JUDGMENT Hon’ble Prakash Krishna, J.—The above appeal has been filed against the judgment and decree dated 21st September, 2004 passed by Civil Judge (Senior Division), Allahabad in Original Suit No. 502 of 2003, by the defendants of the suit. 2. Tara Singh Jaiswal, the plaintiff instituted the aforementioned suit under Section 39/40 of the Specific Relief Act (hereinafter referred to as ‘the Act’) for mandatory injunction against the defendants directing and compelling the defendants to discharge and fulfill the obligation of payment of assessed contract value to the plaintiff arising out of the contact bonds (as detailed in Annexure-1 to the plaint). It was further prayed that the defendants be also directed to pay interest towards damages on the accrued principal sum assessed by the Court at bank rate of 18% per annum from 12.8.1996 till payment with usual relief regarding costs etc. 3. The plaintiff claims himself a contractor and general order suppliers. The suit was instituted on the pleas inter alia that he entered into various agreements with Executive Engineer, Provincial Division, U.P., P.W.D. Allahabad from time to time in execution of various types of jobs at the required sites and executed contract bonds detailed in para-2 of the plaint, on various dates and for various amounts. Further allegations are that the plaintiff faithfully and diligently performed his part of contracts as per terms of the contract bonds within stipulated period. The plaintiff became entitled to get the payment of entire value of the said contract bonds. The departmental officials though acknowledged their liability for the payment of contracted value “as per contract bonds”. There is no dispute between the parties in respect of liability of the defendants to pay the contracted value to the plaintiff but they are sitting tight over the matter. The plaintiff had to file writ petition being Writ Petition No. 33785 of 1997, for payment of the amount due to him but the defendants took a stand of non availability of budget. The said writ petition was disposed of vide order dated 1st October, 1997directing the department to take a final decision in the matter within two months. In pursuance thereof, the department acknowledged the liability and kept the payment pending till allocation of budget. The defendants acknowledged their liability by letter dated 14th March, 2002. The said writ petition was disposed of vide order dated 1st October, 1997directing the department to take a final decision in the matter within two months. In pursuance thereof, the department acknowledged the liability and kept the payment pending till allocation of budget. The defendants acknowledged their liability by letter dated 14th March, 2002. The plaintiff after serving notice under Section 80 of the C.P.C., instituted the aforementioned suit for the reliefs mentioned above, in the judgment. 4. The defendants contested the suit on the allegations that the payments have been made for the satisfactory work done by the plaintiff. However, the payments were withheld for those part of the work which were not found satisfactory. A committee under the chairmanship of the Commissioner was constituted to examine such pending bills. It was decided to make the payment after the decision by the said committee. It was also pleaded that the suit as framed is not maintainable and is liable to be rejected, besides the other pleas that it is barred by time. The plea that the suit is barred under Section 5 of the Arbitration and Conciliation Act, 1996 was also raised in para-18 of the written statement. With regard the plea regarding limitation, it was pleaded in para-19 that the bills of the plaintiff relates to the years 1992, 1993, 1994, 1995 and 1996 for which the period of limitation for institution of suit is three years and the suit having instituted on 8th September, 2003 is barred by time. 5. The plaintiff filed replication re-asserting its claim as set out in the plaint. The parties produced evidence oral and documentary in support of their respective cases. The Court below on the basis of the pleadings of the parties framed the following issues for consideration: 1. Whether the plaintiff on the basis of the plaint allegation is entitled to receive payment of the contracted amount mentioned in the plaint and if so its affect? 2. Whether the defendants were authorized to refer the matter to the committee in respect of payment as pleaded by them in the written statement? 3. Whether the suit is barred by Section 80 of the C.P.C.? 4. Whether the suit is barred by Section 5 of the Arbitration and Conciliation Act, 1996? 5. Whether the suit is barred by time? 6. To what relief, if any, the plaintiff is entitled to get? 6. 3. Whether the suit is barred by Section 80 of the C.P.C.? 4. Whether the suit is barred by Section 5 of the Arbitration and Conciliation Act, 1996? 5. Whether the suit is barred by time? 6. To what relief, if any, the plaintiff is entitled to get? 6. Under issue No. 1, the trial Court found that it is admitted to the parties that the plaintiff is a registered contractor of the defendants. The plaintiff is entitled to get a sum of Rs. 5,36,277/- from the defendants which was denied by them due to non availability of budgetary provision. Under issue No. 2, it was found that there is no evidence with regard to the constitution of the committee except a bald allegation and therefore, the issue was decided in negative. Issues No. 3, 4 and 5 were decided in negative holding that the suit is not barred under Section 80 of the C.P.C. or by time. It was also held that the suit is not barred under Section 5 of the Arbitration and Conciliation Act, 1996. The Court under issue No. 6 found that the plaintiff is entitled to recover a sum of Rs. 5,36,277/- alongwith annual interest at the rate of 12%. It was further found that the work was completed in the month of January, 1996, therefore, the plaintiff will get interest from that date. 7. Heard Shri R.K. Chaube, learned standing counsel for the State and Shri W.H. Khan, learned senior counsel alongwith Shri P.R. Ganguly, learned counsel for the respondent. 8. Learned standing counsel has confined his argument to the following points: 1. The suit as framed for mandatory injunction for recovery of the contracted amount/for contracted money is not maintainable. 2. The suit is barred by time as it was instituted after more than three years from the date of completion of the contract work. Point No. 1 9. We take up point No. 1 first. For the sake of convenience, the reliefs as claimed in the plaint are reproduced below: “(1) Pass a decree for mandatory injunction against the defendants directing and compelling the defendants to discharge and fulfill the obligation of payment of assessed contract value to the plaintiff arising out of the contact bonds (as detained at Annexure-1 to the plaint). For the sake of convenience, the reliefs as claimed in the plaint are reproduced below: “(1) Pass a decree for mandatory injunction against the defendants directing and compelling the defendants to discharge and fulfill the obligation of payment of assessed contract value to the plaintiff arising out of the contact bonds (as detained at Annexure-1 to the plaint). (2) The defendants be also directed to pay interest towards damages on the accrued principal sum assessed by the Court at bank rate of 18% per annum from 12.8.1996 till payment. (3) To pass any other and further reliefs in favour of plaintiff and against the defendants as deem fit and proper in the facts and circumstances of the case. (4) To award the cost of suit to the plaintiff.” 10. The plaint allegations do show that the plaintiff claims that he entered into various agreements with Executive Engineer, Provincial Division, U.P., P.W.D. Allahabad for carrying on the work and executed contract bonds as detailed in para-2 of the plaint. The cause of action of the suit as pleaded in para-12 of the plaint arose upon execution of the contract bonds between the parties as detailed above and on 7.11.1997, 29.11.1997 and on various other dates and lastly on 14.3.2002 when the defendants department acknowledged their liability to the debt due to the plaintiff upon availability of the budget from Government and on 27.4.2002 when the plaintiff gave notice under Section 80 C.P.C. to the defendants department and when the defendants failed to honour the commitment. The plaint further shows that the plaintiff has not been paid the amount due to him under the said contracts. To put it differently, grievance of the plaintiff in nutshell is with regard to non payment of money due to him under various contracts. 11. Submission of the learned standing counsel is that remedy of the plaintiff is to get a decree either for recovery of the amount due under contract or for damages. Section 41(h) of the Act which deals with “injunction when refused” provides that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. 12. Section 41(h) of the Act which deals with “injunction when refused” provides that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. 12. Learned counsel for the plaintiff-respondent, on the other hand, submits that even if, relief for injunction cannot be granted, the plaintiff is prepared to pay Court fees on the sum as claimed in the plaint. He further submits that grant of injunction is appropriate as it will avoid multiplicity of proceedings. Reliance has been placed by him on Islam Ahmad v. Maqsood Ahmad and another, 2007 (8)ADJ 239. 13. Considered the respective submission of the learned counsel for the parties and perused the record. 14. A perpetual injunction cannot be granted when equally efficacious relief can be obtained by any other usual mode of proceeding. The word ‘efficacious’ means which would put the plaintiff in the same position in which he would have been, if he had not asked for relief for injunction. The trial Court has decreed the suit by directing the defendants to pay a sum of Rs. 5,36,277/- towards the money claimed by the plaintiff within a period of two month with interest. Appropriate remedy for the plaintiff on the facts of the present case was to file a suit for recovery of the money due to him under contract. The plaintiff, as a matter of fact, is seeking specific performance of the contract. The efficacious remedy being a suit for recovery of amount due to plaintiff, we are of the opinion that Section 41(h) of the Act completely bars the suit for injunction. 15. The suit for injunction was practically tried by the trial Court as a suit for recovery of the amount. A lot of evidence was produced on various issues. Learned standing counsel has placed reliance upon Rajendra Kumar v. Mahendra Kumar Mittal and others, AIR 1992 All 35 , wherein a suit for injunction restraining the opposite parties from alienating the property was filed on the ground that the plaintiff has purchased the property under agreement. It has been held that the plaintiff can obtain equally efficacious relief in suit for specific performance of contract to sell, injunction cannot be granted. 16. It has been held that the plaintiff can obtain equally efficacious relief in suit for specific performance of contract to sell, injunction cannot be granted. 16. The another decision relied upon by the learned standing counsel is Sunil Kumar and another v. Ram Parkash and others, (1988) 2 SCC 77 , wherein the Apex Court was considering the grant of relief for permanent injunction in a suit filed by coparcener restraining karta of a joint Hindu family from alienating joint family property in pursuance of a sale agreement with a third party not maintainable as the coparcener has adequate remedy to impeach the alienating made by the karta. The coparcener cannot move the Court for injunction restraining karta from alienating coparcer’s property. 17. We are of the definite opinion that the plaint is based on contract and the suit is for recovery of the amount according to the plaintiff due to him under the contract, relief for permanent injunction cannot be granted. 18. Contention of the learned counsel for the plaintiff-respondent is that no such plea was raised before the Court below is unfounded. In paragraph Nos. 20 and 21 of the written statement, the plea that the suit as framed is not maintainable and is barred by the judicial precedents have been raised. The trial Court has omitted to frame a specific issue in this regard but that will not preclude the defendants to raise it in the appeal. The plea being a legal plea was permitted to be raised by us and the matter was adjourned to enable the learned counsel for the respondent to give the reply. 19. Section 38(2) of the Act provides that when any such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II of the Act. This means that the Court will not grant a perpetual injunction unless the case is one in which it will exercise its discretion to grant specific performance. As a general rule the proper remedy of a person seeking to enforce the specific condition of contract is either to file suit if it is maintainable for specific performance of contract to sell or to claim damages for breach of contract. 20. In addition to above, grant of relief of injunction is discretionary in view of Section 36 of the Act. 20. In addition to above, grant of relief of injunction is discretionary in view of Section 36 of the Act. On the facts of the present case, it will not be proper exercise of discretion to grant relief for injunction when the proper remedy is to claim decree for recovery of the specified sum through a suit for recovery. The trial Court was not justified in passing the decree under appeal. 21. The bar created under Section 41 (h) of the Act cast a duty on the Court not to grant injunction in the cases enumerated therein in clause (a) to (j). Similarly Section 38 (2) also provides the circumstances which should be taken into account by a Court while granting relief for perpetual injunction. We may also usefully refer Section 14(1)(a) of the Act which provides that a contract for the non performance of which damages is an adequate relief, decree for specific performance cannot be passed. In the case of contract, a party has two remedies either to get the contract specifically enforced or to claim the damages. Here, the contract cannot be specifically enforced as compensation is an adequate relief. The plaintiff was left with only one remedy to claim compensation/damages. A reading of the plaint also demonstrates that all the time the plaintiff has pleaded that he has not been paid the amount due to him under various contract detailed in para-2 of the plaint. As a matter of fact, he did file a writ petition before the High Court for direction to the department to make the payment of the plaintiff is also indicative of the fact that the plaintiff has all the time being claiming the money due to him as per the contract. It logically follows that the relief for permanent injunction was improperly claimed for and has been wrongly and illegally granted by the trial Court. Even the trial Court has referred at various places that the amount due to the plaintiff is under contract for work. Point No. 1 is decided accordingly by holding that the Court below has committed illegality in passing the decree for injunction directing the defendants to pay and ascertained amount within two months. 22. Even the trial Court has referred at various places that the amount due to the plaintiff is under contract for work. Point No. 1 is decided accordingly by holding that the Court below has committed illegality in passing the decree for injunction directing the defendants to pay and ascertained amount within two months. 22. Strong reliance was placed by the plaintiff’s counsel on Islam Ahmad v. Maqsood Ahmad and another, 2007 (8) ADJ 239, wherein in a suit for specific performance, the plaintiff claimed that the possession was also delivered to him under the agreement for sale. The existence of sale agreement was denied by the defendant and in the counter claim, decree for possession was claimed in the mandatory form. The suit for specific performance was dismissed as execution of any such agreement was not proved, but counter claim was decreed. For the first time, in second appeal bar of Section 41(h) of the Act was argued. The High Court found that the prayer as drafted for mandatory injunction to deliver possession is not in proper form and held that counter claim was in effect a suit for recovery of possession and it provided time to the defendant to pay the Court fees. This decision has no application to the facts of the present case and is distinguishable. Here, the plaintiff in effect seeking the enforcement of the contracts by mandatory injunction order, which is not permissible under law in view of Sections 14, 38(2) and 41(h) of the Specific Relief Act. Point No. 2 23. Contention of the learned standing counsel is that the suit is hopelessly time barred. Contracts were executed on various dates mentioned in Annexure-1 to the plaint in the years 1992, 1993, 1994, 1995 and 1996. The suit was filed in the year 2005. A copy of the contract has been filed wherein time for execution of the contract has been fixed. Submission is that on completion of the work, the plaintiff was entitled to receive the due amount thereafter and if the payment was not made within three years, the suit is barred by time. 24. In contra, learned counsel for the plaintiff-respondent submits that in the present case, the residuary article that Article 137 of the Limitation Act shall apply. Submission is that on completion of the work, the plaintiff was entitled to receive the due amount thereafter and if the payment was not made within three years, the suit is barred by time. 24. In contra, learned counsel for the plaintiff-respondent submits that in the present case, the residuary article that Article 137 of the Limitation Act shall apply. He has placed reliance upon the decisions as follows: (1) State of Bihar v. Rama Bhushan Basu, AIR 1964 Pat 326 (V 51 C 89); (2) State of U.P. v. Chandra Gupta & Co., 1976 ALJ 426; (3) State of U.P. v. M/s Thakur Kundan Singh, AIR 1984 All 161 ; (4) Daya Singh and another v. Gurdev Singh and others, (2010) 2 SCC 194 ; and (5) V.N. Enterprise v. State of Assam, 2004-GAULR-3-586. 25. We find that the defendants came out with the case that certain payments which were not in dispute were made to the plaintiff. With regard to the part of work done by the plaintiff, there were several complaints. A committee under chairmanship of the Commissioner was constituted to examine the claim of the plaintiff as also the quality of the work performed by him. Awaiting the decision of the committee, further payments for the disputed work were not made. Learned counsel for the plaintiff informs the Court that for the first time, the officer concerned through his letter dated 10th June, 2002 informed the plaintiff that matter is pending before the committee and the payments can be made and the allotment of fund can be obtained only after the decision in this regard is taken by the committee. It recited that in the case of plaintiff, the decision is still awaited from the committee, it is not possible to send any proposal for allocation of fund. The steps will be taken only after decision by the said committee. Learned counsel for the plaintiff-respondent submits that upto the year 1982 there was no denial at the ends of the defendants not to make the payments to the plaintiff. The period of limitation for the purposes of suit did not commence. The period of limitation shall be counted from the date of refusal of the payment. He supports the argument with the reference to the above cases cited by him. The period of limitation for the purposes of suit did not commence. The period of limitation shall be counted from the date of refusal of the payment. He supports the argument with the reference to the above cases cited by him. We find that it cannot be said that the plea of the plaintiff that the claim is not time barred, is totally unfounded or it lacks merit. We are leaving the matter open as it is not appropriate for us to say anything in the matter in view of our above conclusion recorded under point No. 1 holding that the suit itself was not maintainable. 26. In the result, the appeal succeeds and is allowed on the finding that suit for injunction was not maintainable and is barred under Section 41(h) of the Specific Relief Act. 27. The judgment and decree dated 21st September, 2004 passed by the Court below is, hereby, set aside and the suit stands dismissed. No order as to costs. ——————