JUDGMENT

Y.A. DATO' NIK HASHIM BIN NIK AB. RAHMAN, J.

This is an application by way of an originating summons pursuant to 0.69 of the Rules of the High Court 1980 and section 22(l)(a) of the B Arbitration Act 1952 (the Act) where at the request of both parties, the Arbitrator has stated a special case for the decision of this honourable Court.

Briefly, the Plaintiff and the Defendant are Parties to a building contract for the execution of works known as 'proposed Housing Scheme at Kepong, Mukim Batu, for 90 units of double storey link house'. The terms and conditions of the contract inter-alia included the terms and conditions set out in the standard form of Agreement and Schedule of Conditions of Building Contract issued under the sanction of Pertubuhan Akitek Malaysia and Institution of Surveyors (hereinafter called 'the Contract'). During the execution of the works by the Plaintiff (the Contractor) under the contract, the Defendant (the employer) purported to exercise its right under clause 25(1) of the contract to determine the Plaintiff's employment. The Defendant's architect, by a letter dated 19 July 1988 gave notice that in the architect's opinion, the Plaintiff had failed to proceed regularly and diligently in execution of the works. The notice was delivered by hand to the Plaintiff. By another letter dated 11 August 1988, a fresh notice was issued by the said architect requiring the Plaintiff to proceed regularly and diligently. This notice was also delivered by hand to the Plaintiff. By a letter dated 30 August -1988 (typed at the top) and 1 September 1988 (in ink at the end of the letter), the Defendant gave notice of termination of contract which was delivered by hand and received by the Plaintiff.

The questions which have been reformulated by the parties for the decision of this Court are:

(1) Whether the architect's notices E dated 19 July 1988 and 11 August 1988 and the Defendant's notice of termination dated 30 August 1988 (1 September 1988) are invalid because they were delivered by hand to the Plaintiff;

(2) Whether the architect's notices B dated 19 July 1988 and 11 August 1988 and the Defendant's notice of termination dated 30 August 1988 (1 September 1988) are invalid because they were given based on the 'opinion' of the - architect and/or the opinion of the architect is referred to therein. With regard to the first question, Encik Vinayak P. Pradhan for the Plaintiff argued that the notices are invalid because they were delivered by hand to the Plaintiff. The Defendant's purported termination of the Plaintiff's employment under the contract is thus invalid on the ground that the procedure for a valid termination prescribed by clause 25(1) of the contract had not been complied with.

Encik Varghese George, for the Defendant, on the other hand, submitted that the mode of service of the notices to be by way of "registered post or recorded delivery" are to be regarded as being directory only and therefore the notices were valid and effectively issued on the Plaintiff.

In order to resolve the above questions I consider it necessary to reproduce clause 25(1) of the contract which provides:

"If the contractor (Plaintiff) shall make default in any one or more of the following respects, that is to say: -

(a) if he without reasonable cause wholly suspends the carrying out of the works before completion thereof, or

(b) if he fails to proceed regularly and diligently with he works, or

(c) ... .

(d) ... .

then the Architect may give to him a notice by registered post or recorded delivery specifying the default, and if the Contractor either shall continue such default for fourteen days after receipt of such notice or shall at any time thereafter repeat such default (whether previously repeated or not), then the Employer without prejudice to any other rights or remedies, may within ten days after such continuance or repetition by notice by registered post or recorded delivery forthwith determine the Employment of the Co