Yusrin Faidz Yusoff JC:

GROUNDS OF JUDGMENT

INTRODUCTION

[1]This is the Plaintiffs application for an order for sale pursuant to sections 256257National Land Code 1965(“NLC”) over a property charged to the Plaintiff as security for an Islamic home financing facility granted to the Defendants. The Plaintiff, CIMB Islamic Bank Berhad, is the registered chargee under Presentation No. 18954/2012 in respect of a two-storey bungalow situated at Lot No. 21783, Bandar Country Heights, Kajang, Selangor. The Defendants are the registered proprietors and chargors of the said property.

BACKGROUND FACTS

[2]The salient facts are not in dispute. By a Letter of Offer dated 14 October 2011, the Plaintiff granted the Defendants a Flexi Home Financing-i facility under the Bai’ Bithaman Ajil (“BBA”) concept. The facility comprised a Bank’s Purchase Price of RM6,132,000.00 and a Bank’s Selling Price of RM20,606,788.80, payable over an agreed tenure.

[3]On 11 January 2012, the Defendants executed a Property Sale Agreement and a legal Charge (Presentation No. 18954/2012) over their property in Country Heights, Kajang, to secure the facility. The Charge was duly registered.

[4]The facility underwent restructuring via Supplemental Letters of Offer dated 10 June 2022 and 18 October 2023, which, inter alia, adjusted the repayment schedule.

[5]The Plaintiff alleges the Defendants defaulted on their monthly instalments. A Solicitors’ Letter of Demand dated 7 April 2025 was followed by a Letter of Demand and Termination dated 30 April 2025. As the default persisted, the Plaintiff issued and served a Notice of Default in the statutory Form 16D under Section 254NLC

[6]No remedial payment was made. Consequently, the Plaintiff filed this Originating Summons on 3 July 2025, seeking the Order for Sale.

[7]On 6 November 2025, after considering the written submissions of both sides, the order for sale was granted. The Defendants, being dissatisfied with that decision, filed their notice of appeal on 20 November 2025.

ISSUES

[8]The singular overarching issue is whether the Plaintiff is entitled to the Order for Sale sought. This resolves into the following sub-issues:

(1)Whether the Defendants have established any ‘cause to the contrary’ under Section 256(3)NLC

(2)Whether the Plaintiff’s Form 16D was defective for allegedly overstating the debt by failing to deduct the ibra’ (rebate) and account for a released security deposit (the RM250,000.00 GIA-i), thereby demanding a sum not lawfully due;

(3)The legal effect of conclusive evidence clauses in the loan documentation within the context of a summary foreclosure proceeding; and

(4)Whether the Defendants’ allegations concerning the fairness of the BBA contract, lack of independent advice, or potential Shariah non-compliance can constitute a ‘cause to the contrary’ based on equity or public policy.

COUNSELS’ CONTENTIONS(i) Plaintiff’s Contentions

[9]The Plaintiff argues that its application is unassailable, founded upon strict compliance with both statutory mandate and contractual terms. The central thrust of its case is that the Defendants, having admitted to the execution of the Charge and the occurrence of default, cannot now resist the enforcement of a registered security interest based on disputes pertaining to the underlying personal covenant. The Plaintiff emphasizes the summary nature of Order 83 proceedings and the intentionally restrictive, tripartite framework of ‘cause to the contrary’ established in Low Lee Lian v. Ban Hin Lee Bank Berhad in rem, a forum designed for the swift enforcement of security, not the re-trial of the loan agreement.

[10]Concerning the ibra’ controversy, the Plaintiff relies heavily on the authorities of Maybank Islamic Bhd v Kamarulzaman bin Mohamed Nordin CIMB Islamic Bank Bhd v LCL Corp Bhd & Anor ibra’ (rebate) is a contractual benefit contingent upon early settlement initiated by the customer. It is not an automatic deduction nor a component of the outstanding debt upon termination by the ba