The main legal point established in the judgment is that the right to invoke third party procedure is subject to the contract between the defendant and the third party, and the third party procedure cannot override the contract between the parties.

V. RAMASUBRAMANIAN, J.

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 file 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 transhipment 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 22.11.2002, 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 Waybill 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