Notwithstanding clause


What does "notwithstanding anything contained hereinabove" legally mean?

 

Does it mean that, if in an agreeement I write "your letter should be printed on blue paper to enable me to reply", and then at the end of the agreement I write "notwithstanding anything contained hereinabove, all your letters shall be replied by me within 10 days", does this mean that regardless of the letter being printed on blue paper or not, I have to reply within 10 days?

 

In the Bank Guarantee scenario, if we (banker) write in the BG that "your (beneficiary's) invocation letter should be accompanied by a calculation sheet of dues payable", and at the end we write that "notwithstanding anything contained hereinabove, we are liable to pay the BG amount on receipt of your invocation letter on or before .... date", does this mean that whether the invocation letter is accompanied by a calculation sheet or not, the bank needs to pay on mere receipt of the invocation letter if received on or before ... date?

 

Will be very obliged if any judgement is also referenced.

 
Reply   
 

"notwithstanding anything contained hereinabove" legally means apart from the above. 

 
Reply   
 


Business

Notwithstanding means " Regardless" . So when you say " Notwithstanding the above... " the condition that follows takes precedence over the conditions mentioned before, in case of a conflict.....

See :

"A section sometimes begins with the phrase 'notwithstanding anything contained etc.'. Such a clause is called a non-obstante clause and its general purpose is to give the provision contained in the non- obstante clause an overriding effect in the event of a conflict between it and the rest of the Section

( Source : http://indiankanoon.org/docfragment/76947/?formInput=non-obstante )

So in your specific case it seems you are diluting the conditions for invoking the BG, as against those mentioned earlier.

This is my understanding. Seniors may please correct if wrong.

 
Reply   
 
Advocate

Hello, Prasun.

Notwithstanding anything contained hereinabove is a non obstinate clause. A non obstante clause is usually used in a provision to indicate that the provision should prevail despite anything to the contrary in the provision mentioned in such non obstante clause. In case there is any inconsistency or a departure between the non obstinate clause and another proviosn, one of the objects of such a clause is to indicate that it is the non obstante clause which would prevail over the other clause. (Parasuramaiah v. Lakshamma AIR 1965 AP 220).

In Hindustan Fertilizer Corporation Ltd. Vs. Tata Chemicals Ltd. case the Kolkata High Court interpreted a non obstante clause mentioned in the Bank Guarantee. The clause ran thus, “Notwithstanding anything contained hereinbefore, HFCLs liability under this guarantee is restricted to Rs.80,00,000/- (Rupees eighty lakhs only). The actual cost of decommissioning will be as determined mutually between HLCL and HFCL in accordance with the terms of the Agreement. Unless, a demand in writing for claim under this guarantee is lodged by HFCL, three months prior to the expiry of this Guarantee, all the figures under this Guarantee will be forfeited and HLCL will be released and discharged from all liabilities therein under.” The Court held that on a plain reading of the said clause it indicates that it is specifically mentioned that the HFCLs liability under this particular guarantee is limited to Rs.80 lakh only although the actual cost of decommissioning would be determined mutually between the parties in accordance with the terms of the agreement. However, unless demand is made by HFCL three months prior to expiry of the guarantee in question, HLCL would be released from the guarantee.

Coming to your case, if in an agreement it is written that the letter should be printed on blue paper to enable you to reply and then at the end of the agreement, you have mentioned a non obstante clause stating that all the letters shall be replied by you within 10 days, it means that regardless of the letter been printed on blue paper or not, you shall reply within 10 days. As per the example of Bank Guarantee that you have stated, the bank needs to pay on the receipt of the invocation letter if received on or before the stated date.

Regards

Adv. Pooja;

 

www.lawkonect.com

 
Reply   
 

Thank you all, for the explanations.

 

Funnily, if the NWC is so pervailing, it renders all other things written in a Bank Guarantee useless. We bankers can just write Applicant name, Beneficiary name, and then straightaway write the NWC and that's it !

 

Many thanks to all, again.

 
Reply   
 

please advise me,

what documents are required for creation of second charge on immovable assets.

as in general in First charge we take Title Documents, Recital, Confirmation & Declaration.

Thanks in advance.

 
Reply   
 

LEAVE A REPLY


    

Your are not logged in . Please login to post replies

Click here to Login / Register  



 

Search Forum:








×

  LAWyersclubindia Menu