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Ahmed-Beximco-Pharmaceuticals-28January04-10-17-11 - Case...

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Case No: A3/2003/1952 Neutral Citation No: [2004] EWCA Civ 19 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION (MORISON J) Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 28 th January 2004 Before : LORD JUSTICE POTTER LORD JUSTICE LAWS and LADY JUSTICE ARDEN - - - - - - - - - - - - - - - - - - - - - Between : (1) BEXIMCO PHARMACEUTICALS LTD (2) BANGLADESH EXPORT IMPORT CO LTD (3) MR AHMAD SOHAIL FASIUHUR RAHMAN (4) MR AHMED SALMAN FAZLUR RAHMAN (5) BEXIMCO (HOLDINGS) LTD Appellants - and - SHAMIL BANK OF BAHRAIN E.C. Respondent - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr R Hacker QC and Mr M Arnold (instructed by Jaswal Johnston) for the Appellants Mr B Doctor QC and Miss S Partington (instructed by Norton Rose) for the Respondent - - - - - - - - - - - - - - - - - - - - - Judgment
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Lord Justice Potter: Introduction 1. This is an appeal from the judgment of Mr Justice Morison dated 1 August 2003 whereby he gave summary judgment in favour of the claimant Shamil Bank of Bahrain E.C. (“the Bank”) against the first and second defendants as principal debtors in respect of monies advanced to them by the Bank under various financing agreements and against the third, fourth and fifth defendants as guarantors of certain of those agreements. The total judgment sum awarded was some US $49.7million. The appellants were refused permission to appeal by Morison J, but permission was granted by Clarke LJ on 17 September 2003 in relation to a single issue relating to the construction and effect of the form of the governing law clause contained in the financing agreements. That clause reads as follows: “Subject to the principles of the Glorious Sharia’a, this Agreement shall be governed by and construed in accordance with the laws of England.” 2. It is not in dispute that “the principles of the Glorious Sharia’a” referred to are the principles described by the defendants’ expert, Mr Justice (retd) Khalil-Ur-Rehmam Khan as: “the law laid down by the Qur’an, which is the holy book of Islam, and the Sunnah (the sayings, teachings and actions of Prophet Mohammad (pbuh) ). These are the principal sources of the Sharia. The Sunnah is the most important source of the Islamic faith after the Qur’an and refers essentially to the Prophet’s example as indicated by the practice of the faith. The only way to know the Sunnah is through the collection of Ahadith, which consists of reports about the sayings, deeds and reactions of the Prophet … ” 3. One principle expressly stated in the Qur’an and Sunnah is that the charging of interest upon a loan, in whatever form, is “Riba” and is contrary to the Sharia. At Sura II, 275-79 of the
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Ahmed-Beximco-Pharmaceuticals-28January04-10-17-11 - Case...

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