The respondent – plaintiff filed a commercial suit in

Com. O.S. 67/2019 on the file LXXXII Additional City Civil

and Sessions Judge (CCH-83), Bengaluru, (for short `the

Commercial Court’) seeking recovery of money on a

transaction claiming to be civil contract works and claimed

that he is entitled for a sum of Rs.4,20,79,484/- and future

interest at the rate of 18% p.a.

2. The appellant – defendant appeared in the said suit

but did not choose to file written statement. The respondent

– plaintiff commenced his evidence on 20.12.2019 and he

tendered his affidavit in lieu of examination in chief and he

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has been examined as P.W.1 and got marked one document

as Ex.P.1. Thereafter, the matter was posted for further

examination in chief. On subsequent dates, the respondent

– plaintiff (P.W.1) did not appear before the Court.

Thereafter, the matter was not taken up for several months

owing to Coivd-19 and it simply came to be adjourned from

15.06.2020 to 14.07.2020. Thereafter, the matter was

taken up on 25.01.2021 and on that day, P.W.1 was not

present. The Commercial Court simply posted the matter

for steps to be taken under the provisions of the

Commercial Courts Act, 2015. On 20.03.2021 plaintiff’s

counsel filed written statement and the matter was posted

for judgment. The Commercial Court passed judgment

under Order VIII Rule 10 CPC and decreed the suit of the

plaintiff by judgment dated 31.03.2021. During the course

of the judgment, the Commercial Court has marked Ex.P.2

to Ex.P.6. Said judgment dated 31.03.2021 passed in Com.

O.S. No. 67/2019 has been challenged in this appeal.

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3. Heard learned counsel for appellant and learned

counsel for respondent and perused the written submission

filed by them.

4. Learned counsel for appellant would contend that

even though the appellant – defendant has not filed any

written statement, he has got right to cross-examine the

plaintiff witness, i.e., P.W.1 and without providing him an

opportunity for the same, the Commercial Court has passed

the impugned judgment under Order VIII Rule 10 CPC. On

that point he placed reliance on the decision of this Court

rendered in the case of Sri. Nijamuddin and another Vs.

Aktharbegam reported in ILR 2021 Kar. 3297, decision

of the Hon’ble Apex Court in the case of Modula India Vs.

Kamakshya Singh Deo reported in AIR 1989 SC 162

and in the case of Basalingappa Chinnappa Goudar and

others Vs. Shantavva and others reported in ILR 2002

Kar. 260 wherein it is held that the valuable right of cross-

examination cannot be lost simply because a statement of

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defence was not filed. He contends that the Commercial

Court allowed the evidence to be led and also permitted

documents to be marked through P.W.1 and also marked

documents suo motu while passing the judgment and it

deprives a party a right to cross-examine such witness

violates the salutary principle of audi alteram partem. The

Commercial Court while passing the judgment has placed

reliance on the evidence of P.W.1 as proof of the

statements made in the plaint and the same is evident from

paragraph No. 13 of the judgment. Said reliance on the

evidence without cross-examination cannot be sustained.

He further contends that the Commercial Act requires

mandatory statement of truth under Order VI Rule 15-A of

CPC and it should be in the prescribed form contained in

Appendix 1 of the CPC. The plaint is not supported by the

said statement of truth as required under Order VI Rule 15-

A of CPC. The failure to file such an affidavit as prescribed

has rendered not merely the plaint defective but also

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rendered the judgment which is passed relying on such

pleading also defective. Therefore, the Commercial Court

cannot rely on the pleadings to pronounce the judgment

under Order VIII Rule 10 of CPC. He contends, that non-

filing of the statement of truth is not a curable defect as

held by the Delhi High Court in the case of Indira Gandhi

National

Open

University

Vs.

M/s.

Sharat

Das

Associates

Pvt.

Ltd.,

reported

in