These words have good power in our case as well. The pledge of any balance of credit in the account in favor of the bank is, as stated, a customary and accepted thing. Heftziba Shikun and Heftziba Engineering are not exceptions in this regard; Therefore, the presumption of knowledge of the pledge of the financial deposits in favor of the bank should also be applied to the creditors of these companies. This should be clarified: in the case of ICM The court ultimately refrained from applying the same constructive knowledge of the client's creditors regarding the pledge right available to the bank. However, this result stems from the circumstances in which the pledge in favor of the bank was imposed on Shares listed on the stock exchange held by the customer; Then, inter alia, "the share is not registered in the name of the purchaser, but in the name of a listing company that holds the share in trust for the member of the stock exchange who in turn holds the share in trust for the purchaser, and that the shares are usually held in the customer's 'securities account' at the bank" (ibid., paragraph 33). This is not the case in this case. We are dealing with a lien in favor of Mizrahi Bank, which was imposed on Money Deposits deposited in the accounts of Heftziba Investments and Heftziba Engineering - Then the rule on which the judge stood applies Associate, according to which it is accepted and known that the bank has priority in the funds of financial deposits, to the extent that the client's creditors have constructive knowledge of the bank's right to the funds. In this regard, it should be emphasized that as far as these creditors are concerned, there is no question whether the customer's debt to the bank is as a debtor or as a guarantor - The emphasis is on the very existence of a debt to the bank, and in this context there is no significance to its source.
- Moreover, the judgment in the ICM Regarding the validity of an unregistered lien in circumstances in which the debtor company was in liquidation proceedings - At that time, the question arose as to how the alleged lack of publicity affects the rights of the other creditors. In our case, on the other hand, Bank Mizrahi exercised the liens in its favor on the eve of the liquidation proceedings and even before additional creditors entered the picture. Moreover, in the present case, Bank Mizrahi also had an independent right of offset in the deposits, which is not subject to or dependent on the right of pledge - And in this too, our matter differs from the interesting ICM. This is a contractual right that began in the relationship between Mizrahi Bank and Hefziba Investments, and between it and Hefziba Engineering, by virtue of the contractual system between the parties (Shalom Lerner Offset charges 88 (5769-2009); Civil Appeal 6412/16 Municipality of Baqa al-Gharbiya v. Cal Building in Tax Appeal (in a creditors' arrangement), [Published in Nevo] Paragraph 17 (May 12, 2019)); And as is well known, the right of offset also applies to third parties in bankruptcy proceedings, subject to the arrangement established today In Sections 526-525 30Insolvency and Economic Rehabilitation Law, 5778-2018 (and prior to the entry into force of the law, In the section 74 30Bankruptcy Ordinance [New Version], 5740-1980):
"The provision contained in section 74 of the Bankruptcy Ordinance turns the creditor into a kind of secured creditor, since the debt due to him is repaid by way of offset, while the debtor's regular creditors will be forced to make do with the balance of the debt after the offset (see: Shlomo Levin and Asher Grunis Bankruptcy, 241 (2010) (hereinafter: Levin and Grunis)). This means that the right of offset in bankruptcy constitutes an exception to the principle of equality, which is the 'overarching principle' in bankruptcy law. Not only will the ordinary creditors be forced to make do with only the relative portion of the debt, while the holder of the right of offset enjoys the full repayment of the debt, but the other creditors are not at all aware of the existence of this 'collateral', and cannot defend themselves against it in advance (Barak, paragraphs 21-23).(Judge Y. Danziger in Civil Appeal 2512/17 Fnitsev v. Migdal Insurance Company Ltd., [published in Nevo], paragraph 20 (April 10, 2018)).
- From the aforesaid, it follows that the position of the special manager and the receiver regarding the nullity of the letters of guarantee and the offset as they are a "disguised pledge" that was not registered in the Companies Register should be rejected. For the avoidance of doubt, the result I have reached does not detract from the importance of the registration and the fact that it should be done as a rule.
Conclusion
- If my opinion is heard, we will reject the Special Manager's arguments that back-to-back transactions and engineering transactions can be canceled according to Sections 281 and256(c) 30Companies Law; The same applies to the arguments that back-to-back transactions are null and void because they are an invalid contract, and that the BTB Mizrahi and the Engineering transaction are void because they are formulating a disguised pledge that was not registered in the Companies Register. Accordingly, we order the dismissal of the three appeals, and oblige the Special Manager to bear the expenses of Mizrahi Bank and Discount Bank in the amount of ILS 30,000 each (for a total of ILS 60,000).
Judge