ORDER Dubey, J. -- 1. This is a revision under section 19 of the M.P. Madhyastham Adhikaran Adhiniyam, 1983 (for short 'the Act') against the award dated 7.12.1995, passed in Reference Petition No. 3/89 by M.P. Arbitration Tribunal, Bhopal (the Tribunal). 2. Facts giving rise to this revision are thus: State of M.P., through, the executive Engineer, PWD (B&R), Rewa Division No. II, Rewa entered into an agreement No. 25 of 1986-87 Art. A with the respondent for construction of 800 beded Sanjay Gandhi Memorial Hospital within the campus of S.S. Medical College Rewa. The estimated cost of the work was Rs. 6,78,70,202.00. On the item rate tender of the respondent the contract value of the work was worked out to Rs. 7,04,43,802/-. The stipulated period of completion of work was four years inclusive of rainy season from the date of the work order which was given on 8.2.1987 (Ex. P. 2). The respondent could not at all commence any kind of construction under the contract, therefore, after about one and half years from the date of work order, on 30.7.1988 the Executive Engineer petitioner No.2 vide order Ex. P. 3 rescinded the contract under clause 3 (c) of '\.; contract agreement, took out the work from the hands of the respondent for giving it to another contractor on extra cost to be recoverable from the respondent. The other contractor i.e. Frontier Construction Company of Kanpur also could not complete the work, hence again after taking away from the hands of the aforesaid contractor, the contract was given to third contractor Prakash Wadhwani at Bhopal. 3. The respondent raised a dispute before the Superintending Engineer on 27.9.1988, vide Ex. P. 20, in terms of clause 29 of the agreement. The Superintending Engineer did notgive any decision, therefore, the respondent on 25.1.1989 made a reference by a petition under section 7 of the Act for making an award under section 16 of the Act of various claims total Rs. 1,08,35,858.96 paise detailed in the Schedules annexed with the petition. Summary of claims is thus: "Claim No. Particulars Amount 1. Compensation for site Rs. 8,44,058.46 office expenses at actuals 2. Compensation for loss of Rs.70,44,780.00 profit @ 10% of contract value. 3. Compensation for depreciation Rs. 6,97,500.00 and maintenance charges. 4. Compensation for marketing/ Rs. 5,28,358.50 tendering expenses @ 75% 5. Compensation for Head Rs. 17,21,162.00 office expenses. --------------------- Total Rs. Compensation for site Rs. 8,44,058.46 office expenses at actuals 2. Compensation for loss of Rs.70,44,780.00 profit @ 10% of contract value. 3. Compensation for depreciation Rs. 6,97,500.00 and maintenance charges. 4. Compensation for marketing/ Rs. 5,28,358.50 tendering expenses @ 75% 5. Compensation for Head Rs. 17,21,162.00 office expenses. --------------------- Total Rs. 1,08,35,858.96 --------------------- 4. The petitioners denied the claim and averred that inspite of delivery of unhindered possession of the site on 30th December, 1987 and release of three instalments of Mobilisation advance, i.e. Rs. 10 lacs on 22.6.87, Rs. 7.5 lacs on 30.11.87 and Rs. 7.5 lacs on 29.2.1988, the respondent did not commence the work, therefore, a show cause notice Ex. P. 14 dated 18.5.1988 was issued. Thereafter, when the work was not commenced the contract was rescinded vide order dated 30.7.88 Ex. P. 3. 5. From the facts which have come on record it is not in dispute that even when the work order Ex. P. 2 was given on 8.2.87 to the respondent, there existed on the site of the work two G.A.D. quarters, one private house, and a number of small hutments of sweepers. A power transmission line of 11 KV feeding Medical College and Hospital also existed over the land of the work area. There also existed over-hanging telephone lines and pipelines running underground of the site. Demolition of aforesaid structures was undertaken by the petitioner No. 2 after the occupants of those structures were provided with alternative accommodation through the agency of the executive officers. The power line was got shifted through the agency of M.P. Electricity Board, telephone lines through the agency of Telephone Department and pipelines through the agency of Public Health Engineering Department of Govt. of M.P. 6. The case of the respondent was that the possession of unhindered site was delivered on 1.2.1988. But, the obstructions like roads, culverts, manholes, surface drains and remnants of demolished structures still existed on the site. Those obstructions continued, therefore, work could not be started. Removal of obstructions was extra item of which rates were not settled and the contract was taken away from respondent's hands on 30.7.1988. 7. The Tribunal after appreciation of evidence adduced by the parties referring to the observations of Collins LJ. Those obstructions continued, therefore, work could not be started. Removal of obstructions was extra item of which rates were not settled and the contract was taken away from respondent's hands on 30.7.1988. 7. The Tribunal after appreciation of evidence adduced by the parties referring to the observations of Collins LJ. in Freeman v. Hensder [(1990) 64 JP 260], quoted in Hudson's 'Building contracts,' 10th Edn., p. 317 & 318 and G.T. Gajaria's 'Building and Engineering Contracts in India', Third Edn. p. 587, observed that in building contracts un-interrupted and exclusive possession of the site to the contractor is a necessary pre-condition of its performance-to permit the contractor to carry out the work of construction unimpeaded. Here, the petitioners did not deliver the possession of the site in time. Once the department had issued the work order it was bound to see that demolition and clearance operations and operation to divert the power line, telephone and pipelines were carried out with such speed in the manner that the respondent would have got clear and unhindred possession of the site if not on the date of the work order, at least from the expiry of 30 days from the date of the work order, as from that point of time, the stipulated period of completion was to be reckoned. Therefore, even though the site was handed over on 30th December, 1987 and clear and un-interrupted possession was handed over on 1.2.1988 but still the obstructions continued to exist on the site of the work for which the respondent on 16.3.88 wrote a letter, i.e., existence of road, culverts, foundation on the sork site, stumps and roots of trees cut by the department. The Tribunal referred to para-1 of General Notes, at page 58 and clause 1.3 of General Specification in relation to Site Clearance of the contract agreement Art. A and page 61 from 'Building Contracts', Second (1993) Edition, by Sujan is held that there was no obligation under the contract on the part of the respondent to dig out foundation, drains, roads and other kind of obstruction in the area other than area coming under cutting and filling nor there was any obligation to dig out remnants of demolished structures, as a result of incomplete work carried out by the department. The respondent offered to clear the aforesaid obstructions vide its letter Ex. The respondent offered to clear the aforesaid obstructions vide its letter Ex. P. 9 dated 16.3.1988 of which approval was given after three and half months vide letter dated 1.7.1988, Ex. P. 10 to clear such obstructions as an extra item and to submit rate analysis which was submitted by the respondent vide Ex. P. 25 dated 11.7.1988 but before the rate could be mutually agreed the contract was rescinded on 30.7.1988, hence, the petitioners failed in their obligation to deliver un-interupted possession of the site to the respondent until the contract was rescinded. 8. The Tribunal repelled the contention of the petitioners that the respondent had no intention to commence work as layout was given belatedly, i.e., after ten months from the date of the work order, as the layout was given completely and not in parts after ten months of the work order inspite of the existence of permanent structlires, site situation, etc. The Tribunal further held that besides handing over the un-interrupted exclusive possession of the work site. and removal of obstructions the petitioners also defaulted in timely furnishing of the work designs and drawings to the respondent. The detailed discussion of which is in para-17 to 19 of the award. The Tribunal also held the petitioners were at fault as the authority did not approve rates of extra items of rock excavation, cement concrete work, site clearance. 9. The contention that in terms of clause 35 of the agreement the respondent was not entitled for compensation was rejected observing that clause 35 would not be attracted as it was not a case of delay causal in starting work on account of acquisiton of land or on account of any delay in accordance with sanction to estimates in the case of clearance works. 10. After recording the finding that the contract was wrongfully rescinded by taking into consideration wrong grounds that the respondent failed to start that work when, as a matter of fact, the respondent was prevented from commencing the work, the Tribunal dealt with the claims of respondent. The Tribunal first considered the overhead expenses "Off Site" or "Head Office" and "on site" and discussed the claim from paras 32 to 36 and in the circumstances awarded 4% of the prime cost as head office overhead expenses of Rs. 8,67,877/- partly (of claim in Schedule V amounting to Rs. 17,21,162/-,) as detailed below :-- "1. The Tribunal first considered the overhead expenses "Off Site" or "Head Office" and "on site" and discussed the claim from paras 32 to 36 and in the circumstances awarded 4% of the prime cost as head office overhead expenses of Rs. 8,67,877/- partly (of claim in Schedule V amounting to Rs. 17,21,162/-,) as detailed below :-- "1. Amount of contract : Rs. 7,04,47,802.00 2. Prime cost @ 100/120% of 1 : Rs. 5,87,06,501.00 (Taking 10% overheds & 10% profit). : 4 years (48 months) 3. Stipulated period of construction 4. Head Office overhead expenses : Rs. 23,48,260.00" allowed - 4% of 2 5. Overhead expenses per month 4/3 : Rs. 48.922.00 6. Overhead expenses from 8.2.87 to : Rs. 8,67,877.00" 31.7.88 i.e. 17.74 months The claim of site overheads was dealt with in paras 36 to 39. The Tribunal after considering the evidence deemed it proper to allow 1 % of the prime cost as site overheads from 8.2.87 to July 1987 and 3% of the prime cost from August 1987 to 30th July 1988, when the contract was terminated, and allowed partly (of total claim of Rs. 20,69,916.96 as detailed in Schedule I, III & IV) as thus: "1. Amount of contract : Rs. 7,04,47,802.00 2. Prime cost @ 100/120% of I. : Rs. 5,87,06,501.00 3. Stipulated period : 4 years (48 months) (a) 4. Site overheads expenses : Rs. 5,87,065.00 allowed 1 % of 2 4.1 Overhead expenses per month : Rs. 12,230.00 4.2 Overhead expenses from 8.2.87 to : Rs. 70,200.00(A) 31.7.87 i.e. 5.74 months (b) 5. Site overhead expenses : Rs. 17,61,195.00 allowed - 3% of 2 5.1 Overhead expenses per month : Rs. 36,691.00 5.2 Overhead expenses from 1.8.87 to 31.7.88 i.e. 12 months : : Rs. 4,40,292.00(B) Total Site Overhead (A+B) : Rs.5,10,492.00 The claim for loss of profits which was worked out at Rs. 70,44,780.00 in Sch. II of the Reference petition, the Tribunal after considering the balance-sheet, loss and profit accounts of the respondent company found that the respondent was not earning any taxable income and it is one of those Govt. Enterprises which is heavily in loss. Hence, taking the most charitable view awarded Rs. 1 lac as nominal loss of profits. Thus, the Tribunal passed an award for Rs. Enterprises which is heavily in loss. Hence, taking the most charitable view awarded Rs. 1 lac as nominal loss of profits. Thus, the Tribunal passed an award for Rs. 14,78,369.00 with interest thereon at the rate of 12% per annum from the date of reference petition, i.e., 25.1.89 till realisation with cost. 11. Shri Alok Aradhe. learned Government Advocate contended, that it was the respondent company who was at fault as from the date of work order, i.e., 8.2.87 and handing over site on 1.2.88 as found by the Tribunal, the respondent did not commence the work for a period of complete six months inspite of release of mobilisation advance, certificate of T.D.S. Ex. D. 3 accepting the request of the respondent for release of godown of PWO and thereafter repeated letters Ex. D. 2 dated 22.9.1988, D-22 dated 16.3.1988, D-23 dated4.4.1988 and D-24 dated 6.5.1988 to start the work but even the layouts were not given nor the phased programme, therefore, the contract was rightly rescinded. Award of Rs.13. 78,379.00 on account of overheads head office or off-site and site expenses overheads and Rs. 1 lac on account of loss of profits is without any evidence. In any case, the loss ought to have been apportioned in equal proportion by applying the principle of pari delicto and also the respondent was under the duty under section 73 of the Contract Act to take all steps to mitigate the loss in case of breach of contract. Counsel cited: Thawardas Pherumal and another v. Union of India ( AIR 1955 SC 468 ), M/s. MurlidharChiranjilal v. M/s. Harishchandra Dwarkadas and another ( AIR 1962 SC 366 ), Waman Shriniwas Kini v. Ratilal Bhagwandas and Co. ( AIR 1959 SC 689 ), N. V.P. Pandian v. M.M. Roy (AIR 1979 Madras 42) and an unreported decision of this Court in C.R. No. 479/90 (State of M.P. v. Mathura Madani) decided on 22.3.1995. Learned Govt. Advocate also submitted that for the delay caused in making the award by the Tribunal on reference petition petitioners should not be burdened with interest, a Division Bench decision of this Court in Oriental Fire and General Insurance Co. Ltd. v. Ramsingh and others ( 1995 JLJ 342 ) was pressed into service. 12. Shri LB. Learned Govt. Advocate also submitted that for the delay caused in making the award by the Tribunal on reference petition petitioners should not be burdened with interest, a Division Bench decision of this Court in Oriental Fire and General Insurance Co. Ltd. v. Ramsingh and others ( 1995 JLJ 342 ) was pressed into service. 12. Shri LB. Shastri, learned counsel for the respondent supported the award and submitted that the findings recorded by the Tribunal are findings of facts based on appreciation of evidence which are not liable to be interfered in revisional jurisdiction. The Tribunal has awarded the overheads expenses on the well settled principle laid down. He referred to Gajaria's book, "Building & Engineering Contracts in India" Third Edition, at page 635 and Statutory Arbitration in Works Contracts by Justice S.K. Chawla, page 138-139. The award of interest and cost by the Tribunal in exercise of jurisdiction conferred on it by section 16 (3) of the Act. hence, no reduction either in interest or in cost is warranted. 13. After considering the contentions raised and on going through the findings recorded based on appreciation of evidence by the Tribunal we are of the opinion that the recission of the contract was wongful for no fault of the respondent as it was the petitioner and its officers only who did not deliver the exclusive uninterrupted possession till 1.2.1988. Though, the exclusive possession was given on 1.2.1988, but, thereafter on the' site there existed obstructions of which there was no obligation on the part of the respondent under the terms of the agreement to dig out disused foundations, drains, roads or culverts on the entire work area excluding at the most area coming under work area cutting and filling for excavation by virtue of clause 1.3 of General Specifications. Without removing these obstructions the work could not have been commenced. This work was an extra item work of which the rate was to be fixed by mutual agreement, but, the rates inspite of the offer of the respondent vide letter dated 16.3.1988 (Ex. P. 9) were not fixed. After 3 1/2 months Executive Engineer vide letter dated 1.7.1988 (Ex. P. 10) gave approval to respondent to clear obstructions and to submit rate analysis. Respondent vide letter dated 11.17.1988 (Ex. P. 9) were not fixed. After 3 1/2 months Executive Engineer vide letter dated 1.7.1988 (Ex. P. 10) gave approval to respondent to clear obstructions and to submit rate analysis. Respondent vide letter dated 11.17.1988 (Ex. P. 25) offered their extra rate for clearing obstructions but before the rate could be mutually agreed the contract was rescinded on 30.7.1988 vide Ex. P. 3. In the circumstances the Tribunal rightly held that no fault can be found with the respondent in executing the contract. On the other hand the petitioners were at fault in not handing over the possession of exclusive unhindered site and then in not fixing the rate for the extra work which was not part of the contract, without which the work could not have been started. Therefore, the petitioners wrongfully rescinded the contract. The findings recorded by the Tribunal are findings of facts which are neither perverse nor are manifestly illegal. Learned Govt. Advocate also could not point out any infirmity on any of the grounds specified in clauses (a) to (e) of sub-section (2) of section 19 of the Act so as to interfere in the award in the revisional jurisdiction. 14. Before we deal the amount awarded by the Tribunal, we may state that it is nobody's case that the agreement entered into was illegal or immoral. On the other hand, the contract was legal of which the breach was committed by the petitioners. The maxim in pari delicto potior est conditio possidentis is not applicable in the facts and circumstances of the case. As the maxim is founded on the principles of public policy, which applies in a case of an illegal or immoral contract, in that case Court's do not assist an illegal transaction in any respect and that has been held in the decisions relied by the petitioners. 15. The contention based on Explanation of section 73 of the Contract Act relying on decisions of the Supreme Court in Thawardas Pherumal & M/s. Murlidhar Chiranjilal (supra) for estimating the damages arising out of the breach of contract, the apportionment ought to have been made, as the respondent had not taken reasonable steps to mitigate the loss. 15. The contention based on Explanation of section 73 of the Contract Act relying on decisions of the Supreme Court in Thawardas Pherumal & M/s. Murlidhar Chiranjilal (supra) for estimating the damages arising out of the breach of contract, the apportionment ought to have been made, as the respondent had not taken reasonable steps to mitigate the loss. In our opinion, the principle of mitigating of loss is not attracted in this case as there was nothing in the hands of the respondent to do any act which was necessary as a consequence to breach of the contract. Hence, the respondent cannot be held guilty in any manner of committing breach of contract. It is settled that the principle of mitigation of loss does not give any right to the party who is in breach of the contract but it is a concept that has to be borne in mind by the Courts while awarding the damages. See: M. Lachia Setty and Sons ltd. v. The Coffee Board, Bangalore ( AIR 1981 SC 162 ). 16. Coming to award of claims: The Tribunal has dealt with the overhead expenses 'off-site' or 'head office' and 'on site'. 'Head Office' overheads expenses are those which are incurred by the contractor not at the site of the contract, but at his office. These are indirect expenses required to be incurred by the contractor for the execution of the work and are of such nature that they cannot be specifically attributed to any particular item of work or contract but an actual expense on supervisory establishments. These are doiens of items such as office-rent, power bills, salaries of office and supervisory staffs, stationery, postage, telephone bills, interest of borrowing capitals, travel expenses, insurance, etc. Such expenses are known as overhead 'head office' or 'off-site' expenses. The percentage used in pricing for head office overheads and profit obviously varies from contractor to contractor and differs in given circumstances of the case on the evidence led. In this connection Gajaria at page 634 has referred a Government of India recommendation published in January 1956 for calculating the overheads and the formula stated by Hudson in his book "Building & Engineering Contracts" 10th Edn., at page 599. See also B.S. Patil's "Building and Engineering Contracts" revised and enlarged Fourth Edition, pages 329 & 330. The Tribunal on the basis of Hudson's Formula and Govt. See also B.S. Patil's "Building and Engineering Contracts" revised and enlarged Fourth Edition, pages 329 & 330. The Tribunal on the basis of Hudson's Formula and Govt. of India recommendation assessed the overheads expenses at 4% of the prinme cost which cannot be said to be on higher side as the Tribunal relied for awarding 10 per cent of overheads of Head Office on the basis of Cost Committee Report of Government of India, Ministry of Irrigation and Power (Central Water & Power Commission) published in January 1956 which recommended in para 2.36.1 overheads at 10 per cent as adequate. See page 139, Statutory Arbitration in Works Contracts by Justice S.K. Chawla. 17. The site expenses or 'on site' overhead expenses are those expenses which are incurred at site independent of the amount of work to be carried out having direct nexus to the contract such as supervision, hutting, permanent gantries, or hoists, certain types of pumping or dewatering in engineering contracts, and standing time of plant required to be retained on the site, or similar other expenses. See, Gajaria's book page 635. The Tribunal after considering the evidence and the fact that the machineries and equipment worth Rs. 2,49,925.00 were brought to site awarded I % of prime cost at site overheads from 8.2.1987 to July 1987 and 3% of the prime cost for the period from August 1987 to 30th July 1988 as detailed in para-29, total Rs. 5,10,492.00 which were not pointed out to be excessive. 18. As to award of Rs. 1 lac towards loss of profit: The profit is the only remuneration that a contractor gets for a works contract. It has been said that "the profit is cost of being in business today and remaining in business tomorrow". The Supreme Court in M/s. A. T. Brij Paul Singh and Bros. v. State of Gujarat ( AIR 1984 SC 1703 ) has observed that in a works contract, the party entrusting the work commits the breach of the contract, and the breach is not attributable to the contractor the contractor would be entitled to recover damages for loss of profit which he expected to earn by undertaking the works contract. What must be the measure of profits and what proof should be tendered to sustain the claim are different matters. But the claim under the head is certainly admissible. What must be the measure of profits and what proof should be tendered to sustain the claim are different matters. But the claim under the head is certainly admissible. In Gujaria's book at page 637, learned Author referring to recommendation of Govt. of India para 2.36.2 says that there is no hard and fast rule laid down for allowing any particular percentage due to loss of profit, however, a constructive estimate of profit as 10 per cent has been recommended in 'Rates and Costs Committee's Report'. The Tribunal, in the present case, has awarded very nominal loss of profit of Rs. I lac which in no case can be said to be excessive. 19. The award of interest at the rate of 12% from the date of application till payment in the circumstances of the case deserves to be reduced. The reference petition was filed on 21.5.1989. After recording of evidence the case was fixed for hearing arguments on 9.4.1990, but, the award could not be delivered as the Chairman of the Tribunal demitted the office. Then the Tribunal was re-constituted. The re-constituted Tribunal also could not deliver the award and the case could not be disposed of thereafter for the one reason or the other, ultimately the final award was made on 7.12.1995. In the circumstances, we are of the opinion that because of the delay in disposal of the reference, for no fault of the petitioners, it would be unjust to burden the petitioners for the payment of interest for the long period spent in litigation. It is well settled that no party should suffer for the act of the Court. Therefore, it would be just and equitable to direct the petitioners to pay interest at the rate of 12 per cent per annum on the amount so awarded by the Tribunal for a period of four years only for the total period spent in litigation inclusive of that spent in disposal of the present revision. To say so we take a support from Bench decision of this Court in Ram Singh's case (supra). 20. In the result the revision is partly allowed, while maintaining the award of the Tribunal on overheads expenses of 'Off Site' and 'On Site' and loss of profit, the award of interest is reduced on the total sum awarded as indicated in para-19 of this order. 20. In the result the revision is partly allowed, while maintaining the award of the Tribunal on overheads expenses of 'Off Site' and 'On Site' and loss of profit, the award of interest is reduced on the total sum awarded as indicated in para-19 of this order. In the circumstances parties to bear their own costs.