It follows from the aforesaid that there is no dispute in our case as to the intention of the parties to pledge the deposits deposited in the accounts of Heftziba Investments and Heftziba Engineering, as collateral in favor of Bank Mizrahi in the framework of the transaction. BTB Mizrahi and an engineering deal (respectively). The arguments of the Special Director and the Receiver therefore focus on the validity of these agreements against Third parties (the creditors of Heftziba Investments and Heftziba Engineering); and according to the claim, in the absence of registration in the Companies Register, the element of their publicity is absent from the liens, and therefore it is a "disguised pledge" that was canceled in the framework of the liquidation proceedings of the guarantor companies.
- The Special Administrator bases his position regarding the nullity of the liens mainly on the judgment given in the ICM case (Civil Appeal 1339/12 Mizrahi-Tefahot Bank in Appeal Taxes v. ECM Air Conditioning Manufacturers inTax Appeal (Dismantled) [Published in Nevo] (27.4.2014); Hereinafter: The ICM Matter); However, as will be detailed below, I have not found that what is stated there leads to the relief sought.
In the matter ICM The judge commented Y. Amit The obligation to register pledges that are intended to ensure various obligations of the customer towards the bank while maintaining a bank account. In this context, it was noted that as part of the agreement for opening an account, it is customary for most banks in Israel to add a "basket item" - which grants the bank rights to lien, lien and offset the customer's funds in all of its accounts in the bank of any kind; The judge adds Associate and states that, as a rule, the client's creditors should be attributed Constructive Knowledge Regarding the existence of such a pledge provision:
"By virtue of this section, any balance in the account and in a monetary deposit managed by the customer at the bank is pledged in favor of the bank in which it is managed for the purpose of securing the customer's debt to the bank. I do not believe that the obligation to register any bank account with the Registrar of Pledges or the Registrar of Companies should be imposed, in order for the bank to have priority over any other creditors of the debtor, including a trustee and liquidator. Even if it is not a clause that creates a pledge in the usual sense of the word, it can be assumed that the creditors of the mortgage have actual knowledge or privileged (constructive) knowledge about it." (emphasis mine) (ibid., para. 33).