SANJIB BANERJEE, J.

1. This is one of the rare appeals that has had to be heard and dealt with without reference to the respondents since the respondents had no right of audience at the stage that the order impugned was passed on July 24, 2017 in course of the trial court considering the appellants' prayer for granting leave under Clause 12 of the Letters Patent. The leave sought was declined on the ground that the court did not have any jurisdiction to entertain the suit; not on the ground of territoriality but in view of an express prohibition on civil courts by a statute.

2. The appellants or their predecessor-in-interest had obtained credit facilities from a bank or financial institution. Pursuant to a settlement arrived at between the appellants and the concerned financial institution or its successor-in-interest, the respondent Trust, a substantial payment is said to have been made by the appellants to the Trust. According to the case made out in the plaint, in lieu of the balance amount due, the appellants agreed to issue shares in one or more of them in favour of the Trust together with a buy-back agreement simultaneously executed as the issuance of the shares. It is the further case in the plaint that disputes arose between the two sets of parties regarding the modality of the issuance of shares and the buy-back agreement following which the respondent Trust has sought to revoke the settlement and fall back on its original claim.

3. There is no apparent dispute that the Trust enjoys the status of a financial institution and is entitled to invoke both the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 in respect of its debts and security interests as defined in such statutes.

4. It may also be noticed at the outset that the appellants may have made a clean breast of things in the plaint in averring as follows at paragraph 44 thereof:

"44. All of sudden on May 26, 2017 the plaintiffs received notices, all dated May 19, 2017, purportedly issued by the Deputy General Manager, SASF acting as the Authorised Officer as of SASF, under Section 13(2) of the Securitisation and Enforcement of Security Interests Act 2002 (sic), raising a claim on the basis of the Financial arrangements, described in Schedule I hereunder. These notices are not made the subject matter of this suit and no reliefs are claimed herein in respect thereof."

5. On a reading of the plaint, the trial court perceived the suit to fall foul of the mandate in the initial part of Section 34 of the Act of 2002. The trial court observed that there could be no doubt that the suit for specific performance of the settlement had been filed after the issuance of a notice under Section 13(2) of the said Act and the purpose of the action was "to nullify indirectly the notice under Section 13(2) SARFAESI Act." After quoting several judgments of the Supreme Court, it was held as follows in refusing to grant leave under Clause 12 of the Letters Patent:

" ... once a notice is issued under Section 13(2) of the SARFAESI Act the Civil Court is denuded of his (sic, its) jurisdiction where the Court could be required to adjudicate issues that will fall within the scope of the suit."

6. In effect, the plaint has been rejected without it being admitted and without the defendants having so much as a look at it or even the knowledge thereof.

7. The appellants contend that the matter as to the maintainability of a suit does not arise at the stage when leave of the court is sought under Clause 12 of the Letters Patent. According to the appellants, the consideration may arise at a later stage, whether upon a defendant bringing it to the notice of the court by way of an application or the court noticing it while considering an interlocutory application. The appellants maintain that the only consideration that is relevant at the stage that leave under Clause 12