Continuing oppression and mismanagement claims may survive limitation and proceed when members' consent and triable issues are shown.

A petition under sections 397 and 398 was treated as maintainable under section 399 where the requisite members' consent was factually established, including consent given through a guardian for minor members. The court also treated the alleged oppression and mismanagement as continuing conduct, so limitation was not applied to defeat the petition, especially where communication of the impugned resolution had not been proved. Allegations of clandestine share allotment, alteration of board control, and prejudice to the petitioner's group disclosed triable issues requiring evidence, and the matter could not be rejected summarily. The dismissal was set aside and the company petition restored for decision on merits.

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Issues: (i) whether the petition under sections 397 and 398 was maintainable under section 399 on the basis of the members' consent; (ii) whether the petition was barred by limitation; (iii) whether the allegations disclosed a case fit for examination under sections 397 and 398.

Issue (i): whether the petition under sections 397 and 398 was maintainable under section 399 on the basis of the members' consent.

Analysis: Section 399 permits an application by the requisite number of members and also allows one or more qualified members to apply with the written consent of the rest. The consent requirement is satisfied where the petitioner, acting also as guardian of minor members, has valid authority to consent on their behalf. The Court also treated factual compliance with the numerical requirement as more important than the precise form of pleading.

Conclusion: The petition satisfied section 399 and was maintainable.

Issue (ii): whether the petition was barred by limitation.

Analysis: Proceedings under sections 397 and 398 concern continuing oppression or mismanagement and are directed to bringing the complained-of conduct to an end. On that basis, the wrong is of a continuing character and limitation does not operate in the manner assumed by the court below. In any event, the alleged resolution had not been shown to have been communicated to the petitioner and the question of knowledge required proof.

Conclusion: The petition was not barred by limitation.

Issue (iii): whether the allegations disclosed a case fit for examination under sections 397 and 398.

Analysis: The pleadings alleged clandestine allotment of shares, an attempt to alter control of the board, and conduct oppressive to the petitioner's group and prejudicial to the interests of the company. Those assertions raised substantial issues of oppression and mismanagement which required trial on evidence and could not be rejected summarily on the footing that no material change had occurred.

Conclusion: The petition disclosed triable issues under sections 397 and 398 and could not be dismissed summarily.

Final Conclusion: The appeal succeeded, the dismissal order was set aside, and the company petition was restored for fresh decision on the merits.

Ratio Decidendi: A petition under sections 397 and 398 alleging continuing oppression or mismanagement is maintainable when the section 399 requirements are factually met, and such a petition is not to be defeated on limitation grounds where the complained-of conduct is continuing and requires adjudication on merits.

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