1. This is an application under section 11 (6) of the Arbitration and Conciliation Act, 1996 seeking a direction to appoint an arbitrator to resolve the dispute between the parties.

2. This is not in dispute between the parties that between them there exists an agreement dated 30.7.2011, a living dispute and necessity to resolve the same by appropriate forum/authority. The only question is, as to which forum is competent to decide the said dispute. The applicant submits that agreement dated 30.7.2011 contains an arbitration clause. The 'change of scope' and amount arising thereto is not ascertainable and therefore in the light of judgment of full bench in the case of Viva Highways Ltd. v. Madhya Pradesh Road Development Corporation Ltd. [2017 (3) JLJ 66=2017 (2) MPLJ 681], an arbitrator as per Arbitration and Concilation Act, 1996 (for short, 'Act of 1996) may be appointed in the present application.

3. Per contra, Shri Khandekar, learned counsel for the respondent urged that amount is ascertainable and quantifiable. If the applicant has not undertaken the said exercise to quantify the amount, it cannot be said that the said amount is not ascertainable.

4. Shri Khandekar, learned counsel also placed reliance on the full bench judgment in the case of Viva Highways (supra) In addition, he placed reliance on another full bench judgment reported in 2018 (2) JLJ 393=2018 (3) MPLJ 163 Shri Gauri Ganesh Shri Balaji Constructions "C" Class Contractor v. Executive Engineer, PWD. To elaborate, Shri Khandekar, learned counsel urged that this subsequent full bench judgment makes it clear that the amount which is arising even during the proceedings before the tribunal also falls within the ambit of 'dispute'. The present 'concession agreement' is in infact 'works contract' under the provisions of M.P. Madhyastham Adhikaran Adhiniyam, 1983 and hence, the appropriate remedy for the applicant is to approach the Tribunal constituted under the Adhiniyam of 1983.

5. No other point is pressed by counsel for the parties.

6. The spinal issue in this case is whether the amount arising out of 'change of scope' order is ascertainable or not. Shri Ishaan Soni, learned counsel for the applicant fairly submits that if said amount is ascertainable, in the teeth of Full Bench judgment in the case of Viva Highways Ltd.(supra), the applicant needs to approach Madhyastham Tribunal.

7. Putting it differently, the only quarrel between the parties is regarding the point whether any amount based on 'change of scope' order is ascertainable or not. The parties fairly submits that agreement falls within the ambit of 'works contract', in the teeth of section 7 of Adhiniyam, 1983, even if, there exists an arbitration Clause in the contract, the appropriate remedy is to approach the tribunal.

8. Article 16 of agreement provides the methodology of 'change of scope', its procedure and consequential payment needs to be made. The relevant portion reads as under :

"16.1 Change of Scope

16.1.1 The Government may, notwithstanding anything to the contrary contained in this Agreement, require the provision of additional works and services which are not included in the Scope of the Project as contemplated by this Agreement (the "Change of Scope"). Any such Change of Scope shall be made in accordance with the provisions of this Article 16 and the costs thereof shall be expended by the Concessionaire and reimbursed to it by the Government in accordance with Clause 16.3.

16.1.2 If the Concessionaire determines at any time that a Change of Scope is necessary for providing safer and improved services to the Users, it shall by notice in writing require the Government to consider such Change of Scope. The Government shall, within 15 (fifteen) days of receipt of such notice, either accept such Change of Scope with modifications, if any, and initiate proceedings therefor in accordance with this Article 16 or inform the Concessionaire in writing of its reasons for not accepting su