Order.- To answer the questions raised by the Official Liquidator in this application it is necessary to state the facts in some detail. The company in question the Prabhakar Glass Works Ltd. was initially voluntarily wound up and then the winding-up is being continued under order of Court. When the voluntary liquidation commenced, a sum of Rs. 22,800 remained due as unpaid share capital. The voluntary liquidator settled a list of contributories of the persons from whom the money was thus due. He realised Rs. 4,600 and later another sum of Rs. 1,000 and there remained a balance of Rs. 17,200. The shares in respect of which the calls were thus unpaid had been forfeited by the Company be a resolution dated 6th September, 1955, of the Board of Directors. But since the forfeiture was within a period of one year prior to the commencement of the winding-up, namely, 12th March, 1956, the members whose shares had been forfeited were included in the list of contributories as past members of the Company liable under section 426 of the Companies Act, 1956. The then Official Liquidator Sri Arunachalam took out Application No. 1197 of 1959 for leave to make a call on these past members. Permission was given to make a call of this sum of Rs. 17,200. A sum of Rs. 3,405.84 was collected by the Official Liquidator and the balance remained unpaid. In this application put in by the present Official Liquidator Sri Vaideeswaran, it is seen that the amount realised from the sale of the assets was in excess of the amount due to the creditors, namely, Rs. 37,713 even when the previous Official Liquidator took out the application for calls on the past members. The present Official Liquidator thinks that when the existing assets were thus sufficient to discharge the creditors the liability of the past members did not arise and he quotes some decisions which will be referred to later. If that view is right, the amount collected from the past members would have to be refunded to them. This amount would be Rs. 4,600 plus Rs. 1,000 plus Rs. 3,405.84, namely, Rs. 9,005.84. But the Official Liquidator has only about Rs. 3,431.93 remaining with him out of the general assets. In other words, the amount on hand is not sufficient to refund the sum of Rs. 9,005-84. This amount would be Rs. 4,600 plus Rs. 1,000 plus Rs. 3,405.84, namely, Rs. 9,005.84. But the Official Liquidator has only about Rs. 3,431.93 remaining with him out of the general assets. In other words, the amount on hand is not sufficient to refund the sum of Rs. 9,005-84. The extra sum required for making the refund to the past members can be collected only by recovering back from the preference shareholders a portion of the share capital which was refunded to them by order of this Court dated 25th September, 1959, in Company Application No. 1199 of 1959 taken out by the previous Official Liquidator. In that application 70 per cent. of the share capital was ordered to be returned to the preference shareholders. The two Applications Nos. 1197 and 1199 of 1959 were put in at the same time but the then Official Liquidator did not bring it to the notice of the Court in Application No. 1197 of 1959 that the amount realised by the sale of the assets was more than sufficient to pay the creditors and even to leave a surplus for return of the substantial part of the share capital to the preference shareholders. The past members also did not bring that fact to the notice of the Court. The result was that on 4th September, 1959, the Court passed an order in Application No. 1197 of 1959 directing a call to be made from the past members to the tune of Rs. 17,200and on 25th September, 1959, passed an order in Application No. 1199 of 1959 directing the return of 70 per cent. of the share capital to the preference shareholders. The Official Liquidator states in the present application that if it is held by the Court that a sum of Rs. 9,005.84 should be refunded to the past members, a sum of Rs. 7 per share may have to be recovered back from the preference shareholders, taking into consideration the probability of some of the preference shareholders, not paying. He draws the attention of the Court to the fact that the orders of this Court dated 4th September, 1959, in Application No. 1197 of 1959and25th September, 1959 in Application No. 1199 of 1959 have become final, not having been appealed against, though an appeal is provided for under section 473. He draws the attention of the Court to the fact that the orders of this Court dated 4th September, 1959, in Application No. 1197 of 1959and25th September, 1959 in Application No. 1199 of 1959 have become final, not having been appealed against, though an appeal is provided for under section 473. On the footing that the prior orders of this Court are there and will have to be enforced, the Official Liquidator asks for directions (i-a) whether he could retain the proceeds of the calls already made on past members even though it had been wrongly collected from them; (i-b) whether he could get a balance order against the contributories who have still to contribute under the orders of Court dated 4th September, 1959 ; (ii) alternatively, if the Court holds that notwithstanding the prior orders of this Court it was wrong to have made any call on the past members, whether the amount of Rs. 9,005.84 so collected from them should be refunded to them, and (iii) whether steps may be taken by the Official Liquidator to recover Rs. 7 per share from the preference shareholders. There is the incidental prayer for the costs of this application to come out of the estate. Notice of this application was given to the past members and to the preference shareholders but only one person has appeared and that is Sri P. Kuppuswami Ayyar, a preference shareholder, who holds five preference shares for Rs. 500. He states that no work was done by the company and no dividend was paid at all and that by virtue of the order dated 25th September, 1959, in Application No. 1199 of 1959 he got 70 per cent. of the share capital, namely, Rs. 350 and that by virtue of sections 473 and 483 of the Indian Companies Act the orders dated 4th September, 1959 and 25th September, 1959, have become final and that the Court cannot ask the preference shareholders to return any portion of the amount already paid to them. He goes to the extent of saying that it will be just to direct the amounts now available with the Official Liquidator to be given to the preference shareholders instead of being refunded to the past members. The following are the substantive provisions of the Act dealing with the liability of the past member. He goes to the extent of saying that it will be just to direct the amounts now available with the Official Liquidator to be given to the preference shareholders instead of being refunded to the past members. The following are the substantive provisions of the Act dealing with the liability of the past member. Section 426 in so far as it is relevant says: “ (I) In the event of a company being wound up every present and past member shall be liable to contribute to the assets of the company to an amount sufficient for payment of its debts and liabilities and the costs, charges and expenses of the winding up, and for the adjustment of the rights of the contributories among themselves, subject to the provisions of section 427 and subject also to the following qualifications, namely:- (a) a past member shall not be liable to contribute if he has ceased to be a member for one year or upwards before the commencement of the winding up; (b) a past member shall not be liable to contribute in respect of any debt or liability of the company contracted after he ceased to be a member ; (c) no past member shall be liable to contribute unless it appears to the Court that the present members are unable to satisfy the contributions required to be made by them in pursuance of this Act; (d) in the case of a company limited by shares, no contribution shall be required from any past or present member exceeding the amount, if any, unpaid on the shares in respect of which he is liable as such member ; Section 470: ” (1) The Court may, at any time after making a winding up order, and either before or after it has ascertained the sufficiency of the assets of the company: — (a) make calls on all or any of the contributories for the time being on the list of the contributories, to the extent of their liability, for payment of any money which the Court considers necessary to satisfy the debts and liabilities of the company, and the costs, charges and expenses of winding up, and for the adjustment of the rights of the contributories among themselves; (b) make an order for payment of any calls so made ; (2) in making a call, the Court may take into consideration the probability that some of the ‘Contributories may, partly or wholly, fail to pay the call.“ Section 475: ” The Court shall adjust the rights of the contributories among themselves, and distribute any surplus among the persons entitled thereto.“ On the procedural aspect on the finality of the orders of this Court section 473 says: ” (1) An order made by the Court on a contributory shall, subject to any right of appeal, be conclusive evidence that the money, if any, thereby appearing to be due or ordered to be paid is due.‘ Section 483 provides for the right of appeal on the original side of this Court. Now, confining ourselves to the substantive provisions it seems to me that the prior order dated 4th September, 1959 in Application No. 1197 of 1959 and the consequential order in Application No. 1199 of 1959, dated 25th September, 1959, may not be correct. That is because under the provisions of the Act and the decisions on the point, the liability of the past member would arise only if the existing assets plus the contribution of the present members for the unpaid call are not sufficient, to pay the debts of the company and costs. In the present case it appears from the report of the Official Liquidator that the present members had paid the share capital in full but then the existing assets were sufficient to meet all the debts of the company and the costs. It will be seen from section 426 (1) that the past member is liable to contribute to the assets of the company an amount sufficient for payment of its debts and liabilities and costs, charges and expenses of winding up. This means that if the assets themselves are sufficient for the payment of the debts and liabilities and costs, charges and expenses of winding up, there is no need to contribute. In Brett’s case and Morris case1, which were reheard by the Court of Appeal Lord Selborne, L. C, states at page 808: “ Reason, justice and equity appear to me to require, that, as to all the matters for which, under section 38, a liability is cast upon past members, the liability of all the present members should be first exhausted, or (which is the same thing) ascertained to be insufficient.” At page 811 he states: “ as the property in hand at the date of the winding up, and the contributions of all the present members, were primarily and justly liable to pay all the debts of the company rateably and equally, as far as they would extend before any liability of past members could arise..........” meaning thereby that the liability of the past members would arise only after the existing assets and the contributions of the present members is found to be insufficient to meet the debts and liabilities. He reiterates the same idea in the following form lower down: “ the liability of past members to contribute in respect of debts contracted before they ceased to be members could not exceed the amount of the residuum of those debts, to use Lord Westbury’s expression, after writing off from them the full amount of dividends paid out of the property in hand and the contributions of present members.” (Italics is mine for the purpose of this case). It is unnecessary to discuss the actual facts in Brett’s case.1 In In re City of London Insurance Company Ltd2, the capital was £500,000 in shares of £1 each. On the date of the winding up 1,601 shares were fully paid-up. The remaining 4 98,399 shares were paid-up only to the extent of 6 s. per share. The winding-up commenced on 3rd February, 1922. On 18th July, 1921, the holders (2,170 in number), of 4,63,801 shares paid-up to the extent of 6s. per share had transferred them to the City Equitable Associated Ltd., who remained the registered holders thereof at the date of the liquidation. The City Equitable Associated Ltd., became insolvent and no more than a penny in the pound could be realised by calls on them though they were placed on the A list - Present members. Hence calls were made on the transferors of the shares putting them in the B list. At the stage on which the matter came up before Eve, J., it became clear that the amount already collected from the contributories would substantially exceed the difference between the aggregate of the liabilities in respect of which they were liable to contribute and the amount available to satisfy such liabilities out of the general assets of the company other than the proceeds of the two calls made on the B contributories and the question was whether this excess estimated to amount of £10,000 upwards should be refunded to the B contributories or be treated as part of the general assets. To put it in a simpler language, after taking into account the amount realised by the sale of the assets of the company and the contributions of the present members it was necessary to make a call on the B contributories only to a certain extent, but calls had been made substantially in excess of that amount and the excess was £10,000 upwards and the question was whether that amount had to be refunded to them or treated as part of the general assets of the Company. Eve, J., answered the question thus: “ I think it is clear that the moneys, subject to any deduction for costs properly chargeable to the B contributories, must be refunded to them. Their liability to contribute is created by statute and is restricted to so much of the amount left unpaid on their shares by their associated A contributories as does not exceed the balance of the debts and liabilities of the Company, contracted before they respectively ceased to be members, which remains unpaid after the assets of the company and the contributions of the A contributories have been applied pari pasu towards the payment of all the debts of the company whenever contracted. In the present case the proceeds of the calls made on the B contributories exceed that balance, and any dealing with the excess otherwise than by returning it to the B contributories would operate to impose on them an increase of liability for which there is no statutory justification.” It will be seen that Eve, J., says that first the assets of the company and the contributions of the A contributories, that is, the present members, would be applied and call made on the past members only to the extent of the deficiency required to pay the debts which existed before the past members ceased to be members. It seems to me to follow from the above discussion that since the other assets of the company were sufficient to pay all the debts and costs and there was even a surplus, there was no justification to call for contribution from the past members but the call has been made and the order has become final by virtue of section 473 and section 483. The only question is what is the proper and just order to be passed in the situation which exists at present. The only question is what is the proper and just order to be passed in the situation which exists at present. Having regard to the finality of the orders already passed, it is not possible to order the preference shareholders to repay any portion of the capital which they have received by virtue of the order dated 25th September,1959. At the same time it is not necessary to enforce the order of 4th September. 1959, further by passing the balance order against the past members who have not paid in full or in part the amount directed by this Court on 4th September, 1959, Further it would be just and equitable in view of the principles outlined above to refund the sum of Rs. 3,431-93 (cash on hand) after retaining a small portion for incidental expenses, to the past members. Justice requires that this be done pro rata of the amounts actually paid by the past members. Thus keeping a sum of Rs. 131-93 for costs and expenses, if we distribute the balance of Rs. 3.300 to the past members, the past members who paid sums amounting to Rs. 4,600 will get 4.600/9,005.84 out of Rs. 3,300. The past members who paid Rs. 1.000 will get 1,000/9,005.84-3,300. The person from whom an amount of Rs. 3,405.84 has been collected will get 3,405.94/9,005.84. It seems to me that this is the only order which can justly be passed in accordance with law and justice. Costs of this application will come out of the estate. V.S. ------ Ordered accordingly.