Nitendra Kumar Tomer vs Unox S.P.A

2026 INSC 356 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3607 OF 2026

Nitendra Kumar Tomer, Suspended Director, Ambro Asia Private Limited … Appellant

versus

Unox S.P.A. and another … Respondents

JUDGMENT

SANJAY KUMAR, J

1. Nitendra Kumar Tomer, a suspended director of Ambro Asia Private

Limited, the corporate debtor, filed the present appeal under Section 62

of the Insolvency and Bankruptcy Code, 20161, aggrieved by the judgment

dated 07.01.2026 passed by the National Company Law Appellate

Tribunal, Principal Bench, New Delhi (hereinafter, ‘the NCLAT’), in

Company Appeal (AT) (Insolvency) No. 931 of 2024. By the said

judgment, the NCLAT confirmed the order dated 18.04.2024 passed by

the National Company Law Tribunal, New Delhi Bench (hereinafter, ‘the

NCLT’), admitting CP (IB) No. 722/ND/2021, an application filed under

Section 9 of the Code by Unox S.P.A., an operational creditor, respondent Signature Not Verified

No. 1 herein.

Digitally signed by babita pandey Date: 2026.04.13 16:58:27 IST Reason:

1 For short, ‘the Code’

2. At the outset, we entertained a doubt as to how the appeal before

the NCLAT had been filed in the name of the corporate debtor, Ambro Asia

Private Limited, after admission of the Section 9 application by the NCLT,

vide order dated 18.04.2024. Thereupon, we were informed that this

aspect was taken note of by the NCLAT. Our attention was drawn to the

order dated 12.08.2025 passed by the NCLAT. Therein, the NCLAT noted

that the appeal had been filed in the name of the corporate debtor

whereas, after admission of the application under Section 9, the corporate

debtor could be represented only by the interim resolution professional

but the appeal, as instituted, was verified by Nitendra Kumar Tomer, a

suspended director of the corporate debtor. The NCLAT further noted that

an appeal in the name of the corporate debtor was not maintainable

against an order of admission of an application under Section 9.

3. Having stated so, the NCLAT surprisingly went on to state that for

the ends of justice, it deemed it appropriate to provide an opportunity to

the appellant to amend the memo of appeal by filing an appropriate

application and granted time. Thereafter, IA No. 4983 of 2025 was filed

seeking amendment of the memo of appeal and the NCLAT allowed that

application on 29.08.2025, permitting the appeal to be prosecuted by

Nitendra Kumar Tomer, the suspended director of the corporate debtor.

The appeal memo was taken on record, but we find that the final judgment

dated 07.01.2026, presently under challenge before us, did not take note 2 of the amended appeal memo and the judgment, as it stands, reflects the

name of the corporate debtor as the appellant.

4. Having given thoughtful consideration to the matter, we are of the

considered opinion that the NCLAT grossly erred in permitting a wholly

incompetent appeal to be converted in the manner it was done. We may

note that this incompetent appeal was filed on 24.04.2024 or thereabouts,

assailing the order of admission dated 18.04.2024, and it was verified in

the name of the corporate debtor, viz., Ambro Asia Private Limited, by

Nitendra Kumar Tomer, claiming to be its director and authorized

representative. However, respondent No. 2 in the appeal was none other

than Piyush Moona, Interim Resolution Professional, who was appointed

by the NCLT, vide the admission order dated 18.04.2024.

5. In this regard, reference may be made to Section 16 of the Code,

titled ‘Appointment and tenure of interim resolution professional’. Insofar

as an application under Section 9 of the Code is concerned, Section 16(3)

is of relevance and it reads as under: -

‘(3) Where the application for corporate insolvency resolution process is made by an operational creditor and –

(a) no proposal for an interim resolution professional is made, the Adjudicating Authority shall make a reference to the Board for the recommendation of an insolvency professional who may act as an interim resolution professional;

(b) a proposal for an interim resolution professional is made under sub-section (4) of section 9, the resolution professional as proposed, shall be appointed as the interim resolution professional, if no disciplinary proceedings are pending against him.’

3

6. Section 17(1)(a) of the Code provides that, from the date of

appointment of the interim resolution professional, the management of the

affairs of the corporate debtor shall vest in the interim resolution

professional. In the case on hand, it is clear that the application filed by

Unox S.P.A. under Section 9 of the Code itself named the proposed

interim resolution professional, as the order dated 18.04.2024, which is

conveniently not placed on record along with this appeal, named Piyush

Moona as the Interim Resolution Professional and he was, accordingly,

shown as respondent No. 2 in the appeal filed before the NCLAT. Once

the interim resolution professional was named by the NCLT in the

admission order, Section 17(1)(a) of the Code would become operative.

Therefore, with effect from the date of admission in the case on hand, i.e.,

18.04.2024, the management of the affairs of the corporate debtor, Ambro

Asia Private Limited, stood vested in Piyush Moona, Interim Resolution

Professional, and it was not open to the suspended director of the

corporate debtor to file an appeal in the name of the corporate debtor,

Ambro Asia Private Limited, claiming to be its director and authorized

representative. The appeal as framed and filed on 24.04.2024 was,

therefore, wholly incompetent. It was not merely a ‘defective’ appeal as it

was not maintainable in its very inception.

7. In this regard, the limitation prescribed under Section 61(2) of the

Code assumes importance. In terms thereof, an appeal before the NCLAT 4 must be filed within the time frames fixed thereunder. The normal period

of limitation prescribed under Section 61(2) is 30 days but the proviso

thereto permits the NCLAT to condone the delay of up to 15 days, if

sufficient cause is shown for not filing the appeal within the prescribed

period of 30 days. Notably, no discretion is left in the NCLAT to condone

delay beyond the prescribed condonable period of 15 days. This being the

legal position, the indulgence shown by the NCLAT on 12.08.2025

completely desecrated the aforestated statutory prescription.

8. Nitendra Kumar Tomer, the suspended director of the corporate

debtor, could have filed an appeal against the admission order dated

18.04.2024 only within the limitation period prescribed under Section

61(2) of the Code. The misconceived appeal filed by him in the name of

the corporate debtor, Ambro Asia Private Limited, professing to be its

director and authorized representative, was wholly incompetent and was

not an appeal with a ‘curable’ defect, which could have been attended to

at a later point of time. It was, therefore, not open to the said suspended

director to seek modification of the cause title in this incompetent appeal.

Unfortunately, the NCLAT lost sight of this aspect and treated the wholly

incompetent appeal as a merely defective one, whereby it deemed it

appropriate to grant time to the suspended director to amend the memo

of the appeal. Once the prescribed limitation period under Section 61(2)

expired, it was not open to the suspended director to take steps to convert 5 the incompetent appeal and maintain an appeal in his own name in

August, 2025, long after expiry of the prescribed limitation. The NCLAT

ought not to have permitted him to do so, whereby a time-barred appeal

in the name of the suspended director was presented and entertained.

9. Though, the learned senior counsel appearing for the suspended

director placed reliance on case law in support of his contention that the

NCLAT was justified in permitting the amendment of the memo of appeal,

we find the decisions relied upon to be wholly inapplicable. In Uday

Shankar Triyar vs. Ram Kalewar Prasad Singh and another 2, this

Court was dealing with a defective appeal, wherein two appellants were

shown in the appeal memo but the vakalatnama was signed by only one

of them. The High Court permitted the other appellant to come on record

and pursue the appeal before the appellate Court. The said decision was

subjected to challenge before this Court. In this context, this Court

observed that any defect in signing the memorandum of appeal or any

defect in the authority of the person signing the memorandum of appeal

or the omission to file the vakalatnama executed by the appellant along

with the appeal would not invalidate the memorandum of appeal, if such

omission or defect is not deliberate. These observations were made in the

context of an omission or defect, being one relatable to procedure which

2 (2006) 1 SCC 75

6 could be corrected subsequently. As already noted, the appeal in the case

on hand was not a merely defective appeal but a wholly incompetent

appeal, having been presented in the name of the corporate debtor by a

suspended director even though he had no right to file such an appeal

after the interim resolution professional was appointed. Therefore, the

observations in the aforestated decision have no application.

10. In Varun Pahwa vs. Renu Chaudhary3, the plaint was not properly

drafted inasmuch as, in the memo of parties, the plaintiff was described

as Varun Pahwa through director of Siddharth Garments Private Limited,

though it should have read as Siddharth Garments Private Limited through

its director, Varun Pahwa. Holding this to be an inadvertent mistake in the

plaint, which the trial Court should have allowed to be corrected so as to

permit the company to sue as a plaintiff, this Court set aside the order

declining to correct the memo of parties. Reference was made to the

earlier decision in Uday Shankar Triyar (supra), wherein it was held that

procedural defects and irregularities which are curable should not be

allowed to defeat substantive rights or to cause injustice. Significantly, this

Court had also observed therein that non-compliance with any procedural

requirement relating to a pleading, memorandum of appeal or application

3 (2019) 15 SCC 628

7 or petition for relief should not entail automatic dismissal or rejection,

unless the relevant statute or rule so mandates.

11. Presently, we find that the appeal, as framed and filed in the name

of the corporate debtor by a suspended director claiming to be its

authorized representative, was contrary to the mandate of the Code and

was, therefore, not at all maintainable. Permitting it to be converted to an

appeal by the suspended director at a later point of time, throwing the

prescription of limitation to the winds, was a further violation of the Code.

The question of rectifying or modifying a wholly incompetent appeal in

violation of the mandate of the Code did not arise and the NCLAT,

therefore, ought not to have extended indulgence in that regard. Varun

Pahwa (supra), therefore, does not further the appellant’s case.

12. Lastly, reliance is placed on Innovators Cleantech Pvt. Ltd. vs.

Pasari Multi Projects Pvt. Ltd. 4. This was a case involving defects in an

appeal filed before the NCLAT and the curing of such defects within the

time prescribed under the rules. This decision also does not further the

case of the appellant, as we have already held that this was not a defective

appeal that the NCLAT was dealing with but a wholly incompetent appeal.

13. Though, the order dated 12.08.2025 passed by the NCLAT and its

later order dated 29.08.2025, permitting the amendment of the appeal,

4 2024 SCC OnLine NCLAT 909

8 were not subjected to challenge by Unox S.P.A., the operational creditor,

or by Piyush Moona, the Interim Resolution Professional, we are of the

opinion that, despite such failure on their part, we must give primacy to

the provisions of the Code, which lay down strict mandates in terms of

time, which are sacrosanct and cannot be lightly discarded. Therefore,

notwithstanding the aforestated orders attaining finality, the legal position

obtaining under the Code is that the appeal, as framed and filed, was not

maintainable being wholly incompetent and it could not have been

converted into a ‘maintainable appeal’ after expiry of the period of

limitation under Section 61(2) of the Code. The NCLAT erred grievously

in permitting such an exercise to be undertaken and adjudicating the

appeal on merits thereafter. Though the decision finally rendered by the

NCLAT in the said appeal went against the suspended director, whereby

he is now before this Court, we are not prepared to look into the merits of

the said order, as the said appeal ought not to have been entertained.

The appeal is dismissed on the aforestated grounds.

……………………...J [SANJAY KUMAR]

.……………………...J [K. VINOD CHANDRAN] New Delhi;

April 10, 2026.

9