Report Islamic Financial Cases

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Dato’ Hj Nik Mahmud v. BIMB (1996)

* FACTS: * The plaintiff with attorney had entered into a PSA and PPA with the defendant in respect of 25 lots of land in BBA concept. * The defendant purchased the properties and resold back to the plaintiff with additional prices and charges. * The plaintiff applied for an order that the charges be declared null and void. * He also applied for the return the titles of the properties, free of all encumbrances. * ISSUES: * Whether sale of land in accordance with IB Concept of BBA contravened the Malay Reservations Enactment 1930 of Kelantan. * Whether purchase and resale of land for profit by bank contravened the Malay Reservations Enactment 1930 of Kelantan * PRINCIPLES: * Section 7(i) of the Enactment prohibits any transfer or transmission or vesting of any right or interest of a Malay. However, when the property purchase agreement was signed, the right that could be acquired by the defendant under the agreement at that point of time, the agreement being still executor, was only a right to a registrable interest which right was yet to crystallized into a registrable interest. * The contemporaneous execution of the property purchase agreement and the property purchase agreement and the property sale agreement constituted part of the process required by the Islamic banking procedure before the plaintiff could avail himself of the financial facilities provided by the defendant under the BBA concept. * Indefeasibility could only be successfully attacked by evidence which manifested that registration was obtained by ‘means of insufficient or void instrument’. This meant that the plaintiff could only successfully seek the aid of section 340(2)(b) of the NLC if it could be shown that there existed a defect or illegality in the execution of the…...

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