SC Dismisses Insolvency Appeal as Wholly Incompetent, Filed by Suspended Director

A bench of Justice Sanjay Kumar and Justice K. Vinod Chandran heard an appeal under Section 62 of the Insolvency and Bankruptcy Code, 2016 filed by Nitendra Kumar Tomer, a suspended director of Ambro Asia Private Limited, challenging the National Company Law Appellate Tribunal's judgment dated 07.01.2026 which had confirmed the National Company Law Tribunal's order dated 18.04.2024 admitting an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 filed by Unox S.P.A.

The Court dismissed the appeal, holding that the memorandum of appeal as framed and filed in the name of the corporate debtor by the suspended director was wholly incompetent and time-barred under Section 61(2) of the Insolvency and Bankruptcy Code, 2016. The Court found that once an interim resolution professional was appointed, management of the corporate debtor vested in the interim resolution professional under Section 17(1)(a) of the Insolvency and Bankruptcy Code, 2016, and therefore the suspended director had no locus to file the appeal in the name of the company.

 The Court, in its reasoning, observed: "Section 17(1)(a) of the Insolvency and Bankruptcy Code, 2016 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 Insolvency and Bankruptcy Code, 2016 itself named the proposed interim resolution professional, as the order dated 18.04.2024, which is convenient 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 Insolvency and Bankruptcy Code, 2016 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."

The Court noted that the NCLAT had allowed amendment of the memo of appeal and permitted the suspended director to prosecute the appeal despite limitation under Section 61(2) of the Insolvency and Bankruptcy Code, 2016 having expired, and it held that such indulgence was contrary to the statutory scheme. The appellant had relied on precedents dealing with curable procedural defects, but the Court found those authorities inapplicable: the decision in Uday Shankar Triyar vs. Ram Kalewar Prasad Singh and another addressed a defect in vakalatnama and signing, Varun Pahwa vs. Renu Chaudhary addressed an inadvertent mis-description in parties, and Innovators Cleantech Pvt. Ltd. vs. Pasari Multi Projects Pvt. Ltd. dealt with curing defects within prescribed time; the Court distinguished those authorities on the ground that the appeal before the NCLAT was "wholly incompetent" and not a merely curable procedural defect.

Background

The dispute arose when Unox S.P.A., as an operational creditor, filed CP (IB) No. 722/ND/2021 under Section 9 of the Insolvency and Bankruptcy Code, 2016 before the NCLT, which admitted the application on 18.04.2024 and named Piyush Moona as the Interim Resolution Professional. Thereafter, Nitendra Kumar Tomer, a suspended director of Ambro Asia Private Limited, filed an appeal challenging the admission order; the appeal was presented in the name of the corporate debtor and verified by the suspended director. The NCLAT observed that an appeal in the name of the corporate debtor was not maintainable after admission where an interim resolution professional had been appointed, yet it granted time and allowed amendment of the memo of appeal by orders dated 12.08.2025 and 29.08.2025, after which it adjudicated the appeal on merits and confirmed the admission order.

On appeal to this Court under Section 62 of the Insolvency and Bankruptcy Code, 2016, the Court focused on the statutory mandate in Section 16 and Section 17(1)(a) of the Insolvency and Bankruptcy Code, 2016 which vested management in the interim resolution professional from the date of appointment, and on the limitation period in Section 61(2) of the Insolvency and Bankruptcy Code, 2016 which prescribed 30 days with a non-discretionary condonable extension of 15 days. The Court held that the appeal filed in the name of the corporate debtor by the suspended director was not maintainable "in its very inception" and that the NCLAT grievously erred in converting that incompetent appeal into a maintainable one after the limitation period had expired. The Court dismissed the appeal on those grounds and declined to examine the merits of the underlying admission order. The Court observed that even though the respondents had not challenged the NCLAT's interim orders, the provisions of the Insolvency and Bankruptcy Code, 2016 were sacrosanct and required enforcement.

Case Details:
Case No.: CIVIL APPEAL NO. 3607 OF 2026
NeutralCitation: 2026 INSC 356
Case Title: Nitendra Kumar Tomer v. Unox S.P.A. and another

Source: 2026 CaseBase(SC) 314