Appeal by Suspended Director during CIRP: Supreme Court on Maintainability and Limitation under IBC

Background of the Dispute

The Supreme Court in Nitendra Kumar Tomer Vs Unox S.P.A. And Another examined a significant question under the Insolvency and Bankruptcy Code, 2016 (the Code):

Whether a suspended director of a corporate debtor can validly maintain an appeal before the NCLAT after initiation of the corporate insolvency resolution process (CIRP), and whether such an appeal can be “cured” or converted after limitation has expired.

The appeal before the Supreme Court was filed under Section 62 of the Code by Nitendra Kumar Tomer, a suspended director of Ambro Asia Private Limited, challenging the judgment dated 07.01.2026 passed by the National Company Law Appellate Tribunal (NCLAT), which had upheld the admission of a Section 9 application by Unox S.P.A., an operational creditor.

The National Company Law Tribunal (NCLT), New Delhi Bench, by order dated 18.04.2024 in CP (IB) No. 722/ND/2021, had admitted the Section 9 application and commenced CIRP against Ambro Asia Private Limited. An Interim Resolution Professional (IRP), Piyush Moona, was appointed under that order.

Following this admission:

  • An appeal was filed before the NCLAT in the name of Ambro Asia Private Limited as the appellant,
  • The appeal was verified and signed by Nitendra Kumar Tomer, describing himself as director and authorized representative,
  • The IRP, Piyush Moona, was arrayed as respondent No. 2 in that appeal.

The Supreme Court was called upon to examine whether such an appeal, filed in the name of the corporate debtor after admission of CIRP but verified by a suspended director, was maintainable; and if not, whether it could later be converted into an appeal by the suspended director in his individual capacity, after the limitation period prescribed by Section 61(2) had already lapsed.

Proceedings before the NCLAT: Initial Incompetence and Later “Conversion”

NCLAT’s Initial Observation on Representation

The NCLAT, by order dated 12.08.2025, itself recognized a key legal defect:

  • The appeal had been instituted in the name of the corporate debtor,
  • The CIRP had already been admitted on 18.04.2024,
  • Post-admission, the corporate debtor could only be represented through the IRP,
  • The appeal, however, had been verified by the suspended director, Nitendra Kumar Tomer.

The NCLAT explicitly recorded that:

An appeal filed in the name of the corporate debtor, after admission of a Section 9 application, is not maintainable when the corporate debtor can legally be represented only by the IRP.

Despite this clear recognition, the NCLAT chose to exercise what it termed as discretion “for the ends of justice”.

Permission to Amend the Appeal

Rather than dismissing the appeal as non-maintainable, the NCLAT:

  1. Allowed time to file an application for amendment of the memo of appeal,
  2. On 29.08.2025, allowed IA No. 4983 of 2025,
  3. Permitted the continuation of the appeal, not in the name of Ambro Asia Private Limited, but in the name of Nitendra Kumar Tomer, the suspended director.

Thus, a fundamentally incompetent appeal – filed originally in the name of the corporate debtor by someone with no legal authority to represent it – was effectively converted, much later, into an appeal by the suspended director personally.

The final NCLAT judgment dated 07.01.2026, however, still reflected the corporate debtor’s name as appellant and did not clearly engage with the effect of the amended memo from a limitation standpoint.

Supreme Court’s Analysis: Representation Post-Admission of CIRP

Effect of Appointment of IRP under Section 16 and Section 17(1)(a)

The Supreme Court began by examining the statutory regime: