S A Plywood Industry Private Limited vs Central Bank Of India

IN THE MATTER OF: S.A. Plywood Industry Pvt. Ltd. ...Appellant

Versus

Central Bank of India ...Respondent

Present: For Appellant: Mr. Abhijeet Sinha, Sr. Adv. with Mrs. Anjani A., Ms. Somya Dutta, Ms. Vandana K., Advocates. For Respondent: Mr. Brijesh Kumar Tamber, Mr. Prateek Kushwaha, Mr. Dhimaan Dutta, Advocates. Ms. Pooja Agrawal, Advocate with CA Subodh Kr. Agarwal, RP.

And

Company Appeal (AT) (Insolvency) No. 663 of 2026 & I.A. No.3148, 2842, 2843 of 2026

IN THE MATTER OF: Ion Bio Med-Icare Pvt. Ltd. ...Appellant

Versus

Draegerwerkag and Co KGAA ...Respondent

Present: For Appellant: Mr. Krishnendu Datta, Sr. Advocate with Mr. Virat K. Anand, Ms. Niharika Sharma, Mr. Kumar Shashank, Mr. Vikalp Singh, Mr. Harish Wadda, Ms. Roopsee Pandita, Ms. Shaivika Agarwal and Mr. Rahul Gaur, Advocates. For Respondent: Mr. Sudhir Makkar, Sr. Advocate with J.K. Chaudhary, Mr. Nayan Mittal, Ms. Vanshika Gupta, Advocates

Cont'd.../ 2

ORDER

ASHOK BHUSHAN, J.

These two appeals and the IAs filed there in raised common question,

hence, are being decided by this common judgment. We need to first notice

the facts and relevant dates in both the appeals:

(i) Company Appeal (AT) (Insolvency) No. 144 of 2026: This appeal

by M/s S. A. Plywood Industry Pvt. Ltd. (Corporate Debtor) has been

filed challenging the order dated 13.11.2025 passed by NCLT,

Kolkata Bench - II, Kolkata in C.P. (IB) No.174/KB/2024. By the

impugned order Section 7 application filed by the Central Bank of

India has been admitted and CIRP against the Corporate Debtor

commenced. IRP was also appointed by the impugned order. This

appeal was e-filed on 18.03.2026, thereafter being delay in filing the

appeal, application I.A. No.537 of 2026 has been filed praying for

condonation of delay. An I.A. No.1225 of 2026 has been on

09.02.2026 seeking leave of the Court to amend Memo of Appeal.

Applicant prayed for amendment in the Memo of Appeal by permitting

Mr. Arun Kumar Saha, Suspended Director of S.A. Plywood Industry

Pvt. Ltd. in place of Appellant - M/s S.A. Plywood Industry Pvt. Ltd.

Another I.A. No.2174 of 2026 has been filed on 19.03.2026 praying

for taking certain additional documents on record.

Company Appeal (AT) (Insolvency) No.144 & 663 of 2026 3

(ii) Company Appeal (AT) (Insolvency) No. 663 of 2026: This appeal

has been filed by Ion Bio Med-Icare Pvt. Ltd. (Corporate Debtor)

challenging the order dated 04.02.2026 passed by NCLT, New Delhi,

Principal Bench admitting Section 9 application filed by the

Respondent - Draegerwerkag and Co KGAA - (Operational Creditor).

By impugned order dated 04.02.2026, the Adjudicating Authority

admitted Section 9 application and appointed Ms. Sunita Umesh as

IRP. Against the impugned order the appeal has been e-filed on

03.03.2026. An I.A. No.2843 of 2026 has been filed on 20.04.2026

seeking amendment of appeal. Another I.A. No.3148 of 2026 has

been filed placing on record subsequent events.

2. Company Appeal (AT) (Insolvency) No. 144 of 2026 came to be listed for

consideration on 27.01.2026 along with the delay condonation application.

Learned counsel for the Appellant sought liberty to file an I.A. to amend the

Memo of Appeal. On 27.01.2026 following order was passed:

"O R D E R (Hybrid Mode)

27.01.2026 Learned Counsel for Appellant seeks liberty to file an I.A. to amend the Appeal, which may be done within ten days.

List this Appeal on 12th February 2026."

3. Company Appeal (AT) (Ins.) No.663 of 2026 came for consideration on

17.04.2026, on which date learned counsel for the Appellant sought liberty to

file an IA to amend the appeal. Order dated 17.04.2026 is as follows:

Company Appeal (AT) (Insolvency) No.144 & 663 of 2026 4

"O R D E R (Hybrid Mode)

17.04.2026: Learned counsel for the appellant seeks liberty to file I.A. to amend the appeal, which may be done within three days.

List this appeal on 23rd April, 2026."

4. In both the Appeals, as noted above, amendment application has been

filed praying for amendment of the appeal. In Company Appeal (AT) (Ins.)

No.144 of 2026 by IA No.1225 of 2026 amendment is sought in Memo of

Parties by substituting Mr. Arun Kumar Saha, Suspended Director of S.A.

Plywood Industry Pvt. Ltd. as Appellant/Applicant. Application has been filed

on 09.02.2026.

5. Similarly, in Company Appeal (AT) (Ins.) No.663 of 2026, application

has been filed being IA No.2843 of 2026 on 20.04.2026 seeking amendment

of appeal. In the application, the Applicant seeks to amend Memo of Parties

by substituting Mr. Anil Gupta, Suspended Director of Ion Bio Med-ICare Pvt.

Ltd. as Appellant.

6. The Amendment Applications came for consideration before this

Tribunal. Respondents appeared and objected to the Amendment

Applications. It is submitted by the Respondent that the Amendment

Application has been filed beyond expiry of 45 days. The appeal which was

filed challenging order admitting CIRP was incompetent after expiry of

limitation which cannot be permitted to be amended, as prayed.

Company Appeal (AT) (Insolvency) No.144 & 663 of 2026 5

7. We have heard Shri Abhijeet Sinha, learned senior counsel for the

Appellant in Company Appeal (AT) (Ins.) No.144 of 2026. Shri Abhijeet Sinha

submits that in the present case on the first day when appeal came before the

Court for consideration i.e. on 27.01.2026, the Appellant itself prayed that it

may be granted leave to file application for amending memo of appeal by

substituting in place of Corporate Debtor, the Suspended Director of the

Corporate Debtor. Learned counsel for the Appellant has referred to recent

judgment of Hon'ble Supreme Court in Civil Appeal No.3607 of 2026,

Nitendra Kumar Tomer, Suspended Director, Ambro Asia Private

Limited vs. Unox S.P.A and Another and submitted that said judgment of

the Hon'ble Supreme Court which held that appeal filed in the name of

Corporate Debtor after initiation of CIRP is incompetent appeal is not

applicable in the facts of the present case. It is submitted that in the case

before the Hon'ble Supreme Court in Nitendra Kumar Tomer no application

was filed by the Appellant for amending the appeal and it was only after

NCLAT passed order on 12.08.2025 permitting the Appellant to amend the

memo of appeal, which order was passed after more than one year from filing

of the appeal, whereas in the present case on the first day Appellant sought

leave, hence, the said judgment is not applicable in the present case.

8. Shri Brijesh Kumar Tamber, learned counsel appearing for the

Respondent submits that in the present case, the application for amendment

has been filed beyond 45 days, hence, the amendment could not be allowed.

Appeal filed by the Corporate Debtor against whom CIRP has already

commenced is incompetent and has to be dismissed. Learned counsel for the

Company Appeal (AT) (Insolvency) No.144 & 663 of 2026 6

Respondent submits that judgment relied in Nitendra Kumar Tomer is fully

applicable in the facts of the present case and amendment application need

to be rejected as well as the memo of appeal is not maintainable.

9. In Company Appeal (AT) (Ins.) No.663 of 2026, we have heard Shri

Krishnendu Datta, learned senior counsel for the Appellant. Shri Datta

submits that it was on the first day when appeal was taken up i.e. on

07.04.2026, Appellant itself prayed for liberty to file an amendment

application. It is submitted that appeal is fully competent appeal after liberty

to amendment. Learned counsel for the Appellant submits that judgment of

the Hon'ble Supreme Court in Nitendra Kumar Tomer is distinguishable and

is not applicable in the facts of the present case.

10. Shri Sudhir Makkar, learned senior counsel appearing for the

Respondent refuted the submissions of the Appellant and submitted that

present is a case which is fully covered by the judgment of Hon'ble Supreme

Court in Nitendra Kumar Tomer. Hon'ble Supreme Court has heldthat

appeal filed by Corporate Debtor after insolvency commencement cannot be

entertained since after insolvency commencement it is only IRP who can

represent the Corporate Debtor. Application for amendment has been filed

beyond 45 days, hence, amendment application needs to be rejected and

appeal deserves to be dismissed as incompetent.

11. We have considered the submissions of learned counsel for the parties

as noted above. There is no dispute between the parties regarding facts and

sequence of events in both the appeals. In Company Appeal (AT) (Ins.) No.144

Company Appeal (AT) (Insolvency) No.144 & 663 of 2026 7

of 2026, which appeal was filed against the order of Adjudicating Authority

admitting Section 7 application filed by Central Bank of India, CIRP has

commenced on 13.11.2025 and appeal has been e-filed in this Tribunal on

27.12.2025. After initiation of CIRP against the Corporate Debtor no appeal

can be filed by Corporate Debtor. Similarly, in Company Appeal (AT) (Ins.)

No.663 of 2026, appeal has been filed by Corporate Debtor challenging order

dated 04.02.2026 admitting Section 9 application which appeal was also filed

by Corporate Debtor although CIRP has commenced.

12. Both learned counsels for the Appellants pray for permitting the memo

of appeal to be amended and appeal be permitted to be filed on behalf of

Suspended Director of the Corporate Debtor, which amendment is being

opposed by Respondents, as noted above. The reliance of the learned counsel

for the Respondent is on the judgment of Hon'ble Supreme Court in Nitendra

Kumar Tomer (Supra), which judgment need to be noticed first.

13. In the case of Nitendra Kumar Tomer, Suspended Director, Ambro

Asia Private Limited vs. Unox S.P.A and Another, Civil Appeal No.3607

of 2026 decided on 10.04.2026, the Company Appeal was filed by the

Corporate Debtor - Ambro Asia Private Limited challenging the order dated

18.04.2024 passed by NCLT initiating CIRP against the Corporate Debtor.

Against order dated 18.04.2024, appeal was e-filed on 24.04.2024 by the

Corporate Debtor, which appeal was entertained. Subsequently, by order

dated 12.08.2025, NCLAT gave opportunity to the Appellant to file

amendment application. Therefore, amendment application was filed being

Company Appeal (AT) (Insolvency) No.144 & 663 of 2026 8

I.A. No.4983 of 2025, which was allowed on 29.08.2025 permitting appeal to

be filed by Nitendra Kumar Tomer, the Suspended Director of the Corporate

Debtor. Subsequently, appeal came to be dismissed by order dated

07.01.2026, which order was challenged by Nitender Kumar Tomer,

Suspended Director in appeal before the Hon'ble Supreme Court. The Hon'ble

Supreme Court noticed the facts and took the view that when CIRP against

the Corporate Debtor has commenced on 18.04.2024, no appeal can be filed

on behalf of the Corporate Debtor and appeal filed by the Corporate Debtor

was incompetent and not defective appeal. It is further noted that the

amendment permitting the Suspended Director to prosecute the appeal was

allowed much after expiry of 30 days and 15 days which is impermissible.

The Hon'ble Supreme Court in Para 8 has made following observations:

"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

Company Appeal (AT) (Insolvency) No.144 & 663 of 2026 9

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 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."

14. Further in Paras 11 and 13, the Hon'ble Supreme Court laid down

following:

"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.

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

Company Appeal (AT) (Insolvency) No.144 & 663 of 2026 10

OnLine NCLAT 909 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."

15. The ratio which is culled out from the above judgment is that the appeal

filed by Corporate Debtor after initiation of CIRP is incompetent and after

expiry of limitation; 30 + 15 = 45 days, no amendment can be permitted,

permitting appeal to be prosecuted by Suspended Director of the Corporate

Debtor. In case before the Hon'ble Supreme Court, the appeal was filed by

the Corporate Debtor within limitation challenging the order initiating CIRP,

however, after more than one year NCLAT granted liberty to the Appellant to

file application for amendment in memo of appeal. Consequently, an

Company Appeal (AT) (Insolvency) No.144 & 663 of 2026 11

application was filed by Suspended Director which was allowed. The Hon'ble

Supreme Court took the view that the Suspended Director of the Corporate

Debtor could have filed an appeal against the admission order only within the

limitation period prescribed and after expiry of limitation, the appeal was

incompetent and was not an appeal with a curable defect.

16. Learned counsel for the Appellant has relied on various orders of this

Tribunal where amendment in memo of parties was allowed. Reference has

been made to the order passed by this Tribunal in Sanya Hospitality Pvt.

Ltd. vs. Kaliber Associates Pvt. Ltd., Company Appeal (AT) (Ins.) No. 498

of 2026, Rajesh Jeevan Uttamchandani Erstwhile Director of Shree

Sant Kripa Appliances Pvt. Ltd. vs. HDFC Bank Ltd. & Anr., Company

Appeal (AT) (Ins.) No.1867 of 2025 and Anup Kumar Singh, Chairman of

the Monitoring Committee & the erstwhile RP of E.R. Textile Ltd.,

Company Appeal (AT) (Ins.) No.911 of 2024. From the orders as relied by

the Appellant, it is clear that this Tribunal has allowed amendments in memo

of parties in several cases, however, the judgment of the Hon'ble Supreme

Court in Nitendra Kumar Tomer, Suspended Director, Ambro Asia

Private Limited vs. Unox S.P.A and Another decided on 10.04.2026 is a

judgment of Supreme Court declaring the law which is binding under Article

141 of the Constitution of India. In view of the pronouncement of the Hon'ble

Supreme Court dated 10.04.2026, we are bound to follow the judgment of

Hon'ble Supreme Court and the earlier orders passed by this Tribunal, as

relied by the Appellant, are of no avail to the Appellant.

Company Appeal (AT) (Insolvency) No.144 & 663 of 2026 12

17. The submission of learned counsel for the Appellant that facts and

sequence of events in Nitendra Kumar Tomer's case is different where the

amendment was permitted after more than one year after filing of the appeal

whereas in the appeals before us on the first date of listing of the appeals

leave was sought by the Appellant to amend the memo of appeal. What is

binding in the judgment is ratio of the judgment which is already noticed in

the judgment of Hon'ble Supreme Court in Nitendra Kumar Tomer where it

was categorically held that after expiry of 45 days from the impugned order

appeal in the name of Corporate Debtor cannot be allowed to be amended, the

appeal being incompetent and not maintainable.

18. Learned counsel for the Appellant has also relied on judgment of the

Hon'ble Supreme Court in Union of India vs. Amrit Lal Manchanda & Anr.,

(2004) 3 SCC 75 lays down that judicial precedent must be applied with

caution, as every case depends on its own facts and even a minor factual

difference can change the outcome. There can be no dispute to the above

proposition laid down by the Hon'ble Supreme Court but the judgment of

Hon'ble Supreme Court in Nitendra Kumar Tomer was law on the provision

of Section 61 of I&B Code which provides an appeal to this Tribunal and the

Appeals which have been filed in the present case were appeal under Section

61. As noted above, we clearly bound by the said judgment.

19. Learned counsel for the Appellant has relied on another judgment of

Hon'ble Supreme Court in Union of India & Ors. vs Sajib Roy, 2025 SCC

OnLine SC 1943 where in Para 16 and 17 following has been laid down:

Company Appeal (AT) (Insolvency) No.144 & 663 of 2026 13

"16. It is trite the ratio in a judgment must be read in the facts of a particular case and cannot have universal application. In Quinn v. Leathem, Lord Halsbury remarked:-

"....there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, 11 [1901] AC 495 (HL) since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it.

Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all."

17. In Haryana Financial Corporation & Anr v.

Jagdamba Oil Mills & Anr, the Court held:-

"21. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

22. The following words of Hidayatullah, J. in the matter of applying precedents have become locus classicus: (Abdul Kayoom v. CIT, AIR p. 688, para

19) "19. ... Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the

Company Appeal (AT) (Insolvency) No.144 & 663 of 2026 14

line a case falls, the broad resemblance to another case is not at all decisive."

*** *** *** *** "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.""

20. There cannot be any dispute to the proposition laid down by the Hon'ble

Supreme Court in the above case, however, the proposition laid down by the

Hon'ble Supreme Court in Nitendra Kumar Tomer is fully applicable in the

facts of the present appeals.

21. We need to recapitulate relevant dates in both the appeals which are as

follows:

Company Appeal (AT) (Insolvency) No. 144 of 2026

Date of Date of filing Date on which request Date of filing of impugned order of appeal was made for filling amendment amendment application application

13.11.2025 27.12.2025 27.01.2026 09.02.2026

Company Appeal (AT) (Ins.) No.663 of 2026

Date of Date of filing Date on which request Date of filing of impugned order of appeal was made for filling amendment amendment application application

04.02.2026 03.03.2026 17.04.2026 20.04.2026

22. When we look into the dates with respect to above two appeals, it is

clear that both the appeals were filed by the Corporate Debtor and application

Company Appeal (AT) (Insolvency) No.144 & 663 of 2026 15

for amendment was filed admittedly after expiry of 45 days from the impugned

order. Thus, amendment application which were filed were beyond 45 days

and as per the ratio of judgment of Hon'ble Supreme Court in Nitendra

Kumar Tomer after expiry of limitation, amendment permitting Suspended

Director to file appeal cannot be allowed. Appeal was wholly incompetent and

was not an appeal with a curable defect which could not have been amended

at later point of time. Following the judgment of Hon'ble Supreme Court, we

are of the view that amendment as prayed by the Appellants cannot be

allowed. Amendment Applications being I.A. No.1225 of 2026 in Company

Appeal (AT) (Insolvency) No. 144 of 2026 and I.A. No.2843 of 2026 in Company

Appeal (AT) (Ins.) No.663 of 2026 are dismissed. Consequently, both memo of

appeals are dismissed as incompetent appeals.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

NEW DELHI

18th May, 2026

Archana

Company Appeal (AT) (Insolvency) No.144 & 663 of 2026