This is a complaint filed under section 12 of Consumer Protection Act for an order directing the opposite party to pay `20 lakh with 12% per annum with cost and compensation.

          Complainant was sanctioned an over draft mortgage loan of an amount of `1,80,00,000. While transaction was going on smooth two cheques of complainant one for `5,00,000 and  another one for `7,00,000 returned by bank unpaid on 3.2.2010 and 4.2.2010 respectively. Moreover, 3<sup>rd</sup>  opposite party arbitrarily closed DDM account on 5.2.2010 which was shown on 25.9.2009 wrongly. At the time of closure there was no balance due. Complainant seeking remedy  for an amount limiting to `20,00,000. Opposite party resisted the complainant first of all on the ground that complaint herein had earlier filed a complaint against these opposite parties as CC.222/11 before this Forum stating the same facts. Since that complaint   filed earlier was dismisses due to the continuous absence of the complainant this second complaint as brought before the Forum is not maintainable in the eye of law. It is contended that there is no whisper about the earlier complaint and its dismissal in the second complaint. In absence of explanation to the dismissal of the first complaint a second complaint is not at all maintainable. Hence he raises the question of maintainability to be heard.

          Both parties heard. Counsel for the complainant elaborately argued that the complainant is entitled to file a second complaint since the matter is not decided on merits. Learned counsel argued further that the admissibility of the complaint shall be decided within 21 days from the receipt of the complaint. Moreover, there is no provision in CPC to decide the question of maintainability of the complaint as  preliminary issue.

          Learned counsel for the opposite party argued that the present second complaint is not maintainable since it is filed without explaining the reason why the earlier complaint  could not be pursued and was dismissed in default.

          Both counsel relied upon the decision of Hon’ble Supreme Court in New India Assurance Co. Ltd. Vs. Srinivasn but with different views and emphasis.

          Hon’ble S.C has pointed that the provisions of 0.9 have not been made applicable to the proceedings under the Consumer protection Act. The code of Civil Procedure has been applied to the proceedings under CPA only to a limited extent. It is also pointed out that the rule of prohibition contained in 0.9R9(1) CPC  cannot be extended to the proceedings before the District Forum holding that “ The fact that the case was not decided on merits and was dismissed in default of non appearance of the complainant cannot be overlooked and, therefore, it would be permissible to  file a second complaint explaining why the earlier complaint could not be  pursued and was dismissed in default.

          So there is no  doubt that the view taken by the Hon’ble Supreme Court  is that a second complaint on the same cause of action is permissible provided it should not be one intended to harass the party by repeation. So it is obligatory on the part of the complaint to give good reason for not pursuing the earlier complaint.

          In the instant case as far as the question second complaint is concerned the central point is that  whether such a second complaint can be allowed in absence of explanation why  the first  complaint could not be pursued and was dismissed in  default. The complaint herein did not even mentioned the reason for not pursuing such a first complaint while lodging existing complaint .Complaint is really bound to give good reason for not pursuing the earlier complaint. Then arose the question why it is suppressed and what prevent him from giving explanation why the first complaint could not be pursued and was dismissed in default. If that was done the entire picture would have been different. The spirit of the decision of the Hon’n’ble Supreme Court does not permit a second complaint merely because it was not dismissed on the basis of merits. A second complaint is not allowable unless complainant is capable of presenting good case for not pursuing the first complaint. Hence we are of opinion that the complaint in hand is not maintainable not because it is second complaint but because the second complaint in question happened to be filed  without explaining why the first complaint could not be pursued and was dismissed in default. It is therefore, the complaint in hand stands dismissed since it is not maintainable. No order as to costs.

                               Sd/-                Sd/-             Sd/-

President          Member           Member

                                                             /forwarded by order/

                                                        Senior Superintendent

Consumer Disputes Redressal Forum, Kannur