Rohana Yusuf J:

[1] There are two legal suits involving the parties. One is a claim by Bank Islam Malaysia Berhad against Tan Sri Abdul Khalid bin Ibrahim (Tan Sri Khalid) in Suit No D4-22A-227-2007 and the other is a claim by Tan Sri Khalid against the bank in Suit D4-22A-216-2007. Both suits are now consolidated. Pursuant to Suit No. 22A-227-2007 this application in encl. 5, by Bank Islam Malaysia Berhad is made under O. 14 of the Rules of the High Court 1980.

[2] The original parties to the agreements are Tan Sri Khalid and Bank Islam (L) Ltd Malaysia Bhd. Vide a vesting order dated 14 February 2006, all rights and obligations of Bank Islam (L) Ltd were transferred to and vested in Bank Islam Malaysia Berhad. Both Bank Islam (L) Ltd and Bank Islam Malaysia Berhad will hereafter be referred to interchangeably, as "the bank".

Background Facts

[3] The relationship between the parties begun when the bank provided two Murabaha Facilities to Tan Sri Khalid, to redeem and acquire more shares in a company called "Kumpulan Guthrie Berhad". Tan Sri Khalid failed to pay the first instalment under the first Murabaha Facility Agreement which was due on 24 October 1998. He sought a deferment of payment of the outstanding vide a letter dated 16 October 1998 (exh. MR3). He also defaulted under the second Murabaha Agreement when he failed to pay the first instalment thereunder and sought a deferment of payment vide a letter dated 20 October 1999 (exh. MR5).

Restructuring

[4] Due to repeated breaches by Tan Sri Khalid, the bank offered to restructure the Murabaha Facilities to assist him in meeting his outstanding obligations to the bank. Tan Sri Khalid agreed to the restructuring when he accepted the offer of the bank dated 17 April 2001 in exh. MR6. By that acceptance, the two Murabaha facilities were restructured into a Revolving Al-Bai Bithaman Ajil Facility (BBA Facility Agreement). The BBA Facility Agreement comprises the following documents;

(i) Letter of offer to restructure Murabaha Facilities dated 17 April 2001 (in exh. MR6.)

(ii) Memorandum of acceptance by Tan Sri Khalid (in exh. MR6.)

(iii) Master Revolving BBA Facility (BBA Agreement) in exh. MR7.

(iv) Memorandum of charge over shares dated 30 April 2001 (in exh. MR8.)

(v) Fund administration and custodian agreement (in exh. MR9.)

The salient terms of the BBA Facility Agreement are as follows.

(i) The bank purchases from Tan Sri Khalid 39,681.562 shares of Kumpulan Guthrie (Guthrie Shares) for USD56,500,000.

(ii) The bank resells the shares to Tan Sri Khalid at a sale price to be determined on the basis of the cost of Funds plus 0.75%.

(iii) At every six monthly intervals, the parties will have to execute an Asset Sale Agreement (ASA) and an Asset Purchase Agreement (APA) in respect of the Guthrie Shares in the specified form.

(iv) The sale price is to be paid in instalments by Tan Sri Khalid, and the first instalment being payable six months from the date of each Asset Sale Agreement and the second instalment, six months thereafter.

(v) The bank has the mandate and absolute discretion to sell all or part of the Guthrie Shares pledged to it as security in satisfaction of sums due.

(vi) The Bank reserves the right to instruct Tan Sri Khalid to top-up or to increase the security in respect of the facility at any time.

(vii) Default of payment on due dates and inadequate security give the bank the right to declare that the indebtedness is due and payable by Tan Sri Khalid and to enforce the BBA Facility Agreement.

[5] Tan Sri Khalid defaulted the first instalment under the restructured BBA Facility Agreement and hence, this suit. In encl. 5, the bank is applying to enter a summary judgment for a sum of USD18,521,806.13 (as at 13 November 2006) or its equivalent in Ringgit Malaysia.

[6] Tan Sri Khalid did not dispute the default or the amount outstanding. He instead, alleged an existence of collateral agreement and attempted to challenge the validity of the BBA Facility A