Nitendra Kumar Tomer Vs Unox S.P.A. And Another (Supreme Court of India)
The Supreme Court considered an appeal filed under Section 62 of the Insolvency and Bankruptcy Code, 2016, by a suspended director of a corporate debtor challenging a judgment of the National Company Law Appellate Tribunal (NCLAT). The NCLAT had upheld the order of the National Company Law Tribunal (NCLT), which admitted an application under Section 9 of the Code filed by an operational creditor against the corporate debtor.
At the outset, the Supreme Court examined the maintainability of the appeal filed before the NCLAT. It noted that the appeal had been instituted in the name of the corporate debtor after the insolvency application had already been admitted by the NCLT. The appeal was verified by the suspended director, despite the appointment of an Interim Resolution Professional (IRP). The NCLAT itself had acknowledged that, after admission of the application, the corporate debtor could only be represented by the IRP and that an appeal filed in the name of the corporate debtor was not maintainable.
Despite this finding, the NCLAT allowed the appellant to amend the memorandum of appeal and permitted the appeal to continue in the name of the suspended director. The Supreme Court found this approach to be erroneous and legally unsustainable. It held that the appeal, as originally filed, was wholly incompetent and not merely defective. The Court emphasized that once the IRP is appointed under Section 16 and Section 17(1)(a) of the Code, the management of the corporate debtor vests entirely in the IRP. Therefore, the suspended director had no authority to file an appeal on behalf of the corporate debtor.
