Suriyadi Halim Omar J:

[1] The plaintiff is a bank incorporated in Malaysia under the Companies Act 1965 and licensed under the Banking and Financial Institutions Act 1989. The defendant is also a company and the beneficial owner of a large tract of land (hereinafter referred to as the 'impugned land'). The facts as gauged from the writs, exhibited statement of claims and supporting affidavits have highlighted that the impugned land was originally owned by a company called Ng Eng Hiam Plantations Sdn Bhd (hereinafter referred to as the original owner). By a sale and purchase agreement dated 15 June 1995 the defendant had bought the impugned land from the latter.

[2] To part finance the acquisition of the impugned land, the defendant had requested a consortium of financial institutions (hereinafter referred to as the vendors), with the plaintiff as the arranger and agent to help out. The assistance sought for was for an Al-Bai Bithaman Ajil facility with a sale price of RM216,687,000, in aggregate made up of a purchase price of RM125,000,000, and a profit element over the impugned land.

[3] The antecedent and matrix of the case showed that for the Al-Bai Bithaman Ajil facility to be effective, a few agreements were executed on 29 March 1996 between the defendant, the plaintiff and the vendors. On that date, first a novation agreement was executed between the plaintiff and the defendant, whereby certain rights and obligations between the original seller and the defendant under their S&P were novated to the vendors or to the plaintiff, as the case may be, on behalf of the vendors. Secondly, an Instalment Sale Agreement (Al-Bai Facility) was executed between the defendant and the vendors, whereby essentially the defendant agreed to purchase from the vendors the impugned land, by then already transferred to them by the original owners pursuant to the said novation agreement. According to the provisions of the Instalment Sale Agreement, the defendant became liable to pay to the plaintiff, for the account of the vendors, the sale price of RM216,875,000 for the land comprising a purchase price of RM125,000,000 and a profit element.

[4] Under this Instalment Sale Agreement, the defendant had to make regular instalment payments of RM3,281,250 on every defined date. It was also a term that, if there was a failure of payment then the plaintiff may, amongst others declare the unpaid sale price to be immediately due and payable, and declare the total purchase price commitment to cease. I must categorically state that all the steps, as explained above, and as expected of any normal Al-Bai Bithaman Ajil facility, had been adhered to strictly by the current plaintiff.

[5] As mentioned above, also on 29 March 1996 an Al-Wujuh Agreement was executed between the defendant and the vendors. This agreement was to provide the defendant a revolving Al-Wujuh facility comprising:

a) an Al-Bai Bitaman Ajil facility (hereinafter called the Al-Bai facility); and

b) revolving drawing rights on an account maintained by the plaintiff as part agent of the vendors in relation to the revolving Al-Wujuh Facility (hereinafter called the Marginal Deposit Account with a maximum facility of RM60,000,000,00) on the terms and conditions set out in the Al-Wujuh Agreement.

[6] Pursuant to the Al-Wujuh Agreement, the vendors granted to the defendant the Al-Bai facility involving first, a purchase of the impugned land by the vendors from the defendant for a purchase price of RM60,000,000 for the land, and immediately after the transfer of the title of the land to the vendors, a resale of the land by the vendors to the defendant to take place, at the sale price payable by the defendant.

[7] In accordance with the Al-Wujuh Agreement the defendant, inter alia was also to pay the sale price in instalments, payable on each instalment date and subject to revised payable instalment amounts. As regards the Marginal Deposit Account, and pursuant to the repayment provisions of the re