ORDER D.M. Dharmadhikari, J. This is a revision u/s 19 of the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'the Adhiniyam'), against the award dated 12-8-1988, passed by the Madhya Pradesh Arbitration Tribunal, Bhopal, which is in favour of the respondent Company (hereinafter referred to as the 'contractor'), concerning a dispute regarding breach of contract with the State of Madhya Pradesh for construction of roads. The principal question which needs decision in this revision is whether the State of Madhya Pradesh (hereinafter referred to as 'the Department') had rightfully rescinded the contract in terms of clause 45 of the written agreement entered into between the parties and if not, what should be the correct measure of damages. On the decision of the aforesaid question, the further question that arises for determination is whether the award of the Arbitration Tribunal is liable to be interfered with in exercise of revisional jurisdiction of this Court u/s 19 of the Adhiniyam. The relevant facts giving rise to the dispute are as under : The tenders submitted by the contractor were accepted by the Chief Engineer, P.W.D. (East Zone), Raipur, vide communication dated 21-9-1985 for construction of roads at the sites described below:-- (i) Slice No. 2 - Kurra Jugdeshisilhoti Road (M.W. 13) from Km. 3/8 to 6/6. Value of work Rs. 14,17,016.00. (ii) Slice No. 4 -- Demar Rampur Pachpedhi Road (M.W.12) from Km. 11 to 15. Value of work Rs. 20,09,803.00. (iii) Slice No. 5 - Demar Rampur Pachpedhi Road (M.W.12) from Km. 16 to 20. Value of work Rs. 20,89,330.00. After observance of necessary formalities, an agreement was drawn and work order was issued by the Executive Engineer (P.W.D.) on 25-4-1985, which was received by the contractor on 29-4-1985. The time for completion of works under slice No. 2 was nine months and under slices Nos. 4 and 5 was ten months, from the date of the work order including rainy season. Admittedly, as per the contract document (agreement) vide clause 15 thereof, the contractor had to submit the construction programme within fourteen days from the date of the work order. The contractor did not submit his construction programme within the agreed period and did not start the work. The contractor merely asked for a copy of the agreement which was supplied to him by the Executive Engineer on 29-5-1985. The contractor did not submit his construction programme within the agreed period and did not start the work. The contractor merely asked for a copy of the agreement which was supplied to him by the Executive Engineer on 29-5-1985. The supply of the contract agreement had no bearing on the commencement and execution of the work. In the meanwhile, the Government of M.P. had created a road circle for execution of road works in common area under MRP, CADA and the works were transferred from Executive Engineer, P.W.D., Dhamtari to the Executive Engineer, CADA, Road Division, Dhamtari in October, 1985. The contractor having not commenced the work till September, 1985, the Executive Engineer, MRP, CADA, Road Division, Dhamtari sent a notice to the contractor on 27-9-1985 (Ex. P. 16), in terms of clause 45 of the agreement, to the following effect: Kindly refer to the above memos of this office vide which you were requested to submit the construction programme including quantity requirement of material to be supplied by the Government within fourteen days of the date of notice to proceed with the work as per clause 15 of the agreement on which work order was issued to you to start the work. The period for completion of the work is ten months including rainy season for slices Nos. 4 and 5 and nine months for slice No. 2 but you have not yet started the work nor you have sent the construction programme so far in spite of several reminders sent to you. Only five months have remained to complete the above work and the due date of completion is 24-1-1986 and 24-2-1986 respectively. Please start the work immediately so that the work may be completed within stipulated period. You were also requested to attend the office but neither you have attended this office nor sent any reply. Please start the work within fourteen days on receipt of the letter otherwise action shall be taken against you as per clause 45 of the agreement and this letter may be treated as notice. Please acknowledge the receipt of the letter. The aforesaid notice as per clause 45 of the agreement was received by the contractor in its Raipur Office on 16-10-1985. Clause 45 of the agreement reads as under :-- 45. Please acknowledge the receipt of the letter. The aforesaid notice as per clause 45 of the agreement was received by the contractor in its Raipur Office on 16-10-1985. Clause 45 of the agreement reads as under :-- 45. Default by Contractor -- If the contractor shall neglect or fail to proceed with the works with due diligence or he violates any of the provisions of the contract, the Engineer-in-Charge may give the contractor a notice, identifying deficiencies in performance and demanding corrective action. Such notice shall clearly state that it is given under the provision of this clause. After such notice is given the contractor shall not remove from the site any plant, equipment and materials. The Government shall have a lien on all such plants, equipment and materials from the date of such notice, till the deficiencies have been corrected. If the contractor fails to take satisfactory corrective action within 14 days after receipt of the notice, the Engineer-in-Charge will terminate the contract in whole or in part. In case the entire contract is terminated, the amount of security deposit together with the value of the work done but not paid for shall stand forfeited to the Government. The plant, equipment and materials held under the lien shall then be at the disposal of the Government ..............security for performance. The above clause contemplates that where the contractor is found to be not diligent in executing the work, he can be called upon to take corrective action within fourteen days after receipt of the notice and on the failure of the contractor to do so, the contract can be terminated. Admittedly, notice in terms of clause 45 was issued on 27-9-1985 and was received by the contractor in its office on 16-10-1985. The Department, however, terminated the contract before expiry of fourteen days period by communication dated 17-10-1985 (Ex. P. 23), which was received by the contractor on 22-10-1985. In the meantime vide Ex. P. 19 and Ex. P. 20, the contractor submitted his construction programme with the view to commence the work on 7-10-1985. The termination of the contract by the department was thus before expiry of fourteen days period, contrary to the terms of clause 45 of the agreement. In the meantime vide Ex. P. 19 and Ex. P. 20, the contractor submitted his construction programme with the view to commence the work on 7-10-1985. The termination of the contract by the department was thus before expiry of fourteen days period, contrary to the terms of clause 45 of the agreement. It is on this short ground that the Tribunal came to the conclusion that the termination of the contract was premature and in clear contravention of clause 45 of the agreement. The Tribunal, therefore, held that the contractor was entitled to damages for illegal termination of the contract and awarded a total sum of Rs. 5,13,622.00 with 12% interest per annum from 3-5-1986 i.e. the date on which the petitioners departmental appeal was dismissed. The award of the Tribunal is under following heads: (a) Loss suffered due to infructuous over-head expenses. -- As against claim of Rs. 3,41,742.00 the Tribunal awarded a sum of Rs. 1,000.00. (b) Loss of profit -- As against the claim of Rs. 6,64338.00 being 15% of the total cost of three slices was Rs. 55,26,749.00. The Tribunal awarded a sum of Rs. 5,12,622.00 being the amount actually claimed under the reference. (c) Security deposit amounting to Rs. 1,38,403.00 in the shape of bank guarantee was also released in favour of the petitioner. The amount awarded was to carry interest at the rate of 12% per annum from 3-5-1966 as also the costs and counsel's fee Rs. 5,000/-. Learned counsel for the petitioner Shri P.C. Naik, Deputy Advocate General, questioned the award of the Tribunal on the ground that the contractor had no right to claim damages as he had himself committed breach of the contract in not commencing the construction within fourteen days from the date of the work order in terms of clause 15 of the agreement. It was contended on behalf of the State that the statement of Mr. H.G. Awtarmani (P.W.2), the Vice-President of the company before the Tribunal could not prima facie be believed that the work which was to be completed within nine and ten months, respectively could have been completed by the contractor within the remaining period of three or four months. It was contended on behalf of the State that the statement of Mr. H.G. Awtarmani (P.W.2), the Vice-President of the company before the Tribunal could not prima facie be believed that the work which was to be completed within nine and ten months, respectively could have been completed by the contractor within the remaining period of three or four months. The claim of the contractor that he had plants, machinery and man power with him sufficient enough to complete the work within the remaining period, was too tall a claim as per the opinion of Shri A.K. Tiwari, Executive Engineer, examined on behalf of the department as D. W. 1 before the Tribunal. It was the case of the department that a massive work schedule to be completed in nine/ten months could not have been executed within only four months. The construction programme submitted by the contractor was not at all feasible in the short period available. The contractor had allowed to go as waste about two valuable months of fair working period after issuance of the work order and about six months overall without any valid reason. The construction programme submitted by the contractor after lapse of more than five months was sketchy and only a formality to fulfil the condition of submission of the construction programme. It is the Department's case that taking into consideration the nature of the contract, which was time bound, the contractor could not show its capability to complete the work in the short period remaining with it. The contention of the department amounts to stating that the department had "anticipated a breach of the contract" on the part of the contractor. Chitty on Contract, in his book explains the legal position on "anticipated breach of contract" as under -- If before the time arrives at which a party is bound to perform a contract, he expresses an intention to break it, or acts in such a way as to lead reasonable person to the conclusion that he does not intend to fulfil his part, this constitutes as "anticipatory breach" of the contract and entitles the other party to take one of two courses. He may "accept" the renunciation, treat it as discharging from further performance and sue for damages forthwith, or he may wait till the time for performance arrives and then sue. He may "accept" the renunciation, treat it as discharging from further performance and sue for damages forthwith, or he may wait till the time for performance arrives and then sue. It follows, therefore, that where the conduct of the promisor is such as to lead a reasonable person to the conclusion that he will not be able to perform when the time for performance arrives, the promisee may treat this as a renunciation of the contract and sue for damages forthwith. He is allowed to anticipate as inevitable event and is not obliged to wait until it happens." (See paragraphs 1604 and 1608 from Chitty on Contracts, Volume 1, Twenty-fifth Edition). In the instant case, the contractor had allowed a part of the fair season after issuance of the work order to go as waste by not commencing the work with due diligence and thereafter expressed its inability to commence the work during rainy season. Out of total schedule period of nine and ten months it had allowed almost six months' period to go waste without taking any concrete steps whatsoever in the direction of completion of the work and advanced same excuses that the copy of the agreement was supplied late and part of the land to be used in the road had not been acquired from the land owners. There was material enough on record, as disclosed from the correspondence exchanged between the parties and the statements of the engineers before the Tribunal, to come to a conclusion that the Department was justified in anticipating breach of the contract by the contractor in not executing the work with due diligence in terms of clause 15 of the agreement. We find from the award of the Tribunal that the Tribunal did not at all go into the question whether the contractor can be said to have committed breach of clause 15 of the agreement. The Tribunal held the contractor entitled to damages only on the ground that the notice Ex. P. 16, in terms of clause 45 of the agreement, fell short of fourteen days which was the minimum period fixed to take corrective action before termination of the contract. Shri S.N. John, counsel for the contractor submitted that the period fixed for completion of the contract was a maximum period fixed for both types of contracts, with modern equipments or none. Shri S.N. John, counsel for the contractor submitted that the period fixed for completion of the contract was a maximum period fixed for both types of contracts, with modern equipments or none. It is submitted that the contractor being a reputed company with modern equipments and large labour fource could have completed the work in the remaining period of four months available with them and the department clearly committed breach of the contract in terminating the same before the expiry of the period of contract. Some portions of statement of witness Shri Subhash Datta (examined as P.W.1 before the Tribunal), as site-in-charge, were read out to us to show that the contractor had expertise to complete the work within the remaining period of three or four months. In paragraph 19 of the testimony of this witness in cross-examination he admitted that the construction programme was not submitted within fourteen days from the issuance of the work order. The construction programme (Ex. P. 20) submitted on 7-10-1985 that is six months after the issuance of the work order, did not identify the various activities as was required by Annexure A of the written statement. The construction programme was vague according to the opinion of the experts of the department and also in the opinion of the Commissioner-cum-Chairman, MRP, CADA, Raipur, expressed in his order dated 3-5-1986 (Ex. P. 28) passed in appeal. The Tribunal committed an error in totally overlooking all these relevant circumstances and the opinions expressed by the technical experts of the parties. There was thus clearly a breach committed by the contractor in failure to commence the work with diligence in terms of clause 15 of the agreement. On the part of the Department, there was according to us, only a technical breach of the term of clause 45 of the agreement in so far as the contract was terminated vide letter dated 17-10-1985 (Ex. P. 23) before expiry of notice period of fourteen days. In such a situation the contractor is only entitled to nominal damages. That takes us to the question of quantum of damages. We have already held above that there was breach committed by the contractor in not commencing the work with due diligence in terms of clause 15 of the agreement. In such a situation the contractor is only entitled to nominal damages. That takes us to the question of quantum of damages. We have already held above that there was breach committed by the contractor in not commencing the work with due diligence in terms of clause 15 of the agreement. We have also held that the Department wrongly terminated the contract without giving fourteen days' notice in terms of clause 45 of the agreement. In such a situation, it has to be determined as to what should be the quantum of damages where both the parties are found to have committed breach of the contract partly. It may be stated here that no serious challenge was thrown to the award of Rs. 1.000/- as loss suffered due to infructuous over-head expenses and the award in respect of refund of security deposit by releasing the bank guarantee in the sum of Rs. 1,38,403,00. The main controversy centered round justifiability of the award of Rs. 5,12,622.00 towards loss of profit at the rate of 15% of the total value of the works. The right to claim damages consequent upon a breach of contract flows from section 73 of the Contract Act. The above legal position in section 73 of the Contract Act shows that -- "The governing purpose of damages is to put the party whose rights have been violated in the same position, so far as money can do, as if his rights had been observed". Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered (1) either arising naturally, i.e. according to the usual course of things from such breach of contract itself, (2) or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it. "If there is a repudiation of the contract by the employer before any work is carried out the damages recoverable are, it seems, prima facie the amount of profit which the parties knew or must be taken to have assumed, the contractor would have made if he had been permitted to complete in the ordinary way". "If there is a repudiation of the contract by the employer before any work is carried out the damages recoverable are, it seems, prima facie the amount of profit which the parties knew or must be taken to have assumed, the contractor would have made if he had been permitted to complete in the ordinary way". (See Building Contracts by D. Keating, Fourth Edition, pages 144 and 151). The profit as commonly understood in commercial parlance "consists of a sum arrived at by adding up the receipts of a business and by deducting all the expenses and losses including depreciation and the like, incurred in carrying on the business." (See Mitra's Legal and Commercial Dictionary, Fourth Edition, p. 629) McGregor in his book on Damages states as under -- "On the measure of damages where the owner acts so as to bar completion, the general principle would put the normal measure at the contract price less the costs to the builder of executing or completing the work. In calculating the builder's costs the indirect as well as the direct costs must be included, especially "over-head". This measure, however, should be subject to reduction if the defendant can show that the time made available to the plaintiff by the breach has been, or could have been, used by him in executing other profitable contracts with which he would not otherwise have been able to contend." (See McGregor on Damages, 14th Edition, paragraph 872). Applying the above law in determining the amount of damages, resulting on termination of the contract, we have to consider whether the contractor had led any evidence to prove as to what would have been costs of the builder in executing or completing the work in the short period available and what would have been his total receipts from this venture, to be deducted with expenses and losses incurred in carrying on the business, to arrive at the quantum of profit. We have been taken through the documentary and oral evidence. We find that no documents have been filed by the contractor to show what would have been his total investments and what he was likely to save after the contract would have been completed. The contractor's witness Subhash Datta, Site-in-Charge (P.W.1) has stated nothing so far as the claim based on loss of profit to the contractor was concerned. We find that no documents have been filed by the contractor to show what would have been his total investments and what he was likely to save after the contract would have been completed. The contractor's witness Subhash Datta, Site-in-Charge (P.W.1) has stated nothing so far as the claim based on loss of profit to the contractor was concerned. The other witness Shri H.G. Awtarmani (P.W.2), Vice-President of the Contractor Company merely did Up service in stating in paragraph 15 that the estimated profit from the works was 35% of the total value of the works and the same work was said to have been awarded to another contractor instead of Rs. 55,00,000.00 for Rs. 42,00,000.00. When he was cross-examined on the quantum of damages on the head of loss of profit, he stated in paragraph 23 that the estimated profit of 35% had been stated by him on the basis of an estimate of profit prepared by the company and kept in their office. Undisputedly, the estimate of profit calculated by the company in its office while submitting the tender was not produced before the Tribunal and it was also not proved by any other mode. In our opinion, this was a case where the contractor failed to lead evidence to prove the estimated loss of his profits had the work been allowed to be completed by it. The Tribunal in its award did not at all notice that there was a complete lack of evidence on behalf of the contractor to prove the claim of its damages under the head loss of profits'. The Tribunal dealt with the subject in paragraphs 22 and 23 of its award and without discussing the evidence straightway held the contractor entitled to damages for loss of profit at the rate of 15% of the total costs of work. The Tribunal made award towards loss of profit as under :-- 22. As regards the loss of profit, the profit is the only remuneration that a contractor gets for execution of a works contract. It has been said that the profit is the cost of being in business today and remaining in business tomorrow. The margin of profit a contractor may expect depends upon many factors such as the nature and volume of the work, works in hand, etc. The percentage figure may vary from 15% on small jobs and 10% on big ones. It has been said that the profit is the cost of being in business today and remaining in business tomorrow. The margin of profit a contractor may expect depends upon many factors such as the nature and volume of the work, works in hand, etc. The percentage figure may vary from 15% on small jobs and 10% on big ones. We have considered the oral and documentary evidence led in this case by both the sides and are of the view that the petitioner is entitled to get 15% of total cost as loss of profit. The total cost of the three slices was Rs. 55,26,749.00 and on 15% profit of this cost comes to Rs. 6,64,338.00 which petitioner is entitled to get as loss of profit but as the petitioner has claimed only Rs. 5,12,622.00 in this petition on this count so the petitioner is entitled to get Rs. 5,12,622.00 as loss of profit and so this much amount is awarded to him as loss of profit. The Tribunal's estimate of the loss of profit was sought to be supported before us on the basis of opinion contained at page 637 of the book by G.T. Gajaia Law Relating to Building and Engineering Contracts in India (Third Edition) and also the decision of the Supreme Court reported in the case of Mohd. Salamatullah and Others Vs. Government of Andhra Pradesh, . We do not find that the case of the Supreme Court and the opinion of the author in the above book are of any assistance to the contractor to substantiate his claim. There is no law that 15% of the total cost of the work should be granted as loss of profit as a matter of course in works contracts and irrespective of the fact whether any evidence in support of the same had been led or not. The Supreme Court in the case of Mohd. Salamatullah (supra) had merely restored the award of the trial Court granting 15% of the contract price as loss of profit. It was duly supported by the evidence led by the contractors in that case. Attention may also be invited to the decision of the Supreme Court in the case of A.T. Brij Paul Singh and Others Vs. Salamatullah (supra) had merely restored the award of the trial Court granting 15% of the contract price as loss of profit. It was duly supported by the evidence led by the contractors in that case. Attention may also be invited to the decision of the Supreme Court in the case of A.T. Brij Paul Singh and Others Vs. State of Gujarat, , in which the Supreme Court upheld the grant of 15% of profit of the value of the work on the ground that in the similar nature of work between the same parties in another dispute the High Court had granted damages for loss of profit at that rate. These were the cases where there was evidence before the Court or the Tribunal to come to an estimate of loss of profit. Similar evidence is totally lacking in the present case. We have laready held above that in the instant case, there was breach of contract on the part of the contractor in not commencing the work with due diligence in terms of clause 15 of the agreement although there also was technical breach on the part of the department in terminating the contract before expiry of fourteen days' notice period in terms of clause 45 of the agreement. In our opinion, therefore, for the above technical breach on the part of the Department, the contractor was entitled to only 'nominal damages' and not any damage towards the 'loss of profit' which could neither be claimed nor proved before the Tribunal. The learned author McGregor in his book on Damages has expressed the following legal opinion : A plaintiff claiming damages must prove his case. To justify the award of subtantial damages, he must satisfy the Court both as to the fact of damage and as to its amount. If he satisfies the Court on neither, his action will fail, or at the most he will be awarded nominal damages where a right has been infringed. If the fact of damage is shown, but no evidence is given as to its amount so that it is virtually impossible to assess damages, this will generally permit only an award of nominal damages. Nominal damages, therefore, may be awarded where the fact of loss is shown, but the necessary evidence as to its amount is not given. If the fact of damage is shown, but no evidence is given as to its amount so that it is virtually impossible to assess damages, this will generally permit only an award of nominal damages. Nominal damages, therefore, may be awarded where the fact of loss is shown, but the necessary evidence as to its amount is not given. This is only a subsidiary situation, but it is important to distinguish it form the usual case of nominal damages awarded where there is a technical liability but no loss. (See McGregor on Damages, Fourteenth Edition, Paragraphs 260 and 304). In the present case, the department acted within its powers in terms of clause 45 of the agreement and was justified in serving notice of termination for failure on the part of the contractor to commence the work diligently as required by clause 15 of the programme. The department can be said to have committed only technical breach in not giving clear fourteen days' notice before termination of the contract under clause 45 of the agreement. We also find in this case that there was no evidence as to the estimated loss of profit suffered by the contractor. The contractor, in our opinion, therefore, is only entitled to nominal damages. In the present state of law, the question is as to what should be that amount of 'nominal damages' which can be awarded to the contractor for contravention on the part of the department of terms of clause 45 of the agreement. In the case of M/s. A.T. Brij Paul Singh (supra) for the total value of works contract of Rs. 16,59,900.00, the damages awarded for loss of profit were Rs. 4,30,314.00 which were reduced by the Supreme Court to Rs. 2,00,000.00. The above case before the Supreme Court was where there was evidence in respect of loss of profit to the work not allowed to be completed by the contractor. In the instant case, as we have held above, there is no evidence of estimated loss of profit and there was only a technical breach on the part of the Department. Keeping in view the fact that the contractor could deploy the labour and his machinery etc., to other works during the remaining period of contract and also the fact that the breach found on the part of the department was highly technical, a sum of Rs. 50,000.00 (Rs. Keeping in view the fact that the contractor could deploy the labour and his machinery etc., to other works during the remaining period of contract and also the fact that the breach found on the part of the department was highly technical, a sum of Rs. 50,000.00 (Rs. Fifty thousand) would be just estimate of nominal damages in the case. In assessing the above figure we have also taken into consideration the fact that the nine/ten months' period fixed for the works of road construction was inclusive of rainy season and the estimated period for proper road construction work. It is a matter of guess whether the contractor would have been able to complete the work to the complete satisfaction of the department in the remaining short period of three or four months. Having considered all dimensions of the case and having gone through the record we are of the opinion that the Tribunal erred in ignoring that the contractor was guilty of breach of clause 15 of the agreement in not commencing the work with due diligence and also in awarding damages towards loss of profit in the absence of any proof. It, thus, committed illegality and material irregularity in exercise of its jurisdiction within the meaning of section 19(2)(c) of the Adhiniyam and its award is liable to be interfered with in part. Consequently, the revision is partly allowed and the award of the Tribunal in the sum of Rs. 5,12,622.00 towards loss of profit is reduced to the nominal damages of Rs. 50,000.00 (Rs. Fifty thousand) only. The rest of the award is maintained. In view of the partial success of the department in this revision, the parties shall bear their own costs. Final Result : Allowed