules of natural justice cannot operate upon powers which are governed by the terms of an agreement exclusively. The only question which normally arises in such cases is whether the action complained of is or is not in consonance with the terms of the agreement." Therefore, I have not the slightest doubt that the aforesaid term in Cl.3(a) of the agreement has to be interpreted literally and without the aid of principles of natural justice. 21 Coming now to the aforesaid Cl.3(a), what do the words within the brackets indicate ? Before the question is answered it must be stated that there is nothing else in Cl.3(a) to indicate a notice to be given to show cause against the rescission of the contract. Now to come back to the words within the brackets quoted above, what do they purport to do ? Do they purport to lay down a rule of procedure to be adopted before or after the rescission of the contract or do they indicate merely a rule of evidence. It is significant that the words used are "of which rescission." Obviously they denote the fact of rescission which has already happened. The words then indicate that the notice in writing shall be conclusive evidence. These words can have no other meaning. I venture to suggest, then that the notice in writing to the contractor of the fact of rescission shall be the conclusive evidence thereof. I am unable to construe it so as to mean that a notice in writing prior to the rescission is necessary. The rescission can be proved in more ways than one. All that the words within the brackets suggest is that if a notice in writing of the fact of rescission has been given, it would be conclusive evidence. Even that is not said to be the only way to prove the rescission. Other evidence may prove it. But in other cases the evidence may or may not be conclusive. All that the words within the brackets suggest is that if a notice in writing of the fact of rescission has been given, it would be conclusive evidence. Even that is not said to be the only way to prove the rescission. Other evidence may prove it. But in other cases the evidence may or may not be conclusive. There is thus no scope for the argument that a notice prior to the rescission of the contract to show cause against it is required under Cl.3(a) of the contract. 22. In the view which I have taken I am supported by the existence of similar conditions occurring in the agreement itself at various other places. Clause (b) provides for another course open to the Executive Engineer, to get the work done by employing labour paid by the P. W. D. and by supplying materials and debiting the contractor with the cost of the labour and also the price of the material. There again, we find within brackets the words "(of the amount of which cost and price certificate of the Executive Engineer shall be final and conclusive against the contractor)". It is obvious that this contains a rule of evidence. According to Cl.(c) again the third course open to the Executive Engineer is to give the remaining work to another contractor and to realise from the original contractor any excess expenses incurred. In this connection again, there are words similar in effect within brackets "(of the amount of which excess the certificate in writing of the Executive Engineer shall be final and conclusive)". 23. The contract further shows that where notice in writing prior to the determination of a matter is required it is said so therein. In Cl.4 of the agreement a notice in writing to the contractor requiring him to remove tools, plant etc. is required failing which the Executive Engineer can get them removed and realise the expenses. It will appear from Cl.19 which relates to subletting of work that if the contractor sublets his contract "the Executive Engineer may thereupon by notice in writing rescind the contract. ......... and the same consequences shall ensue as if the contract had been rescinded under Cl.3 hereof." Here it is provided that a contract may be rescinded by notice. There is no provision of a notice to show cause against proposed rescission. ......... and the same consequences shall ensue as if the contract had been rescinded under Cl.3 hereof." Here it is provided that a contract may be rescinded by notice. There is no provision of a notice to show cause against proposed rescission. The consequences of subletting are similar to that of Cl.3. I have already referred to Cl.23 of the agreement which required notice to be given by either party in respect of a dispute. Looking at the other parts of the contract also, it is quite clear that under cl.3(a) the contracting parties merely meant to lay down that the notice in writing given to the contractor of the fact of rescission shall be conclusive evidence thereof. 24. That being the correct interpretation of the terms of the agreement, there is no scope for the argument that Cl.3(a) of the agreement requires .a notice prior to the rescission of the contract or that the Arbitrator has wrongly decided this question of law. There thus no error at all in the view taken by the Arbitrator much less an error of law apparent op the face of the record. 25. Assuming however, that notice was required prior to the rescission of the contract, it has been rightly said by the respondents that the letter dated the 15th of June, 1967 was such a notice. The notice does ask the appellants to show cause as to why penalty should not be imposed on you as per the terms of the contract". True, it does not say as to which of the three penalties prescribed by sub-cls. (a), (b) and (c) of Cl.3 is to be imposed. Even so, it cannot be said to be vague. It is Cl.3 alone which empowers the Executive Engineer to adopt one of the said courses. The basic question was whether the appellants had become liable for the penalty provided by Cl.3. The basic question was not as to which penalty would be imposed. In fact, he did not have to decide as to which penalty he would impose before issuing the notice. He could thus ask the con tractor to show cause why any of the penalties prescribed in the agreement could not be imposed on him,. The notice has also made a reference to a previous letter of the Sub-divisional Officer apprising the appellants of the facts resulting in this notice. He could thus ask the con tractor to show cause why any of the penalties prescribed in the agreement could not be imposed on him,. The notice has also made a reference to a previous letter of the Sub-divisional Officer apprising the appellants of the facts resulting in this notice. I am thus unable to take the view that since this notice did not specifically ask him to show cause against the rescission of the contract alone, it cannot be deemed to be sufficient notice. I would consider it to be sufficient assuming that such a notice was necessary. 26. Accordingly, I find that I am in agreement with the view taken by N.P. Singh, J. and am entirely unable to accept the view taken by B.P. Jha, J. 27. I may add an additional reason which goes against the appellants. It is well settled that it is not open to an objector to raise a point which has not been raised in the petition under S.30 of the Act. In the case of Indian General Construction Corporation Ltd. V/s. Union of India, 1958 0 BLJR 484 a Division Bench of this Court held that the appellant not having raised a point in the pleadings or at the trial could not be allowed to raise the point for the purpose of assailing an award. The well known rule of pleadings that a point which is not raised in the pleadings is not allowed to be raised at the hearing, is as much applicable to an arbitration proceeding as to any other proceeding. I have already quoted in para 8 what was said in that petition. The question of notice was raised there in connection with the taking up of part of the contract work for doing it departmentally. There was no objection raised that - the appellants were entitled to a notice prior to the rescission of the contract in terms of Cl.3(a) of the agreement. That being so, it is not open at all to the appellants to raise this point during the course of argument in this Court for the purpose of setting aside the award. 28. In the result, I find that there is no merit in this appeal. It is accordingly dismissed. In the circumstances of this case, there will be no order as to costs.