Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
2026 INSC 356
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
J U D G M E N T
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
1
of the Insolvency and Bankruptcy Code, 2016 , 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.
Though, the learned senior counsel appearing for the suspended
9.
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
2
Shankar Triyar vs. Ram Kalewar Prasad Singh and another , 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.
3
In , the plaint was not properly
10. Varun Pahwa vs. Renu Chaudhary
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 ( supra ), wherein it was held that
Uday Shankar Triyar
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.
4
Pasari Multi Projects Pvt. Ltd. . 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
IN THE SUPREME COURT OF INDIA
2026 INSC 356
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
J U D G M E N T
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
1
of the Insolvency and Bankruptcy Code, 2016 , 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.
Though, the learned senior counsel appearing for the suspended
9.
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
2
Shankar Triyar vs. Ram Kalewar Prasad Singh and another , 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.
3
In , the plaint was not properly
10. Varun Pahwa vs. Renu Chaudhary
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 ( supra ), wherein it was held that
Uday Shankar Triyar
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.
4
Pasari Multi Projects Pvt. Ltd. . 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