(specially concurring) :
I agree with the district court that the accounts receivable assigned by Bemporad to Heller pursuant to their factoring agreement1 furnished Heller additional security against liability for Bemporad’s supplies purchased or guaranteed by Heller. Even so, however, I think that Heller is bound by the value of its other security established by the foreclosure sale some six weeks after the date of bankruptcy as opposed to the previous theoretical or opinion values.2 With value of the security so fixed, it cannot be said that Heller was a fully secured creditor during the critical four months prior to bankruptcy.
Aside from the question of security, I am impressed by the district court’s view that “ * * * there is considerable basis for holding that the payments were not preferential or, in the alternative, entitled to set off. It can be argued that there was a present consideration in that almost concurrently with the furnishing of assets (i. e. raw materials) to the bankrupt, payment was made to the supplier with the bankrupt’s own funds. Mere delays in payment do not normally render the transfer of funds a payment *359on an antecedent debt. The purchases of raw materials by the bankrupt were in essence cash transactions, with a delay occasioned only by furnishing the payment through Heller. 8A C.J.S. [Bankruptcy] § 220(1) at page 100. Engstrom v. Wiley, 191 F.2d 684 (9th Cir. 1951). The court has a duty to consider whether the parties’ intention was to make a cash sale or an extension of credit. Unquestionably during the four-months period the suppliers would not extend credit to Bemporad, nor would they ship until Heller assumed the payment of the invoices. Thus, in equity, there is considerable basis to conclude that there was no antecedent debt; and, further, that no depletion of assets of the bankrupt occurred through the transfers of cash credits for raw materials received.”
It seems to me, however, that this preference action is governed by Section 60 of the Bankruptcy Act and not by general principles of equity.3 The record shows Heller’s payments for supplies out of the Bemporad account during the four-month period were not cash payments but were for supplies previously furnished and for which Heller had either assumed primary liability or had guaranteed payment. Thus the payments were for antecedent debts and had all the elements of a voidable preference under Section 60. In my opinion, the evidence did not show either that Heller had a legal right of setoff or that it was a fully secured creditor. I therefore concur in the result.
PER CURIAM:Walter E. Heller & Company seeks a rehearing upon the determination of this Court in this case of the issues adverse to the contentions Heller & Company advanced. In addition, and as authorized by the appropriate rule of this Court, Heller requests that it be granted a motion for rehearing en banc so that the questions presented can be disposed of by the Court sitting en banc.
Heller’s contention, in its application for a rehearing, that this Court and the District Court were dealing with two distinct transfers is erroneous. We were deciding whether there was a transfer under § 60a of the Bankruptcy Act which resulted in a voidable preference. Heller’s insistence that this Court based its ruling upon a stipulation that the delivery over or assignment of accounts to Heller was in satisfaction of an antecedent debt is likewise erroneous. Bemporad delivered over to Heller some $700,000 in accounts during the four-month period preceding bankruptcy. $287,000 of these accounts was stipulated by Heller to have been applied on antecedent debts. Although Heller prefers to call the fund from which the $287,000 came a “factoring reserve,” it was made up of accounts receivable of Bemporad delivered over to Heller during the four-month period. This delivery over or transfer, or whatever it might be called, when coupled with the application of accounts to antecedent debts, resulted in a transfer under § 60a. Once Heller stipulated that these accounts received within four months were used to pay antecedent debts, the transfer was completed and would and did relate back to the delivery over of the accounts.
At all times in this case Heller relied on affirmative defenses. What it states in its motion to be misconception of the facts would not and did not keep Heller from proving these defenses if they were available.
Heller’s argument, in its rehearing motion in support of its defense of setoff, is likewise without merit. This argument is to the effect that the Court found that the transfer of accounts receivable was a voidable preference and its setoff defense was thus cut off without proper consideration. The true situation is that this Court found that by paying antecedent debts with accounts previously assigned to it, Heller completed a transaction resulting in a voidable pref*360erence and hence was precluded from claiming a right of setoff against the trustee. As appellant trustee stated in an argument, “set off what?” Heller had paid itself. All it had to claim as a set-off under § 68 is this payment which the Court finds to be a voidable preference and which it is, consequently, forbidden to claim by § 68b.
It is, accordingly, ordered that the petition for rehearing be and the same is hereby denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en bane, Rule 25a, subpar. (b), the petition for rehearing en bane is
Denied.
. Part of this agreement provides: “Any amounts owing by you to us for merchandise purchased from any concern factored or financed by us, or for commissions, interest, etc., may, at our option, at any time be considered as advances against your sales accounts and chargeable to you.”
. Palmer Clay Products Co. v. Brown, 1935, 297 U.S. 227, 229, 56 S.Ct. 450, 80 L.Ed. 655; Canright v. General Finance Corp., 7 Cir. 1941, 123 F.2d 98.
. Schoenthan v. Irving Trust Co., 1932, 287 U.S. 92, 53 S.Ct. 50, 77 L.Ed. 185; Corn Exchange National Bank & Trust Co. v. Klauder, 1943, 318 U.S. 434, 437, 63 S.Ct. 679, 87 L.Ed. 884.