NITENDRA KUMAR TOMER, SUSPENDED DIRECTOR, AMBRO ASIA PRIVATE LIMITEDversusUNOX S.P.A. AND ANOTHER

                 [2026] 5 S.C.R. 146 : 2026 INSC 356

           Nitendra Kumar Tomer, Suspended Director,
                   Ambro Asia Private Limited
                               v.
                    Unox S.P.A. and Another
                       (Civil Appeal No. 3607 of 2026)
                                 10 April 2026
           [Sanjay Kumar* and K. Vinod Chandran, JJ.]


                            Issue for Consideration
       Once the prescribed limitation period u/s.61(2) of Insolvency
       and Bankruptcy Code, 2016 expired, whether it was open to the
       suspended director to take steps to convert the incompetent appeal
       and maintain an appeal in his own name.

                                   Headnotes†
       Insolvency and Bankruptcy Code, 2016 – ss.16, 17, 61 –
       A suspended director of Ambro Asia Private Limited, the
       corporate debtor, filed the present appeal u/s.62 of the
       Insolvency and Bankruptcy Code, 2016, aggrieved by the
       judgment dated 07.01.2026 passed by the NCLAT – By the said
       judgment, the NCLAT confirmed the order dated 18.04.2024
       passed by the NCLT, admitting CP (IB) No. 722/ND/2021,
       an application filed u/s.9 of the Code by Unox S.P.A., an
       operational creditor, respondent no.1 – Earlier, the NCLAT
       had permitted the appeal to be prosecuted by the suspended
       director of the corporate debtor – Correctness:
       Held: Once the interim resolution professional was named by the
       NCLT in the admission order, s.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 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 before the NCLAT was, therefore, wholly
       incompetent – It was not merely a ‘defective’ appeal as it was not
       maintainable in its very inception – The normal period of limitation
* Author
[2026] 5 S.C.R.                                                                 147

        Nitendra Kumar Tomer, Suspended Director, Ambro Asia
               Private Limited v. Unox S.P.A. and Another

     prescribed u/s.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 – This being the legal position, the indulgence shown by
     the NCLAT on 12.08.2025 completely desecrated the aforestated
     statutory prescription – 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 u/s.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 u/s.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 –
     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. [Paras 6, 7, 8]

                                Case Law Cited
     Uday Shankar Triyar v. Ram Kalewar Prasad Singh and another
     [2005] Supp. 5 SCR 157 : (2006) 1 SCC 75; Varun Pahwa v. Renu
     Chaudhary [2019] 4 SCR 128 : (2019) 15 SCC 628; Innovators
     Cleantech Pvt. Ltd. v. Pasari Multi Projects Pvt. Ltd., 2024 SCC
     OnLine NCLAT 909 – held inapplicable.

                                  List of Acts
     Insolvency and Bankruptcy Code, 2016.

                               List of Keywords
     Corporate debtor; Operational creditor; Interim resolution professional;
     Limitation; Curable defect; Maintainability; Modification of cause title;
     Incompetent appeal; Suspended director; Amended memo of appeal;
     Section 61(2) of Insolvency and Bankruptcy Code, 2016.
148                                                           [2026] 5 S.C.R.

                              Supreme Court Reports


                                Case Arising From
       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3607 of 2026
       From the Judgment and Order dated 07.01.2026 of the National
       Company Law Apellate Tribunal in CAAT(I) No. 931 of 2024.

                              Appearances for Parties
       Advs. for the Appellant(s):
       Rakesh Kumar Khanna, Sr. Adv., Abhishek Swarup, Manoj Swarup,
       Aditya Pushkar Khanna, Ms. Arushi Jindal, Govind Kashyap,
       S.S. Nehra, Chetan Sharma, M/s. Manoj Swarup And Co.
       Advs. for the Respondent(s):
       Rahul Chitnis, Savinder Singh, Parth Awasthi, Ms. Barnali
       Mukherjee, Hersh Desai, M/s. F.M. Associates.

                       Judgment / Order of the Supreme Court

                                    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 No. 1 herein.
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


1    For short, ‘the Code’
[2026] 5 S.C.R.                                                         149

        Nitendra Kumar Tomer, Suspended Director, Ambro Asia
               Private Limited v. Unox S.P.A. and Another

     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 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 –
150                                                            [2026] 5 S.C.R.

                           Supreme Court Reports


                  (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.’
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 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
[2026] 5 S.C.R.                                                          151

          Nitendra Kumar Tomer, Suspended Director, Ambro Asia
                 Private Limited v. Unox S.P.A. and Another

      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
      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
      another2, 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


2    (2006) 1 SCC 75
152                                                          [2026] 5 S.C.R.

                          Supreme Court Reports


       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 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 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


3   (2019) 15 SCC 628
[2026] 5 S.C.R.                                                       153

           Nitendra Kumar Tomer, Suspended Director, Ambro Asia
                  Private Limited v. Unox S.P.A. and Another

     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,
    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.

     Result of the case: Appeal dismissed.




     †
         Headnotes prepared by: Ankit Gyan


4   2024 SCC OnLine NCLAT 909