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Ahmed-IICG-v-Symphony-Gems-13Feb02-10-17-11 - 2002 WL...

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2002 WL 346969 Page 1 2002 WL 346969 (QBD (Comm Ct)) Copr. © West 2003 No Claim to Orig. Govt. Works Islamic Investment Company of the Gulf (Bahamas) Ltd. v. Symphony Gems N.V. & Ors. 2001 Folio 1226 High Court of Justice Queen's Bench Division Commercial Court QBD (Comm Ct) Before: Mr. Justice Tomlinson Wednesday 13th February, 2002 Representation Mr. M. Swainston (instructed by Messrs. Clyde & Co.) appeared on behalf of the Claimant. Mr. D. Joseph (instructed by Messrs. Steptoe & Johnson Rakisons) appeared on behalf of the Defendants. JUDGMENT MR. JUSTICE TOMLINSON: This is a claim under Part 24 whereby the claimant, the Islamic Investment Company of the Gulf (Bahamas) Ltd., seeks summary judgment against all three defendants; against the first defendant, Symphony Gems NV as principal, and against the second and third defendants as guarantors of the obligations of the first defendant. The claim is brought by the claimant against the defendants pursuant to a document described on its face as a Morabaha financing agreement, which was made between the claimant and the first defendant on 27th January 2000. That agreement, which is a long and detailed agreement, defines the claimant as the seller, and the first defendant as the purchaser, and then recites in two recitals: "WHEREAS: (A) The Purchaser wishes to deal with the Seller for the purpose of purchasing Supplies (as hereinafter defined) under this Agreement in accordance with the Islamic Shariah. (B) The Purchaser wishes to request the Seller to purchase the Supplies and sell them to the Purchaser through a Morabaha arrangement and the Seller is willing to make such purchases and sell the Supplies to the Purchaser on the terms and subject to the conditions set out herein." There is then a definition section, section 1, which defines, so far as is relevant for present purposes: "'Purchase Agreement' means an agreement made between the Purchaser and the Seller for the purchase of Supplies by the Seller from the relevant Supplier and for the sale of those Supplies by the Seller to the Purchaser pursuant to clause 3;" I interrupt the definitions merely to note that that definition of "purchase agreement" encompasses two distinct contracts which might otherwise be thought to be or be categorised as contracts of sale, that is to say a contract as between the supplier and the seller, and a contract as between the seller and the purchaser. Then continuing with the definitions: "'Sale Price' in relation to a Purchase Agreement, means the aggregate amount payable by instalments to the Seller by the Purchaser for the relevant Supplies pursuant to such Purchase Agreement and, for the avoidance of doubt, includes value added tax, sales tax or other similar tax (if any) with respect thereto;" Finally, there is defined "Settlement Date" which means: "... in relation to a Purchase Agreement, the date for payment (under the terms of the relevant Supply Contract) by the Seller to the Supplier in respect of the Supplies to which the Purchase Agreement relates, as specified in the Acceptance relating thereto;"
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