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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 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 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 MANU/DE /1280/2020.

26. The Commercial Court after directing the plaintiff to lead evidence, allowing the plaintiff to lead evidence, examining one witness as P.W.1 and posting the case for recording further examination in chief of P.W.1 cannot go back to the stage of passing judgment under Order VIII Rule 10 of CPC.

27. The Commercial Court has marked Ex.P.2 to Ex.P.6 during the course of judgment and placed reliance on them and also on the evidence of P.W.1 while passing the judgment. Said documents, Ex.P.2 to Ex.P.6 are not admitted in evidence. Therefore, the Commercial Court has erred in marking Ex.P.2 to Ex.P.6 during the course of the judgment. In view of the law laid down by this Court in the case of Sri.Nijamuddin and Another Vs. Smt.Akhtarbegam and Others 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 decision of this Court in the case of Basalingappa Chinnappa Goudar and others Vs. Shantavva and others reported in ILR 2002 Kar. 260, the defendant has got right to cross-examine the witnesses of the plaintiff even though statement of defence was not filed. The Commercial Court did not post the case for recording further examination in chief of P.W.1 and without allowing the defendant to cross-examine P.W.1, placing reliance on the evidence of P.W.1 has passed the judgment under Order VIII Rule 10 CPC. The Commercial Court ought to have posted the suit for recording of further examination in chief of P.W.1 and thereafter allowed the defendant to cross-examine P.W.1 and his witnesses and thereafter passed the judgment. Therefore, the Commercial Court has erred in passing the judgment under Order VIII Rule 10 of CPC after it directed the plaintiff to lead evidence, examining one witness as P.W.1 and marking of one document as Ex.P.1. The point is answered accordingly. Therefore, the matter requires to be remanded to the Commercial Court.