JUDGMENT

Abdul Wahab Patail J:-

[1] The defendant Zulkifli bin Abdullah ("the defendant") is sued by the plaintiff Affin Bank Berhad ("the bank") in D4-22A-159-2003 for an order for sale to recover sums outstanding under a 1997 Al-Bai Bithaman Ajil facility ("the 1997 facility") released on 8 December 1997 and amended by revision in 1999 ("the 1999 revised facility"); and in D4-22A-67-2005 for amount outstanding from the 1999 revised facility amounting to RM958,997.94 as at 30 June 2002; interest thereon at 8% from the date of judgment to date of full settlement, costs and such other orders as the court thinks fit.

[2] The defendant bought a double storey corner link house from the vendor, Mohamed Nazir bin Mohamed Yusoff ("the vendor") for the sum of RM385,000 ("the principal agreement"). He paid a deposit of RM39,000. A balance of RM346,000 remained to be paid.

[3] He requested the bank, who was his employer at that time, for a home Islamic financing facility under the Syariah principle of Al-Bai Bithaman Ajil. The Al-Bai Bithaman Ajil is the Syariah principle which involves the purchase of a property and the sale and payment of the sale price which includes a profit margin upon deferred payment terms. The bank agreed, and granted to the defendant the 1997 facility.

The 1997 Facility

[4] As is usual at the time under an Al-Bai Bithaman Ajil facility, the bank at the request of the defendant and with the consent of the vendor became a party to the principal agreement with the intent that the bank be deemed to be the purchaser in place of the defendant from the date of the principal agreement to pay the vendor the balance price of RM346,000. This is effected through a Novation Agreement executed on 8 December 1997 ("the Novation Agreement"). The defendant was, therefore, given a RM346,000 facility. That facility amount was described as the bank purchase price. On the same date, the bank sold the property to the defendant. The defendant signed as purchaser a property sale agreement ("the property sale agreement") pursuant to which the defendant agreed to purchase the property from the bank and to pay the bank's selling price by the installments set out in the Second Schedule. The defendant was also required to execute a registered charge ("the charge") against the title to secure the installments payments. The Novation Agreement, the property sale agreement and the charge comprise the documentation of the 1997 facility.

[5] The 1997 facility was to be repaid over an 18 year tenure by 216 monthly installments of RM3,582.80 subject to a reduction, by the application of the Islamic Principle of Ibra, for so long as the defendant remained the bank's employee, of RM1,421.47. Thus, the monthly installments was RM3,582.80 _ RM1,421.47 = RM2,161.33. The total payments over 216 installments, so long as he remained an employee, was therefore RM2,161.33 x 216 = RM466,847.28. This RM466,847.28 was described in the letter of offer of 26 May 1997 as the bank selling price and the property sale agreement as the sale price. For this reason, the terms "sale price" and "bank selling price" can be used interchangeably.

The 1999 Revised Facility

[6] At the end of December 1997 the defendant left his employment with the bank. Having paid RM7,500 in installments he defaulted, he requested a restructuring of the RM346,000 facility. By a letter dated 1 November 1999, the bank agreed. The terms set out in the letter dated 1 November 1999 was accepted by the defendant on 3 November 1999 (the 1999 revised facility). Although the letter of 1 November 1999 required the parties to execute a fresh set of documentation, no such documentation was executed. The letter of 1 November 1999 and acceptance thereon on 3 November 1999 constitute the sole document for the 1999 revised facility. It described the purpose of the revised terms as:-

To restructure the existing Al-Bai Bithaman Ajil facility by recapitalisation the current outstanding of RM335,251.60 plus the