( 1 ) THE parties hereto are companies registered and incorporated under the Companies Act, 1956 (for short "the Act" ). Directors and shareholders of the petitioner - company, however, are said to be residents of Malaysia. The Board of Directors of the petitioner also sits at Malaysia.

( 2 ) A contract for rehabilitation and upgrading was awarded to the respondent by the National Highway Authority of India. Respondent subcontracted a portion thereof to the petitioner by three letters of awards dated 12. 04. 2002, 24. 05. 2002 and 29. 08. 2002. However, for the purpose of present petition, we are concerned with the second and third letters of award. The parties entered into those contracts containing an arbitration clause, which read as under:

"if the parties fail to settle the question, dispute or difference through negotiations, the same shall be referred to Arbitration as per the provisions of the Indian Arbitration Act, 1940 and the rules made thereunder and any statutory modifications or re-enactment thereof that may be made from time to time and actually in force at the time of reference. The cost of arbitration shall be borne by the parties in the ratio to be agreed upon by the parties. The venue of the arbitration shall be New Delhi. The language to be used in the arbitration proceedings shall be English. "

( 3 ) DISPUTES and differences having arisen between the parties, the said arbitration agreement was resorted to, wherefor a notice dated 22. 03. 2007 was served by the petitioner through its solicitors M/s. Shook lin and Bok. A nominee was proposed. In response thereto, the respondent herein through its solicitors M/s. Shearn Delamore and Co. also proposed its nominee by a letter dated 18. 04. 2007. Respondent, however, proposed amendments to the original dispute resolution and arbitration clause by suggesting change of venue of the arbitration to kuala Lumpur, Malaysia in stead and place of New Delhi and that the disputes be arbitrated in terms of the Malaysian Law and the Malaysian arbitration Act, 2005. The said proposal of the respondent was rejected by the petitioner. Petitioner thereafter proposed alternative nominee which was also rejected by the respondent and in turn suggested its own nominee which was not acceptable to the petitioner.

( 4 ) BY reason of this application under Section 11 (5) and 11 (6) of the arbitration and Conciliation Act, 1996 (for short "the 1996 Act"), a prayer has been made for appointment of a sole arbitrator to adjudicate upon the disputes and differences between the parties arising out of or in relation to the aforementioned second and third letters of award.

( 5 ) ONE of the contentions raised by the respondent is that the petitioner - company being registered in India, this Court has no jurisdiction to pass an order for appointing an arbitrator. It was urged that the Company in law must be held to be situate in India notwithstanding that the directors are foreign nationals as for all intent and purport, the Company incorporated in India would always be controlled in India.

( 6 ) MR. Sumeet Kachwah, learned counsel appearing on behalf of the petitioner, would submit that in view of the provisions contained in section 2 (1) (f) read with Section 11 (6) of the 1996 Act, this Court alone has the jurisdiction to appoint an arbitrator as the central management and control of the petitioner company is exercised in Malaysia inasmuch as the term "central management" would mean that its day to day management does not take place in India.

( 7 ) DRAWING our attention to the fact that the Indian Income Tax Act, 1961 contains a similar provision, it was urged that the test which should be applied in a case of this nature is the real business test as propounded by the House of Lords in De Beers Consolidated Mines limited v. Howe (Surveyor of Taxes) [ (1906) AC 455] which has been approved by this Court in V. V. R. N. M. Subbayya Chettiar v. Commissioner of Income Tax, Madras [1950 SCR 961] and