BANK ISLAM MALAYSIA BERHAD v. ADNAN OMAR [1994] 3 CLJ 735

[1994] 3 CLJ 735   

 


BANK ISLAM MALAYSIA BERHAD v. ADNAN OMAR
HIGH COURT MALAYA, SHAH ALAM
DATO’ RANITA HUSSEIN JC
[ORIGINATING SUMMON NO. 24-808-92]
18 JULY 1994

CONTRACT: Loan agreement – Loan granted under Islamic Bai-Bithaman Ajil concept – Whether valid – Whether plaintiff had full knowledge of the terms thereof – Whether parties ad idem.

PRACTICE & PROCEDURE: Order 83(3) RHC 1980 – Action for payment of loan secured by charge – Loan transacted under Islamic Bai-Baithaman Ajil concept – Defendant receiving only a portion of the loan amount stated in the charge document – Whether what was received amounted to “the amount of the advance” – Rule 3(3)(a) of O.83 RHC – Whether r. 3(3)(a),(c),(d) & 3(7) thereof complied with.

PRACTICE & PROCEDURE: Order 83 RHC 1980 – Action for payment of loan – Transactions under Islamic concept of Bai-Bithaman Ajil – Interest – Plaintiff’s claim did not include claim for interest – Rule 3(3)(c) & (7) – Whether complied with.

WORDS AND PHRASES: “except where the Court in any case or class otherwise directs” – Order 83 r. 3(3) Rules of the High Court 1980.

By a letter of offer extended to the defendant which the defendant accepted, the plaintiff granted the defendant a loan of RM583,000, secured upon a charge over a certain parcel of land. The plaintiff granted this facility under the Islamic Bai-Baithaman Ajil loan scheme which in effect involved the execution of three simultaneous transactions between the parties, namely (1) the sale of the subject property by the defendant to the plaintiff for RM265,000 which was duly paid by the plaintiff (2) the plaintiff reselling the same to the defendant for RM583,000 payable in 180 instalments and (3) the defendant executing a charge over the land as security for the said debt of RM583,000.

granted the defendant a loan Meluluskan pinjaman pada defendan
secured upon a charge Dijamin dengan cagaran
simultaneous transactions Urusniaga-urusniaga serentak
reselling Menjual semula

 

It was a term of the charge document that in the event of any default in the payment of the loan instalments by the defendant, the plaintiff would be entitled to sell the charged land. The defendant defaulted in his payments and the plaintiff accordingly filed an originating summons under O. 83 Rules of the High Court 1980 praying for an order for the sale of the land to recover the said loan. The defendant challenged the plaintiff’s right to relief under the said O. 83 on the ground that there was no compliance with Rule 3(3) thereof. The main issue was whether by virtue of the fact that the defendant only received RM265,000 of the stated loan amount of RM583,000, and by virtue further that the plaintiff’s claim did not include the claim for interest, the Bai-Baithaman Ajil loan scheme ascribed to by the parties herein had failed to comply with the provisions of r. 3(3)(a)(c) and (d) of O. 83 RHC 1980.

a term Satu terma/syarat
in the event of Bila mana terjadinya
would be entitled                   Akan berhak
to recover Mendapatkan balik/kembali
challenged menentang
comply with mematuhi
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