CHAPTER - 5 MUSHARAKAH AS AN INSTRUMENT OF FINANCING

Transcription

1 In the name of Allah, the Compassionate, the Merciful CHAPTER - 5 MUSHARAKAH AS AN INSTRUMENT OF FINANCING

2 CHAPTER-5 Musharakah as an Instrument of Financing The preceding chapters have explained the traditional concept of Musharakah and the basic principles of Shari 'ah governing it. It is pertinent how to discuss the way this instrument can be utilised for the purpose of financing in the context of modem trade and industry. The books of Islamic fiqh generally presume that Musharakah contract is meant for initiating a joint venture whereby all are partners until the end of the business whereby all the assets are liquidated 1. Here we will briefly summarise the principles on which the concept of Musharakah is based. As far as these principles are fully compiled with, the details of their application may vary from time to time and hence need to be looked into before entering into the details of its application. These principles are: i) Financing through Musharakah and Mudarabah never means to advance money. It means to participate in the business and share the assets of the business to the extent of the ratio of financing.2 ii) iii) An investor/financer must share the loss incurred by the business to the extent of his financing. The partners are at liberty to determine with mutual consent, the ratio of profit allocated for each one of them, which may differ from the ratio of investment. However, the partner, who has expressly excluded himself from the responsibility of work 1 M. T. Usmani, The concept of Musharakah and its Application as an Islamic method of finance, Arab Law Quartely, 1999, p Idem I

3 for the business cannot claim more than the ratio of his investment. iv) The loss suffered by each partner must be exactly in the proportion on his investment1. Keeping these broad principles in mind, let us now see how Musharakah can be used in evolving a new system, that conforms to the requirement of Shari ah and also fulfils the needs of trade and business. 5.1 Musharakah in Micro-Finance Musharakah is observed to be potentially quite promising in the field of microfinance or financing of small and medium enterprise1. It can be developed as a micro-finance or scheme where Islamic bank will enter into a partnership with micro-entrepreneurs. If there is profit, it will be shared based on pre-agreed ratio and if there is loss, it will be then shared according to capital contribution ratio. The most suitable technique of Musharakah for micro-finance could be the concept diminishing partnerships or Musharakah Mutanaqisah. 1 M. T. Usmani, op. cit., p M. Obaidullah, Islamic Financial Services, p. 65.

4 o 40 Q Islamic Bank Micro-entrepreneurship Fig. 4: Diminishing Musharakah in micro financing The above diagram shows that in the case of Musharakah Mutanaqisah, capital is not permanent and every repayment of capital by the entrepreneur will diminish the total capital provider. This will increase > the total capital ratio for the entrepreneur until the entrepreneur becomes the sole proprietor for the business. The repayment period is dependent upon the pre-agreed period. This scheme is more suitable for the existing business that need new or additional capital for expansion Securitization of large projects based on Musharakah Sukuks The traditional business model of financing institutions revolved around originating an assets and holding it until maturity. But now, financial 1 Abdul Rahman, Islamic Microfinance: A Mixing Component is Islamic Banking, Kyoto Bulletin of Islamic Area of studies 1-2 (2007),pp

5 institutions increasingly resort by securitization, which is a process of pooling/repackaging the non-marketable and illiquid assets into tradable certificates of investment. Securitization transforms the originator s role from being an accumulator to that of a distributor. In Islamic finance it has become a stimulating factor, which refers to the process in which ownership of the underlying assets is transferred to a large number of investors in the form of instruments, presently termed Sukuk (the plural of the world Sak, or Sanadat, meaning certificate of investment or simple certificates)1. Musharakah is a mode which can serve as a basis for securitization easily, especially in the case of big projects where huge amounts are required. Every subscriber is given a Musharakah certificate, which represents his proportionate ownership in the assets of the project. These are certificates of equal value issued for mobilizing funds to be used on the basis of partnership, so that their holders become owners of the relevant project or the asset as per their respective shares that are the part for their asset portfolios. Musharakah Sukuk can be issued as redeemable certificates by or to the corporate sector or to individuals for their rehabilitations/ employment for the purchase of automobiles for their commercial use or for the establishment of high-standard clinics, hospitals, factories, trading centres, endowments etc. Musharakah redeemable Sukuk are almost similar to Mudarabah Sukuk. Therefore, basic Shari ah rules relating to Mudarabah also apply to Musharakah certificates. The only major difference is that the intermediary partly will be a partner of the group of subscribers represented by a body of 1 Ayub, op.cit., p Ibid., p I 123 I

6 Musharakah certificates holders, in a manner similar to a joint stock company1. After the project is started, these Musharakah certificates can be treated as negotiable instruments certificates based on Musharakah/ Mudarabah can be bought and sold in the secondary market subject to the condition that the portfolio of Mushrarahah comprises non-liquid assets valuing more than 50 per cent. Profit earned by the Musharakah is shared according to an agreed ratio. Loss is shared on a pro rata basis. Whenever there is a combination of liquid and non liquid assets, it can be sold and purchased for an amount greater than the amount of liquid assets in the combination or in the pool. Investment Sukuk can be issued on a Musharakah basis to mobilise short-term deposits for the development of long term projects or for investment in general financial activities or specific projects. The proceeds of the Sukuk can be used to buy and lease certain equipment or for the construction of projects and factories, the expansion of projects or for working capital finance. The Musharakah structure is considered more > equitable and also safer for the investor than the Mudarabah structure as it involves both profit-and-loss sharing between the fund manger and the Sukuk holders, not only profit-sharing. In addition, Musharakah Sukuk holders will have added comfort and security from the cushion provided by the manager s participation in the Musharakah capital2. In Sudan, a number of assets of the ministry of finance and the Bank of Sudan, Bank of Khartoum, Nilain Bank and other public entities have been identified for the purpose of securitization on a Musharakah basis. 1 Sami Hassan Homoud, Islamic Banking,Arabian Information London, 1985, p Ayub, op. tit., p. 400.

7 Instruments known as Central Bank Musharakah Certificates (CMCs) and Government Musharakah Certificates (GMCs) have been issued since 1998 for investors and are used in place of treasury bills and other interest bearing securities for open market operations and monetary management by the central bank. The CMCs are sold (or brought) by the central bank through auctions and can be traded in the secondary inter bank market1. A huge amount of funds is needed for infrastructure projects in the Muslim world and if managed properly and carefully without comprising on the Shari ah principles, this cannot only be arranged through the vehicle of Musharakah Sukuk, but also it could be a stepping stone for broad based development of these economies. This requires developing Islamic countries to increasingly use the vehicle of Sukuk for financing their infrastructure and other development projects. 5.3 Project Financing This mode of financing serves the need of clients whose available funds are not sufficient to defray the cost of awarded projects. Under this scheme, both the Islamic bank and the client share the capital formation of the venture according to the prearranged ratio. Both partners to the venture also agree upon the ratio of profit sharing. This financing arrangement is applicable to projects like real estate and housing development, construction of public roads, ports, markets, buildings, corporate plants, warehouses and other infrastructural concerns (the ratio of profit sharing in 1 Muhammad Ayub, Islamic Banking and Finance: Theory and Practice, State Bank of Pakistan, Karachi, December 2002; pp ; A. Ahmed Eltejani, Comments on paper by Adam, Nathif Jan on Sukuk. Papers presented at 6th International Conference in Islamic Economics and Finance, Jakarta, Indonesia, 21-24* Nov, pp

8 this case is usually titled in favour of the active or managing partner who is usually the client)1. Fig. 5 : Musharakah in Project Financing * i) Project shared according to agreed ratio or according to ratio of capital contribution. ii) Loss; shared according to ratio of capital contribution. 5.4 Long and short term projects Musharakah financing is also frequently sought to provide credit for long-term investment purposes. Such projects may exist in the housing 1 Source Alamanah Philippines;

9 sector, or in the manufacturing and agricultural sectors, especially the agrobusiness projects. In such cases, it is possible to include in the partnership contract a provision, according to which at the end of the partnership period and when profits (or losses) are realised, to evaluate the banks partnership share and sell that share to the partner on cash or on installment basis1. Investment while 60 per cent is contributed by B. the proportion of profit allocated to each one of them is expressly agreed upon. But at the same time B s share in the business is divided into six equal units and A keeps purchasing these units on gradual basis until after then of the two years B comes out of the business leaving its exclusive ownership to A. Apart from the periodical profits earned by B he gains the price of the units of his share which in practical terms tends to repay in the original amount invested by him. 5.5 Musharakah financing in public sector Public sector financing needs are distinct from those of the private sector in two respects: Funding requirement may be-sizeable and The maturity period of financing may be longer. Thus there would be a need to work with divisible and tradable financial instruments. To the extent that a similar situation may arise in addressing the private sector needs, a selected Musharakah arrangement can be developed on the notion of Diminishing Musharakah for financing public sector projects that also yield income flows. And rather than privatizing public 1 Ali Yasseri,o/?.c/7., p. 240.

10 sector enterprises, the government can enter into a Musharakah arrangement with private parties who might play a role on the management side Musharakah Refinancing by the central bank In order to promote investment in certain priority areas like agriculture, exports or structural overhead projects, some central banks provide to the commercial banks or NBFCs a refinance facility against their disbursement to the priority areas. This refinance is normally based on interest, but it is possible to provide such refinance in a Shari ahcompliment manner. For example, the central bank in Pakistan (SBP) provides an Islamic export refinance scheme (IERS) on the basis of Musharakah; its main features are given below. The frame work of the IERS is based on the concept of Shari ah. The state bank shares in the actual profit of the Musharakah pool maintained by the Islamic bank that provides export finance under various Islamic modes. However, if the actual profit of the pool is more than ongoing rates under a conventional export finance scheme (EFS), the excess profit so received SBP is credited to the Takaful fund, a reserve fund to be maintained by SBP for risk mitigation; the Takaful fund can be used to meet future losses arising on implementation of the IERS. The salient features of the scheme are: > The facility initially is allowed only against as underlying transaction, designed on the basis of Islamic modes of financing approved by the Shari ah Board of the concerned bank. 1 Sayyid Tahir, Islamic Banking at Systematic L ev el: Issues and Approaches, 2 Ayub,op.cit., p. 377.

11 > An Islamic bank desirous of refinance has to create a Musharakah pool (having a minimum of ten blue chip companies - to be achieved in the first year of operation). Blue chip companies mean such companies involved in the export business or other business or both, or manufacturing concerns marketing their products in Pakistan or abroad, who have (i) a good track record on the stock exchange or (ii) a rating of minimum B+ or equivalent by the rating banks in Pakistan, such a rating should be acceptable to the bank as per its own lending policies for advancing loans or (iii) a return on equity (ROE) during the last three years higher than the rates of finance prescribed by the state bank during those years on its conventional EFS. In the case of a company which has been in operation for less than three years, the ROE of the available number of years shall be considered. The Islamic bank has to ensure that companies selected for Musharakah pool under the above criteria do not have adverse Credit Information Bureau reports. > The state bank shares the overall profit of the pool (gross income less than any provision created linder prudential regulations during the period plus any amount recovered against prior periods losses and reversal of provision) earned by the Islamic bank on the Musharakah pool under the provision of the IERS calculated on a daily product basis. > If, on the basis of the annual audited accounts of the Islamic bank, the profit accruing to the SBP is more than the profit paid to the SBP on a quarterly basis, as per the unaudited accounts of earnings of the pool, the difference has to be deposited by the Islamic bank, within seven days of its determination, in a special no remunerative reserve

12 fund, Takaful fund, to be maintained at the office of the state bank where the head office/country office of the concerned bank is situated. > If, on the basis of annual audited accounts of the pool, the share of the state bank in the profit works out to be less than the amount already paid to the state bank on a provisional basis, the state bank has to refund the excess amount involved out of balances held in the Takaful fund, if any. > In the event of loss suffered on the Musharakah pool on the basis of the annual audited accounts, the Islamic bank and the state bank shall have to share the loss in the proportion of their share of investment in the pool expressed on a daily product basis. The share of loss to the state bank will first be met out of the credit balance in the Takaful fund, if any. Any loss not met from the Takaful fund shall be borne by the state bank. > In the case of loss, the Islamic bank is entitled to claim refund on account of the share of profit paid by it to SBP on a provisional basis, along with the SBP s basis, along with the SBP s share in the loss of principal amount extended to the Musharakah pool Musharakah Financing for International business A customer wishing to enter into Musharakah partnership with an Islamic bank to finance an international business transaction must provide full information to the bank about his intended project or the goods to be traded in. The bank studies all the documents presented by the customer 1 Ayub, op. cit., p n i o i

13 which must include the Municipality Certificate and Chamber of Commerce Certificate, which are issued according to the law in the country where the customer is doing business1. Initially the Islamic bank looks to see if the business is permitted according to Islamic Law and the law of the country. If this is the case then studies feasibility of the project with regard to cost, returns and rate of turnover in the business. The Islamic banks put great emphasis on the viability of the commercial transaction, over and above the credit worthiness of the customer, because the bank will be sharing in both the profit and loss of the transaction2. In addition, efficient management, commitment, trustworthiness and a good performance record are some of the more important criteria on which a decision is normally taken. However, in cases of new companies banks have to exercise their good judgment3. Upon approval of application by the authorised person in the bank a Musharakah contract is signed between the bank and the customer. Each contract specifies all the details relating to the contribution of each partner in capital, management and profit as* well as the controls of regulating relations between the bank and the customer. However, as the bank usually waives its right to the management, to be given to the customer (partner)4. This practice has been confirmed by the fatwa of Kuwait Finance House Religious Committee, which has stated that the partners can agree on a specified amount or an increase in the share of profits to be paid to the 1 Al Suwaidi, Finance o f International Trade in the Gulf, Brill, 20, p Mohammad Othaman Khaleefa, op. c//.p,21 3 Nawazish Ali Zaidi, op.cit, p Qasim M. Qasim, Paper on Collection forms Islamic Banking Practice, (In Aabid), (Qatar n.d) p. 19, Quoted by Al- Suwaidi, op. cit., p. 81.

14 partner who manages the business1. The remaining profits are then divided in proportion to the respective contribution of each party. As soon as the contract is signed, a joint account in the name of the partnership is opened, and the contribution of each partner in capital is paid to this account. In addition to this the contract stipulates joint storage and Islamic insurance of the commodity. The partnership agreement normally includes a provision whereby the bank promise to sell to the customer (partner) its share at a future date, either as a lump sum or in installments, and the customer undertakes to repurchase the same from the bank (partner) within an agreed period of time4. Another possibility is that the bank makes a capital contribution to an already existing business but so that the partnership may be terminated within a specified period of time or when certain conditions are met. A third possibility is a decreasing participation on the part of the bank, whereby the customer s profits are kept in order to buy back the bank s share of the partnership5. The contract would allow an adjustment to the profits paid to > each partner according to their changing share in the partnership6. It is worth noting that from the Islamic point of view, no security can be requested from the customer for such partnerships because, according to 1 Kuwait Finance House, Shariah Legal Opinion in Economic Dealing (in Arabic), 1st ed., vol. 2 (1987) p Dubai Islamic Bank, General Introduction of its objectives, Activities and investments, (in Arabic), 2nd ed. (Dubai 1984), p M. Othman Khaleefa, op. cit., p Barhain Monetary Agency, Bahrain, an International Financial Centre, p Trute Wholers Sharf, Arab and Islamic Banks, New Business for developing countries, O.E.CD. France: Development centre studies, 1983 p Khaleefa, M. Othman, op. cit., p 911.

15 Islamic Law, capital and enterprises form a single factor of production in an arrangement of profit and loss sharing1. However, in practice most Islamic banks request security against the risk of negligence or wilful misconduct of the customer or his non-compliance with the terms of the partnership contract Import financing Musharakah can be used more easily in international trade in single transaction as well as big projects. An importer can approach financers to finance him for that single transaction of import alone on the basis of Musharakah (and Mudarabah). The banks can also use these instruments for import financing. If the letter of credit has been opened without any margin, the form of Mudaradah can be adopted and if the letter of credit is opened on some margin, the form of Musharakah or a combination of both will be relevant. A bank may enter into an Musharakah arrangement with a client who intends to import; the bank may also appoint him as agent for acquisition and disposal of the goods after the same are imported; an L/C > could be opened in the bank s or the client s name. The net profit out of this limited purpose Musharakah will be shared between the bank and the client in an agreed ratio1. It is after the imported goods are cleared from the port, their sale proceeds may be shared by the importer and the financer according to a pre-agreed ratio. 1 Nawazish Al-Zaidi, op. cit., p Nabil A. Saleh, op. cit., p M. T. Usmani, op. cit., p Ayub, op. cit., p Usmani, Islamic Method o f Financial, op. cit., p

16 In this case, the title of the imported goods shall remain with the financer to the agreed term and if the imported goods are not sold in the market upto the expiry of the term, the importer may himself purchase the share of the financer, making himself the sole owner of the goods. Muhammad Ayub has discussed a practical application of a transaction of import finance in the following finance case study. A huge utility organization awards a contract to a local supplier (ABC & Co) for the supply of equipment that has to be imported. ABC & Co is interested in financing a transaction through a Musharakah arrangement with an Islamic developed on a partnership by creditor/ lines basis (Shirkatul Wujooh), in which the partners have no investment at all. They purchase goods on credit and sell them on spot. The profit so earned is distributed between them at an agreed ratio. The process of the transaction consists of the following steps : 1. ABC & Co opens a Usanee L/C of Rs. 10 million, which is issued by an Islamic bank (bank financing on a participation basis) in favour of M/s XYZ Machines, Italy. 2. XYZ Machines agrees to give a credit period of 180 days. 3. Equipment is shipped to the importing country through air cargo due to the sensitivity of the equipment. 4. ABC and Co inspects the goods and confirms its satisfaction to the bank, upon which the Islamic bank conveys its acceptance of the documents to the negotiating bank. 5. Customs take 30 days for the clearing of the equipment.

17 6. ABC and Co take around 50 days to install the equipment. 7. After the installation, the utility organization inspects and tests the equipment for its performance. 8. As soon as the satisfaction certificate is issued, a bill is lodged for payment. 9. Payment is received within 150 days of shipment. 10. Profit is distributed among the partners as per the agreed ratio. 11. The Islamic bank settles the L/C on the due date Export financing Musharakah can be applied in trade finance without complexities, since the chances of fraud, negligence and other problems are relatively lower in international trade than in other Musharakah-based projects. In case of export finance under L/C, the goods will be acquired and made ready for shipment on a Musharakah basis. The client will prepare the export document a strictly in accordance with the terms of the L/C and undertake to identify the bank for any loss in case of his failure to honour his commitment. Export proceeds will be distributed according to the agreed ratio. If there is no L/C involved, the merchandise will be made ready for export under joint ownership of the bank and the client. However, details of all such transactions will have to be worked out in consultation with the commercial bankers who are actually involved in the business. A possible procedure for export financing under Musharakah is given below: 1 Muhammad Ayub, op. cit., p. 335.

18 1. The exporter receives and order from abroad to export a specific commodity/good at a known price. He prepares estimated of cost and his expected profit. 2. He needs financing for manufacturing/procurement of the goods and asks the banks to provide finance on the basis of Shirakh. The bank enters into an agreement, according to which profit will be shared on a pre-agreed percentage. 3. The bank can get a guarantee/security to protect itself from misconduct, breach of the contract or negligence on part of the client. The financer may put a condition that it will be the responsibility of the exporter to export the goods in full conformity with the conditions of L/C. In this case, if some discrepancies are found, the exporter alone shall be responsible, and the financer shall be immune from any loss due to such discrepancies, because it is caused by the negligence of the exporter. However, being a partner of the exporter the bank will be liable to bear any loss which may be caused due to any negligence or misconduct of the exporter1. > However, in order to undertake such an operation, banks need to understand the nature of the exported business and other requirements Letters of credit In addition to financing of projects, Musharakah may also be undertaken to finance a single transaction. A useful application of Musharakah financing is the Islamic letter of credit2. Letters of credit are essential banking services, particularly in the 1 Usmani, op. cit., p Obaiduallh Muhammd, Islamic Financial Services, op. cit., p. 65.

19 area of international trade. In literature on Islamic banking, L/C s are covered under various contracts like Wakalah and Rafalah for businesses under Musharakah and Murabah1. Letters of credit may be opened for business on the basis of Murabaha and Musharakah. As compared to Murabah, Musharakah is more flexible, as the L/C may be in the name of the customer or the bank. When the goods are received, the partner may sell them and the Musharakah liquidated or the partner may buy the share of the bank. In the case of Musharakah, either the bank or the customer can administer the L/C; this gives more flexibility to both parties and solves some legal, Sharika related and procedural problems which are encountered in Murabaha L/Cs. It is also possible for the bank to act as an agent to the beneficiary on behalf of the issuing bank and, in return, charge a fee against the L/C2. According to scholars, there is no objection to Islamic banks to add their confirmation to a L/C opened on behalf of foreign suppliers to importers. They would keep surplus in their accounts with the * correspondent bank to cover their obligations to the third party (the supplier). In this regard, there are certain considerations to be taken into account3. ^ An Islamic bank should not delay the transfer of the value of the L/C to the transfer of the value of the L/C to the correspondent abroad list the correspondent bank should charge interest. ^ Import business conducted by an Islamic bank should not involve 1 Muhammad Ayub, op. cit., p Idem. 3 Ibid., p

20 facilities for payment on the part of suppliers in return for interest. This procedure often entails drawing drafts on importers, guaranteed to be honoured for the benefit of the supplier, by the bank opening the credit. Experience has shown that, in addition to the surplus maintained by the Islamic banks, foreign banks have been accepting dealing on the basis of mutual agreements by simple exchange of letters, to enable by simple exchange of letters, to enable Islamic banks to avail confirmation facilities upto an agreed ceiling without charging interest if the accounts are overdrawn. In consideration, Islamic banks undertake to abide by the following: To help a reasonable amount of cash in their current accounts with confirming banks. To endeavour to cover any debit as soon as possible (it is part of the understanding that the Islamic bank does not ask for any return on any balance due to it, should the other bank utilize these funds profitably). Therefore, there is no condition set by the other party if the Islamic bank s account remains overdrawn for sometime. As partial security, the correspondent bank will, on adding its confirmation, debit the Islamic bank with a certain cash margin, which it will transfer immediately to its own account. Thus, Islamic banks need, infact, correspondent bank s account to cover the cash margins on the letters of credit. Transfer of funds in a specific currency to be paid in the same currency is allowed with or without a fee. In traditional Islamic finance literature, we come across the instrument of Suftajah for cash transfer/payment, which involved the act of depositing a certain amount of

21 money with someone for settlement to the benefit of the depositor or his representative at another place or in another country. In the transfer involves payment in any other currency, the exchange operation at the agreed rate is carried out before the transfer1. In case study of Islamic letter of credit at Al-Ammanah Philippines, the following steps are involved: i) The customer informs the bank of his letter of credit requirements and negotiates the terms and conditions of jointventure financing. ii) The customer places a deposit which the bank under al-wadiah Principle towards his share of the cost of goods to be purchased/imported as per Musharakah agreement. iii) The bank establishes the letter of credit and pays the proceeds to the negotiating bank utilizing the customer s deposit together with its own share of financing, and eventually releases the pertinent papers to the customer concerned. iv) The customer takes possession of the goods and disposes these off in the manner agreed upon. v) The bank and customer share in the profit from the venture as provided for in the agreement Musharakah in the form of Term Finance Certificates (TFCs) Musharakah can also be used for financing through the purchase of Musharakah certificates like Shirkah based Suhuk, Term Finance Certificates (TFCs) or Participation Term Certificates (PTCs). Certificates 1 Muhammad Ayub, op. cit., p

22 issued on the principle of ShirkahlMusharakah are negotiable instruments issued by a company in consideration of any fund, money or accommodation received or to be received by it whether in cash or in kind, or against any promise, guarantee, undertaking or indemnity issued for its benefit. The problem of moral hazard would be much less in the case of TFCs/PTCs than in the case of direct Musharakah investments1. An excellent example of Musharakah based financing through the issuance of participatory instruments is that of the 5-year Term Finance Certificates (TFCs) worth Pak Rupees 360 million issued by the Sitara Chemical Industries, a public limited company in Pakistan, in June The amount raised through the TFC issue was utilized to meet a part of the cost of an expansion project of the company. The TFCs are based on the mechanism of Shirkah and are tradable in the securities market. The payment of profit or sharing of loss is linked to the operating profit or loss of the company. The investors assume the risk of sustaining losses proportionate to their principle amount in the case of any operating losses incurred by Sitara. Changes in any government regulations may also affect the profitability of the TFCs. By investing in the TFCs, an investor also assumes the risk of not being able to sell the TFC without adversely affecting the price. Profit is paid on a six monthly basis. For the purpose of sharing profit with the TFC holders, the level of yearly operating profit is divided into two tiers as described below under the headings of Level I profit and Level II profit. Level I profit: On the first Rs. 100 million operating profit at 12 per cent

23 p.a. of the outstanding principal. The rate of 12 per cent has been taken as a project rate by reverse accounting on the basis of a sharing ratio. The rate of percentage profit entitlement shall be proportionally reduced if operating profit is less than Rs. 100 million, as follows: Actual operating profit/rs. 100 million) x 12 % = Actual profit entitlement rate of level I profit Level II profit: 2 per cent p.a of the outstanding principal on each subsequent Rs. 100 million operating profit (over and above Rs. 100 million). One quarter of this profit will be transferred into the Fakaful reserve and the balance will be distributed to the TFC holders. The rate of profit entitlement shall be proportionately reduced if the actual figure of subsequent operating profit falls in between two successive slabs of the Rs. 100 million of operating profit, as follows: (Actual operating profit/rs 100 million) x 2% = Actual profit entitlement rate of Level II profit If the final profit payment of a year is in excess of the on-account profit payments already paid to the TFC holders, the excess amount will be paid along with the next six monthly on-account profit payment. However, if the on-account payments that have already been made for the year are in excess of the final profit share of the TFC holders, then the excess will be adjusted as per predecided procedure. If the operating profit is more than Level I profit, the profit-sharing arrangement applicable on Level II profit is followed1. If upon finalization of the annual audited accounts, a loss is incurred, the on-account profit payment has to be adjusted. The loss attributable to the TFC holders will be offset against the Takaful reserve created for the purpose. 1 Ayub, op. cit., p t 141 I

24 If the amount available in the Takaful reserve is insufficient to absorb the entire loss attributable to the TFC holders, the unabsorbed losses will be adjusted against the principal amount at the time of redemption of the principal amount. The face value of each TFC issued to the general public is Rs The principal amount has to be redeemed at the end of the third fourth and fifth years from July 1, The amount of principal redemption at the end of the third year may be Rs. 1650/- at the end of the fourth year Rs. 1650/- and at the end of the fifth year Rs. 1700/-. The principal redemption in each above-mentioned year will be subject to profit/loss adjustments Financing of working capital Where funds are required for the working capital of a running business, the instrument of Musharakah may be used in the following manner: 1. The capital of the running business may be evaluated with the mutual consent. It is already mentioned while discussing the traditional concept of Musharakah that is not necessary, according to Imam Malik, that the capital of the Musharakah is contributed in cash form. Non-liquid assets can also form part of the capital on the basis of evaluation. This view can be adopted here. In this way, the value of the business can be treated as.the investment of the person who seeks finance, while the amount given by the financer can be treated as his share of investment. The Musharakah may be affected for a particular period, like one year or six months or less. Both the 1 N.B: Sitara TFC s Remained highly profitably: they gave a profit between 15 and 24% per annum. The IFC s are not available in the secondary market as the holders locked in, keeping in mind the high profitability. Ayub.op.cit, p f 142 1

25 parties agree on a certain percentage of the profit to be given to the financer which should not exceed the percentage of his investment, because he shall not work for the business. On the expiry of the term, all liquid and non-liquid assets of the business are again evaluated and the profit may be distributed on the basis of this evaluation1. Although, according to the traditional concept, the profit cannot be determined unless all the assets of the business are liquidated, yet the valuation of the assets can be treated as constructive liquidation with mutual consent of the parties, because there is no specific prohibition in Shari ah against it. It can also mean that the working partner has purchased the share of the financer in the assets of his business, and the price of his share can be determined on the basis of valuation, keeping in view the ratio of the profit allocated for him according to the terms of the Musharakah. For example, the total business of the value of A is 30 units. B finances another 20 units, raising the total worth to 50 units; 40 per cent having been contributed by B, and 60 per cent by A. It is agreed that B shall get 20 per cent of the actual profit. At the end of the term, the total worth of the business has increased 100 units. Now, if the share of B is purchased by A, he should have paid to him 40 units, because he owns 40 per cent of the assets of the business. But in order to reflect the agreed ratio of profit in the price of his share, the formula of pricing will be different. Any increase in the value of business shall be divided between the parties in the ratio of 20 and 80 per cent, because this ratio was determined in the contract for the purpose of distribution of profit. Since the increase in the value of the business is 50 units, these 50 1 M.T. Usmani, op. cit., I 143 I

26 units are divided at the ratio of 20: 80, meaning thereby that 10 units will have been earned by B. These 10 units will be added to his original 20 units, and the price of his share will be 30 units1. In case of loss, however, any decrease in the total value of the assets should be divided between them exactly in the ratio of their investment, i.e., in the ratio of 40/60. Therefore, if the value of the business has decreased, in the above example, by 10 units reducing the total number of units to 40, the loss of 4 units shall be borne by B (being 40% of the loss.). These 4 units shall be deducted from its original 20 units, and the price of his share shall be determined as 16 units. Financing on the basis of Musharakah according to the above procedure may be difficult in a business having a large number of fixed assets, particularly in a running industry, because the valuation of all its assets and their depreciation or appreciation may create accounting problems giving rise to disputes. In such cases, Musharakah may be applied in another way. The major difficulties in these cases arise in the calculation of > indirect expenses, like the depreciation of the machinery, salaries of the staff etc. In order to solve this problem, the parties may agree on the principle that, instead of net profit, the gross profit will be distributed between the parties, that is, the indirect expenses shall not be deducted from the distributable profit. It will mean that all the indirect expenses shall be borne by the industrialist voluntarily, and only direct expenses (like those of raw material, direct labour, electricity etc.) shall be borne by the Musharakah. But since the industrialist is offering his machinery, building 1 M.T. Usmani, op. cit., p. 219.

27 and staff to the Musharakah voluntarily, the percentage of his profit may be increased to compensate him to some extent. This arrangement may be justified on the ground that the clients of financial institutions do not restrict themselves to the operations for which they seek finance from the financial institutions. Their machinery and staff etc. is, therefore, engaged in some other business also which may not be subject to Musharakah, and in such a case the whole cost of these expenses cannot be imposed on the Musharakah. Usmani has given the following practical example. Suppose a factory has a building worth Rs. 22 million, plant and machinery valuing Rs. 2 million and the staff is paid Rs. 50,000/- per month. The factory sought finance of Rs. 5,000,000/- from a bank on the basis of Musharakah for a term of one year. It means that after one year the Musharakah will be terminated, and the profits accrued upto that point will be distributed between parties according to the agreed ratio. While determining the profit, all direct expenses will be deducted from the income. The direct expenses may include the following : i) The amount spent on purchasing raw material. ii) iii) iv) The wages of the labour directly involved in processing the raw material. The expenses for electricity consumed in the process. The bills for other services directly rendered for the Musharakah. So far as the building, the machinery and the salary of other staff is 2 M.T.Usmani, op. tit., p. 220.

28 concerned, it is obvious that they are not meant for the business of Musharakah alone, because Musharakah will terminate within one year, while the building and the machinery are purchased for a much longer term in which the factory will use them for its own business which is not subject to this one-year Musharakah. Therefore, the whole cost of the building and the machinery cannot be borne by this short-term Musharakah. What can be done at the most is that the depreciation caused to the building and the machinery during the term of the Musharakah is included in its expenses. But in practical terms, it will be very difficult to determine the cost of depreciation, and it may cause, disputes also. Therefore, there are two practical ways to solve this problem1. In the first instance, the parties may agree that the Musharakah portfolio will pay an agreed rent to the client for the use of the machinery and the building owned by him. This rent will be paid to him from the Musharakah fund irrespective of profit or loss accruing to the business. The second opinion is that, instead of paying rent to the client, ratio of his profit is increased. The following may be the flow of transactions in the case of Musharakah for running business : i. A running Musharakah account for the client will be opened in the books of the financing bank. ii. iii. The client s proceeds from the sale of finished goods will be credited in the running Musharakah account. The clients cash flows generated from investment activities (for example, sales proceeds from the disposal of fixed assets) and cash flows from long-term financing activities (for example, long term 1 M.T. Usmani, Introduction to Islamic Finace, Idaratul-Marif, Karachi, May 2000,p I

29 finance availed for the project) cannot be credited in the running Musharakah account. iv. For determination of the period of running Musharakah limit, all the clients of the bank will be divided into the following three categories : seasonal, cyclical and continued operation. v. At the end of each quarter or month, as the case many be, the profit earned by the client in the Musharakah will be paid to the bank. vi. The profit-sharing will be based on the computed operating profit for the same period for which the running Musharakah limit was awarded Application of Diminishing Musharakah {Musharakah Mutanaqisah) in financing Diminishing Musharakah can be easily used for the purpose of financing fixed assets by Islamic banks. It includes house financing, auto financing, plant and machinery financing, factory/building financing and all other fixed asset financing. Financing by a bank on the basis of Diminishing Musharakah can take different forms depending upon the assets involved. Some assets can be leased out e.g., in case of house financing and the purchase of plant and machinery, assets of a commercial nature would not involve leasing Diminishing Musharakah in House Financing Application of Musharakah in house financing could take many forms. The customers/clients may for example, provide the land and part of 2 Muhammad Ayub, op. at., p Ibid., p I

30 the finance or one of them and the bank provide the other. The house will be jointly owned according to the percentage of finance provided by each partner including the value of the land. When the unit is completed it can either be used by the customer or let out. In all cases a rent will be determined and the customer can either pay the share of the rent due to the bank or use the premises or the premises can be let out and the rent shared between the bank and the customer1. Let us see some practical examples of house financing in different situation. Construction of a house on a customer s land or renovation of a house Construction of a house on land owned by the customer would involve purchase/sale and lease-back. Suppose the plot of land is worth one million Dirhams/Rupees and the customer needs 80,000 Drs. (Rs.) from the Islamic bank. The bank would purchase a part of the land from the customer (say 8 units of 100,000 Drs (Rs.) each out of the total of ten units to form a joint ownership on the basis of Shirkatul milk. The customer would undertake that he would pay rent on the bank s part of ownership and would periodically purchase the share of the bank according to a pre-agreed schedule of price. With the proceeds of the land (800,000 Drs. / (Rs.)) that could be provided in four equal installments), the client would construct the house; when the house was complete and habitable, the bank would lease its part of ownership to the client at the agreed rental upto one year, the client would pay only the rent on the bank s part of the house. Accordingly, the rent would not decrease during that period. One year after the disbursement of the last installment, the bank 1 Housing Finance in Islamic Countries, paper presented by Abdin-A-Salma, p. 29.

31 would start selling its units of ownership to the client as per the undertaking of the customer; rent would decrease with every rental paid, and ultimately the title of the house would transfer to the client. The period of one year has been suggested by the Shari'ah scholars for sale of units by the bank to avoid buyback (Bai al-inah ), which is prohibited. Renovation of a house owned by the customer would also involve purchase/sale and lease-back. The client would sell, say, four units of his ownership to the bank to create a joint ownership with the proceeds of the sale, the client would renovate the house or make alternations to it. The bank would start taking rent from the first month after disbursement of the first tranche because the customer is already living in the house. The process of the units sale back to the client would start one year after the disbursement of the last tranche1. Hypothetical case study on housing finance through Diminishing Musharakah (partnership by ownership) calculation of the monthly payment plan for home purchase Cost of house Bank Financing * 80% Drs or Rs. 1. Mm. Tenure Rental (Return Rate Equivalent to): Purpose 10 years 7% p.a of investment Home purchase from the market2. Key structure: Monthly payment consists of unit purchase and rent components. Unit purchase will remain constant over the entire tenure. Rent 1 Ayub, op. cit., p Idem {1 4 9

32 is calculated based on the number of units outstanding. The rent component will decrease every month with the purchase of units. Construction o f a house on a plot o f land already owned by the client, renovation/additions to a house owned by him or a balance transfer facility (BTF) for the payment o f an interest based mortgage loan on a clients house are subject to a different procedure, as discussed previously. Working Bank s share : Rs ; full payment is made in one tranche Client s share Rs No. of bank s units (equal to : 120 number of months) Price per unit (principal/number of : Rs units) Rent per unit (annual) : ^ Rs [(outstanding investment* rate)/12) for monthly rent] 150 I

33 Month Unit Rent per month Total Units Investment , , , , , , xxxxx XXX XXXXX XXX xxxx , , , In all three above cases, i.e. the construction of a house, renovation > of a house or purchase of a built house, if the client regularly pays the rental and periodically purchases the bank s share, the ownership is transferred to him. If he delays the rental will not decrease and the bank s loss in terms of income will be far less than in the case of Murabaha or even simple leasing, as the customer will go on paying rental on the units owned by the bank. The client can also purchase more than one unit of his cash flow allows him to do so. In this case, Islamic banks normally conduct a valuation of the house and share in the capital gain, if any, generally upto a t 151 I

34 pre-stipulated rate. For example, if the client intends to purchase five units at one time, the bank will conduct a valuation and will share the appreciation upto 3 or 4 per cent on its part of the investment, giving the remainder to the client. Thus, Musharakah Mutanaqisah on the basis of Shirkatul-Milk has a built-in element of risk mitigation. The rental rates to be taken by the banks can be fixed or floating; if floating they should be subject to a proper floor and cap to avoid Gharar, which could render the transaction non Shari ah Complaint1. It is hence not without reason that the housing sector has witnessed greater use of Musharakah Mutanaqisah than any other sector, since the expected profits from this business would be sourced from rentals that are predealable to a considerable degree. Musharakah in building commercial building The bank or an financial company undertakes this kind of project by providing wholly or partially the necessary finance for constructing the building, while the client provides the plot of land on which is to be constructed, and perhaps part of the financing as well. As both the financer the bank and the client are convinced of the feasibility of the project according to the studies conducted on it, they proceed in its execution and then its leasing, selling or exploiting in any firm that leads to achievement of the required returns. The bank assumes (with authorization from the client) the responsibility of managing the project and the revenue generated there from is divided between the bank and the client as follows: 25 per cent of the revenue to be allocated as the bank s share. The remainder (75%) of any proportion thereof agreed up will be 1 Ayub, op. cit., p