DEVELOPMENT INDIA PRIVATE LIMITED (Arbitration Application No. 2 of 2008) MAY 14 v. Commissioner of In- G come Tax & Ors.

Judgment

(2008] 8 S.C.R 775 TDM INFRASTRUCTURE PRIVATE LIMITED v. UE DEVELOPMENT INDIA PRIVATE LIMITED (Arbitration Application No. 2 of 2008) MAY 14, 2008 [5.8. SINHA,J] ARBITRATION AND CONCILIATION ACT, 1996: A B ss. 2(1)(f)(iii), 11(5),(a) and 28 - International Commer- cial Arbitration - Connotation of - Appointment of arbitrator - c Both parties to arbitration agreement registered under Indian Companies Act - HELD: A company incorporated in India can only have Indian nationality for purpose of the Act- Once both the Companies are incorporated in India and, thus, have been domiciled in India, arbitration agreement entered into by and D between the parties would not be an international commercial arbitration agreement and question of applicability of clause (iii) of s.

2(1 )(f) would not arise - In the instant case, Supreme Court. has no jurisdiction to appoint arbitrator - UNCITRAL Model Law on International Commercial Arbitration (1985). E INTERPRETATION OF STATUTES." Determination of jurisdiction - HELD: An interpretation should ensure certainty in determination of jurisdiction as to which court should a disputant approach for appointment of F an arbitrator u/s 11 of 1996 Act - In a matter involving deter- mination of jurisdiction of a court, certainty must prevail which cannot be determined by entering into a disputed question of fact - Arbitration and Conciliation Act, 1996 - s. 11. V VR.N.M. Subbayya Chettiar v. Commissioner of In- G come Tax, Madras 1950 SCR 961; and McLeod and Com- pany Ltd. v.

State of Orissa and Others (1984) 1 SCC 434 - held inapplicable. 775 H ,. 7 -1- """· I ,..... I 776 SUPREME COURT REPORTS [2008] 8 S.C.R. A