Abdul Malik Ishak J:

The Al-istisnaa' Facility Agreements - The Islamic Banking

[1] The Islamic Banking Act 1983 is an interesting piece of legislation. By way of s. 2 thereof, the following germane definitions appear:

'Islamic bank' means any company which carries on Islamic banking business and holds a valid licence and all the offices and branches in Malaysia of such a bank shall be deemed to be one bank; and

'Islamic banking business' means banking business whose aims and operations do not involve any element which is not approved by the Religion of Islam.

[2] By way of a comparison, reference should be made to the Banking and Financial Institutions Act 1989 ("BAFIA") where by way of s. 2(1) thereof, "banking business" has been defined to mean:

(a) the business of:

(i) receiving deposits on current account, deposit account, savings account or other similar account;

(ii) paying or collecting cheques drawn by or paid in by customers; and

(iii) provision of finance; or

(b) such other business as the Bank (referring to Bank Negara Malaysia), with the approval of the Minister, may prescribe; ...

[3] By now, Malaysians are familiar with the concept of interest free banking that is offered by the defendant - Bank Islam Malaysia Berhad. The defendant offers what is now known as the "skim perbankan tanpa faedah". Translated into the English language it means an "interest-free banking scheme". It is common knowledge that the defendant commenced operations on 1 July 1983 and it is now a force to be reckoned with. In the context of this case, the defendant bank provides the Al-Istisnaa' facility to the plaintiff company.

[4] The defendant has a website vide wysiwyg://14/http://www. bankislam.com.my and in that website Istisnaa' is simply defined as a sale by order.

[5] What then is Islamic banking? According to the write-ups by the Central Bank of Malaysia - Bank Negara Malaysia, that is easily available in the market, an Islamic Banking is defined as follows:

... a banking activity that is based on Syariah principles. It does not allow the paying and receiving of interest and (it) promotes profit sharing in the conduct of banking business.

[6] The write-ups continue in these solemn words:

The basic principle of Islamic banking is the sharing of profit and loss and the prohibition of riba' (interest).

[7] It is interesting to note that Bank Negara Malaysia - the Central Bank of Malaysia, has a website and it is listed as www.bankinginfo.com.my. Anyone can log on to it. And I can take judicial notice of it. Indeed I can take judicial notice of almost everything. Thus, it is permissible for me to take judicial notice of those matters which men of ordinary and average intelligence would be acquainted with (Byrne v. Londonderry Tramway Co [1902] 2 IR 457 at 480; Loughney v. Caledonian Rly Co [1902] 39LR 289; and Hoare v. Silverlock [1848] 12 QB 624 at 633). It is also permissible for me to take judicial notice of how certain businesses are being carried out. It would not be out of place for me to take judicial notice of the following state of affairs:

(a) as to the normal banking hours (Parker v. Gordon [1806] 7 East 385; and Wilkins v. Jadis [1831] 2 B & Ad 188);

(b) as to how a broker would function at the stock exchange (Johnson v. Kearley [1908] 2 KB 514 at 528, CA);

(c) as to the common practice of legal practitioners who specialise in conveyancing (Re Rosher, Rosher v. Rosher [1884] 26 Ch D 801); and

(d) as to the risks peculiar to certain trades (Dennis v. A.J. White & Co [1917] AC 479 at 491, 492, HL).

Generally speaking, I can rely on my own knowledge of the local affairs (Ingram v. Percival [1969] 1 QB 548, [1968] 3 All ER 657). Those who are computer literate would certainly log on to the website to garner knowledge and information. And this I can surely take judicial notice of.

[8] Now, the Central Bank of Malaysia Act 1958 (Act 519) was recently amended by the Central Bank of Malaysia (Amendment) Act 2003 (Act A 1213) which was given its