Judgment : 1. This is an Application taken out by the first defendant in the Suit, seeking the issue of a "Third Party Notice" under Order 8-A(1) of the Code of Civil Procedure read with Order 5-A of the High Court Original Side Rules, for the purpose of claiming contribution towards the Suit claim from a third party, who is not a party to the Suit. 2. I have heard Mr. S. Raghunathan, learned counsel for the applicant/first defendant, Mr. K. Bijai Sundar, learned counsel for the third respondent/third party against whom the relief is sought for and Mr. Nageswaran, learned counsel appearing for the respondents 1 and 2, who are the plaintiffs in the Suit. 3. The factual matrix of the case, leading to the present Application, is as follows: a) The first plaintiff imported a consignment of Gear Boxes from a Company in Finland. The consignment was insured with the second plaintiff viz., United India Insurance Company Limited, for transit risks under the Marine Open Cover Policy. The consignment was entrusted to the first defendant, who is a Sea Carrier, having Registered Office at Basel, Switzerland. The second defendant is the agent of the first defendant, who signed the Bill of Lading and acknowledged the entrustment of cargo. b) The cargo was intended to be transhipped from Helsinki Sea Port to Chennai Sea Port. But the cargo was lost midway, resulting in the first plaintiff making an insurance claim on the second plaintiff. The second plaintiff paid the sum assured and got subrogated under the terms of the Insurance Policy. Thereafter, the plaintiffs have filed the present Suit for recovery of a sum of Rs.25,25,200/-, representing the maximum liability of the carrier towards the value of the cargo, in terms of the Bill of Lading. c) After service of summons on them, the first defendant has come up with the present Application for leave to seek a cross-decree/contribution in their favour, by way of third party procedure, as against the third respondent herein, who is a third party to the proceeding. The first defendant has come up with the present Application, on the ground that the first defendant was only a Freight Forwarder, who entrusted the consignment to the third respondent herein, for transshipment from Helsinki to Chennai and that therefore, the third respondent was liable to compensate the first defendant for the loss sustained. The first defendant has come up with the present Application, on the ground that the first defendant was only a Freight Forwarder, who entrusted the consignment to the third respondent herein, for transshipment from Helsinki to Chennai and that therefore, the third respondent was liable to compensate the first defendant for the loss sustained. d) The third respondent/third party has filed a counter, opposing the grant of leave to serve a third party notice on them, on the ground that this Court has no jurisdiction to entertain any dispute as against them. 4. Therefore the question that arises for consideration is as to whether leave could be granted to the first defendant to make the third respondent, a party to the Suit or not. The question as to whether the third respondent is actually liable to contribute and if so, to what extent, towards any decree passed against the defendants 1 and 2 in the Suit would arise for consideration only at the time of trial, if the third respondent is impleaded as a party to the Suit. Therefore, at present, the only issue to be decided is as to whether a third party notice could be served on the third respondent under Order 8-A of the Code of Civil Procedure and whether this Court has jurisdiction to entertain any dispute as against him. 5. Mr. K. Bijai Sundar, learned counsel appearing for the third respondent filed the Sea Way Bill dated 211. 2002, along with the Annexure containing the terms and conditions. This Sea Way Bill constituted the contract between the first defendant and the third respondent. Clause 12 of the Terms and Conditions, relates to "Law and Jurisdiction" and it reads as follows: "12. Law and Jurisdiction: Except as otherwise provided specifically herein any claim or dispute arising under this Sea Way bill shall be governed by the law of the Federal Republic of Germany and determined in the Hamburg Courts to the exclusion of the jurisdiction of the Courts of any other place. In case the Carrier intends to sue the Merchant the Carrier has also option to file a Suit at the Merchants place of business. In the event this clause is inapplicable under local law then jurisdiction and choice of law shall lie in either the Port of Loading or Port of Discharge at Carriers option." 6. In case the Carrier intends to sue the Merchant the Carrier has also option to file a Suit at the Merchants place of business. In the event this clause is inapplicable under local law then jurisdiction and choice of law shall lie in either the Port of Loading or Port of Discharge at Carriers option." 6. Therefore, the learned counsel for the third respondent contended that the Courts in Hamburg, Germany alone would have jurisdiction to try any claim by the first defendant as against the third respondent. In support of his said contention, the learned counsel for the third respondent also relied upon a judgment of the Supreme Court in British India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries, 1990 (48) ELT 481 . 7. The decision of the Supreme Court cited by the learned counsel for the third respondent arose out of a contract of affreightment, entered into between a party in Quilon with a Sea Carrier in England for transhipment of Cashewnuts from East Africa, to be delivered at Cochin. There was a short landing, leading to a claim for damages filed by the Indian Importer on the file of the Sub-Court, Cochin. The Suit was decreed by the Sub-Court and the decree was confirmed by the High Court. 8. The Foreign Carrier challenged the judgments of the Sub-Court and the High Court before the Supreme Court and the Supreme Court considered the effect of the jurisdiction clause contained in a Bill of Lading. In paragraph-7 of its judgment, the Supreme Court extracted the said clause and the contention raised on behalf of the Shipping Agent, which reads as follows: "7. Even so, this being a question of jurisdiction going to the root of the matter we allowed the appellant to make his submissions. The appellants submission that the Courts at Cochin had no jurisdiction is based on Clause 3 of the Bills of Lading which reads as follows: "3. Even so, this being a question of jurisdiction going to the root of the matter we allowed the appellant to make his submissions. The appellants submission that the Courts at Cochin had no jurisdiction is based on Clause 3 of the Bills of Lading which reads as follows: "3. JURISDICTION: The contract evidenced by this Bill of Lading shall be governed by English law and disputes determined in England or, at the option of the Carrier, at the port of destination according to English law to the exclusion of the jurisdiction of the Courts of any other country." If the above clause was binding on the first respondent, without anything more, there could be no doubt that the Suit claim arising out of the contract of affreightment evidenced by the Bills of Lading will have to be determined in England or, at the option of the carrier, that is the appellant, at the port of destination, that is, Cochin, to the exclusion of the jurisdiction of the Courts of any other country. Is the first respondent bound by this clause of the Bill of Lading ?" 9. In paragraph-18 of the said judgment, the Supreme Court considered the effect of Section 28 of the Indian Contract Act, upon such a jurisdiction clause, and held as follows: "18. The question of jurisdiction in this case ought not to be determined by the High Court on the basis of the provisions of Section 28 of the Indian Contract Act in the absence of a specific provision making it applicable to transactions in international trade. The effective operation of statutes of a country in relation to foreigners and foreign property, including ships, is subject to limitations. In general, a statute extends territorially, unless the contrary is stated, throughout the country and will extend to the territorial waters, and such places as intention to that effect is shown. A statute extends to all persons within the country if that intention is shown. The Indian Parliament therefore has no authority to legislate for foreign vessels or foreigners in them on the high seas. A statute extends to all persons within the country if that intention is shown. The Indian Parliament therefore has no authority to legislate for foreign vessels or foreigners in them on the high seas. Thus a foreign ship on the high seas, or her foreign owners or their agents in a foreign country, are not deprived of rights by our statutory enactment expressed in general terms unless it provides that a foreign ship entering an Indian port or territorial waters and thus coming within the territorial jurisdiction is to be covered. If the Parliament legislates in terms which extend to foreign ships or foreigners beyond the territorial limits of its jurisdiction, the Indian Court is of course bound to give effect to such enactment. However, no such provision has been referred to in the impugned judgments. Without anything more Indian statutes are ineffective against foreign property and foreigners outside the jurisdiction." 10. But after holding so, the Supreme Court merely remitted the matter back to the Trial Court for a fresh consideration on the ground that no clear finding was recorded as to the law of the country which governed the terms of the contract. But a word of caution was added by the Supreme Court in paragraph-28 of the said judgment, which reads as follows: "28. In the absence of an express choice the question of the proper law of contract would arise. The parties to a contract should be bound by the jurisdiction clause to which they have agreed unless there is some strong reason to the contrary." The Supreme Court also cautioned at the end of paragraph-20 that "the parties cannot by submission confer jurisdiction on the Court to entertain proceedings beyond its authority”. 11. Mr. S. Raghunathan, learned counsel for the applicant relied upon a judgment of Chief Justice K. Veeraswami, as he then was, in Messrs Black Sea State Steamship Line, represented by its Agents, D.M. Madan and Co. v. The Minerals and Metas Trading Corporation of India Ltd., 1970 (1) MLJ 548 . 11. Mr. S. Raghunathan, learned counsel for the applicant relied upon a judgment of Chief Justice K. Veeraswami, as he then was, in Messrs Black Sea State Steamship Line, represented by its Agents, D.M. Madan and Co. v. The Minerals and Metas Trading Corporation of India Ltd., 1970 (1) MLJ 548 . In the said case, the Bill of Lading clearly provided that all disputes arising in connection with the same shall be judged in U.S.S.R. and according to the Merchant Shipping Code of U.S.S.R. But the learned Judge upheld the jurisdiction of this Court, de hors such a stipulation in the Bill of Lading, on two grounds viz., (i) balance of convenience and (ii) ends of justice. It was held in the said judgment as follows: "The parties who make their choice of the Tribunal should normally be bound by their contract. That should especially be the case as to the choice of the law applicable to the contract. But it seems to me that enforcement by the Indian Courts of the choice of a foreign Tribunal cannot be ruled as imperative; but it should depend on the balance of convenience in particular circumstances and the exigencies of justice. The law has been fairly accurately stated by Cheshire in his Private International Law, 6th Edition, page 222: "As distinct from the express or implied choice of the proper law, the express choice of a foreign tribunal is not absolutely binding. In accordance with the excellent principle that a contractual undertaking should be honoured, there is indeed, a prima facie rule that an action brought in England in defiance of an agreement to submit to arbitration abroad will be stayed The Cap Blanco, Austrian Lloyd Steamship Co. v. Gresham Life Assurance Society Ltd., but nevertheless the Court has a discretion in the matter and where the parties are amenable to the jurisdiction, as for example, where the defendant is present in England, it will allow the English action to continue if it considers that the ends of justice will be better served by a trial in this country (The Athance, The Fehmarn)”. In a case of foreign jurisdiction clause, the question is not so much of freedom of contract and the parties being bound by their choice as of expediency in the light of what may be called the rule of balance of convenience and the ends of justice in the case on hand. Referring to the The Athence, The Fehmarn, Cheshire seems to apprehend that unless the discretion of the Court in favour of allowing the English action to continue is exercised sparingly, there is a danger that foreign merchants will lose faith in the efficacy of arbitration clauses. It may be that, according to Cheshire, that case went to the verge of the law. While Courts are certainly expected to use their discretion judicially and on proper grounds keeping in view the balance of convenience and the ends of justice, the exercise cannot be guided by the prospect of the danger apprehended by Cheshire. The consideration is more from the stand point of justice than to ignore the necessity to hold the parties to the contract as to the forum for adjudication." 12. Therefore it was contended by the learned counsel for the applicant (first defendant) that even while acknowledging the right of parties to enforce the terms of the contract, this Court had taken the view that apart from the terms of the contract, the balance of convenience and ends of justice could also be taken into account, while deciding the question of jurisdiction. But, the decision of the Supreme Court in British India Steam Navigation Companys Case made it clear that the parties to a contract should be bound by the jurisdiction clause to which they have agreed unless there is some strong reason to the contrary. As held in para 48 of the said judgment by the Apex Court, the stipulations of parties constitute the law of the contract, as seen from the maxim "pactadant legena contractui". Agreements give the law to the contract. 13. But neither the decision of the Supreme Court in British India Steam Navigation Companys case nor the decision of the Chief Justice K.Veeraswami in Black Sea State Steamship Lines case arose out of the third party procedure provided for under Order 8-A of the Code of Civil Procedure. Agreements give the law to the contract. 13. But neither the decision of the Supreme Court in British India Steam Navigation Companys case nor the decision of the Chief Justice K.Veeraswami in Black Sea State Steamship Lines case arose out of the third party procedure provided for under Order 8-A of the Code of Civil Procedure. In both those cases, one of the parties to the contract sued the other and hence the Courts were concerned directly with the question of jurisdiction. But in the present case, the jurisdiction of this Court to entertain the present suit as against the original defendants 1 and 2 is not in dispute. It is only when an attempt is made by the defendants 1 and 2 to rope in a third party, for the purpose of claiming contribution, that the question of jurisdiction has arisen, to the limited extent of examining whether the defendants 1 and 2 can invoke the jurisdiction of this Court to make a claim for contribution on a third party, with whom they had an agreement and which agreement contained a clause relating to jurisdiction. Therefore, the question raised in this Application has to be analysed, with reference to Order 8-A of C.P.C., apart from the jurisdiction clause contained in the Sea Way Bill. 14. Order 8-A was inserted in the First Schedule to the Code of Civil Procedure, 1908 by a Judicial Notification issued by the High Court of Judicature at Madras dated 8. 1951 in exercise of the powers conferred by Section 122 of the Code and it was notified in the Fort St. George Gazette, Supplement, Part-II dated 28. 1951. A few other States have adopted similar amendments by way of notifications issued by the respective High Courts. Order 8-A of the Civil Procedure Code, reads as follows: "ORDER 8-A THIRD PARTY PROCEDURE 1. Third Party notice. Where a defendant claims to be entitled to contribution from or indemnity against any person not already a party to the Suit (hereinafter called a third party), he may, by leave of the Court, issue a notice (hereinafter called a third party notice) to that effect sealed with the seal of the Court. The notice shall state the nature and grounds of the claim. The notice shall state the nature and grounds of the claim. Such notice shall be filed into Court with copy of the plaint and shall be served on the third party according to the rules relating to the service of summons. 2. Effect of notice. — The third party shall, as from the time of the service upon him of the notice, be deemed to be a party to the action with the same rights in respect of his defence against any claim made against him and otherwise as if he had been duly sued in the ordinary way by the defendant. 3. Default by third party. If the third party desires to dispute the plaintiffs claim in the suit as against the defendant on whose behalf the notice has been given, or his own liability to the defendant, the third party may enter appearance in the Suit on or before the date fixed for his appearance in the notice. If he does not enter appearance he shall be deemed to admit the validity of the decree that may be obtained against such defendant, whether by consent or otherwise and his own liability to contribute or indemnify as the case may be, to the extent claimed in the third party notice provided always that a person so served and failing to appear may apply to the Court for leave to appear, and such leave may be given upon such terms, if any, as the Court shall think fit. 4. Procedure on default. — Where the third party does not enter appearance in the Suit and the Suit is decreed by consent or otherwise in favour of the plaintiff, the Court may pass such decree as the nature of the case may require, against the third party and in favour of the defendant on whose behalf notice was issued, provided that execution thereof shall not be issued without leave of the Court until after satisfaction by such defendant of the decree against him. 5. Third party directions. 5. Third party directions. — If the third party enters appearance, the defendant on whose behalf notice was issued may apply to the Court for directions and the Court may, if satisfied that there is a question to be tried as to the liability of the third party to make the contribution or pay the indemnity claimed, in whole or in part, order the question of such liability, as between the third party and the defendant giving the notice, to be tried in such manner, at or after the trial of the Suit, as the Court may direct; and if not so satisfied may pass such decree or order as the nature of the case may require. 6. Leave to defend. — The Court may, upon the hearing of the Application mentioned in Rule 5 give the third party liberty to defend the Suit upon such terms as may be just, or to appear at the trial and take such part therein as may be just, and generally may order such proceedings to be taken, documents to be delivered or amendments to be made, and give such directions as appear proper for the most convenient determination of the question or questions, in issue, and as to the mode and extent in or to which the third party shall be bound or made liable by the decree in the Suit. 7. Costs. — The Court may decide all questions of costs, as between the third party and the other parties to the Suit, and may order anyone or more to pay the costs of any other, or others, or give such direction as to costs as the justice of the case may require. 8. Question between co-defendants. — Where a defendant claims to be entitled to contribution from or indemnity against any other defendant to the Suit, a notice may be issued and the same procedure shall be adopted for the determination of such questions between the defendants as would be issued and taken, if such last mentioned defendant were third party; but nothing herein contained shall prejudice the rights of the plaintiff against any defendant in the Suit. 9. Further parties. 9. Further parties. — Where any person served with a third party notice by a defendant under these rules claims to be entitled to contribution from or indemnity against any person not already a party to the Suit, he may, by leave of the Court, issue a third party notice to that effect and the preceding rules as to the third party procedure shall apply nurtatis nnutandis to every notice so issued and the expressions `third party notice and `third party in these rules shall apply to and include every notice so issued and every person served with such notice respectively." 15. The provisions of Order 8-A, C.P.C., are nothing but an adaptation of Order 5-A of the Rules of the High Court, Madras, Original Side, 1927. The said Order 5-A reads as follows: "ORDER 5-A THIRD PARTY PROCEDURE 1. Where a defendant claims to be entitled to contribution, or indemnity over against any person not already a party to the Suit, he may, by leave of the Court or a Judge, issue a notice (hereinafter called a third party notice) to that effect, sealed with the seal of the Court. Such notice shall be filed with the Master or Registrar and a copy thereof served on such person according to the rules relating to the service of writs of summons. The notice shall state the nature and grounds of the claim, and shall, unless otherwise ordered by the Master or Registrar, be served within the time limited for filing his written statement of defence. Such notice may be in the form or to the effect of the form No.15-A with such variations as circumstances may require, and therewith shall be served a copy of the Plaint. 2. In any Suit in which the defendant while admitting his liability for the claim in the Plaint, requires that the right of the plaintiff to the relief should be adjudicated in the presence of any other person or persons so that the adjudication may be binding on such other person or persons he may apply for a similar notice to issue and proceed as in Rule 1 is provided. 3. 3. If a person not a party to the Suit who is served as mentioned in Rule 1 or 2 (hereinafter called a third party) desires to dispute the plaintiffs claim in the Suit as against the defendant on whose behalf the notice has been given, or his own liability to the defendant, the third party must enter an appearance in the Suit, within eight days from the service of the notice. In default of his so doing he shall be deemed to admit the validity of the decree obtained against such defendant, whether obtained by consent or otherwise, and his own liability to contribute or indemnify, as the case may be, to the extent claimed in the third party notice. Provided always that a person so served and failing to appear within the said period of eight days may apply to the Master or Registrar for leave to appear, and such leave may be given upon such terms, if any, as the Master or Registrar shall think fit. 4. Where a third party makes default in entering an appearance in the suit, in case the Suit is tried and results in favour of the plaintiff, the Judge who tries the Suit may, at or after the trial, pass such decree as the nature of the case may require, for the defendant giving the notice, against the third party: Provided that execution thereof be not issued without leave of the Judge, until after satisfaction by such defendant of the decree against him. And if the Suit is finally decided in the plaintiffs favour, otherwise than by trial, the Court or a Judge may, on Application or by motion, as the case may be, pass such decree as the nature of the case may require, for the defendant giving the notice against the third party at any time after satisfaction by the defendant of the amount recovered by the plaintiff against him. 5. 5. If a third party appears pursuant to the third party notice, the defendant giving the notice may apply to the Judge or Master, for directions, and the Judge or Master, upon the hearing of such Application, may, if satisfied that there is a question proper to be tried as to the liability of the third party to make the contribution or indemnity claimed, in whole or in part, order the question of such liability, as between the third party and the defendant giving the notice, to be tried in such manner, at or after the trial of the Suit, as the Judge or Master may direct; and if not so satisfied, may pass such decree as the nature of the case may require in favour of the defendant giving the notice against the third party. 6. A Judge or Master, upon the hearing the Application mentioned in Rule 5, may, if it shall appear desirable to do so, give the third party liberty to defend the Suit, upon such terms as may be just, or to appear at the trial and take such part therein as may be just, and generally may order such proceedings to be taken, documents to be delivered, or amendments to be made, and give such directions as to the Judge or Master shall appear proper for having the question most conveniently determined, and as to the mode and extent in or to which the third party shall be bound or made liable by the decree in the Suit. 7. The Court or a Judge may decide all questions of costs, as between the third party and the other parties to the Suit, and may order any one or more to pay the costs of any other, or others, or give such direction as to costs as the justice of the case may require. 7-A. If in case where a third party notice has been issued, the plaintiffs suit is dismissed, the defendant who has filed the third party notice shall be entitled to a refund of the court-fee paid by him under sub-rule (2) of Rule 1. 8. 7-A. If in case where a third party notice has been issued, the plaintiffs suit is dismissed, the defendant who has filed the third party notice shall be entitled to a refund of the court-fee paid by him under sub-rule (2) of Rule 1. 8. Where a defendant claims to be entitled to contribution or indemnity against any other defendant to the Suit, a notice may be issued on payment of the same Court-fee as is prescribed by sub-rule (2) of Rule 1 and the same procedure shall be adopted for the determination of such questions between the defendants as would be issued and taken against such other defendant, if such last-mentioned defendant were a third party; but nothing herein contained shall prejudice the rights of the plaintiff against any defendant in the Suit. If in a case where such notice has been issued, the plaintiffs Suit is dismissed, the defendant who has paid the Court-fee as above shall be entitled to a refund of the said Court-fee. 9. Where any person served with a third party notice by a defendant or by a third party under these rules claims to be entitled to contribution or indemnity over against any person not a party to the Suit he may by leave of the Court or Master issue a third party notice to that effect; and the preceding rules as to third party procedure shall apply nrutatis mutandis to every notice so issued and the expressions `third party notice and `third party in these Rules shall apply to and include every notice so issued and every person served with such notice respectively." 16. After the insertion of Order 8-A in the Code of Civil Procedure by the Judicial Notification issued in 1951, Order 5-A of the Rules of the High Court, Madras, Original Side, became redundant. Therefore when a fresh set of Rules namely, High Court O.S. Rules, 1956 was issued, the old Order 5-A was replaced with a new Order 5-A which merely prescribed that the provisions of Order 8-A of the Code of Civil Procedure will apply. 17. Order 5-A of the Rules of the High Court, Madras, Original Side, itself was based upon Order 16, Rules 48 to 55 of the Rules of the Supreme Court of England. 17. Order 5-A of the Rules of the High Court, Madras, Original Side, itself was based upon Order 16, Rules 48 to 55 of the Rules of the Supreme Court of England. The object of the third party notice as provided for, by these Rules, was stated by Jessel, M.R., in Swansea Shipping Co. v. Duncan, 1876 (1) QB 644 at 649, as under: "The object of these enactments was to prevent the same question being tried twice over, where there is any substantial question common as between the plaintiff and the defendant in the action and as between the defendant and a third person;" and in such a case, as Jessel, M.R., also observes: "The third person is to be cited to take part in the original litigation, and so to be bound by the decision on that question once for all." To the similar effect Fry, L.J., in Carshore v. North Eastern Railway Co., 1885 (29) Ch. D. 344 at 346, observed: "It is suggested that the plaintiff ought not to be embarrassed by the introduction of questions between the defendants and a third party. Possibly some delay may be caused by the third party proceedings, but the object of the rule is to enable the Court to try once for all an issue of fact in which all parties are alike interested." 18. The history and the scope of Order 8-A of C.P.C., was lucidly presented by Ramaswami, J., in Thiruvannamalai Adhinam Sri Daivasigamani Arunachala Desika Paramacharya Swamigal and another, In re., 1955 (68) LW 371, wherein it was held in paragraphs-9, 10 and 11 as follows: "9. The third party procedure comprised in Order 8-A, is a simplification of the third party procedure prevailing on the Original Side of the Madras High Court comprised in Order 5-A of the Rules of the High Court of Judicature in its original jurisdiction. This Order 5-A is itself an adaptation in a simplified form of Order 16-A of the Rules of the Supreme Court which are founded upon the Judicature Act of 1925, Section 39." 10. The object of the third party procedure is twofold: First to prevent the same question from being tried twice with possibly different results; Benecke v. Frost, 1876 (1) Q.B. 422, Re Salmon, 1889 (42) Ch. The object of the third party procedure is twofold: First to prevent the same question from being tried twice with possibly different results; Benecke v. Frost, 1876 (1) Q.B. 422, Re Salmon, 1889 (42) Ch. D. 360, and secondly, to prevent multiplicity of actions and to enable the Court to settle disputes between all the parties in one action: Baxter v. France, 1895 (1) Q.B. 593, Barclays Bank v. Tom, 1923 (I) K.B. 221, 223, 225, Venkatakrishna v. Narayanaswami, 1938 (2) M.L.J. 886 : 50 L.W. 910. 11. The third party procedure is applicable only to cases of contribution or indemnity. In effect a claim to contribution is a claim to a partial indemnity. Contribution is bottomed and fixed on general principles of justice and does not spring from contract, though contract may qualify it: Dering v. Winchelsea, l Cox. 318. A right to contribution may be created by statute. A right to indemnify may arise (i) from express contract; (ii) from some statute; or (iii) implied from some principle of law. A right to indemnity exists where there is an obligation either a law or in equity upon one party to indemnify the other: Eastern Shipping Co. v. Quali Beng Kee, 1924 A.C. 177, Burmingham and District Land Company v.London and N. W. Ry., 1886 (34) Ch. D. 261. An insurer can be added as a third party in an action for personal injury in a road accident as the defendant is entitled to indemnity from that party." 19. But there appears to be some inherent restrictions and limitations on the entitlement of a defendant to invoke the third party procedure. One such restriction is with regard to the jurisdiction of the Court, to try the lis between the defendant and the third party. This question came up for consideration before Srinivasan, J., in Roy and Chatterjee (Private) Ltd v. Scindia Steam Navigation Co. Ltd and Another, AIR 1961 Mad. 367 , and he held as follows: "5. Then the trial Judge proceeded to hold that in order to bring a third party on record, the defendant seeking to do so should establish that the claim as between them was capable of adjudication by the Court and was within the jurisdiction of that Court. It seems to me that this is the correct approach to the question. Then the trial Judge proceeded to hold that in order to bring a third party on record, the defendant seeking to do so should establish that the claim as between them was capable of adjudication by the Court and was within the jurisdiction of that Court. It seems to me that this is the correct approach to the question. Rule 2 of Order 8-A states: "The third party shall, as from the time of the service upon him of the notice, be deemed to be a party to the action with the same rights in respect of his defence against any claim made against him and otherwise as if he had been duly sued in the ordinary way by the defendant." This Rule clearly enables the third party to raise all grounds to the action as would be available to him as against the party defendant who seeks to bring him on record; that is to say, if the petitioner who is the third defendant in the Suit, sued the third party in a separate action, such third party would be entitled to raise the question of the jurisdiction of the Court in defence. Such a defence would also be open to the third party in this Application to implead him as a party. It is that aspect of the matter that the learned Assistant Judge has canvassed." 20. However, a learned Judge of the Kerala High Court differed from the view taken by Srinivasan, J., in the aforesaid decision. In his decision in Kerala Transport Co. v. Colonial Distributors and Another, AIR 1971 Ker. 230 , the learned Judge of the Kerala High Court expressed his dissent in the following words: "3. The next decision by Srinivasan J., held, on interpreting Rule 2 of Order 8-A, that the third party could question the jurisdiction of the Court to consider the liability of the third party to the defendant for contribution or indemnification as if the question was the cause of action in a separate Suit between them. The learned Judge held further that, if the Court where the suit was already pending had no jurisdiction to try that question the question of contribution or indemnification mentioned above, then the third party should not be impleaded. hi other words, if the third party was residing outside the territorial jurisdiction of the Court, he should not be impleaded. The learned Judge held further that, if the Court where the suit was already pending had no jurisdiction to try that question the question of contribution or indemnification mentioned above, then the third party should not be impleaded. hi other words, if the third party was residing outside the territorial jurisdiction of the Court, he should not be impleaded. With due respect to the learned Judge, I feel that the interpretation put upon Rule 2 of Order 8-A by him is not in conformity with the intention of the legislature in enacting the said order. The third party procedure is intended to prevent multiplicity of proceedings; and if the question of contribution or indemnification by the third party has to be treated as a separate Suit, even for jurisdiction, and to be filed in another forum, the third party procedure can be applied only within very narrow limits. The intention of the legislature will be clearer if we see Rule 9 of Order 8-A. Rule 9 provides that where any third party impleaded claims that he has a right of contribution or indemnification against another party, that party also can be impleaded in the Suit following the third party procedure contemplated by Order 8-A. If, in such a case also, the principle laid down by Srinivasan, J., is applied, it is clear that Rule 9 of Chapter 8-A will practically be a dead letter. Therefore, on the interpretation put upon Rule 2 of Order 8-A by Srinivasan, J., I do not agree with him. The third party has every right to contest his liability to contribute or to indemnify the defendant: he can also step into the shoes of the defendant and fight the plaintiff on all grounds, which are available to the defendant himself. But, that has to be done in the Suit, as laid within the jurisdiction, against the defendant, because the third partys liability to contribute or indemnify arises, strictly speaking, only on the decision of the Suit against the defendant." 21. Apart from the above two judgments, I am unable to lay my hands on any other with regard to the issue on hand. But the same question arose for consideration in Mccheane v. Gyles, 1902 (1) Chancery Division 287. In that case, an action was brought in England against a person appointed as a Trustee under the Will executed by a person in Ireland. But the same question arose for consideration in Mccheane v. Gyles, 1902 (1) Chancery Division 287. In that case, an action was brought in England against a person appointed as a Trustee under the Will executed by a person in Ireland. The defendant took out summons for service of a third party notice on the legal representative of a co-trustee (who was dead by then). The Judge hearing the summons in Chambers, granted leave to the defendant to serve the third party notice in Dublin, Ireland. The third party moved a notice of motion for setting aside the order granting leave and for discharging the third party notice. The Application of the third party was refused and she appealed. Vaughan Williams, L.J., presiding over the Chancery Division held that as the rules stand, the service of a third party notice out of the jurisdiction can only be properly sanctioned when the subject-matter of the claim of the defendant, covered by the third-party notice, is of such a character that, if the claim had been the subject of an independent action commenced by writ in the ordinary way, an order for service out of the jurisdiction could properly have been made in accordance with the provisions of Order 11, Rule 1. 22. Romer L.J., agreed with him after construing the provisions of Rule 48 of Order 16, and held as follows: "What we have to consider in this case is, "Is this third party notice, were it in the form a writ of summons, capable of being served out of the jurisdiction upon a third party ?" In considering that question one must have regard to the parties, that is, not to the claim of the plaintiff in the action, but to the claim of the defendant against the third party. You must treat the claim of the defendant against the third party as if it were a claim on a Writ of summons, and see if that claim comes within the rules as to the service of writs out of the jurisdiction, that is, within Order 11, Rule 1. If it does, then leave can be given for the service; if not, leave cannot be given." 23. If it does, then leave can be given for the service; if not, leave cannot be given." 23. Cozens Hardy, L.J., while concurring with the opinion expressed by Vaughan Williams, L.J., and Romer, L.J., referred to Section 24(3) of the Judicature Act, 1873 and held that "the Act treats the third party procedure as analogous to a cause instituted by the defendant as plaintiff against the third party." 24. In Gowar v. Hales, 1927 All England Report 631, a question arose as to whether the third party procedure can be invoked by the defendant whose agreement with the third party contained an Arbitration Clause. Lord Hanworth, M.R., presiding over the Court of Appeal held that in the light of the Arbitration Clause, the defendant was not entitled to invoke the third party procedure. While agreeing with him, Scrutton, L.J., held as follows: "There is an Arbitration Clause in the policy; it is not the ordinary Scott v. Avery (1) form because it does not wind up in the way in which the ordinary Scott v. Avery (1) form does. It does not end with a provision that "the obtaining of an award shall be a condition precedent to the recovery of anything against the Insurance Company", but counsel for the third party contends that as the policy is subject to conditions and there is a condition that disputes shall be settled by Arbitration, it is to the same effect as the Scott v. Avery (1) Clause. I am not deciding that one way or the other, or expressing any opinion about it, but there is an Arbitration Clause in the policy which means that the assured has agreed to the term of the policy that disputes between him and the Insurance Company shall be settled by Arbitration. That does not oust the jurisdiction of the Courts, but it is a general principle, as expressed in the Arbitration Act, 1889, that people who make contracts should keep them rather than break them, and the owner of a motor car, who, having agreed to settle a dispute by Arbitrations, does not do so, but goes to law, is breaking his contract. The general principle, therefore, on which the Courts act is that, unless there are special circumstances, they invite the person who brings an action to comply with his contract and go to Arbitration, because he has made a contract so to do and ought to keep it. I do not see any special circumstances in this case which should cause the Court of Appeal to depart from that general rule, and on those two grounds of principle, therefore, the one that third-party claims by motorists against Insurance Companies should not, as a general rule, be tried at the same time as the action fixing liability on the motorist, and, secondly, that the person who has entered into a contract containing an Arbitration Clause as a general rule, should be made to keep his contract, I think the learned Judge came to a wrong decision on the question of principle, and that this Appeal should be allowed." 25. In the light of the aforesaid decisions, I am of the considered view that the defendant is bound by Clause 12 of the Sea Way Bill, relating to law and jurisdiction. As pointed out by Srinivasan, J., in Roy Chatterjee (Private) Ltds case, Rule 2 of Order 8-A treats the claim made by the defendant against the third party, as if it is a Suit duly instituted in the ordinary way by the defendant. Therefore, the restrictions that would apply to a suit instituted by the defendant against the third party would equally apply to the third party procedure. In other words, the right to sue, if circumscribed by an agreement valid in the eye of law, would not get enlarged merely because of the availability of an additional remedy under Order 8-A C.P.C. 26. As a matter of fact, the very scheme of Order 8-A, C.P.C., makes the following things very clear: .(a) The last portion of Rule-2 of Order 8-A says "as if he had been duly sued in the ordinary way by the defendant". Therefore in a third party procedure, the defendant initiating the same is treated as the plaintiff and the third party is treated as the defendant. Hence third party procedure does not supercede the contract between the defendant and the third party. Therefore in a third party procedure, the defendant initiating the same is treated as the plaintiff and the third party is treated as the defendant. Hence third party procedure does not supercede the contract between the defendant and the third party. (b) Rule 4 of Order 8-A makes it clear that if the third party does not enter appearance, a decree may be passed against such third party, depending upon any decree passed by consent or otherwise in favour of the plaintiff. However, the execution of the decree against the third party is made subject to the condition that it shall be made only with the leave of the Court after the satisfaction of the decree passed against the defendant in the first instance. .(c) Rule-5 of Order 8-A enables the third party to contest the claim for contribution or indemnity on merits. If it is so contested, the Court is given the liberty to try any question of liability of the third party to the defendant "at or after the trial of the suit". This means that the determination of the issues in the Suit as between the plaintiff and the defendant precedes the determination of the issues between the defendant and the third party. 27. Thus it is clear that Order 8-A, C.P.C. provides only an additional remedy to a defendant who is entitled to contribution or indemnity from a third party. It is an enabling provision relating to procedure and hence it cannot override the contract between the parties. The contrary view taken by a learned Judge of the Kerala High Court in Kerala Transport Company case, AIR 1971 Ker. 230 , does not, with respect, appear to reflect the correct view. The inspiration drawn by the Kerala High Court from Rule 9 of Order 8A, to come to the conclusion that it did, may not be justified. The third party procedure itself is peculiar only to some of the States, in which the High Courts have issued amendments in exercise of the power conferred under Section 122 of the Code of Civil Procedure. As stated earlier, Order 8-A, C.P.C. is an adaptation of the English law relating to third party procedure and the English decisions themselves have made it clear that the right to invoke third party procedure would be subject to the contract between the defendant and the third party. As stated earlier, Order 8-A, C.P.C. is an adaptation of the English law relating to third party procedure and the English decisions themselves have made it clear that the right to invoke third party procedure would be subject to the contract between the defendant and the third party. Therefore I hold that the applicant cannot invoke Order 8-A, C.P.C. as against the third respondent herein, with whom he had a contract in the form of a Sea Way Bill, Clause 12 of which, excluded the jurisdiction of all Courts other than those specified therein. The only remedy open to the applicant herein is to proceed against the third respondent in accordance with the Terms of the Sea Way Bill and the applicant is at liberty to proceed so, independent of the present Suit. 28. In view of the above, this Application is dismissed. No costs.