JUDGMENT

Ranita Hussein JC: The plaintiff filed an originating summons under O. 83 of the High Court Rules 1980 praying for an order for the sale of land charged to it by the defendant.

In his affidavit in support of the summons the plaintiff averred that a facility amount of RM583,000 had been granted to the defendant by the plaintiff and this was secured by a charge of the land in question by the defendant to the plaintiff. The plaintiff clarified that the facility amount was granted under the Islamic concept of Bai-Bithaman Ajil which, as practised by the Islamic Bank, involved three simultaneous transactions which in the instant case were as follows:

(i) On 2 March 1984 the defendant sold to the plaintiff a piece of land for RM265,000 which sum was duly paid to him; (ii) On the same date, the plaintiff resold the same piece of land to the defendant for RM583,000 which amount was to be paid by the defendant in 180 monthly installments, (iii) Also on the same date, the said land was charged to the plaintiff by the defendant as security for the debt of RM583,000.

These transactions were preceded by a letter of offer by the plaintiff describing the terms involved under the Bai-Bithaman Ajil concept, which was accepted by the defendant.

It was a term of the charge document that in the event of any default in the payment of the loan installments by the defendant, the plaintiff would be entitled to sell the charged land. The defendant had defaulted in his instalment payments since April 1985.

At the hearing of the summons the defendant challenged the plaintiff's right to relief under O. 83 of the High Court Rules 1980, on the following grounds:

(i) the amount of RM583,000 which was stated as a loan in the charge document was never received by him as a loan; it was just a facility amount and he only received RM265,000. There was thus no compliance with O. 83 r. 3 (3)(a); (ii) There was no compliance with O. 83 r. 3 (3)(c) in that the plaintiff's claim did not include a claim for interest; In this respect the plaintiff also did not comply with O. 83 r. 3 (7). (iii) There was no compliance with O. 83 r. 3 (3)(d) because the amount which remained unpaid under the charge was not RM543.995.89 or any definite amount as it was subject to rebate (muqassah) as stated by the plaintiff in paragraph 16 (iv) of his affidavit of 9 March 1991.

Order 83 rule 3(3)(a) It is relevant to note that all the aforementioned transactions between the parties were above board and made with the full knowledge of the defendant. He knew that the entire exercise was to implement the grant of a loan to him by the bank, the repayment of that loan inclusive of a profit margin by him, and the charge of his land as security for the loan. This was done by way of a couple of land transactions in order to bring the loan transaction within the limits of Islamic Law. His knowledge of this is evidenced by his acceptance of the letter of offer containing all the above terms (Exhibit AB 8 of enclosure (22)). Moreover, the two sale and purchase agreements in respect of the land made express reference to the Bai-Bithaman Ajil scheme. In the circumstances, I find that the parties were ad idem in treating the amount of RM583,000 as the facility amount given to the defendant by the plaintiff. The facility amount coincides with the price of the land in the second sale and purchase agreement whereby the land was resold by the plaintiff to the defendant; and it is this amount which is meant to be secured by the charge.

In view of the circumstances of the loan I am persuaded to accept the plaintiff's statement of the amount of advance under O. 83 r. 3 (3)(a) as being RM583.000. In my view this is in accord with the intention of the parties and the defendant cannot now dispute the amount.

In any case, the words except where the Court in any case or class otherwise directs' in the preambular part of r. 3 (3) indicates that the Court may exercise its discretion to allow a cert